Critical race theory

Critical race theory (CRT)[1] is a theoretical framework in the social sciences

focused upon the application of critical theory, a critical examination of society and
culture, to the intersection of race, law, and power.[2][3]
It began as a theoretical movement within US law schools in the mid- to late 1980s as
a reaction to critical legal studies[4][verification needed] and is loosely unified by two common
themes. First, CRT proposes that white supremacy and racial power are maintained
over time, and in particular, that the law may play a role in this process. Second, CRT
work has investigated the possibility of transforming the relationship between law and
racial power, and more broadly, pursues a project of achieving racial emancipation
and anti-subordination.[5] Scholars such as Derrick Bell applauded the focus of civil
rights scholarship on race, but were deeply critical of civil rights scholars'
commitment to color blindness and their focus on intentional discrimination, rather
than a broader focus on the conditions of racial inequality.[6][page needed] Likewise,
scholars like Patricia Williams, Kimberl Williams Crenshaw, and Mari Matsuda
embraced the focus on the reproduction of hierarchy in critical legal studies, but
criticized critical legal scholars for failing to focus on racial domination and on the
particular sources of racial oppression.[7]
By 2002, over 20 US law schools and at least 3 law schools in other countries offered
critical race theory courses or classes which covered the issue centrally. [8] Critical race
theory is taught and innovated in the fields of education, political science, women's
studies, ethnic studies, and American studies.[9]

Definition
CRT recognizes that racism is engrained in the fabric and system of the American
society. The individual racist need not exist to note that institutional racism is
pervasive in the dominant culture. This is the analytical lens that CRT uses in
examining existing power structures. CRT identifies that these power structures are
based on white privilege and white supremacy, which perpetuates the marginalization
of people of color.[10]
Legal scholar Roy L. Brooks has defined CRT as "a collection of critical stances
against the existing legal order from a race-based point of view", and says
it focuses on the various ways in which the received tradition in law adversely affects
people of color not as individuals but as a group. Thus, CRT attempts to analyze law
and legal traditions through the history, contemporary experiences, and racial
sensibilities of racial minorities in this country. The question always lurking in the
background of CRT is this: What would the legal landscape look like today if people
of color were the decision-makers?[11]
Key elements
Critical race theory draws on the priorities and perspectives of both critical legal
studies and conventional civil rights scholarship, while sharply contesting both of

these fields. Angela P. Harris describes CRT as sharing "a commitment to a vision of
liberation from racism through right reason" with the civil rights tradition. [12] It
deconstructs some premises and arguments of legal theory and simultaneously holds
that legally constructed rights are incredibly important.[13][page needed] In Angela P. Harris'
view, as described by Derrick Bell, critical race theory is committed to "radical
critique of the law (which is normatively deconstructionist) and ... radical
emancipation by the law (which is normatively reconstructionist)."[14]
CRT's theoretical elements are provided by a variety of sources.
Richard Delgado and Jean Stefancic have documented the following major themes as
characteristic of work in critical race theory:

A critique of liberalism: CRT scholars favor a more aggressive approach to

social transformation as opposed to liberalism's more cautious approach, favor
a race-conscious approach to transformation rather than liberalism's embrace
of color blindness, and favor an approach that relies more on political
organizing, in contrast to liberalism's reliance on rights-based remedies.[15]

Storytelling/counterstorytelling and "naming one's own reality"using

narrative to illuminate and explore experiences of racial oppression.[15]

Revisionist interpretations of American civil rights law and progress

criticizing civil rights scholarship and anti-discrimination law. An example is
Brown v. Board of Education. Derrick Bell, one of CRT's founders, argued
that civil rights advances for blacks coincided with the self-interest of white
elitists. Mary Dudziak performed extensive archival research in the US
Department of State and US Department of Justice, as well as the
correspondence by US ambassadors abroad. She found that passing of the laws
in the US was not because people of color were discriminated against, rather it
was to improve the image of the US to Third World countries that the US
needed as allies during the Cold War.[16]

Applying insights from social science writing on race and racism to legal
problems.[15]

