As we read in our LAST POST,

CRT emerged not only as a critical intervention in a particular institutional contestation over race but also as a race intervention in a critical space, namely CLS. (“Twenty Years of Critical Race Theory: Looking Back to Move Forward,” 1287 – 1288)

We’ve discussed how Critical Race Theory was a “race intervention in a critical space”; we now turn to how CRT was a “critical intervention in a particular institutional contestation over race,” specifically the academy (p. 1288). “The eruption that served as a point of departure in CRT’s trajectory,” according to Kimberlé Crenshaw, “was the institutional struggle over race, pedagogy, and affirmative action at America’s elite law schools” (p. 1264).

In “Liberal McCarthyism and the Origins of Critical Race Theory,” Richard Delgado discusses three major sites of institutional contestation within legal academia which together served to bring a critical theory of race to the fore. In the early 1980s, the “Boalt Hall Coalition for a Diverse Faculty” was formed at U.C. Berkeley to protest the “slow pace in hiring faculty of color, gays, and women.” The student group staged rallies and campus protests and “invited professors of color … to give talks about the need for diversity and to deliver papers that they hoped would persuade the school’s professors to hire more minorities.” Some of these professors of color would become central to the CRT movement and the protests would spread from Berkeley to educational institutions throughout the country.

Second, Delgado points to a Critical Legal Studies conference held in Los Angeles in 1987. “On learning that the event’s theme would be race, a small group of law professors of color requested an opportunity to address the gathering” (p. 513). Jose Bracamonte, Kimberlé Crenshaw, Patricia Williams, Harlon Dalton, Mari Mutasada, and Delgado himself attended, gave presentations, and wrote papers, some of which would be published in Harvard Civil Rights-Civil Liberties Law Review and would become an early core of the CRT canon.

But, prior to both of these, the most prominent story discussed by Delgado is the so-called “Harvard Story.” Many CRT scholars, Dr. Crenshaw in particular, point to the student protests at Harvard Law beginning in 1981 as that which materially set the stage for the first Workshop on Critical Race Theory—a workshop that would be spearheaded by Kimberlé Crenshaw, Neil Gotanda, and Stephanie Phillips and held in Madison, WI on July 8, 1989. Titled “New Developments in CRT,” the Workshop would become the first of several annual meetings centered around “Critical Race Theory”—a phrase, in fact, first coined for this occasion.

The Harvard Story: Professor Derrick Bell

In 1980, frustrated by the slow—or non-existent—pace of faculty integration, Dr. Derrick Bell, then Harvard Law’s (HLS) only Black tenured professor, resigned to become Dean of the University of Oregon’s Law School. As discussed in Part 3 of this series, Dr. Bell’s work at Harvard had signaled a return to the more “radical” elements of the abolitionist and civil rights tradition of, e.g., Marcus Garvey, W.E.B. Du Bois, Oliver C. Cox, Malcom X, Stokely Carmichael, and the unsanitized Dr. King (see Part 1), including a renewed emphasis on race-consciousness, racial power dynamics, economic explanations for racial domination, and an emphasis on substantive over symbolic equality. Dr. Bell’s central text, Race, Racism and American Law, as well as his semester long course, “Constitutional Law and Minority Interests,” went beyond what had become the traditional legal school scholarship at Harvard.

Traditional scholarship on race was at this point firmly grounded in the liberal individual rights model. The objective was to get these second-class citizens some rights, but the efforts to secure these rights had to be reconciled with other important interests, such as federalism, the free market economy, institutional stability, vested expectations, and the like. Anticipating a conservative counter-critique, early scholarship around race sought to legitimize a certain amount of judicial “activism” in the face of concerns about judicial overreaching, social engineering, political agenda setting, and recommitting the interventionist errors of Lochner. (Kimberlé Crenshaw, “The First Decade: Critical Reflections, or A Foot in the Closing Door,” p. 1347)

That is, traditional legal race scholarship at this point was fully intrenched in the “liberal integrationist” standpoint discussed in Part 5 of this series. According to Gary 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)

Accordingly, as Crenshaw points out above, civil rights and racial remediation scholarship was almost entirely occupied with how to interrupt the status quo on behalf of disenfranchised Americans without thereby interrupting the rest of the liberal program—i.e., individual freedom, freedom of association, free markets, vested interests, property rights, etc. In contrast,

