As discussed in our LAST POST, CRT co-founder Kimberlé Crenshaw argued in 2011 that “what nourished CRT and facilitated its growth from a collection of institutional and discursive interventions into a sustained intellectual project was a certain dialectical misalignment” (“Twenty Years of Critical Race Theory,” p. 1259). We saw that one central component of this misalignment was the clash between the “integrationist ideology” of the traditionalists within the civil rights establishment (CRE) and the burgeoning young anti-racist legal scholars of the late 1980’s. According to these latter scholars, the ideology of integrationism had facilitated the rapid civil rights retrenchment discussed in Part 2 of this series. White liberals, with the support of many within the Black middle class, had successfully reinterpreted the message of the Civil Rights Movement (CRM), dulling its radical edge and sowing the seeds of its rapid demise. Rather than addressing the subordinated circumstances of Black Americans, the CRE centered their continuing civil rights work on the analytics of prejudice, discrimination, and segregation, thereby eschewing race-consciousness in favor of “neutral standards” and idealized “merit.”
And this ideology has not proven to be the exclusive property of either liberals or conservatives, Democrats or Republicans. According to Gary Peller,
conservatives’ and liberals’ basic comprehension of racial justice has the same underlying structure—to universalize institutional practices in order to efface the distortions of irrational factors like race, to make social life neutral to racial identity. To both liberals and conservatives, racism consists of a form of distortion that could be superseded by an aracial arena of social understanding. (“Race Consciousness,” pp. 772 -773)
Whether one finds himself a free market capitalist or a democratic socialist in American society, he is nonetheless likely to assume that the answer to racial domination is to overcome prejudice through knowledge, overcome discrimination through “neutrality,” and overcome segregation through integration, and most centrally, to never allow “race to count for anything.” And the liberal legal establishment at the time of CRT’s formation was no exception. Again, Peller:
In the 1980s law school context in which CRT emerged, the ideology of liberal integrationism was hegemonic. Mainstream legal discourse about race in constitutional and discrimination law was conducted entirely on integrationist premises. (“History, Identity, and Alienation,” p. 1488)
And, therefore, both mainstream civil rights conservatives and liberals alike saw (and continue to see) our society somewhere on an arc bending inevitably toward racial harmony as we are increasingly civilized and enlightened. As Derrick Bell, mentor to many of CRT’s founders, has noted,
Unquestioned belief in the eventual resolution of the country’s racial conflicts is an accepted article of American faith. In political terms, there is a national assumption that in several more years (the conservatives), or after the enactment of still more civil rights laws (the liberals), remaining obstacles to liberty and justice for all will finally fade away. (“Racial Remediation,” p. 5)
But, as Kimberlé Crenshaw reported in her 1988 law review article, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,”“[c]ommentators on both the Right and the Left … have begun to cast doubt upon the continuing vitality of this shopworn theme” (p. 1334). The civil rights ideologies of both the “New Right”—”developed in the neoconservative ‘think tanks’ during the 1970’s”—and the “New Left”—”presented in the work of scholars associated with the Conference on Critical Legal Studies (‘CLS’)”—alike rejected the “steady and inevitable progress” view of a continuing civil rights movement, with the Right arguing that the work of civil rights had been completed with the reforms of the late 1960’s and the Left arguing that the work of civil rights had been faulty from the start, having been built on the legal canard of “rights” (p. 1337). But, as with the integrationist ideology of the CRE traditionalists, so the civil rights ideologies of both the Left and the Right likewise presented additional points of misalignment for those young legal scholars who would soon form the first conference on Critical Race Theory. In this post, we will focus on the New Right.
The New Right
We have already discussed, in Part 2, the ascendence of the “Reagan Revolution” in American politics as the near full re-emergence of the segregationist discourse—states’ rights, federalism, radically free enterprise, freedom of association, increased privatization, the mythic view of American meritocracy, and opposition to public assistance, all couched in the polemics of anti-communism and civil religion, but repackaged in race-neutral language. According to Crenshaw, “[t]he Reagan Administration arrived in Washington in 1981 with an agenda that was profoundly hostile to the civil rights policies of the previous two decades” (p. 1337). Not only did the Reagan administration block new civil rights legislation, it also rolled back existing legislation and abandoned continued litigation in key civil rights cases inherited from the Carter administration.
