Critical race theory
||The examples and perspective in this article deal primarily with USA and do not represent a worldwide view of the subject. (September 2013)|
Critical race theory (CRT) is an academic discipline focused upon the application of critical theory, a critical examination of society and culture, to the intersection of race, law, and power. According to the UCLA School of Public Affairs:
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.
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?
The movement 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.
Appearing in U.S. law schools in the mid- to late 1980s, critical race theory began as a reaction to critical legal studies. Scholars like Derrick Bell applauded the focus of civil rights scholarship on race, but were deeply critical of civil rights scholars' commitment to colorblindness and their focus on intentional discrimination, rather than a broader focus on the conditions of racial inequality. Likewise, scholars like Patricia Williams, Kimberlé Williams Crenshaw, and Mari Matsuda embraced the focus on the reproduction of hierarchy in critical legal studies, but criticized CLS scholars for failing to focus on racial domination and on the particular sources of racial oppression.
By 2002, over 20 US law schools and at least 3 foreign law schools offered critical race theory courses or classes which covered the issue centrally. Critical race theory is taught and innovated in the fields of education, political science, women's studies, ethnic studies, and American studies.
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 Harris describes CRT 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 and Angela Harris, 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)."
CRT's theoretical elements are provided by a variety of sources.
- 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.
- Storytelling/counterstorytelling and "naming one's own reality"—using narrative to illuminate and explore experiences of racial oppression.
- 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 elitist. 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.
- Applying insights from social science writing on race and racism to legal problems.
- 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 that of a black male and whose needs are the ones promoted.
- Essentialism philosophy —reducing the experience of a category (gender or race) to the experience of one sub-group (white women or African-Americans). 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.
- Cultural nationalism/separatism, Black nationalism—exploring more radical views arguing for separation and reparations as a form of foreign aid.
- Legal institutions, critical pedagogy, and minority lawyers in the bar.
- 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 determines significant social outcomes. Usually this occurs without conscious knowledge and because of this, our system cannot redress certain kinds of wrongs.
- 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.
- Microaggression refers to the sudden, stunning, or dispiriting transactions that mar the days of people of color. 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.
- 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.
Cheryl I. Harris and Gloria J. Ladson-Billings add the theoretical element of whiteness as property. They describes 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 exclude—make 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.
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.
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.
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 articulated through Black thinkers like W.E.B. DuBois, Paul Robeson, and Judge Robert L. Carter.
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.
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.
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.
||This article's Criticism or Controversy section may compromise the article's neutral point of view of the subject. (December 2012)|
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.'" 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, anecdotal—designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.
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 self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust—as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned—and rightly so.
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.[page needed]
Henry Louis Gates Jr. has written a critical evaluation of CRT.[page needed] 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 charged—by whites—with racist speech. As Trossen notes, not a single instance of white racist speech was punished."
Jeffrey 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 principles, 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.
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."
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.
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) Asian American critical race studies (AsianCrit) and American Indian critical race studies (sometimes called TribalCrit).
Critical race theory has also begun to spawn research that looks at understandings of race outside the United States.
Controversies and impact
Critical race theory has stirred controversy since the 1980s over such issues as its deviation from the ideal of colorblindness, 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.
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 U.S. and the acquittal of O.J. Simpson.
In 2012, Matt de la Peña’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 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'."
- Tara J. Yosso (March 2005). "Whose culture has capital? A critical race theory discussion of community cultural wealth". Race Ethnicity and Education 8 (1): 69–91. doi:10.1080/1361332052000341006.
- Lewis R. Gordon (Spring 1999). "A Short History of the 'Critical' in Critical Race Theory". American Philosophy Association Newsletter 98 (2).
- "What Is Critical Race Theory?". UCLA School of Public Affairs. Retrieved 11 March 2012.
- Brooks, Roy (1994). "Critical Race Theory: A Proposed Structure and Application to Federal Pleading". 11 Harv. BlackLetter L.J.: 85.
- Gotanda et al, Critical Race Theory: Key Writings That Formed the Movement, New Press (1995), Introduction.
- Marxism and educational theory: origins and issues By Mike Cole
- Bell in “Brown v. Board of Education and the Interest-Convergence Dilemma”Harvard Law Review, Vol. 93, 1980
- "WHO'S AFRAID OF CRITICAL RACE THEORY? by Derrick Bell|1995 University of Illinois Law Review". Retrieved 26 March 2012.
- Patricia Williams, Alchemy of Race and Rights: Diary of A Law Professor (Harvard U Press, 1992); Kimberle Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law, 101 Harv. L. Rev. 1331 (1988); Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. Civil Rights-Civil Liberties Law Rev. 323 (1987).