Bell’s approach diverged from this conventional orientation in at least two important ways. First, for Bell, the question was not how to justify judicial interventions on behalf of the interests of racial equality against independent, preexisting interests. These interests themselves often functioned as repositories of racial subordination. Nor, in his view, should success in achieving constitutional protection be measured solely in terms of individual rights. The point was to understand how law contributed to the systemic disempowerment of African Americans more broadly. Moreover, Bell understood that the measure of civil rights law is its concrete effectiveness in helping to contest the actual conditions of racial domination. (“The First Decade,” p. 1347)

Therefore, Dr. Bell sought to interrogate law itself as a “repository of racism,” though considered a solution to racism, and called for reforms that would target the subordinated circumstances of African Americans rather than just their subordinated legal status. This message not only appealed to many of the students of color already at HLS, it attracted new students, like Kimberlé Crenshaw herself, to learn from the famed Black professor and Civil Rights veteran. What Bell distinctively offered these young students of color was both an explanation and a revised plan of action answering to the rapid Civil Rights retrenchment visible throughout American law and politics in the 1980’s (for context, please see Part 2 of this series).

The Student Protests

Following Bell’s departure, however, “[t]he School suffered a 100% reduction in its tenured minority faculty” (p. 1265) and his semester long course, “had simply been dropped from the curriculum” (“Twenty Years of Critical Race Theory,” p. 1264). Students organized and confronted the Dean of the School at the time, Dr. James Vorenberg, demanding greater minority representation among the Law School’s faculty and the continuation of Bell’s course. “[N]early five hundred students signed a petition urging HLS to reinstate ‘Constitutional Law and Minority Issues’ and to hire tenure track professors to teach this and other courses addressing minority issues” (“The First Decade,” p. 1348). The Dean responded in a meeting with student representatives by questioning both the need for minority faculty and the need for Bell’s specific course:

He began his curricular inquiry with ‘what is “so special” about a course on “Constitutional Law and Minority Issues” that could not be learned through the basic course in constitutional law in combination with perhaps a placement in legal services. On the question of recruitment, the Dean parried with a reference to a white civil rights attorney and queried, “[W]ouldn’t you prefer an excellent white professor over a mediocre Black one?” (“Twenty Years of Critical Race Theory,” p. 1267)

He further argued that the “pool” of “qualified” minority professors was just too small to fill the void at HLS. He, in fact, hired ten more White professors that very year, ignoring a list of thirty Black professors suggested by the Black Law Student Association. The response from the students was no Ivy League letter writing campaign.

[A]ll hell broke loose at Harvard Law School. Within the next two years, Harvard would become the scene of acrimony unlike any time since the student takeovers during he Vietnam War. The long, carpeted halls with conspicuous “Quiet” signs would be taken over by chanting students, the sacred faculty library would be invaded by a sea of “Desegregate Now!” t-shirts, and even the Dean’s inner sanctum would suffer the indignities of students standing on his desk. (pp. 1267 – 1268)

In response, the Dean organized a “three week mini-course” to be taught by two accomplished White civil rights lawyers covering traditional civil rights litigation and remediation. This was taken as a final insult by the students of color at HLS. First, it was only three weeks long rather than the full semester that was Bell’s course. Second, it was a fundamentally different approach to “minority issues” than that provided by Bell’s course;

while we knew remediation was important, we wanted to ground our studies in a thorough understanding of how law constituted the problem of race in the first place. At this time, we were encountering heavy silence about race throughout the curriculum, even though we knew that it lay just beneath the surface of many of our courses. (“The First Decade,” p. 1349)

Last, the students had hoped that reinstating Bell’s course, or something like it, might be an opportunity to recruit minority professors to the school to fill the diversity void.

The truth of the matter was that the course they sought quite simply was not part of the core mission of the law school and there was no sense of urgency to staff it. (“Twenty Years of Critical Race Theory,” p. 1267)

Through all of this, what became clear to these students was that, though the school had successfully diversified its student body, it had failed to bring about similar changes in its own power structure, decision making, and educational commitments. The disproportionate dearth of Black professors and coursework on race and law suggested that Harvard may have had a commitment to diversification of customers, but had little commitment to diversification of faculty, leadership, or content—arguably the most important measures of an institution’s civil rights commitments. It was apparent that those invested with institutional power considered it perfectly natural and just to have entirely unequal representation within the halls of leadership, so long as the “standards” were considered race-neutral, color-blind, and accorded with the traditional liberal conception of “merit.”