Further, Ronald Reagan made his judicial philosophy on civil rights abundantly clear when he nominated Robert Bork to the Supreme Court—the “Originalist” jurist who had famously defended the “right” for HUD to implement racially discriminatory housing development policies, as solicitor general under Gerald Ford. And conservative justice William T. Coleman wrote during Bork’s confirmation battle that “when Congress has legislated to promote black equality Judge Bork has frequently argued that Congress’s efforts are unconstitutional or interfere with whites’ ‘liberty’ to discriminate” (“Why Judge Bork is Unacceptable”). In the end, when Thurgood Marshall, America’s first African American Supreme Court Justice, was asked to “rate some of the Presidents and their impact on racial justice in his lifetime,” he placed Ronald Reagan at the bottom, “down with Hoover and that group. Wilson. When we really didn’t have a chance” (“Marshall Puts Reagan at ‘Bottom’ Among Presidents on Civil Rights”).
The civil rights philosophy of the Reagan Administration and the New Right was clear: the work of civil rights was complete, discrimination was illegal, and formal equality had been created through Brown v Board of Education and the subsequent national Civil Rights Acts of the late 1960s. Thus, the legislature and courts had already done enough, maybe too much. For the government to do any more would cause more harm, it was thought, than would the few remaining vestiges of racism, most of which would soon disappear anyhow. In fact, whatever racial inequality that remained in the 1980s should be understood simply as the natural fall-out of legally equal people-groups acting unequally in an open and equal society. This civil rights philosophy accords with what CLS scholar Alan Freeman called the “Era of Rationalization,” marked by the judicial attempt to “make the problem of racial discrimination go away by announcing it has been solved” (“Legitimizing Racial Discrimination Through Antidiscrimination Law,” pp. 1102-1103; see Part 4 of this series).
In “Race, Reform, and Retrenchment,” Crenshaw zeroes in on the work of Thomas Sowell, who “perhaps best articulates the philosophy underlying the New Right policies on race and law” (p. 1339). According to Crenshaw, Sowell’s chief objection to the continuing civil rights agenda of the CRE (what he called the “civil rights vision”) was that “the civil rights community reduces civil rights to mere special-interest politics”; that is, “civil rights visionaries,” according to Sowell, were interpreting the law politically and seeking to put race-neutral law in service of race-based politics. Further, “[b]ecause the Right views law and politics as essentially distinct, it presumes that demonstrating that the civil rights vision is essentially political renders it illegitimate” (p. 1134 – 1335). Because of this presumed illicit politicization of the law,
Sowell presents the neoconservative struggle against prevailing civil rights policies as nothing less than an attempt to restore law to its rightful place and to prevent the descent of American society into fascism. (p. 1339)
Sowell had argued that “the battle for civil rights was fought and won—at great cost—many years ago” and that the continuation of the civil rights “vision” contradicted the original formal, process oriented goals of the civil rights movement, as ascribed to the New right above. The rule of law, democracy, and the American republic itself were all threatened by the “missionary self-righteousness” of judges who illicitly used the courts to do racial politics, rather than follow the “plain” meaning of the law itself.
When judges reduce the law to a question of who has the power and whose ox is gored, they can hardly disclaim responsibility, or be morally superior, when others respond in kind. We can only hope that the response will not someday undermine our whole concept of law and freedom. Fascism has historically arisen from the utter disillusionment of the people with democratic institutions. (Thomas Sowell, as quoted by Crenshaw, pp. 1340 – 1341)
As Crenshaw goes on to “critique the critique,” I’d argue that she not only successfully addresses the primary politicization claim, but locates two key, unargued, yet very common premises in Sowell’s critique of the “civil rights visionaries”: (1) that civil rights law was meant only to ensure formal equality and (2) “equal treatment does not mean equal results.” These together form the basis of Sowell’s overarching claim, viz., (3) “the civil rights community reduces civil rights to mere special-interest politics.” We will attempt to expand on each in what follows.
