Critical Race Theory

derrick bell

Critical race theory (CRT) is an academic discipline focused upon the application of critical theory (a neo-Marxist examination and critique of society and culture) to the intersection of race, law, and power. ‘CRT recognizes that racism is ingrained 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.’

The movement is loosely unified by two common areas of inquiry. 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.

As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with critical legal studies, 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.

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. 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.

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.

Many mainstream legal scholars have criticized CRT on a number of grounds, including some scholars’ reliance on narrative and storytelling, as well as CRT’s critique of objectivity. Judge Richard Posner of the United States Seventh Circuit Court of Appeals has ‘abel[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.’

An example of a narrative device is the short story ‘The Space Traders’ by Derrick Bell, the first tenured African-American Professor of Law at Harvard Law School, and one of the originators of critical race theory. Published in 1992, its subject is the arrival of apparently benevolent and powerful extraterrestrials that offer the United States a wide range of benefits such as gold, clean nuclear power and other technological advances, in exchange for one thing: handing over all black people in the U.S. to the aliens. The story posits that the people and political establishment of the U.S. are willing to make this deal, passing a constitutional amendment to enable it.

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.’

Constitutional law experts 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.

American literary critic Henry Louis Gates Jr. has written a critical evaluation of CRT. 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.’

Conservative political commentator Ben Shapiro asserts that CRT is radical Marxism dedicated to undermining the Constitution from within in order to enable the ‘redistributionist change necessary to create a more equal world.’ He quotes Republican Pennsylvania Representative Jeffrey Pyle from 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.’

The subject became a topic of note in 2012, following the circulation by and Sean Hannity on Fox News of a 1990 video featuring a young Barack Obama (then a student at Harvard Law School and President of the Harvard Law Review) briefly speaking about Harvard Law Professor Derrick Bell. The video, which had actually appeared on PBS in 2008, shows Obama introducing Professor Bell at a protest in support of Bell’s stance on the need to increase diversity among the law school’s faculty. As part of the introduction, Obama told the students to ‘open your hearts and your minds to the words of Professor Derrick Bell’; after Obama’s introduction, Bell spoke about the lack of female and minority tenured faculty members, which he characterized as Harvard’s ‘past racist hiring record.’

Described before its release as having ‘bombshell’ material, especially because it shows Obama giving a brief hug to Professor Bell after introducing him, the video elicited some speculation among conservative writers about whether critical race theory played a role in influencing the President, his administration, and the Justice Department as well as disagreements about the definition of critical race theory.

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