The dominant discourse on race and merit at the time was completely consistent with the notion that the standards for entry into law teaching were indeed colorblind, and that the so-called pool problem was simply the unfortunate consequence of meritocratic and fully defensible academic standards. (p. 1268)

In fact, an institution serving a diverse set of educational “customers” could, it was apparently assumed, justly retain an entirely White faculty and still claim to have honored the goals of the Civil Rights Movement just twenty-five years prior. If the pool was too small, this reasoning inexorably implied, it was a problem falling entirely in the lap of minorities themselves; bootstrapping and time were the appropriate remedies. The Dean, and even many traditional Civil Rights lawyers, appeared to fully endorse a system whose terms of entry were considered fair, effective, and objective measures of “merit,” despite yielding entirely racially disproportionate outcomes.

Notwithstanding its robust policies to advance student diversity, the school drew a line in the sand when it came to faculty, maintaining a firm commitment to “merit.”

The student activists, on the other hand, while not rejecting the concept of academic standards and qualifications per se, rejected the Dean’s liberal appeal to a neutral, color-blind conception of “merit.” “Merit” itself was understood to be a site of justifiable racial critique, given that candidate preference was predicated on entrenched, historically created, and complex social networks which are themselves legitimate sites of racial critique.

[K]ey to the students’ argument was that the discourse around merit was not simply a ruse or somehow false, but that it was the functional embodiment of particular values and practices that reflected the limited scope of what the law school perceived its mission to be. In this sense, the standards were neither objective nor universal. Instead, they were tied to performance within an institution that had been either agnostic toward or supportive of Jim Crow.

A different institutional history would have generated different projects that would in turn have invited alternative conceptions of merit. (p. 1286)

Further,

as the students saw things, there was nothing magical or intrinsically compelling about the typical standards offered to justify the virtual absence of faculty of color. A degree from an elite law school, membership on a law review and a Supreme Court clerkship were not the exclusive criteria for identifying candidates who were likely to make substantial contributions both to the educational mission of the school and to the broader goals of advancing legal knowledge. Instead, the traditional criteria were increasingly viewed as an informal and unjustified preference for the social cohort to whom these opportunities were overwhelmingly distributed: white and male candidates.  (p. 1269)

It was entirely unsurprising that candidates of color would not readily emerge from a pool they had largely been prohibited from entering. (p. 1272)

The only way to maintain these claims of objectivity and race neutrality was to assume that racism, or even racialized differential access, was an occasional event, was only perpetrated by ill-willed individuals, was an irrational aberration from the race-neutral social norm, and, finally, that people of color who had not met Harvard’s “standards” had only themselves to blame, unless specific discriminatory events could be cited and proven causal. In short, the students were asked to just assume that the playing field was already neutral, that every player began with zero points, and that cheaters would be addressed if caught explicitly breaking the rules. The hierarchical creation of race in America, its holistic effects on law, common ideas, common consciousness, and even the exemplar of universal fairness—merit—were either ignored or treated as unimportant to the calculus. Dr. Crenshaw explains at length:

[U]nderlying the School’s inability to think beyond the pool problem was a failure to bring [its student diversification] commitments inside the institution’s everyday practices and norms, a failure to re-evaluate the givens and non-negotiables with an eye toward rethinking those dimensions of law school practice that were forged in, consistent with, and facilitated by formalized inequality.

It was at least remotely possible to imagine that aspects of legal education that had easily co-existed with and even normalized racial subordination might be reviewed with a skeptical eye whether or not the institution itself formally practiced segregation. The wholesale failure to consider the interests of underserved communities, the failure to interrogate the gaping contradictions between the formal commitment to the rule of law and the realities of racial dictatorship through much of the nation’s history, the failure to reward innovative legal theories or to explore the reformist potential of legal advocacy—all these features of the pre-civil rights elite legal education might have been viewed from a position of skepticism given their collaborative role in normalizing broad scale societal stratification. That “excellence” and “merit” could be attached to legal thinking that consistently failed to take up some of the most complex legal problems in society was troubling enough during segregation’s tenure, but to effortlessly reproduce these values in a postsegregation world seemed to undermine rather than enhance the claims of social progress.

Re-evaluating the role of legal education in such a light would have revealed the existence of several possible professors who were skilled at producing and teaching aspects of legal practice that were new to the curriculum. Yet in refusing the expectations of a new population of students, the School effectively held itself as the arbiter of what was important in legal training and what was not, whose legal problems would be served by Harvard Law School and which interests would not.

