Critique of Critical Race Theory
>>>>> as Presented in
Richard Delgado and Jean
Stefancic, Critical Race Theory: An
Introduction (New York: New York University Press, 2023 [Fourth
Edition])
In
current discussions pertinent to Critical Race Theory (CRT), neither putative
opponents nor avowed supporters provide a very clear definition of the term or
the school of thought associated with the appellation:
Those who rail against CRT give appearance of hostility to any mention of race as a factor of United States history, claiming that to do so makes people feel uncomfortable and divides ethnic groups against each other; people of this bent seek to remove from school curriculum those matters of United States history that cast negative comment on the nation’s past, and they endeavor to remove books that examine historical racial injustice or focus on BIPOC groups who threaten white dominance.
Proponents, as well as journalists seeking objectivity, tend toward a definition holding that CRT scholars and advocates maintain that racism is deeply embedded in the institutions of the United States and, since racism is often hiding below the surface of recognition or discovery, must be highlighted for consideration in the national discourse.
In my view, CRT opponents typically have little understanding of the term and very rarely have read works by leading CRT scholars and advocates such as the seminal thinkers Derrick Bell, Alan Freeman, and Richard Delgado; succeeding CRT proponents Kimberly Crenshaw, Angela Harris, Cheryl Harris, Charles Lawrence, Mari Matsuda, Gary Peller, and Patricia Williams; those whose advocacy brought diverse ethnic focus, such as Paul Butler, Devin Carbado, Lani Guinier, and Angela Onwuachi-Willig, writing from African American perspective; Laura Gomez, Ian Haney Gomez, Kevin Johnson, Gerald Gomez, Margaret Montoya, Juan Perea, Francisco Valdez, writing from a Latine perspective; Robert Williams, most notable among those writing from a Native American perspective; and white authors Nancy Levit, Tom Ross, Jean Stefancic, and Stephanie Wildman.
Those in the public sphere who advocate for or seek more accurately to convey the essence of CRT scholarship and advocacy give only a limited idea of what CRT entails when they convey that CRT focuses on racism as deeply embedded in United States institutions and society.
The Delgado-Stefancic overview explains CRT maintain that “critical race theory (CRT) movement is a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.”
According to Delgado and Stefancic, the CRT movement “considers many of the same issues that conventional Civil Rights and Ethnic Studies courses take up but places them in a broader perspective that includes economics, history, setting, group interest, self-interest, emotions, and the unconscious. Unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory examines the very foundation of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”
Delgado and Stefancic distinguish among CRT intellectuals who are realists versus those who are idealists:
Realists follow a line of thinking inspired by Karl Marx’s emphasis on the economic and material foundations (substructure) of society that determine thoughts, arts, and culture; idealists by comparison, emphasize the power of thoughts, arts, and culture to impel change. For the realists, such ideational matters are merely the superstructure of society that may seem to cause change that is actually determined by the substructure.
Realists focus on labor supply, international relations, elite interests, unions, immigration quotas, the prison industrial complex, conditions of pandemic, and job loss; idealists focus on such matters as racist speech, media stereotypes, diversity seminars, healing circles, diversity or lack thereof at the Academy Awards, and diverse representation in corporations and other institutions.
Below I take the Delgado-Stefancic overview very seriously as to the definition and concerns of CRT, while giving my own view, based on the Delgado-Stefancic account, of the key concerns and goals of CRT scholars and advocates.
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Of all of the original CRT thinkers of the 1970s, Derrick Bell was most important, discussing what he perceived to be the failure of desegregation and thus the limited effectiveness of the Supreme Court decision in Brown v. Board of Education (1954) in the context of what he called. “Interest Convergence.” Bell holds that what many perceive to be good-hearted social progress is in fact only a social shift that occurs when those in the white establishment decide that a certain policy is in their own best interest. In the case of the decision in Brown v. Board, the Court was responding to a cognitive shift in which brutalizing African Americans became embarrassing, given decolonization and the competition of societies and ideologies in the Cold War.
I am a behaviorist who maintains that free will is an illusion and that all behavior is determined by the positive reinforcement, punishment, and negative reinforcement (the removal of aversive circumstances) that a person has received and is receiving in the course of a lifetime.
The observation that Derrick Bell makes, therefore, concerning the actual reasons for the shift on the “separate but equal” notion and on civil rights is a given. People are always acting on the basis of circumstances that will result in the most rewarding outcomes for themselves; these, in individual circumstances, will or will not include internalized altruistic concerns learned over time, but they will always include an emphasis on conditions most rewarding for the individual person, that person’s group, and any group (including the large group known as nation) whose concerns are consonant with the individual’s own well-being.
Whatever moral considerations are expressed, whatever ethical concerns may be honestly present, the foundational reason for any given decision is determined by what an individual or a group perceives to be most positively reinforcing; and while reinforcement may include feelings of enhanced moral conscience, material reinforcement is fundamental.