The intersections theory is the examination of race, sex, class, national origin,
and sexual orientation, and how their combination plays out in various
settings, e.g., how the needs of a Latina female are different from those of a
black male and whose needs are the ones promoted.[17]

Essentialism philosophyreducing the experience of a category (gender or

race) to the experience of one sub-group (white women or AfricanAmericans). Basically, all oppressed people share the commonality of
oppression. However, that oppression varies by gender, class, race, etc., so the
aims and strategies will differ for each of these groups.[18]

Non-white cultural nationalism/separatism, Black nationalismexploring

more radical views arguing for separation and reparations as a form of foreign
aid.[15]

Legal institutions, critical pedagogy, and minority lawyers in the bar.[15]

The concept of structural determinism, or how "the structure of legal thought

or culture influences its content," is a mode of thought or widely shared
practice which determines significant social outcomes. Usually this occurs
without conscious knowledge and because of this, our system cannot redress
certain kinds of wrongs.[19]

White privilege refers to the myriad of social advantages, benefits, and

courtesies that come with being a member of the dominant race, such as a
clerk not following you around in a store or not having people cross the street
at night to avoid you.[20]

Microaggression refers to the sudden, stunning, or dispiriting transactions that

mar the days of oppressed individuals. These include small acts of racism
consciously or unconsciously perpetrated and act like water dripping on a rock
wearing away at it slowly. Microaggressions are based on the assumptions
about racial matters that are absorbed from cultural heritage.[21]

Empathic fallacy is the belief that one can change a narrative by offering an
alternative narrative in hopes that the listener's empathy will quickly and
reliably take over. Empathy is not enough to change racism as most people are
not exposed to many people different from themselves and people mostly seek
out information about their own culture and group.[22]

Cheryl I. Harris and Gloria Ladson-Billings add the theoretical element of whiteness
as property. They describe whiteness as the ultimate property which whites alone can
possess. It is valuable and is property. The 'property functions of whiteness'rights to
disposition, rights to use and enjoyment, reputation and status property, and the
absolute right to excludemake the American dream a more likely and attainable
reality for whites as citizens. For a CRT critic, the white skin color that some
Americans possess is like owning a piece of property. It grants privileges to the owner
that a renter (or a person of color) would not be afforded.[23]
Karen Pyke documents the theoretical element of internalized racism or internalized
racial oppression. The victims of racism begin to believe the ideology that they are
inferior and white people and white culture are superior. The internalizing of racism is
not due to any weakness, ignorance, inferiority, psychological defect, gullibility, or
other shortcomings of the oppressed. Instead, it is how authority and power in all
aspects of society contributes to feelings of inequality.[24]
Camara Phyllis Jones defines institutionalized racism as the structures, policies,
practices, and norms resulting in differential access to the goods, services, and
opportunities of society by race. Institutionalized racism is normative, sometimes
legalized and often manifests as inherited disadvantage. It is structural, having been
absorbed into our institutions of custom, practice and law, so there need not be an
identifiable offender. Indeed, institutionalized racism is often evident as inaction in
the face of need. Institutionalized racism manifests itself both in material conditions
and in access to power. With regard to material conditions, examples include