Obviously, a different conception of what interests and constituencies the Law School would serve would have created a different “pool” of people qualified to teach there. The School, however, was stubbornly attached to its traditional view of merit and its particular mission. Its insistence on viewing the crisis through the prism of the pool was a repudiation of the students’ larger demands that it rethink its foundational assumptions about how to prepare a new generation of students for the careers that they were planning to pursue. (pp. 1273 – 1274)

The Alternative Course

Predictably, the students boycotted the Dean’s mini-course. The students—the “Third World Coalition” of “students-of-color organizations” in particular—organized an “Alternative Course” instead. Derrick Bell’s Race, Racism and American Law would serve as the organizing text for the course and scholars from law schools around the nation were invited to teach a chapter.

We saw our efforts not only as an attempt to create for ourselves the educational experience the school had denied us, but also as an opportunity to provide a showcase of intellectual talent that effectively would counter the dean’s claim that the pool of qualified scholars of color was prohibitively shallow. Among the scholars who answered our call were several who would become central figures in CRT: Chuck Lawrence, Richard Delgado, Linda Greene, Denise Carty-Bennia, and Neil Gotanda. Other participants in the course who were similarly engaged in a critical project were W. Haywood Burns, Robert Coulter, John Brittain, Ralph Smith, and Harold MacDougall. There were students, too, who would later contribute to the development of a new intellectual moment, including Mari Matsuda and myself. (Crenshaw, “The First Decade,” pp. 1350 – 1351)

The course was a success, with over two hundred students enrolling, and would lay the foundations for constructing a critical theory of race.

The Alternative Course served as an important precursor to CRT, having brought legal scholars and students together from across the country to address race from a self-consciously critical perspective. The Alternative Course and the institutional struggle that created it produced a critical mass of people of color who were intellectually and politically connected to one another and to a particular transformative moment. (p. 1351)

Further,

The themes and ideas that emerged from this collective engagement between students and young professors would eventually cohere as a set of texts that would become part of the Critical Race Theory canon. The Alternative Course also lit a fuse that would explode into a national debate, exposing the hidden fault lines that had long existed within the civil rights constituency. While many in the CRE [Civil Rights Establishment] saw the students’ protest as an embodiment of black power politics that they sought to discredit, the students saw meritocracy as the new lunch counters in the struggle over law, knowledge, and power. (Crenshaw, “Race Liberalism and the Deradicalization of Racial Reform,” pp. 2312 – 2313)

The students would soon complete their programs at HLS and scatter throughout the nation; but, according to Crenshaw, “the momentum continued.” These young scholars met up throughout the following years at summer camps and CLS conferences, including the “Sounds of Silence” conference on race mentioned above by Delgado. It was in this period that their “race intervention in a critical space, namely CLS” made waves, pointing up the defining misalignment between the two movements as discussed throughout our last post.

Looking back at the “Sounds of Silence” conference crystallizes for me that this 1987 gathering was a watershed moment for CRT. Within the space of a few years, we had progressed from a loose group of colored folk at the margins of CLS to an experienced group of insurgents who occupied center stage at a national CLS conference. (“The First Decade,” p. 1359)

The First Annual Critical Race Theory Workshop

Finally, in 1988, while a visiting fellow at the University of Wisconsin, Kimberlé Crenshaw began to brainstorm with Stephanie Phillips a workshop to “convene the usual suspects in a manner that went beyond hotel room caucusing” (p. 1359).

The purpose of this workshop was to gather together our motley crew of marginal types—people of color who were attracted to and frustrated by CLS—to a several-day summer camp. (pp. 1359 – 1360)

It was originally to be called “New Developments in Race and Legal Theory,” but by the end of 1989 it became the first annual “Critical Race Theory Workshop,” titled “New Developments in CRT.” Crenshaw describes how she came up with the now oft maligned phrase:

I began to scribble down words associated with our objectives, identities, and perspectives, drawing arrows and boxes around them to capture various aspects of who “we” were and what we were doing. The list included: progressive/critical, CLS, race, civil rights, racism, law, jurisprudence, theory, doctrine, and so on. Mixing them up and throwing them together in various combinations, one proposed combination came together in a way that seemed to capture the possibility we were aiming to create. Sometime toward the end of the interminable winter of 1989, we settled on what seemed to be the most telling marker for this peculiar subject. We would signify the specific political and intellectual location of the project through “critical,” the substantive focus through “race,” and the desire to develop a coherent account of race and law through the term “theory.” (pp. 1360 – 1361)