(1) Civil rights law was meant only to ensure formal equality
To begin with, Thomas Sowell assumes that there is an obvious meaning and clear intent contained within the very words of civil rights legislation. Further, he assumes that this meaning and intent was to make the law color-blind, racially neutral, removing the formal barriers which had previously mediated civil and social participation based upon color, thereby ensuring a corresponding ideal of “equal opportunity.” Presuming this to be the obvious meaning of the post-Civil War amendments and the late 1960s civil rights acts, Sowell argued that courts which seek instead to remedy past racial abuses, its current and continuing effects, or address the subordinated circumstances and unequal conditions of historically disenfranchised racial groups, are subverting the true intent of civil rights legislation, subverting the proper role of Law in general.
But what Sowell fails to recognize, according to Crenshaw, is the deep indeterminacy of civil rights and antidiscrimination law, as understood by most legal scholars and jurists. Even a leisurely survey of legislative and judicial history should make clear that standard interpretations have included both Justice Harlan’s 1896 formal assertion that, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” as well as color-conscious, historically rooted, and remedial interpretations like the 1883 Supreme Court declaration that Congress was empowered “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”
In fact, when the 13th Amendment was ratified, ending the most obvious forms of slavery, Congress was explicitly granted the power to “enforce this article by appropriate legislation.” In short order, the 1866 Civil Rights law was passed, with the stated intent to remove the marks of slavery and to “protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication,” establishing that “every race and color, without regard to any previous condition of slavery or involuntary servitude” were to enjoy all the same rights “enjoyed by white citizens” and are subject to “none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
Further, the 14th Amendment, the ostensible basis of the Court’s holding in Brown v Board of Education as well as the basis for most subsequent civil rights legislation, includes the following clause (in italics):
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This “Equal Protection Clause” would be interpreted in multiple ways, including what Alan Freeman calls (1) the “means-oriented” interpretation—an entirely valueless, technical, and procedural understanding of the clause, meant only to check legislators from making irrational (e.g., racial) allocations, (2) the “fundamental right” approach, wherein the court finds within the application of the Amendment a guarantee to every individual of some constitutionally implied right, and (3) a “substantive equal protection” understanding, which includes color-consciousness, historical context, and remediation. As an example of the last, the Supreme Court declared in 1873 that the purpose of the 14th Amendment was to secure
the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” (“Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 71 (1873)”).
And according to the Stauder v. West Virginia decision in 1880,
The words of the amendment … contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored,—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. (100 U.S. 303, 307-08)
Jumping forward to the Title VII provisions in the 1964 Civil Rights Act, Congress made clear that the purpose of the act was “to make the victims of unlawful discrimination whole” and,
requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination. (118 cong. rec. 7168)
A principle which, if applied consistently, would demand change not only of the formal subordination of African Americans, but a substantial change in circumstances. The Supreme Court confirmed this substantive intent in Griggs v. Duke Power Co., concluding that “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”
The same is true of the Voting Rights Act of 1965 (and accompanying legal cases) which outlawed poll taxes, literacy tests, and grandfather clauses, all of which effectively disenfranchised African Americans without even mentioning color or race, thus clearly exhibiting the legislators and jurists intentions to substantially re-enfranchise African American voters, not just seek a “neutral,” formal standard. (See also the SCOTUS decisions in Swann v. Charlotte-Mecklenberg Board of Education, Wright v. Council of City of Emporia, and Keys v. School District no. 1.)
Thus, we see a long history of understanding civil rights and antidiscrimination law as race-conscious, centered on the historical context of past racial injustices, with the intention to not only change African Americans’ subordinated legal status, but to redress their subordinated living circumstances—that is, to fix by law what had been broken by law.
