Critical race theory (CRT) is a body of legal scholarship and an academic movement of civil-rights scholars and activists in the United States that seeks to critically examine U.S. law as it intersects with issues of race in the U.S. and to challenge mainstream American liberal approaches to racial justice. CRT examines social, cultural, and legal issues primarily as they relate to race and racism in the United States.
CRT originated in the mid 1970s in the writings of several American legal scholars, including Derrick Bell, Alan Freeman, Kimberlé Crenshaw, Richard Delgado, Cheryl Harris, Charles R. Lawrence III, Mari Matsuda, and Patricia J. Williams. It emerged as a movement by the 1980s, reworking theories of critical legal studies (CLS) with more focus on race. CRT is grounded in critical theory and draws from thinkers such as Antonio Gramsci, Sojourner Truth, Frederick Douglass, and W. E. B. DuBois, as well as the Black Power, Chicano, and radical feminist movements from the 1960s and 1970s.
While critical race theorists do not all share the same beliefs, the basic tenets of CRT include that racism and disparate racial outcomes are the result of complex, changing and often subtle social and institutional dynamics rather than explicit and intentional prejudices on the part of individuals. CRT scholars also view race and white supremacy as an intersectional social construction which serves to uphold the interests of intersections of whiteness at the expense of marginalized communities. In the field of legal studies, CRT emphasizes that merely making laws colorblind on paper may not be enough to make the application of the laws colorblind; ostensibly colorblind laws can be applied in racially discriminatory ways. A key CRT concept is intersectionality, which emphasizes that race can intersect with other identities (such as gender and class) to produce complex combinations of power and disadvantage.
Academic critics of CRT argue that it relies on social constructionism, elevates storytelling over evidence and reason, rejects the concepts of truth and merit, and opposes liberalism. Since 2020, conservative lawmakers in the United States have sought to ban or restrict critical race theory instruction along with other anti-racism programs. Critics of these efforts say the lawmakers have poorly defined or misrepresented the tenets and importance of CRT and that the goal of the laws is to silence broader discussions of racism, equality, social justice, and the history of race.
Definitions
Roy L. Brooks defined critical race theory in 1994 as "a collection of critical stances against the existing legal order from a race-based point of view". Richard Delgado, a co-founder of the theory, defined it in 2017 as "a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power".
History
Early analyses that later consolidated into critical race theory developed in the 1970s as legal scholars, activists, and lawyers tried to understand why civil-rights-era victories had stalled and were being eroded.
In the early 1980s, students of color at Harvard Law School organized protests regarding Harvard's lack of racial diversity in the curriculum, among students, and in the faculty. These students supported Professor Derrick Bell, who left Harvard Law in 1980 and then became the dean at University of Oregon School of Law. During his time at Harvard, Bell had developed new courses that studied American law through a racial lens. Harvard students of color wanted faculty of color to teach the new courses in his absence. Bell resigned his position at Harvard because of what he viewed as the university's discriminatory practices.
The university rejected student requests, responding that no sufficiently qualified black instructor existed. Legal scholar Randall Kennedy writes that some students felt affronted by Harvard's choice to employ an "archetypal white liberal... in a way that precludes the development of black leadership". In response, numerous students, including Kimberlé Crenshaw and Mari Matsuda, boycotted and organized to develop an "Alternative Course" using Bell's Race, Racism, and American Law (1973, 1st edition) as a core text. They included guest speakers Richard Delgado and Neil Gotanda.
First meetings
The first formal meeting centered on critical race theory was the 1989 "New Developments in Critical Race Theory" workshop, an effort to connect the theoretical underpinnings of critical legal studies (CLS) to the day-to-day realities of American racial politics. The workshop was organized by Kimberlé Crenshaw for a retreat entitled "New Developments in Critical Race Theory" that effectively created the field. As Crenshaw states, only she, Matsuda, Gotanda, Chuck Lawrence, and a handful of others knew "that there were no new developments in critical race theory, because CRT hadn't had any old ones—it didn't exist, it was made up as a name. Sometimes you gotta fake it until you make it". Crenshaw states that critical race theorists had "discovered ourselves to be critical theorists who did race and racial justice advocates who did critical theory". Crenshaw writes, "one might say that CRT was the offspring of a post-civil rights institutional activism that was generated and informed by an oppositionalist orientation toward racial power".