Part of the purpose of this workshop was to try to determine what exactly a “Critical Race Theory” would be. The letter announcing the Workshop, sent out on April 19, 1989, included a “provisional definition of CRT” which is quite interesting when telling the story of the movement’s development:

[C]ritical race scholarship generally challenges the legitimacy of dominant approaches to race and racism by positing values and norms that have traditionally been subordinated in the law. Critical race theorists thus seek to validate minority experiences as an appropriate grounding for thinking about law and racial subordination …. Many approach antidiscrimination law as ideological discourse which does not so much remedy racial subordination as provide continuing rationalizations for it. Traditional notions of civil rights are simply conceptual starting points to explore the limitations of civil rights reforms and the possibilities of developing a more deeply grounded transformative practice. Others are interested in examining implicit racial assumptions that exist beneath the surface of dominant discourse and in revealing how language conveys meanings beyond its ordinary legal sense. Included also in critical race scholarship are critiques of the political sociology of our profession and its embedded racial implications… . (p. 1362 fn. 20)

Of course, these defining characteristics would be altered and refined as time went on and discussion continued and deepened, though

[s]ome common themes did emerge, and we honed them further in the next workshop. Yet we remained fundamentally eclectic in many respects. We eventually achieved some degree of intellectual coherence down the road, but the notion of CRT as a fully unified school of thought remains a fantasy of our critics. (p. 1362)

The common themes that emerged, according to Dr. Crenshaw, were CRT scholars’ “[c]ritiques of neutrality, objectivity, colorblindness, meritocracy, and formal equality,” all issues directly brought to light through the Harvard Story itself (p. 1363).

Specifically, the Dean’s decision and the narrowed parameters in which the ensuing controversy was framed helped to sharpen awareness of how conceptions such as colorblind merit operated to obscure the continuing patterns of racial power in presumptively race neutral institutions (“Twenty Years of Critical Race Theory,” p. 1277)

And, to conclude this story, the 1989 Workshop would also prove a success, garnering the participation of soon to be CRT “heavies” like “Anita Allen, Taunya Banks, Derrick Bell, Kevin Brown, Paulette Caldwell, John Calmore, Kimberlé Crenshaw, Harlon Dalton, Richard Delgado, Neil Gotanda, Linda Greene, Trina Grillo, Isabelle Gunning, Angela Harris, Mari Matsuda, Teresa Miller, Philip T. Nash, Elizabeth Patterson, Stephanie Phillips, Benita Ramsey, Robert Suggs, Kendall Thomas, and Patricia Williams” (p. 1263, fn. 24).

What is Critical Race Theory?

So, what ultimately is this “Critical Race Theory”? Answering this question, as we have hopefully just witnessed above, is fraught with difficulty. Some might even argue that there simply is no good answer, a “fantasy of critics.” I’m a bit more optimistic, so long as we heed Dr. Crenshaw’s corrective:

CRT is not so much an intellectual unit filled with natural stuff—theories, themes, practices, and the like—but one that is dynamically constituted by a series of contestations and convergences pertaining to the ways that racial power is understood and articulated in the post-civil rights era. In the same way that Kendall Thomas reasoned that race was better thought of as a verb rather than a noun, I want to suggest that shifting the frame of CRT toward a dynamic rather than static reference would be a productive means by which we can link CRT’s past to the contemporary moment. (p. 1261)

Thus, tightly defining and policing the boundaries of what should be considered proper “CRT scholarship” tends to prescribe in advance the internal critical dynamic that is itself, supposedly, a feature of the theory, threatening to calcify CRT into a particular historical contestation with diminishing applicability to ever new contexts. This approach is, in important ways, directly contrary to the intentions of CRT scholars, going all the way back to the Alternative Course. It has also proven, at times, to create unnecessary conflict with ideological kin, such as LatCrit and AsianCrit Theory. But I, nevertheless, tend to agree with Devon Carbado, that

[a]t the same time, in any given moment, there should be a set of (even provisional) ideas and frames that are available for mobilization and that are themselves re-constituted in the process. (“Critical What What,” p. 1607)