differential access to quality education, sound housing, gainful employment,

appropriate medical facilities and a clean environment.[25]
As a movement that draws heavily from critical theory, critical race theory shares
many intellectual commitments with critical legal studies, critical theory, feminist
jurisprudence and postcolonial theory. Though some authors like Tommy J. Curry
have pointed out that such epistemic convergences with critical legal studies, critical
theory, etc. are emphasized because of the idealist turn in critical race theory which is
interested in discourse (how we speak about race) and the theories of white
Continental philosophers, over and against the structural and institutional accounts of
white supremacy which were at the heart of the realist analysis of racism introduced
in Derrick Bell's early works[26][page needed] articulated through Black thinkers like W. E.
B. Du Bois, Paul Robeson, and Judge Robert L. Carter.[27][page needed]
Recent developments in critical race theory include work relying on updated social
psychology research on unconscious bias to justify affirmative action and work
relying on law and economics methodology to examine structural inequality and
discrimination in the workplace.[28]
Latino critical race theory
The framework of Latino critical race theory (LatCRT) suggests that the social
construction of race is central to how people of color are constrained in society.[29]
Tara J. Yosso discusses constraint of people of color can be defined in Critical Race
Counterstories along the Chicana/Chicano Educational Pipeline.[30] These tenets are
what make LatCrt different because it looks at the differences between Chicano/a
students. These tenets are: The intercentricity of race and racism; the challenge of
dominant Ideology; the commitment to social justice; the centrality of experience
knowledge; and the interdisciplinary perspective.[31]
Race scholars developed the LatCRT as a critical response to the "problem of the
color line" first explained by W. E. B. Du Bois. [29] CRT focused on the BlackWhite
paradigm, but LatCRT has moved to consider other racial groups, mainly
Chicana/Chicanos. These groups include Latinos/as, Asians, LGBTQ, Native
Americans/First Nations, and women of color.
LatCRTs main focus is to advocate for social justice for people who live in
marginalized communities,[29] specifically Chicana/Chicano individuals. These
marginalized communities are guided by structural arrangements that disadvantage
people of color. Social institutions function as dispossessions, disenfranchisement,
and discrimination over minority groups, but the LatCRT seeks to give voice to those
who are victimized.[29] In order to give voice to those that are disenfranchised, LatCRT
has created two common themes.
First, CRT proposes that white supremacy and racial power are maintained over time
and that the law plays a central role in this process. Different racial groups lack the
voice to speak in this civil society. For this reason, the CRT has introduced a new
critical form of expressions, called the "voice of color". [29] The "voice of color" is
narratives and storytelling monologues used as devices for conveying personal racial
experiences. The "voices of color" are also used to counter metanarratives that

continue to maintain racial inequality. Thus, the experiences of the oppressed are
important aspects for developing a LatCRT analytical approach. Not since the rise of
slavery have we seen an institution that so fundamentally shapes the life opportunities
of those who bear the label of criminal.
Second, LatCRT work has investigated the possibility of transforming the relationship
between law enforcement and racial power, and more broadly, pursues a project of
achieving racial emancipation and anti-subordination.[2] The CRT finds the
experiential knowledge of people of color and draws explicitly from these lived
experiences as data.[30] The CRT presents research findings through storytelling,
chronicles, scenarios, narratives, and parables.[30]
Applications
Scholars in critical race theory have focused with some particularity on the issues of
hate crime and hate speech. In response to the US Supreme Court's opinion in the hate
speech case of R. A. V. v. City of St. Paul (1992), in which the Court struck down an
anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda
and Charles Lawrence argued that the Court had paid insufficient attention to the
history of racist speech and the actual injury produced by such speech.[32]
Critical race theorists have also paid particular attention to the issue of affirmative
action. Many scholars have argued in favor of affirmative action on the argument that
so-called merit standards for hiring and educational admissions are not race-neutral
for a variety of reasons, and that such standards are part of the rhetoric of neutrality
through which whites justify their disproportionate share of resources and social
benefits.[33]
Critique
Some legal scholars have criticized CRT on a number of grounds, such as CRT
scholars' reliance on narrative and storytelling, or CRT's critique of objectivity. Judge
Richard Posner of the United States Seventh Circuit Court of Appeals has "label[ed]
critical race theorists and postmodernists the 'lunatic core' of 'radical legal
egalitarianism.'"[34] He writes,
What is most arresting about critical race theory is that...it turns its back on the
Western tradition of rational inquiry, forswearing analysis for narrative. Rather than
marshal logical arguments and empirical data, critical race theorists tell stories
fictional, science-fictional, quasi-fictional, autobiographical, anecdotaldesigned to
expose the pervasive and debilitating racism of America today. By repudiating
reasoned argumentation, the storytellers reinforce stereotypes about the intellectual
capacities of nonwhites.[34]
Judge Alex Kozinski of the Ninth Circuit Court of Appeals writes that critical race
theorists have constructed a philosophy which makes a valid exchange of ideas
between the various disciplines unattainable.
The radical multiculturalists' views raise insuperable barriers to mutual understanding.
Consider the "Space Traders" story. How does one have a meaningful dialogue with
Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end

