Critical race theory (CRT) is a framework of analysis and an academic movement of civil-rights scholars and activists who seek to examine the intersection of race and law in the United States 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. A tenet of CRT is 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 of individuals.
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.
CRT scholars view race as an intersectional social construct that is not "biologically grounded and natural", and that advances the interests of white people at the expense of persons of other races. In the field of legal studies, CRT emphasizes that formally colorblind laws can still have racially discriminatory outcomes. 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 advantage.
Academic critics of CRT argue that CRT elevates storytelling over evidence and reason, rejects the concepts of truth and merit, and opposes liberalism. Since 2020, conservative U.S. lawmakers have sought to ban or restrict the instruction of critical race theory along with other anti‑racism education in primary and secondary schools. These lawmakers have been accused of misrepresenting the tenets and importance of CRT and that the goal of their restrictions is to broadly silence discussions of racism, equality, social justice, and the history of race.
Definitions
In his introduction to the comprehensive 1995 publication of critical race theory's key writings, Cornel West describes CRT as "an intellectual movement that is both particular to our postmodern (and conservative) times and part of a long tradition of human resistance and liberation."
Law professor Roy L. Brooks defines critical race theory in 1994 as "a collection of critical stances against the existing legal order from a race-based point of view". Education Week describes the core of CRT as the idea that race is a social construct and racism is neither an individual bias nor prejudice—it is "embedded in the legal system" and supplemented with policies and procedures.
University of Alabama School of Law professor Richard Delgado, a co-founder of critical race theory, and legal writer Jean Stefancic define CRT as "a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power".
Gloria Ladson-Billings, a pedagogical theorist who introduced CRT to the field of education in 1994, describes CRT as an "interdisciplinary approach that seeks to understand and combat race inequity in society."
Early years
In the 1998 article, "Critical Race Theory: Past, Present, and Future", Delgado and Stefancic traces the origins of CRT to the early writings of Derrick Bell, including his 1976 Yale Law Journal article, "Serving Two Masters" and his 1980 Harvard Law Review article entitled "Brown v. Board of Education and the Interest-Convergence Dilemma".
Bell began his career as a civil rights lawyer, where he successfully litigated 300 civil rights cases for the NAACP in Mississippi. Later as a professor at Harvard Law School, Bell developed new courses that studied American law through a racial lens. Delgado and Stefancic, who together wrote Critical Race Theory: a Introduction in 2001, described Bell's "interest convergence" as a "means of understanding Western racial history". The focus on desegregation after the 1954 Supreme Court decision in Brown v. Board of Education—declaring school segregation unconstitutional—left "civil-rights lawyers compromised between their clients' interests and the law". The concern of many Black parents—for their children's access to better education—was being eclipsed by the interests of litigators who wanted a "breakthrough" in their "pursuit of racial balance in schools". In 1995, Cornel West said that Bell was "virtually the lone dissenter" writing in leading law reviews who challenged basic assumptions about how the law treated people of color.
Bell compiled his own course materials which were published in 1970 under the title, Race, racism, and American law. He became Harvard Law School's first Black tenured professor in 1971. Bell resigned in 1980 because of what he viewed as the university's discriminatory practices, became the dean at University of Oregon School of Law and later returned to Harvard as a visiting professor. While he was absent from Harvard, his supporters organized protests against Harvard's lack of racial diversity in the curriculum, in the student body and in the faculty. One student-led initiative included the creation of an alternative course in 1981—based on Bell's course and textbook—where students brought in visiting professors, such as Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado, to teach chapter by chapter from Race, racism, and American law.
The students called for faculty of color to teach the new courses following Bell's departure. The university rejected student requests, saying no sufficiently qualified black instructor existed. Legal scholar Randall Kennedy writes that some students had "felt affronted" by Harvard's choice to employ an "archetypal white liberal... in a way that precludes the development of black leadership".