- Harris, Cheryl (2002-06-01). "Critical Race Studies: An Introduction". UCLA Law Review 49: 1215ff.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 6–7. ISBN 978-0-8147-2136-0.
- Harris, Angela P. (1994). "Foreword: The Jurisprudence of Reconstruction". California Law Review 82 (4): 741ff. doi:10.2307/3480931. JSTOR 3480931.
- Crenshaw, Kimberlé; Garry Peller (1995). Critical race theory: the key writings that formed the movement. The New Press. p. xxiv. ISBN 978-1-56584-271-7. "To the emerging race crits, rights discourse held a social and transformative value in the context of racial subordination that transcended the narrower question of whether reliance on rights alone could bring about any determinate results."
- Bell is summarizing Harris. Bell, D.A. (1995). "Who's afraid of critical race theory". U. Ill. L. Rev.: 899.
- Delgado, Richard; Jean Stefancic (1993-03-01). "Critical Race Theory: An Annotated Bibliography". Virginia Law Review 79 (2): 461–516. doi:10.2307/1073418. ISSN 0042-6601. JSTOR 1073418.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 18–21. ISBN 978-0-8147-2136-0.
- Dudziak, Mary (November 1993). "Desegration as a Cold War Imperative". Stanford Law Review 41 (1): 61–120. doi:10.2307/1228836. JSTOR http://www.jstor.org/stable/1228836.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 51–55. ISBN 978-0-8147-2136-0.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 56–57. ISBN 978-0-8147-2136-0.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 26,155. ISBN 978-0-8147-2136-0.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 78–80. ISBN 978-0-8147-2136-0.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 1–2. ISBN 978-0-8147-2136-0.
- Delgado, Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction. NYU Press. pp. 27–29. ISBN 978-0-8147-2136-0.
- Harris, Cheryl (June 1993). "Whiteness as Property". Harvard Law Review 106 (8): 1707. doi:10.2307/1341787. JSTOR 1341787.
- Ladson-Billings, Gloria (1999). Race Is...Race Isn't: Critical Race Theory & Qualitative Studies in Education. NP. p. 15.
- Pyke, Karen (Winter 2010). "What Is Internalized Racial Oppression and Why Don't We Study It? Acknowledging Racism's Hidden Injuries". Sociological Perspectives 53 (4): 552. JSTOR 07311214.
- Jones, Camara Phyllis (2002). "Confronting Institutionalized Racism". Phylon 50 (1): 9–10. doi:10.2307/4149999. JSTOR 4149999.
- Curry, Tommy (2012). "Shut Your Mouth when You're Talking to Me: Silencing the Idealist School of Critical Race Theory through a Culturalogic Turn in Jurisprudence". Georgetown Law Journal of Modern Critical Race Studies 3 (1): 1–38.
- Curry, Tommy (Winter 2009). "Will the Real CRT Please Stand Up: The Dangers of Philosophical Contributions to CRT". The Crit 2 (1): 1–47.
- Jerry Kang and Mazharin Banaji, Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 Cal. L. Rev. 1063 (2006); Devon Carbado and Mitu Gulati, The Law and Economics of Critical Race Theory, 112 Yale L. J. 1757 (2003).
- Mari J. Matsuda & Charles R. Lawrence, Epilogue: Burning Crosses and the R.A.V.Case, in Matsuda et al, Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment (1993).
- Richard Delgado, Rodrigo's Tenth Chronicle: Merit and Affirmative Action, 83 Geo. L. J. 1711 (1994-95); Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L. J. 706 (1990); Patricia Williams, Alchemy of Race and Rights: Diary of A Law Professor (Harvard U. Press 1992).
- Richard A. Posner, The Skin Trade, NEW REPUBLIC at 40, Oct. 13, 1997 (book review).
- Bending the Law
- Daniel Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (Oxford, 1997).
- Critical Race Theory and Freedom of Speech in The Future of Academic Freedom, edited by Louis Menard, University of Chicago Press, 1996.
- "Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism author|Jeffrey J. Pyle". Boston College Law Review. Retrieved 11 March 2012.
- Richard Delgado and Jean Stefancic's The Latino/a Condition: A Critical Reader (1998).
- E.g., Levin, Mark, The Wajin’s Whiteness: Law and Race Privilege in Japan (February 1, 2008). Horitsu Jiho, Vol. 80, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1551462
- Ansell, Amy (2008). "Critical Race Theory". In Richard T. Schaefer (ed.). Encyclopedia of Race, Ethnicity, and Society. SAGE. pp. 344–46. ISBN 978-1-4129-2694-2.
- Will, George (1993-06-14). "Sympathy for Guinier". Newsweek. p. 78.
- Will, George (1996-11-28). "Good News? Don't Want To Hear About It". Washington Post. Retrieved 2012-03-23.