after either accepting or rejecting his assertion that white Americans would cheerfully
sell all blacks to the aliens. The story is also a poke in the eye of American Jews,
particularly those who risked life and limb by actively participating in the civil rights
protests of the 1960s. Bell clearly implies that this was done out of tawdry selfinterest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish
hypocrisy the little girl who perished in the Holocaustas close to a saint as Jews
have. A Jewish professor who invoked the name of Rosa Parks so derisively would be
bitterly condemnedand rightly so.[35]
Daniel Farber and Suzanna Sherry have argued that critical race theory, along with
critical feminism and critical legal studies, has antisemitic and anti-Asian
implications, has worked to undermine notions of democratic community and has
impeded dialogue.[36]
Henry Louis Gates Jr. has written a critical evaluation of CRT.[37] Gates emphasizes
how campus speech codes and anti-hate speech laws have been applied to anti-white
speech, contrary to the intentions of CRT theorists: "During the year in which
Michigan's speech code was enforced, more than twenty blacks were chargedby
whiteswith racist speech. As Trossen notes, not a single instance of white racist
speech was punished."
Jeffrey J. Pyle wrote in the Boston College Law Review:
Critical race theorists attack the very foundations of the [classical] liberal legal order,
including equality theory, legal reasoning, Enlightenment rationalism and neutral
principles of constitutional law. These liberal values, they allege, have no enduring
basis in principle, but are mere social constructs calculated to legitimate white
supremacy. The rule of law, according to critical race theorists, is a false promise of
principled government, and they have lost patience with false promises.[38]
In an article published in Slate, Will Oremus wrote that CRT is radical "in the sense
that it questions fundamental assumptions.... And unlike some strands of academic
and legal thought, critical race theory has an open and activist agenda, with an
emphasis on storytelling and personal experience. It's about righting wrongs, not just
questing after knowledge" and that CRT is not "radical today in the sense of being
outside the mainstream: Critical race theory is widely taught and studied."[39]
Peter Wood considers CRT a "grievance ideology" and an "absurdity". He sees the
central tenet of "white racism in the American legal system" to be shown false
because of items such as the 14th Amendment, the Voting Rights Acts and Brown v.
Board of Education.[40]
Offshoot fields
Within critical race theory, various sub-groupings have emerged to focus on issues
that fall outside the black-white paradigm of race relations as well as issues that relate
to the intersection of race with issues of gender, sexuality, class and other social
structures. See for example, critical race feminism (CRF), Latino critical race studies
(LatCrit)[41] Asian American critical race studies (AsianCrit), South Asian American
critical race studies (DesiCrit),[42] and American Indian critical race studies

(sometimes called TribalCrit). CRT methodology and analytical framework have also
been applied to the study of white immigrant groups.[43]
Critical race theory has also begun to spawn research that looks at understandings of
race outside the United States.[44][45]
Controversies and impact
Critical race theory has stirred controversy since the 1980s over such issues as its
deviation from the ideal of color blindness, promotion of the use of narrative in legal
studies, advocacy of "legal instrumentalism" as opposed to ideal-driven uses of the
law, analysis of the Constitution and existing law as constructed according to and
perpetuating racial power, and encouraging legal scholars to be partial on the side of
ending racial subordination.[46]
Conservative opponents of political appointees including Lani Guinier[47] have
included a general critique of critical race theory in their criticism of these figures'
actions on racial issues.
Critics including George Will saw resonances between critical race theory's use of
storytelling and insistence that race poses challenges to objective judgments in the US
and the acquittal of O. J. Simpson.[46][48]
In 2012, Matt de la Pea's young adult novel Mexican WhiteBoy, about a boy who
wants to grow up to become a baseball player, was banned from being taught in
class[49] and the Mexican-American studies program in Tucson, Arizona, was
disbanded in part because of their connection to CRT, which was seen to be in
violation of a recently passed state law that "prohibits schools from offering courses
that 'advocate ethnic solidarity instead of the treatment of pupils as individuals'."[50]