But, like Sowell, we’d be going much too far if we presumed this was the only possible interpretation, founded upon a plain commonsense reading of the texts. As discussed in detail throughout Part 4 of this series, we can find abundant judicial interpretations throughout history that also accord with Sowell and the Right’s understanding as well. The point is, Sowell does not make a case for one understanding of civil rights legislation over another, but merely assumes that his is the obvious interpretation. The indeterminacy of the law itself is completely ignored or completely missed. What Sowell, according to Crenshaw, fails to see is that there have always been two broad competing interpretations of civil rights and antidiscrimination law, vying for dominance throughout post-Civil War history.
Here Sowell, apparently without realizing it, merely embraces one aspect of a tension that runs throughout antidiscrimination law—the tension between equality as a process and equality as a result.
This basic conflict has given rise to two distinct rhetorical visions in the body of antidiscrimination law—one of which I have termed the expansive view, the other the restrictive view. The expansive view stresses equality as a result, and looks to real consequences for African-Americans. It interprets the objective of antidiscrimination law as the eradication of the substantive conditions of Black subordination and attempts to enlist the institutional power of the courts to further the national goal of eradicating the effects of racial oppression.
The restrictive vision, which exists side by side with this expansive view, treats equality as a process, downplaying the significance of actual outcomes. The primary objective of antidiscrimination law, according to this vision, is to prevent future wrongdoing rather than to redress present manifestations of past injustice. “Wrongdoing,” moreover, is seen primarily as isolated actions against individuals rather than as a societal policy against an entire group. Nor does the restrictive view contemplate the courts playing a role in redressing harms from America’s racist past, as opposed to merely policing society to eliminate a narrow set of proscribed discriminatory practices. (pp. 1341 – 1342)
For the reader who remembers our discussion in Part 4 of this series, Crenshaw is here stating, in her own words, the ongoing tension between the Perpetrator Perspective and the Victim Perspective, discoverable throughout antidiscrimination law and throughout the history of its interpretation. And rather than resolving this tension through serious legal argument, Sowell and the New Right simply assume the Perpetrator Perspective—or Crenshaw’s “restrictive vision”—as the unargued premise of their civil rights critique.
(2) “Equal treatment does not mean equal results”
Next, Sowell declares—in order to demonstrate the supposed obviousness of his interpretation—that “the right to vote is a civil right. The right to win is not. Equal treatment does not mean equal results.” This seems a commonsense declaration; but is it? Can process be wholly disentangled from outcome?
Crenshaw argues that it cannot. “[N]o measure of a process’s effectiveness can be wholly separated from the purpose for which it was initiated” (p. 1341). Even in the case of voting, if the purpose of protecting the voting rights of African Americans was to ensure their equal participation in the process, their ability to affect the outcome of elections in accordance with their interests, and thus to be adequately represented in American democracy, then, for example, discovering no discernible change in election outcomes after enfranchisement would certainly warrant skepticism of the process. Surely voting has something to do with who is elected, and the right to vote with the right to determine representation. In short, something must explain the delta between equality of process and equality of outcome. And what fills this explanatory void, according to Crenshaw, is one’s own world view—i.e., one’s understanding of race, racism, American history, social and political philosophy, social values, etc.—not some plain, obvious, objective reading of anti-discrimination law. (Take hold, reader, of the following two paragraphs and ponder.)
For example, to believe, as Sowell does, that color-blind policies represent the only legitimate and effective means of ensuring a racially equitable society, one would have to assume not only that there is only one “proper role” for law, but also that such a racially equitable society already exists. In this world, once law had performed its “proper” function of assuring equality of process, differences in outcomes between groups would not reflect past discrimination but rather real differences between groups competing for societal rewards. Unimpeded by irrational prejudices against identifiable groups and unfettered by government-imposed preferences, competition would ensure that any group stratification would reflect only the cumulative effects of employers’ rational decisions to hire the best workers for the least cost. The deprivations and oppression of the past would somehow be expunged from the present. Only in such a society, where all other societal functions operate in a nondiscriminatory way, would equality of process constitute equality of opportunity.
