Critical race theory

Critical Race Theory (CRT) is the branch of critical legal studies concerned with issues of racism and racial subordination and discrimination. It emphasizes the socially constructed nature of race, considers judicial conclusions to be the result of the workings of power, and opposes the continuation of all forms of subordination. The notions of the social construction of race and discrimination are present in the writings of such established critical race theorists as Derrick Bell, Mari Matsuda, Richard Delgado, Kimberlé Williams Crenshaw, Gloria Ladson-Billings, Neil Gotanda, Laurence Parker, Daniel Solorzano and William Tate; newly emerging CRT scholars Marvin Lynn, David Stovall, Tara Yosso, Adrienne Dixson, Celia Rousseau, and Thandeka Chapman; and some pioneers in sociology, including W.E.B. DuBois and Max Weber.

Key theoretical elements

Richard Delgado and Jean Stefancic (1993) note the following major themes in critical race theory writings:

• A critique of liberalism
• Storytelling/counterstorytelling and "naming one's own reality"
• Revisionist interpretations of American civil rights law and progress
• Applying insights from social science writing on race and racism to legal problems
• Structural determinism, how "the structure of legal thought or culture influences its content"
• The intersections of race, sex, and class
• Essentialism and anti-essentialism
• Cultural nationalism/separatism as well as encouraging black nationalism, power, or insurrection
• Legal institutions, Critical pedagogy, and minorities in the bar
• Criticism and self-criticism

Critical race theory emerged in part from the milieu of Critical Legal Studies (CLS), a field of inquiry that argues that preserving the interests of power, rather than the demands of principle and precedent, is the guiding force behind legal judgments. CLS theorists suggest that the existing precedents are indeterminate, allowing the judiciary wide freedom to interpret them according to prevailing balance of power. Both CLS and Critical Race Theory writings engage in "trashing," extended arguments to demonstrate that precedents are not in fact based on a consistent application of principles. Critical Race Theory shares an overlapping literature with both Critical Legal Studies and Critical Theory, feminist jurisprudence, and postcolonial theory.

Major contributors

File:Derrick Bell by David Shankbone.jpg

Derrick Bell

Derrick Bell is arguably the most influential critic of traditional civil rights discourse. Bell’s critique represented a challenge to the dominant liberal and conservative positions on civil rights, race, and the law. Bell employed three major arguments in his analyses of racial patterns in American law: constitutional contradiction, the interest convergence principle, and the price of racial remedies.

In The Constitutional Contradiction, Bell argues that the framers of the U.S. Constitution chose the rewards of property over justice. With regard to the interest convergence, he maintains that whites will promote racial advances for blacks only when they also promote white self-interest. Finally, in The Price of Racial Remedies, Bell argues that whites will not support civil rights policies that may threaten white social status. Each of his arguments sheds a different light on the traditional racial discourse.

Other significant contributors to the critical race theory discourse from the 1980s to the present include Richard Delgado and Kimberlé Williams Crenshaw. Delgado, in defense of Bell’s storytelling or narrative style, argues that people of color speak from an experience framed by racism. Delgado argues that the stories of people of color are born from a different frame of reference and therefore impart to them a voice that is different from the dominant culture of hegemonic whiteness and deserves to be heard. Critical race theorists believe that in order to appreciate the perspective of oppressed racial minorities, the voice of a particular contributor must be understood in terms of that individual's own narrative.

Crenshaw argues that little difference exists between conservative and liberal discourse on race-related law and policy. Crenshaw identifies two distinct properties in anti-discrimination law: expansive properties and restrictive properties. The former stresses equality as an outcome relying on the courts to eliminate effects of racism. The latter treats equality as a process. Its focus is to prevent any future wrongdoing. Crenshaw argues that expansive and restrictive properties coexist in anti-discrimination law. The implication of Crenshaw's argument is that the failure of the restrictive property to address or correct the racial injustices of the past simply perpetuates the status quo.

Critical race theory has been explored in education and sociology most notably by Ladson-Billings, Tate, Marvin Lynn, Laurence Parker, Tara Yosso, Daniel Solórzano, Dixson, Rousseau, and Chapman. Critical race scholarship in education has occurred in three waves. The first wave of studies emanated in the mid 1990s with the introduction of CRT to the field by Ladson-Billings and Tate. Parker and Solorzano's contributions followed soon thereafter. The second wave of scholarship occurred in the late 1990s and continued through about 2004. Younger scholars like Lynn, Garrett Albert Duncan, and Yosso have become key players. Dixson and Rousseau represent the third wave of new scholars who are attempting to re-introduce CRT to the field while creating stricter standards for how critical race theory in education is defined.

Applications

Critical Race Theory has been applied in a variety of contexts where socialized and institutionalized oppression of racial minorities has been litigated in courts (critical race theorists often present amicus curiae briefs, or critically examine the rulings of these cases).

One particular application has been to hate crime/speech legislation. In response to Justice Scalia's opinion in a paradigm hate speech case, R.A.V. v. City of St. Paul (which addressed cross burning as an act of hate speech), Mari Matsuda and Charles R. Lawrence III presented an argument informed by critical race theory against Scalia's opinion. While Scalia posits that speech is protected independent of content, Matsuda and Lawrence argue that historical and social context is paramount. When acts of speech are acts of intimidation and threaten violence, backed up by a historical force, then those words become a mechanism for social control and domination. The Supreme Court ruled unanimously with Justice Scalia 9-0, that the cross burning in R.A.V. v. City of St. Paul was protected by the First Amendment.

Delgado also draws on CRT in calling for a tort action for racial insults, looking to the historical pattern of speech and the serious psychological harm inflicted on its victims as just measures for evaluating hate speech.

Angela P. Harris has done influential work examining critical race theory and feminist legal theory.

Offshoot fields

No longer content with accepting whiteness as the norm, critical scholars have turned their attention to whiteness itself. In the field of Critical White Studies, numerous thinkers, including Toni Morrison, Eric Foner, Peggy McIntosh, Andrew Hacker, Ruth Frankenberg, John Howard Griffin, David Roediger, Kathleen Neal Cleaver, Noel Ignatiev, Cherríe Moraga, Maurice Berger, bell hooks, and Reginald Horsman, attack such questions as:

• How was whiteness invented, and why?
• How has the category of whiteness changed over time?
• Why did some immigrant groups, such as the Irish and Jews, start out as nonwhite and later become white?
• Can some individual people be both white and nonwhite at different times, and what does it mean to "pass for white"?
• At what point does pride in being white cross the line into white power or white supremacy?
• What can whites concerned over racial inequity or white privilege do about it?

Within Critical Race Theory, culturally specific subdivisions began to develop, including:

• Latino Critical Race Studies or LatCrit. Many LatCrit writings were anthologized in Richard Delgado and Jean Stefancic's The Latino/a Condition: A Critical Reader (1998).
• Asian American Critical Race Studies or AsiaCrit.
• American Indian Critical Race Studies or TribalCrit.
• Critical Race Realism.

References

Bibliography

• 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.
• 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.
• Dixon, Adrienne D. and Celia K. Rousseau, eds., Critical Race Theory in Education: All God's Children Got a Song. New York: Routledge, 2006.
• 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.
• Tate, William F. "Critical Race Theory and Education: History, Theory, and Implications." Review of Research in Education, Vol. 22. (1997), pp. 195-247.
• Yosso, Tara J. Critical Race Counterstories along the Chicana/Chicano Educational Pipeline. New York: Routledge, 2006.