Delgado and Stefancic also cite the work of Alan Freeman in the 1970s as formative to critical race theory. In his 1978 Minnesota Law Review article Freeman reinterpreted, through a critical legal studies perspective, how the Supreme Court oversaw civil rights legislation from 1953 to 1969 under the Warren Court. He criticized the narrow interpretation of the law which denied relief for victims of racial discrimination. In his article, Freeman describes two perspectives on the concept of racial discrimination: that of victim or perpetrator. Racial discrimination to the victim includes both objective conditions and the "consciousness associated with those objective conditions". To the perpetrator, racial discrimination consists only of actions without consideration of the objective conditions experienced by the victims, such as the "lack of jobs, lack of money, lack of housing".
In 1989, Kimberlé Crenshaw, Neil Gotanda, and Stephanie Phillips organized a workshop at the University of Wisconsin-Madison entitled "New Developments in Critical Race Theory". The organizers coined the term "Critical Race Theory" to be an "intersection of critical theory and race, racism, and the law." Crenshaw chose Harvard to study under Bell, whose work she was introduced to at Cornell. Crenshaw organized the alternative course using Bell's course materials. She was part of a group of students who considered themselves part of the "post-civil rights generation".
Following this meeting, legal scholars began publishing a higher volume of works employing critical race theory, including over "300 leading law review articles" and books. In 1990, Duncan Kennedy published his article on affirmative action in legal academia in the Duke Law Journal, and Anthony E. Cook published his article "Beyond Critical Legal Studies" in the Harvard Law Review. In 1991, Patricia Williams published The Alchemy of Race and Rights, while Derrick Bell published Faces at the Bottom of the Well in 1992. Cheryl I. Harris published her 1993 Harvard Law Review article "Whiteness as Property" in which she described how passing led to benefits akin to owning property. In 1995, two dozen legal scholars contributed to a major compilation of key writings on critical race theory.
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. CRT criticized CLS for focusing too much on class and economic structures and not enough on race.
By the early 1990s, key concepts and features of CRT had emerged. Bell had introduced his concept of "interest convergence" in his 1973 article. He developed the concept of racial realism in a 1992 series of essays and book, Faces at the bottom of the well: the permanence of racism. He said that Black people needed to accept that the civil rights era legislation would not on its own bring about progress in race relations; anti-Black racism in the US was a "permanent fixture" of American society; and equality was "impossible and illusory" in the US. Crenshaw had introduced and developed the concept of intersectionality in her 1989 article in the University of Chicago Legal Forum and her 1990 article in the Stanford Law Review.
Growth and expansion
In 1995, pedagogical theorists Gloria Ladson-Billings and William F. Tate began applying the critical race theory framework in the field of education. In their 1995 article Ladson-Billings and Tate described the role of the social construction of white norms and interests in education. They sought to better understand inequities in schooling. Scholars have since expanded work to explore issues including school segregation in the U.S.; relations between race, gender, and academic achievement; pedagogy; and research methodologies.
By 2009, according to University of Edinburgh philosophy professor, Tommy J. Curry, many race scholars had adopted CRT's view that race was socially constructed, not "biologically grounded and natural".
As of 2002, over 20 American law schools and at least three non-American law schools offered critical race theory courses or classes. Critical race theory is also applied in the fields of education, political science, women's studies, ethnic studies, communication, sociology, and American studies. Other movements developed that apply critical race theory to specific groups. These include the Latino-critical (LatCrit), queer-critical, and Asian-critical movements. These continued to engage with the main body of critical theory research, over time developing independent priorities and research methods. CRT has also been taught internationally, including in the United Kingdom and Australia.
Common themes
Common themes that are characteristic of critical race theory, as documented by scholars such 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 they 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 preferring 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, which Bell termed interest convergence. 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 intersections play out in various settings, such as how the needs of a Latina female are different from those of a black male, and whose needs are 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" in a way that determines social outcomes.