One manner in which CRT diverged from CLS post-1987 was CRT's stress on the importance of race. Though CLS criticized the legal system's role in generating and legitimizing oppressive social structures, it did not tend to provide alternatives. CRT scholars such as Derrick Bell and Alan Freeman argue that failure to include race and racism in its analysis prevented CLS from suggesting new directions for social transformation.
The 1989 critical race theory workshop at the University of Wisconsin-Madison, attended by 24 scholars of color, marked a turning point for the field. Following this meeting, scholars began publishing a higher volume of works employing critical race theory, including some that became popular among general audiences. In 1991, Patricia Williams published The Alchemy of Race and Rights, while Derrick Bell published Faces at the Bottom of the Well in 1992. Both became national best sellers.
Spread
In 1995, Gloria Ladson-Billings and William F. Tate began applying the critical race theory framework in the field of education, moving it beyond the field of legal scholarship. They sought to better understand inequities in the context of schooling. Scholars have since expanded work in this context to explore issues including segregation, relations between race, gender, and academic achievement, pedagogy, and research methodologies.
As of 2002, over 20 American law schools and at least three non-American law schools offered critical race theory courses or classes which covered the issue centrally. In addition to law, critical race theory is taught and applied in the fields of education, political science, women's studies, ethnic studies, communication, sociology, and American studies. A variety of spin-off movements developed that apply critical race theory to specific groups. These include the Latino-critical (LatCrit), queer-critical, and Asian-critical movements. These other groups continued to engage with the main body of critical theory research, over time developing independent priorities and research methods. More recently, CRT has been taught internationally, including in the United Kingdom and Australia.
List of scholars
Principal figures of the theory include Derrick Bell, Patricia J. Williams, Kimberlé Williams Crenshaw, Camara Phyllis Jones, Angela P. Harris, Charles Lawrence, Alan Freeman, Neil Gotanda, Mitu Gulati, Jerry Kang, Eric Yamamoto, Robert Williams, Ian Haney López, Kevin Johnson, Laura E. Gómez, Margaret Montoya, Juan Perea, Francisco Valdes, Dean Carbado, Cheryl Harris, Angela Onwuachi-Willig, Tom Ross, Stephanie Wildman, Nancy Levit, Robert Harman, Jean Stefancic, André Cummings and Mari Matsuda.
Views
Internet news writer Will Oremus argues the theory's most visible advocates are activist and nonviolent; while radical, the theory is considered less so within academia. In 2012, Oremus wrote:
The theory [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 ... Many of their ideas are not radical today in the sense of being outside the mainstream: Critical race theory is widely taught and studied.
Developments in the early 2000s in critical race theory included work relying on updated social psychological research on unconscious bias in order to justify affirmative action; and work relying on law and economic methodology to examine structural inequality and discrimination in the workplace.
Common themes
Common themes that are characteristic of work in critical race theory, as documented by such scholars as Richard Delgado and Jean Stefancic, include:
- Critique of liberalism: Critical race theory scholars question foundational liberal concepts such as Enlightenment rationalism, legal equality, and Constitutional neutrality, and challenge the incrementalist approach of traditional civil-rights discourse. They favor a race-conscious approach to social transformation, critiquing liberal ideas such as affirmative action, color blindness, role modeling, or the merit principle with an approach that relies more on political organizing, in contrast to liberalism's reliance on rights-based remedies.
- Storytelling, counter-storytelling, and "naming one's own reality": The use of narrative (storytelling) to illuminate and explore lived experiences of racial oppression. Bryan Brayboy has emphasized the epistemic importance of storytelling in Indigenous-American communities as superseding that of theory, and has proposed a Tribal Critical Race Theory (TribCrit).
- Revisionist interpretations of American civil rights law and progress: Criticism of civil-rights scholarship and anti-discrimination law, such as Brown v. Board of Education. Derrick Bell, one of CRT's founders, argues that civil-rights advances for black people coincided with the self-interest of white elitists. Likewise, Mary L. Dudziak performed extensive archival research in the U.S. Department of State and Department of Justice and concluded that U.S. government support for civil-rights legislation "was motivated in part by the concern that racial discrimination harmed the United States' foreign relations".