And I think Dr. Crenshaw agrees as well, as she, along with Mari Matsuda, Charles Lawrence III, and Richard Delgado, has offered her own answer to “What is critical race theory?,” even calling the list they produced “defining elements” (see chapter 1, “What is Critical Race Theory,” in Words the Wound). Likewise, Richard Delgado and Jean Stefancic answer the same question in both Critical Race Theory: The Cutting Edge and Critical Race Theory: An Introduction, calling their lists “prime critical themes” and “basic tenets” respectively (see pages 4 – 6 in the former and chapter 1.F, “Basic Tenets of Critical Race Theory” in the latter). Last, in one of my favorite treatments, “Critical What What,” CRT scholar Devon Carbado answers, “What are (or should be) some of CRT’s core ideas?” (see pages 1607 – 1615). If we were to take Crenshaw, Matsuda, Lawrence, and Delgado’s “defining elements” found in Words That Wound as normative—given their central role in the development of CRT—and sprinkle in the answers of Stefancic and Carbado, I think we get a pretty broadly accepted set of CRT commonplaces, namely:

CRT is Discontent with Liberalism and the Standard Racial Progress Narrative

Virtually all critical race theory is marked by a deep discontent with liberalism, a system of civil rights litigation and activism characterized by incrementalism, a faith in the legal system, and hope for progress, among other things. (Delgado & Stefancic, Cutting Edge)

CRT rejects the standard racial progress narrative that characterizes mainstream civil rights discourse—namely, that the history of race relations in the United States is a history of linear uplift and improvement. (Carbado, “Critical What What”)

Racism is Endemic to American Life

Critical race theory recognizes that racism is endemic to American life. Thus, the question for us is not so much whether or how racial discrimination can be eliminated while maintaining the integrity of other interests implicated in the status quo such as federalism, privacy, traditional values, or established property interests. Instead we ask how these traditional interests and values serve as vessels of racial subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

It is, to put it the way Daria Roithmayr might, “locked-in.” This locked-in feature of racism is linked to our very system of democracy. Which is to say, historically, racism has been constitutive of, rather than oppositional to, American democracy. This does not mean that racism is an expression of American democracy. That would be putting the point too strongly. It is more accurate to say that racism was built into the constitutional architecture of American democracy. As Rachel Moran and I explain elsewhere, “[t]he drafters of the Constitution took a sober second look at the rhetoric of radical egalitarianism in the Declaration of Independence, and they blinked. The adoption of the Constitution in 1787 and its ratification one year later depended on a compromise, one that integrated slavery into the very fabric of American democracy.” The lingering effects of this foundational moment—or the ongoing relationship between racial inequality and American democracy is precisely what Gunnar Myrdal referred to as an “American dilemma.” (Carbado, “Critical What What”)

Interest Convergence

“[I]nterest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class whites (psychically), large segments of society have little incentive to eradicate it. Consider, for example, Derrick Bell’s shocking proposal … that Brown v. Board of Education—considered a great triumph of civil rights litigation—may have resulted more from the self-interest of elite whites than from a desire to help blacks. (Delgado & Stephancic, Introduction)

The broader point is that one of CRT’s key claims is that racial reform and racial retrenchment are defining aspects of American law and politics. (Carbado, “Critical What What”)

Race is Socially Constructed

CRT also weighs-in directly on the very idea of race, rejecting the conception of race as a biological fixed social category and arguing instead that race is socially constructed. (Carbado, “Critical What What”)

[T]he “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are categories that society invents, manipulates, or retires when convenient. People with common origins share certain physical traits, of course, such as skin color, physique, and hair texture. But these constitute only an extremely small portion of their genetic endowment, are dwarfed by what we have in common, and have little or nothing to do with distinctly human, higher-order traits, such as personality, intelligence, and moral behavior. That society frequently chooses to ignore these scientific truths, creates races, and endows them with pseudo-permanent characteristics is of great interest to critical race theory. (Delgado & Stephancic, Introduction)

CRT is Skeptical of Claims to Neutrality, Objectivity, Color-Blindness, and Meritocracy

Critical race theory expresses skepticism toward dominant legal claims of neutrality, objectivity, color blindness, and meritocracy. These claims are central to an ideology of equal opportunity that presents race as an immutable characteristic devoid of social meaning and tells an ahistorical, abstracted story of racial inequality as a series of randomly occurring, intentional, and individualized acts. (Matsuda, Lawrence III, Delgado, & Crenshaw, Words That Wound)