- 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. In this view, empathy is not enough to change racism as most people are not exposed to those different from themselves, and people mostly seek out information about their own 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 documented the theoretical element of internalized racism or internalized racial oppression, where victims of racism start to believe they are inferior to whites and white culture. 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
Critical race theory shares many intellectual commitments with critical theory, critical legal studies, feminist jurisprudence, and postcolonial theory. Tommy J. Curry has written 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 argued in favor of affirmative action. They propose that so-called merit standards for hiring and educational admissions are not race-neutral and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.
Criticism
Academics and jurists
According to the Encyclopedia Britannica, "aspects of CRT have been criticized by legal scholars and jurists from across the political spectrum." Critics say it contains a "postmodernist-inspired skepticism of objectivity and truth", and say it opposes "the traditional liberal ideals of neutrality, equality, and fairness in the law and legal procedures and of unreasonably spurning the notion of objective standards of merit in academia and in public and private employment, instead interpreting any racial inequity or imbalance in legal, academic, or economic outcomes as proof of institutional racism and as grounds for directly imposing racially equitable outcomes in those realms." Proponents of CRT have also been accused of treating even well-meaning criticism of CRT as evidence of latent racism.
In a 1997 book, law professors Daniel A. Farber and Suzanna Sherry criticized CRT for over-reliance on personal narratives instead of testing hypotheses against measurable data. CRT scholars including Crenshaw, Delgado, and Stefancic have argued that such critiques represent dominant modes within social science which tend to exclude people of color. Delgado and Stefancic responded that "In these realms [social science and politics], truth is a social construct created to suit the purposes of the dominant group." Farber and Sherry have also argued that anti-meritocratic tenets in critical race theory, critical feminism, and critical legal studies may unintentionally lead to antisemitic and anti-Asian implications. They write that the success of Jews and Asians within what critical race theorists posit to be a structurally unfair system may lend itself to allegations of cheating and advantage-taking. In response, Delgado and Stefancic write 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. He wrote 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".
Political controversies
Critical race theory stirred controversy in the United States beginning in the 1980s, for critiquing color blindness, promoting the use of narrative in legal studies, advocating "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 as a form of jury nullification as payback for the United States' racist past. In the run-up to and aftermath of the 2020 U.S. 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. Clinton withdrew the nomination due to disagreements with her legal philosophy.
2010s
In 2010, a Mexican-American studies program in Tucson, Arizona, was halted because of 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'" according to state officials. 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
Conservatives within the UK government began to criticize CRT in late 2020. Equalities Minister Kemi Badenoch, who is of Nigerian descent, said during a parliamentary debate to mark Black History Month:
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."
In an open letter, 101 writers of the Black Writers' Guild denounced 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, 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 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, Joe Biden rescinded Trump's order and dissolved the 1776 Commission. Opposition to what was purported to be 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.
In early 2021, bills were introduced 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. CRT is only taught at a university level, though some lower-level curricula have reflected basic themes of CRT.
In mid-April 2021, a bill was introduced in the Idaho legislature that would effectively ban any educational entity 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. In June 2021, the American Association of University Professors, the American Historical Association, the Association of American Colleges and Universities, and PEN America released a joint statement stating their opposition to such legislation, and by August 2021, 167 professional organizations had signed onto the statement. In August 2021, the Brookings Institution recorded that eight states—Idaho, Oklahoma, Tennessee, Texas, Iowa, New Hampshire, Arizona, and South Carolina—had passed regulation on the issue, though also noted that none of the bills that passed, with the exception of Idaho's, actually contained the words "critical race theory." Brookings also noted that these laws often extend beyond race to discussions of gender. Critics[who?] have called the state laws a memory law and a confirmation of the idea that racism is codified into the law of the United States.
Subfields
Within critical race theory, various sub-groupings focus on issues and nuances unique to particular ethno-racial and/or marginalized communities. This includes the intersection of race with disability, ethnicity, gender, sexuality, class, or religion. 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.
Asian critical race theory
Asian critical race theory looks at the influence of race and racism on Asian Americans and their experiences in the U.S. education system. Like Latino critical race theory, Asian critical race theory is distinct from the main body of CRT in its emphasis on immigration theory and policy.