- Intersectional theory: The examination of race, sex, class, national origin, and sexual orientation, and how their combination (i.e., their intersections) 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.
- Standpoint epistemology: The view that a member of a minority has an authority and ability to speak about racism that members of other racial groups do not have, and that this can expose the racial neutrality of law as false.
- Essentialism vs. anti-essentialism: Delgado and Stefancic write, "Scholars who write about these issues are concerned with the appropriate unit for analysis: Is the black community one, or many, communities? Do middle- and working-class African-Americans have different interests and needs? Do all oppressed peoples have something in common?" This is a look at the ways that oppressed groups may share in their oppression but also have different needs and values that need to be looked at differently. It is a question of how groups can be essentialized or are unable to be essentialized.
- Structural determinism: Exploration of how "the structure of legal thought or culture influences its content", whereby a particular mode of thought or widely shared practice determines significant social outcomes, usually occurring without conscious knowledge. As such, theorists posit that our system cannot redress certain kinds of wrongs.
- Empathetic fallacy: Believing 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.
- Non-white cultural nationalism/separatism: The exploration of more radical views that argue for separation and reparations as a form of foreign aid (including black nationalism).
Internalization
Karen Pyke documents the theoretical element of internalized racism or internalized racial oppression, whereby victims of racism begin to believe in the ideology that they are inferior to whites and white culture, who 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 contribute to feelings of inequality.
Institutional racism
Camara Phyllis Jones defines institutionalized racism as
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, manifesting itself both in material conditions and in access to power. With regard to the former, examples include differential access to quality education, sound housing, gainful employment, appropriate medical facilities, and a clean environment.
Influence of critical legal studies
As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with critical theory, critical legal studies, feminist jurisprudence, and postcolonial theory. However, authors such as Tommy J. Curry have pointed out that the epistemic convergences with such approaches are emphasized due to the idealist turn in critical race theory. The latter, as Curry explains, is interested in discourse (i.e., how individuals 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, and articulated through such Black thinkers as W. E. B. Du Bois, Paul Robeson, and Judge Robert L. Carter.
Critical race theory draws on the priorities and perspectives of both critical legal studies and conventional civil rights scholarship, while also sharply contesting both of these fields. Critical race theory's theoretical elements are provided by a variety of sources. Angela P. Harris describes critical race theory as sharing "a commitment to a vision of liberation from racism through right reason" with the civil rights tradition. It deconstructs some premises and arguments of legal theory and simultaneously holds that legally constructed rights are incredibly important. As described by Derrick Bell, critical race theory in Harris' view is committed to "radical critique of the law (which is normatively deconstructionist) and... radical emancipation by the law (which is normatively reconstructionist)".
Applications
Scholars of critical race theory have focused, with some particularity, on the issues of hate crime and hate speech. In response to the opinion of the U.S. Supreme Court 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.
Critical race theorists have also paid particular attention to the issue of affirmative action, whereby scholars have argued in favor of such 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.
Criticism
Academic
Law professors Daniel A. Farber and Suzanna Sherry argue that critical race theory lacks supporting evidence, relies on an implausible belief that reality is socially constructed, rejects evidence in favor of storytelling, rejects truth and merit as expressions of political dominance, and rejects the rule of law. Farber and Sherry additionally posit that the anti-meritocratic tenets in critical race theory, critical feminism, and critical legal studies may unintentionally lead to antisemitic and anti-Asian implications. In particular, they suggest that the success of Jews and Asians within what critical race theorists argue is a structurally unfair system may lend itself to allegations of cheating, advantage-taking, or other such claims. A series of responses to Farber and Sherry on this matter was published in the Harvard Law Review. These responses argue that there is a difference between criticizing an unfair system and criticizing individuals who perform well inside that system.
In a 1999 Boston College Law Review article titled Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism, First Amendment lawyer Jeffrey J. Pyle argued that critical race theory undermined confidence in the rule of law, writing that "critical race theorists attack the very foundations of the liberal legal order, including equality theory, legal reasoning, Enlightenment rationalism and neutral principles of constitutional law".
Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals argued in 1997 that critical race theory "turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative", and that "by repudiating reasoned argumentation, [critical race theorists] reinforce stereotypes about the intellectual capacities of nonwhites." Former Judge Alex Kozinski, who served on the Ninth Circuit Court of Appeals, criticized critical race theorists in 1997 for raising "insuperable barriers to mutual understanding" and thus eliminating opportunities for "meaningful dialogue".
Political controversies
Critical race theory has stirred controversy in the United States since the 1980s for its critique of color blindness, promoting the use of narrative in legal studies, advocating for the use of "legal instrumentalism" as opposed to ideal-driven uses of the law, analyzing the U.S. Constitution and existing law as constructed according to and perpetuating racial power, and encouraging legal scholars to promote racial equity. An example of an instrumentalist approach is attorney Johnnie Cochran's defense in the O. J. Simpson murder case, in which Cochran urged the jury to acquit Simpson in spite of the evidence against him, in a form of jury nullification as payback for the United States' racist past. In the run-up to and aftermath of the 2020 US presidential election, opposition to critical race theory was adopted as a campaign theme by Donald Trump and various conservative commentators on Fox News and right-wing talk radio shows.
1990s
Lani Guinier, Bill Clinton's nominee for Assistant Attorney General, was attacked by Republicans in part for her association with CRT, in an attempt to block her nomination. These attacks ultimately proved successful, since Clinton quickly withdrew her nomination on June 4, 1993, on the basis of disagreements with her legal philosophy.
2010s
In 2010, a Mexican-American studies program in Tucson, Arizona was halted due to a state law forbidding public schools from offering race-conscious education in the form of "advocat[ing] ethnic solidarity instead of the treatment of pupils as individuals". Certain books, including a primer on CRT, were banned from the curriculum. Matt de la Peña's young-adult novel Mexican WhiteBoy was banned for containing critical race theory. The ban on ethnic-studies programs was later deemed unconstitutional on the grounds that the state showed discriminatory intent: "Both enactment and enforcement were motivated by racial animus", federal Judge A. Wallace Tashima ruled.
2020s
Australia
In June 2021, following media reports that the proposed national curriculum was "preoccupied with the oppression, discrimination and struggles of Indigenous Australians", the Australian Senate approved a motion tabled by right-wing senator Pauline Hanson calling on the federal government to reject CRT, despite it not being included in the curriculum.
United Kingdom
In October 2020, the Conservative UK Equalities Minister Kemi Badenoch stated that, in regard to teaching critical race theory in primary and secondary schools, "we do not want to see teachers teaching their pupils about white privilege and inherited racial guilt ... any school which teaches these elements of critical race theory, or which promotes partisan political views such as defunding the police without offering a balanced treatment of opposing views, is breaking the law." 101 writers of the Black Writers' Guild signed an open letter denouncing Badenoch for remarks about popular anti-racism books such as White Fragility and Why I'm No Longer Talking to White People About Race, made in an interview in The Spectator, in which she said, "many of these books—and, in fact, some of the authors and proponents of critical race theory—actually want a segregated society".
United States
Conservative lawmakers and activists have used the term "critical race theory" as "a catchall phrase for nearly any examination of systemic racism", according to The Washington Post. In September 2020, after seeing a piece on Fox News in which conservative activist Christopher Rufo denounced CRT, President Donald Trump issued an executive order directing agencies of the United States federal government to cancel funding for programs that mention "white privilege" or "critical race theory", on the basis that it constituted "divisive, un-American propaganda" and that it was "racist". Rufo's use of the term propelled the controversy into the mainstream; he wrote on Twitter, "The goal is to have the public read something crazy in the newspaper and immediately think 'critical race theory'."
In a speech on September 17, 2020, Trump denounced critical race theory and announced the formation of the 1776 Commission to promote "patriotic education". On January 20, 2021, President Joe Biden rescinded Trump's order and dissolved the 1776 Commission. Opposition to critical race theory was subsequently adopted as a major theme by several conservative think tanks and pressure groups, including the Heritage Foundation, the Idaho Freedom Foundation and the American Legislative Exchange Council. A search of the Nexis database for critical race theory showed that the term appeared in U.S. newspapers 1,361 times between January 2000 and January 1, 2021, but increased to 6,000 appearances between that date and the beginning of July 2021.