One way the theory does so is by challenging two dominant principles upon which American anti-discrimination law and politics rest—to wit, that colorblindness necessarily produces race neutrality and that color consciousness necessarily produces racial preferences. (Carbado, “Critical What What”)

CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race … . (Carbado, “Critical What What”)

Racism is a Structural Phenomenon and Explains Current Maldistributions

Critical race theory challenges ahistoricism and insists on a contextual/historical analysis of the law. Current inequalities and social/institutional practices are linked to earlier periods in which the intent and cultural meaning of such practices were clear. More important, as critical race theorists we adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines, including differences in income, imprisonment, health, housing, education, political representation, and military service. Our history calls for this presumption. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

CRT repudiates the view that status quo arrangements are the natural result of individual agency and merit. We all inherit advantages and disadvantages, including the historically accumulated social effects of race. This racial accumulation—which is economic (shaping both our income and wealth), cultural (shaping the social capital upon which we can draw), and ideological (shaping our perceived racial worth)—structure our life chances. (Carbado, “Critical What What”)

Each of these efforts is part of a broader CRT project to articulate racism as a structural phenomenon, rather than as a problem that derives from the failure on the part of individuals and institutions to treat people formally the same. (Carbado, “Critical What What”)

Unique Voice of Color Thesis

Critical race theory insists on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society. This knowledge is gained from critical reflection on the lived experience of racism and from critical reflection upon active political practice toward the elimination of racism. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

Minority status, in other words, brings with it a presumed competence to speak about race and racism. The “legal storytelling” movement urges black and brown writers to recount their experiences with racism and the legal system and to apply their own unique perspectives to assess law’s master narratives. (Delgado & Stephancic, Introduction)

CRT Aspires to be Interdisciplinary and Eclectic

Critical race theory is interdisciplinary and eclectic. It borrows from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism. This eclecticism allows critical race theory to examine and incorporate those aspects of a methodology or theory that effectively enable our voice and advance the cause of racial justice even as we maintain a critical posture. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

Differential Racialization

Another, somewhat more recent, development concerns differential racialization and its consequences. Critical writers in law, as well as in social science, have drawn attention to the ways the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market. (Delgado & Stephancic, Introduction)

Critical Race Theorists pursue this project across racial groups, and in the context of doing so try to avoid what Angela Harris might refer to as the pitfalls of essentialism.” While some would say CRT scholars are anti-essentialist, it would be more accurate to say that we aspire to be antiessentialist. The distinction is important. Because to invoke any social category is already to essentialize, the question is not whether we engage in essentialism but rather the normative work we deploy that essentialism to perform. (Carbado, “Critical What What”)

Intersectionality

No person has a single, easily stated, unitary identity. … Everyone has potentially conflicting, overlapping identities, loyalties, and allegiances. (Delgado & Stephancic, Introduction)

Critical race theory works toward the end of eliminating racial oppression as part of the broader goal of ending all forms of oppression. Racial oppression is experienced by many in tandem with oppression on grounds of gender, class, or sexual orientation. Critical race theory measures progress by a yardstick that looks to fundamental social transformation. The interests of all people of color necessarily require not just adjustments within the established hierarchies, but a challenge to hierarchy itself. This recognition of intersecting forms of subordination requires multiple consciousness and political practices that address the varied ways in which people experience subordination. (Matsuda, Lawrence, Delgado, & Crenshaw, Words That Wound)

The theory is thus committed to what Crenshaw has called “intersectionality”—and, more specifically, to an intersectional engagement of structural hierarchies. (Carbado, “Critical What What”)

CRT is Both Theory and Praxis

Even our most celebrated constitutional frameworks, such as “equal protection” and “due process,” can function as repositories of racial power. CRT reflects “a desire not merely to understand . . . [these and other] vexed bond[s] between law and racial power but to change … [them].” The theory is both pragmatic and idealistic. It grapples with the immediacies of now without losing sight of the transformative possibilities of tomorrow. (Carbado, “Critical What What”)

In our next several posts, we will discuss each of these commonplaces in turn, including both explication and Biblical evaluation.

Further Reading

 

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Bradly Mason

Bradly Mason

Bradly Mason is a husband, father of four, member of a historically Reformed church, and a cabinet maker by trade. Brad blogs occasionally at AlsoACarpenter.com and can also be followed on Twitter, @AlsoACarpenter.

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