This belief in color-blindness and equal process, however, would make no sense at all in a society in which identifiable groups had actually been treated differently historically and in which the effects of this difference in treatment continued into the present. If employers were thought to have been influenced by factors other than the actual performance of each job applicant, it would be absurd to rely on their decisions as evidence of true market valuations. Arguments that differences in economic status cannot be redressed, or are legitimate because they reflect cultural rather than racial inferiority, would have to be rejected; cultural disadvantages themselves would be seen as the consequence of historical discrimination. One could not look at outcomes as a fair measure of merit since one would recognize that everyone had not been given an equal start. Because it would be apparent that institutions had embraced discriminatory policies in order to produce disparate results, it would be necessary to rely on results to indicate whether these discriminatory policies have been successfully dismantled. (pp. 1344 -1345)
In other words, only in a society which has already achieved full racial equality can we rightly assume that differences in racial outcomes are wholly independent of discriminatory processes, reflecting only the differing choices and behavior (“merit”) of different racial groups. We might likewise say that in our actual society—especially as it was just 20 years on from Jim Crow—continued disparities in racial outcomes must necessarily call into question the supposition of equality of processes which produced them. Thus, “the conflict is not, as Sowell has suggested, between the true meaning of the law and a bastardized version, but between two different interpretations of society” (p. 1345). Accordingly, “Sowell spends a great deal of time defending economic, ‘racially neutral’ reasons for statistical inequities in representation,” thereby justifying his own socio-political (“world view”) explanation for the delta between equal processes and unequal results (p. 1344). The concept of “equal opportunity” simply does not have a neutral, a-historical, valueless, self-interpreted content. Which leads us directly to Sowell and the New Right’s final claim.
(3) “The civil rights community reduces civil rights to mere special-interest politics”
Having shown that Sowell had not sufficiently addressed the well-known indeterminacy of civil rights and antidiscrimination law, had taken for granted the Perpetrator Perspective (or “restrictive vision”) of antidiscrimination law as an unargued premise, and had imposed his own socio-political world view onto the legal relationship between equal process, equal opportunity, and equal outcomes, it will require little further effort to see that he has also failed to demonstrate his primary claim, as identified by Crenshaw. Not only has he not demonstrated that “civil rights visionaries” have perverted the true meaning and intent of the law through illicit politicization, but he has shown that his own interpretation of the law is just as politicized. Crenshaw thus concludes,
though they attempt to lay claim to an apolitical perch from which to accuse civil rights visionaries of subverting the law to politics, the neoconservatives as well rely on their own political interpretations to give meaning to their respective concepts of rights and oppression. The crucial point that Sowell overlooks is that law itself does not dictate which of various visions will be adopted as an interpretive base. The choice between various visions and the values that lie within them is not guided by any determinate organizing principle. Consequently, Sowell has no basis from which to argue that color-conscious, result-oriented remedies are political perversions of the law, but that his preference, color-blind, process-oriented remedies are not. (p. 1346)
The Danger of “Equal Opportunity” Language Exposed by the New Right
Though the New Right represented a departure from the liberal integrationism of CRE traditionalists, it likewise pointed up the weakness of a continuing civil rights campaign premised on the language and conceptual apparatus of “equal opportunity.” Given the indeterminacy of civil rights and antidiscrimination law discussed above, much of the retrenchment presented by the “Reagan Revolution” and the New Right can be understood as already present within this “ambivalent rhetoric of equal opportunity law.”
Should the law be interpreted as merely requiring color-blind processes, assuring that race “count for nothing,” and requiring the prosecution of individual acts of individual bad actors as they may appear? Or should the law be interpreted as requiring remedy for centuries of racial injustice, to remove the social “marks” of current and historic subordination? Were antidiscrimination laws, civil rights legislation, and court orders (like Brown II) intended to merely address the formally subordinated legal status of African Americans, or to redress their actual subordinated circumstances? And is “racial discrimination” itself to be understood as living under objectively discriminatory conditions due to centuries of disenfranchisement, or only as specific “actions, or series of actions, inflicted on the victim by [an identifiable] perpetrator” explicitly intending to cause racial harm (“Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1053)? Should “equal opportunity” mean only the removal of formal barriers, or should it also include the substantive changes necessary to make equal opportunities tangibly available—i.e., changes necessary to make it more than just words? Again, in Kimberlé Crenshaw’s words,
Because antidiscrimination law contains both the expansive and the restrictive view, equality of opportunity can refer to either. This uncertainty means that the societal adoption of racial equality rhetoric does not itself entail a commitment to end racial inequality. (p. 1346).