In early 2021, bills were introduced in a number of Republican-controlled state legislatures to restrict teaching critical race theory in public schools, including Idaho, Iowa, Oklahoma, Tennessee and Texas. Several of these bills specifically mention "critical race theory" or single out the New York Times' 1619 Project. In mid-April 2021, a bill was introduced in the Idaho legislature that would effectively ban any educational entity (including school districts, public charter schools, and public institutions of higher education) in the state from teaching or advocating "sectarianism", including critical race theory or other programs involving social justice. On May 4, 2021, the bill was signed into law by Governor Brad Little. On June 10, 2021, the Florida State Board of Education unanimously voted to ban public schools from teaching critical race theory at the urging of governor Ron DeSantis. As of July 2021, 10 U.S. states have introduced bills or taken other steps that would restrict teaching critical race theory, and 26 others were in the process of doing so.
Subfields
Within critical race theory, various sub-groupings have emerged that focus on issues and nuances that are unique to a particular ethno-racial and/or marginalized community. This can include issues that relate to the intersection of race with disability, ethnicity, gender, sexuality, class, religion and other social structures. For example, disability critical race studies (DisCrit), critical race feminism (CRF), Hebrew Crit (HebCrit), Black Critical Race Theory (Black Crit), Latino critical race studies (LatCrit), Asian American critical race studies (AsianCrit), South Asian American critical race studies (DesiCrit), and American Indian critical race studies (sometimes called TribalCrit). CRT methodologies have also been applied to the study of white immigrant groups. CRT has spurred some scholars to call for a second wave of whiteness studies, which is now a small offshoot known as Second Wave Whiteness (SWW). Critical race theory has also begun to spawn research that looks at understandings of race outside the United States.
Disability critical race theory
Another offshoot field is disability critical race studies (DisCrit), which combines disability studies and CRT to focus on the intersection of disability and race.
Latino critical race theory
Latino critical race theory (LatCRT or LatCrit) is a research framework that outlines the social construction of race as central to how people of color are constrained and oppressed in society. Race scholars developed LatCRT as a critical response to the "problem of the color line" first explained by W. E. B. Du Bois. While CRT focuses on the Black–White paradigm, LatCRT has moved to consider other racial groups, mainly Chicana/Chicanos, as well as Latinos/as, Asians, Native Americans/First Nations, and women of color.
In Critical Race Counterstories along the Chicana/Chicano Educational Pipeline, Tara J. Yosso discusses how the constraint of POC can be defined. Looking at the differences between Chicana/o students, the tenets that separate such individuals 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.
LatCRTs main focus is to advocate social justice for those living in marginalized communities (specifically Chicana/os), who are guided by structural arrangements that disadvantage people of color. Social institutions function as dispossessions, disenfranchisement, and discrimination over minority groups, while LatCRT seeks to give voice to those who are victimized. In order to do so, LatCRT has created two common themes:
First, CRT proposes that white supremacy and racial power are maintained over time, a process that the law plays a central role in. Different racial groups lack the voice to speak in this civil society, and, as such, CRT has introduced a new critical form of expression, called the voice of color. The voice of color is narratives and storytelling monologues used as devices for conveying personal racial experiences. These are also used to counter metanarratives that continue to maintain racial inequality. Therefore, the experiences of the oppressed are important aspects for developing a LatCRT analytical approach, and it has not been since the rise of slavery that an institution has so fundamentally shaped the life opportunities of those who bear the label of criminal.
Secondly, LatCRT work has investigated the possibility of transforming the relationship between law enforcement and racial power, as well as pursuing a project of achieving racial emancipation and anti-subordination more broadly. Its body of research is distinct from general critical race theory in that it emphasizes immigration theory and policy, language rights, and accent- and national origin-based forms of discrimination. CRT finds the experiential knowledge of people of color and draws explicitly from these lived experiences as data, presenting research findings through storytelling, chronicles, scenarios, narratives, and parables.
AsianCrit
AsianCrit looks at the influence of race and racism on the experiences and outcomes of Asian Americans in US education, providing a foundation for discourse around the racialized experiences of Asian Americans and other racially marginalized groups in education. Like LatCrit, AsianCrit is distinct from the main body of CRT in its emphasis on immigration theory and policy.