Therefore, Derrick Bell is correct as to his concept of interest-convergence, but the idea that decisions are made on the basis of a convergence of interests, and that progressive achievements are actually made on practical necessity of the moment rather than for altruistic motivations, to a behaviorist are specific examples of the general reality of operant conditioning.
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Most consistent with the assertion that CRT focuses on racism deeply embedded in the institutions of the United States are the efforts on the part of attorneys and legal scholars to address the deficiencies of legal precedents when dealing with courtroom cases that are not best argued in terms of those precedents.
In examining the legal foundations of the United States, constructed (as in much of Western society) on the foundations of William Blackstone’s Comments on the Laws of England, CRT thinkers argue that conventional legal reasoning fails, but must be made, to incorporate new ideas pertinent to intersectionality, hegemony, hate speech, language rights, Black-white binary, and jury nullification (when judges determine that considerations exist beyond conventional legal precedent) into legal theory that guides approaches to legal cases in behalf of clients.
Critical Race Theorists are suspicious of algorithms that when utilized to access legal precedent fail to include these latter critical contemporary issues; they have had notable success in entering certain approaches into precedent law, such as the “hostile environment” argument for the prevention of workplace harassment based on gender, ethnicity, or national origin. They have also had considerable success in advancing legal storytelling and narrative analysis, whereby conventional processes of making the cases for the prosecution and for the defense, proceeding then to cross-examination, are supplemented by narratives given by witnesses that convey their own life experiences. And CRT legal strategists have had success in advancing jury nullification by increasing the sensitivity of judges to intersectionality or the particular injustices experienced by BIPOC communities, so that we have accumulating cases in which presiding judges override jury verdicts in the interest of greater multicultural fairness.
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These contributions by attorneys and legal scholars constitute the greatest contribution of the CRT movement in addressing a specifically institutional defect.
Otherwise,
CRT serves as an aegis, in my view, for confronting the fact of persistent racism
in United States society, not all that hidden or recondite, and not as clearly institutional
in nature as that found in legal precedents that determine court cases.
Rather, Derrick Bell, echoing a Black nationalist line of reasoning traceable to the ideas of Marchus Garvy, the Black Panthers, the Black Power Movement, and even to some of the tenets associated with Booker T. Washington, promoted Black culturalism and self-help. Lani Guinier advanced the cause of electoral reform. Cbarles Lawrence, Mari Matsuda, Richard Delgado took on the issue of hate speech. Devon and Mitu Gulati became key opponents of workplace discrimination. And Kimberly Crenshaw focused on the problems engendered by intersectional discrimination.
These matters of CRT focus are pertinent to discrimination within institutions such as factories, corporations, elections, and schools; but these matters are not truly indicative of institutional defects, as in the case of institutional flaws in precedent law, as they are indications of ongoing racism in United States society that appear, as in society at-large, in national institutions.
Institutional
racism should be distinguished from racism persisting within institutions.
In my view, there is, then, a distinction between deeply embedded institutional racism for which the proper focus would be the United States Constitution, the political system, or capitalist society--- all of which can in fact be amended for the amelioration (and ideally, over the long-term, the elimination) of racist results--- and have been so amended to diminish racist practices. The formidable task now is to eliminate racist practices entirely as we work to establish a more pluralistic, multiculturally just society.
The key dilemmas that we face in contemporary United States society are not primarily those of faulty institutions but rather practices that promote racism in the functioning of those institutions.
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As
is the case with most authors of works based explicitly or implicitly on CRT thought,
Delgado and Stefancic misplace their focus as to the way in which our system of
preK-12 education discriminates against BIPOC communities; the authors maintain that discriminatory funding
and racist notions embedded in standardized tests are at fault.
In fact, funding for many economically challenged and urban school districts is equitable by comparison to higher income or suburban districts, if not as generous as public education professionals would like. And even in those cases where inequitable funding exists, funding is not the key problem.
The key problem is also not standardized tests, which in fact measure mathematical and reading ability with a high degree of objectivity.
The actual vexations of preK-12 public education in fact are knowledge-deficient, skill-deplete curriculum that hurts young people stuck in generational poverty at the urban core the most.
The overhaul of public education would entail revamped curriculum for the impartation of highly sequenced knowledge and skill sets throughout the preK-12 years, and teacher training redesigned so as to produce teachers of broad and deep knowledge with the pedagogical ability to impart that knowledge to young people of all demographic descriptors.
Now that, the institutional overhaul of preK-12 education, would be an effort as critical as has been the energy invested in revising the way in which court cases are argued and decided.
The overhaul of preK-12 public education would genuinely address a case of deeply embedded institutional racism.
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The
next challenge, then, for CRT theorists and anyone who truly cares about promoting
the development of a more pluralistic, just society, is the overhaul of the institution
of preK-12 education.