In fact, inasmuch as “equal opportunity” is interpreted as mere formal equality of process implemented through legal color-blindness and race-neutrality, then, notes Crenshaw, “the very terms used to proclaim victory contain within them the seeds of defeat.” On such terms, it becomes increasingly difficult for “Black people to name their reality.” Illustrative of this point, she writes,
Company X can be an equal opportunity employer even though Company X has no Blacks or any other minorities in its employ. Practically speaking, all companies can now be equal opportunity employers by proclamation alone. Society has embraced the rhetoric of equal opportunity without fulfilling its promise; creating a break with the past has formed the basis for the neoconservative claim that present inequities cannot be the result of discriminatory practices because this society no longer discriminates against Blacks. (p. 1347)
And the more temporal distance we find between this national declaration that “we no longer discriminate” and the current color-blind ethic that considers recognition of society-wide racial disparities to itself be racist (“making race count”), the more difficult it is for African Americans to suggest there is still a deeply enduring problem, despite the many important formal advances.
In sum, though the New Right rejected the ongoing integrationist efforts of the civil rights establishment in the late 1980s—as had those legal scholars who would soon develop a critical theory of race—the neo-conservative movement nevertheless represented a potent misalignment in its own right. The movement further exposed the indeterminacy of antidiscrimination law and “equal opportunity” language, exploiting the historic tension between the Victim Perspective (“expansive vision”) and the Perpetrator Perspective (“restrictive vision”) in order to condemn any and all substantive interpretations as a “bastardization” of the “true law.” Thus, this further misalignment presents even more imperatives for the creation of a more critical, i.e., radical, theory of race.
The civil rights community … must come to terms with the fact that antidiscrimination discourse is fundamentally ambiguous and can accommodate conservative as well as liberal views of race and equality. This dilemma suggests that the civil rights constituency cannot afford to view antidiscrimination doctrine as a permanent pronouncement of society’s commitment to ending racial subordination. Rather, antidiscrimination law represents an ongoing ideological struggle in which the occasional winners harness the moral, coercive, consensual power of law. Nonetheless, the victories it offers can be ephemeral and the risks of engagement substantial. (p. 1335)
- Has your understanding of civil rights and antidiscrimination law accorded more closely with the Perpetrator Perspective (“restrictive vision”) or the Victim Perspective (“expansive vision”)?
- In what ways do you think your own race or ethnicity has influenced your answer to question #1? In what ways has your economic history influenced your answer?
- Why, in your opinion, has American evangelical Christianity tracked so closely with the New Right? What is the draw to a Bible believing Christian? What might be points of consistency? Of distinction?
- Given your answer to #4, do you think association with the New Right has affected the American Church’s ability to achieve racial reconciliation, or to pursue racial justice? How and why?
- Do you think that, e.g., Bell, Freeman, Peller, or Crenshaw’s critiques of existing approaches to race and racism presented thus far contradict a Christian “worldview”? Do they contradict specific Christian doctrines? Is there, thus far, reason to presume fundamental incompatibility?
- Now that we are six posts into this series, are you beginning to see why, even if terribly incorrect, theorists began to coalesce around a more “critical” theory of race?
- Last, throughout this series, different and competing characters, ideas, and movements have been at play; where do you locate yourself in the narrative? With whom do you thus far identify? With whom have you identified in the past? Which character, ideology, of movement would you like to identify with?
Further Reading for Part 6
“Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” by Kimberle Crenshaw
“History, Identity, and Alienation,” by Gary Peller