Critical race theory

Critical Race Theory (CRT) is an academic discipline focused upon the intersection of race, law and power.

Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry. First, CRT has analyzed the way in which white supremacy and racial power are reproduced over time, and in particular, the role that law plays in this process. Second, CRT work has investigated the possibility of transforming the relationship between law and racial power, and more broadly, the possibility of achieving racial emancipation and anti-subordination.^[1]

Appearing in US law schools in the mid- to late 1980s, Critical Race Theory inherited many of its political and intellectual commitments from civil rights scholarship and Critical Legal Studies, even as the movement departed significantly from both. 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.^[2] 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.^[3]

Key theoretical elements

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.
• 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.
• Applying insights from social science writing on race and racism to legal problems.
• Structural determinism, or how "the structure of legal thought or culture influences its content."
• The intersections of race, sex, and class--e.g., how poor Latinas' experience of domestic violence needs distinctive remedies.
• Essentialism and anti-essentialism—reducing the experience of a category (like gender or race) to the experience of one sub-group (like white women or African-Americans).
• 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.

As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with CLS and critical theory, feminist jurisprudence, and postcolonial theory.

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.^[4]

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.^[5] The Court has since adopted this historicist position in Virginia v. Black (2003), finding that cross-burning with an intent to intimidate can be legally prohibited.^{[citation needed]}

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.^[6]

Criticisms

Many mainstream legal scholars have criticized CRT on a number of grounds, including some scholars' use of narrative and storytelling, as well as the critique of objectivity adopted by critical race theorists in connection with the critique of merit. Daniel Farber and Suzanna Sherry have argued that critical race theory, along with critical feminism and critical legal studies, has anti-Semitic and anti-Asian implications, has worked to undermine notions of democratic community and has impeded dialogue.^[7] Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago has “label[ed] critical race theorists and postmodernists the ‘lunatic core’ of ‘radical legal egalitarianism.’”^[8] 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.^[9]

Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, 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.^[10]

Henry Louis Gates Jr. has written a critical evaluation of CRT.^[11] Gates emphasizes how campus speech codes and anti-hate speech laws have been applied 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." Gates gives several further examples such as this one: "What you don't hear from the hate speech theorists is that the first casualty of the MacKinnonite anti-obscenity ruling was a gay and lesbian bookshop in Toronto, which was raided by the police because of a lesbian magazine it carried."

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)^[12] 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.^[13]

Notes

1. ^ Gotanda et al, Critical Race Theory: Key Writings That Formed the Movement, New Press (1995), Introduction.
2. ^ Bell in “Brown v. Board of Education and the Interest-Convergence Dilemma”Harvard Law Review, Vol. 93, 1980
3. ^ 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).
4. ^ 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).
5. ^ 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).
6. ^ 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).
7. ^ Daniel Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (Oxford, 1997).
8. ^ Richard A. Posner, The Skin Trade, NEW REPUBLIC, Oct. 13, 1997
9. ^ Critical Race Theory: An Overview^{[dead link]}
10. ^ Bending the Law
11. ^ Critical Race Theory and Freedom of Speech in The Future of Academic Freedom, edited by Louis Menard, University of Chicago Press, 1996.
12. ^ Richard Delgado and Jean Stefancic's The Latino/a Condition: A Critical Reader (1998).
13. ^ 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

References

• Brewer, Mary. Staging Whiteness. Wesleyan University Press, 2005. ISBN 978-0-8195-6769-7
• 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.
• Ladson-Billings, G.J. and Tate, W.F. (1994). Toward a theory of critical race theory in education. Teachers College Record, 97, 47-68.
• 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.
• 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.