- Winerip, Michael (2012-03-19). "Racial Lens Used to Cull Curriculum in Arizona". The New York Times.
- Brewer, Mary. Staging Whiteness. Wesleyan University Press, 2005. ISBN 978-0-8195-6769-7
- Brooks, Roy. "Critical Race Theory: A Proposed Structure and Application to Federal Pleading". "Harvard BlackLetter Law Journal", Vol. 11, (1994), pp. 85.
- Curry, Tommy J. "Will the Real CRT Please Stand Up: The Dangers of Philosophical Contributions to The Crit: A Journal in Critical Legal Studies 2.1 (2009): 1-47.
- Curry, Tommy J. "Shut Your Mouth when You're Talking to Me: Silencing the Idealist School of Critical Race Theory through a Culturalogic Turn in Jurisprudence,” Georgetown Law Journal of Modern Critical Race Studies 3:1 (2012): 1-38.
- Crenshaw, Kimberlé, Neil Gotanda, Gary Peller, and Kendall Thomas. eds. Critical Race Theory: The Key Writings that Formed the Movement. New York: New Press, 1995. ISBN 978-1-56584-271-7
- Delgado, Richard. ed. Critical Race Theory: The Cutting Edge. Philadelphia: Temple University Press, 1995.
- Delgado, Richard and Jean Stefancic. "Critical Race Theory: An Annotated Bibliography." Virginia Law Review, Vol. 79, No. 2. (Mar., 1993), pp. 461–516.
- Delgado, Richard and Jean Stefancic. The Latino/a Condition: A Critical Reader. New York University Press, 1998.
- Delgado, Richard and Jean Stefancic. Critical Race Theory: An Introduction. New York University Press, 2001.
- Dixson, Adrienne D. and Celia K. Rousseau, eds., Critical Race Theory in Education: All God's Children Got a Song. New York: Routledge, 2006.
- Epstein, Kitty K., "A Different View of Urban Schools: Civil Rights, Critical Race Theory, and Unexplored Realities." New York: Peter Lang, 2006.
- Jones, Camara Phyllis (2002). "Confronting Institutionalized Racism". Phylon 50 (1): 9-10. JSTOR 4149999.
- Ladson-Billings, G.J. and Tate, W.F. (1994). Toward a theory of critical race theory in education. Teachers College Record, 97, 47-68.
- Ladson-Billings, Gloria (1999). Race Is...Race Isn't: Critical Race Theory & Qualitative Studies in Education.
- Parker, Laurence, Donna Deyhle, and Sofia Villenas. eds. Race Is, Race Ain't: Critical Race Theory and Qualitative Studies in Education. Boulder, CO: Westview Press, 1999.
- Pyke, Karen (Winter 2010). "What Is Internalized Racial Oppression and Why Don't We Study It? Acknowledging Racism's Hidden Injuries". Sociological Perspectives 53 (4): 552. JSTOR 07311214.
- Solorzano, D. (1997). "Images and Words That Wound: Critical Race Theory, Racial Stereotyping, and Teacher Education." Teacher Education Quarterly, 24, 5-19.
- Solorzano, D., Ceja, M. & Yosso, T. (2000). “Critical Race Theory, Racial Microaggressions and Campus Racial Climate: The Experiences of African American College Students.” Journal of Negro Education, 69, 60-73.
- Solorzano, D. & Delgado Bernal, D. (2001). “Examining Transformational Resistance Through a Critical Race and LatCrit Theory Framework: Chicana and Chicano Students in an Urban Context.” Urban Education, 36, 308-342.
- Solorzano, D. & Yosso, T. (2001). "Critical Race and LatCrit Theory and Method: Counterstorytelling Chicana and Chicano Graduate School Experiences." International Journal of Qualitative Studies in Education, 14, 471-495.
- Solorzano, D. & Yosso, T. (2002). "A Critical Race Counterstory of Affirmative Action in Higher Education." Equity and Excellence in Education, 35, 155-168.
- Tuitt, Patricia, "Race, Law, Resistance" Glasshouse Press, London, 2004
- Tate, William F. "Critical Race Theory and Education: History, Theory, and Implications." Review of Research in Education, Vol. 22. (1997), pp. 195–247.
- Velez, V., Perez Huber, L., Benavides, C., de la Luz, A. & Solorzano, D. (2008). “Battling for Human rights and Social Justice: A Latina/o Critical Race Analysis of Latina/o Student Youth Activism in the Wake of 2006 Anti-Immigrant Sentiment.” Social Justice, 35, 7-27.
- Yosso, Tara J. Critical Race Counterstories along the Chicana/Chicano Educational Pipeline. New York: Routledge, 2006.