Critical Race Theory >>>>> First in a Multi-Article Series

In my pursuit of a greater understanding of Critical Race Theory (CRT), I have recently read many books that focus explicitly on CRT or explore historical and contemporary circumstances with approaches clearly derived from CRT scholarly analysis. 

Below I present the key ideas on one of these important volumes, by CRT scholars Richard Delagado and Jean Stefancic, who with exceptional clarity explain the major personages and ideas from the Critical Race Theory movement.

Overview of Richard Delgado and Jean Stefancic, Critical Race Theory:  An Introduction   (New York:  New York University Press, 2023 [Fourth Edition])

 

Definition and Key Concepts of Critical Race Theory 

The critical race theory (CRT) movement is a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.  The 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.

Leading seminal CRT theorists, whose work dates to the 1970s, are Derrick Bell, Alan Freeman, and Richard Delgado.

The approach has resonance and takes many approaches to scholarship form Critical Legal Studies and  Radical Feminism.  European intellectuals who have been influential in the development of CRT include Antonio Gramsci, Michael Foucalt, and Jacques Derrida.

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.

Following close upon the work of Bell, Freeman, and Delgado, came those by Kimberly Crenshaw, Angela Harris, Cheryl Harris, Charles Lawrence, Mari Matsuda, Gary Peller, and Patricia Williams.

Many of these intellectuals came together for a conference in summer 1989 in Madison WI.

Soon, other African American CRT thinkers, such as Paul Butler, Devin Carbado, Lani Guinier, Angela Onwuachi-Willig were publishing works.  And a CRT literature developed also from a Latine perspective conveyed by Laura Gomez, Ian Haney Gomez, Kevin Johnson, Gerald Gomez, Margaret Montoya, Juan Perea, Francisco Valdez;  an American Indian perspective, most notably by Robert Williams;  with contributions also by white authors Nancy Levit, Tom Ross, Jean Stefancic, and Stephanie Wildman.

 

Hallmark Critical Race Theory Themes

Hallmark CRT themes include most saliently interest convergence and material determinism;  revisionist history;  critique of liberalism;  and structural determinism.

In considering interest convergence and material determinism, one must 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.

Interest convergence and material determinism induce revisionist history, in which the patterns of history are analyzed on the basis of the shifts in the substructure---  the institutions established upon the foundation of economic and material conditions of society---  when the white establishment determines that interests will be forwarded by social change.  And in examining the nature of the shift, realists examine labor supply, international relations, elite interests, unions, immigration quotas, the prison industrial complex, conditions of pandemic, and job loss;  whereas 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.

The seminal Critical Race Theorists were of the determinist, realist, materialist bent, skeptical of the goal of colorblindness, which they maintain is an impossible and even undesirable goal, and a concept that often excuses people who are not explicitly racist but are guilty of racially harmful behavior.

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.

Race Theorists have come to face their own dilemma when the concerns of their clients may not follow their own interests in winning a landmark case in which new legal concepts are integrated into precedent law.   A client may be willing to settle for better pay that had been denied, for example, over winning a case that will enter into precedent a line of reasoning that will make such denial or pay universally illegal.  

Legal Storytelling and Narrative Analysis

Other major phenomena in the CRT movement are 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 for better understanding of harm that has been caused that may be difficult to grasp merely by relying on conventional testimony.  Storytelling and narrative can help to resolve cross-cultural misunderstanding that philosopher Jean Francois calls the “differend,” when a person being judged does not subscribe to the precepts on which her or his behavior is being evaluated.

Debates within the Community of Critical Race Theory Scholars 

Important discussions within the CRT community of thinkers include those focused on intersectionality, essentialism versus antiessentionalism, nationalism versus assimilation, and racial identity. 

CRT thinkers debate the degree to which the intersection of race, gender, and class may mean that in a given circumstance, for example, a person in a unique situation of discrimination and ill-treatment differs from that of women in general or of African Americans in general but are unique to being a specifically African American woman.  Intersectionality is closely related to the matter of racial identity, in which one is of mixed ethnic or national heritage and must consider the degree to which loyalty may be given to one ethnic identity or the other, or whether the response for a particular person may be to forge a unique identity not entirely resonant with either ethnic heritage.

Essentialism is search for the proper unit of social change, involving identification of groups that may have many different issues on which they agree and on which their interests converge but may also have very different concerns.  Essentialists emphasize the need to identify essential interests similar enough to proceed together to make change.  Antiessentialists emphasize the particular needs of smaller social units agitating for change.

They also debate the validity of assimilation into mainstream society, which may involve accepting or rejecting conventions of dress, speech patterns, and cultural references in the context of employment and social environments dominated by white powerholders.

 

Considerations of Powerholding and the Pursuit of Multicultural Truth

Critical Race Theorists also consider the categories of Black-white binary;  critical white studies;  Latine and Asian critical thought, critical race feminism, and LGBTQ theory. 

Thus, they explore the way in which the Black-white binary ignores the specific histories and issues pertinent to and of great concern to those not on the binary.  They examine white society with the same critical analysis that other ethnic groups have examined, focusing on white privilege that not only gives the numerically greater group priority of place but also makes difficult an understanding on the part of whites the social slights and bias that those in the numerically dominant group do not have to endure.

Such considerations lead some CRT thinkers to focus on the way in which the Black-white binary stokes ethnic divisions, as those not on the binary nevertheless shuffle to get located on the binary, often as close to the putative white ideal as possible.

 

Critiques and Response to Criticism

Critical Race Theory has induced multiple attacks and  critiques, which have in turn engendered responses from CRT proponents.

Randall Kennedy in the 1980s asserted that the marketplace, including that for ideas, is open to all, and that CRT advocates would gain more notice in the world of intellectuals when their scholarship has been judged worthy.  Darrell Farbert and Suzanne Sherry cited Jewish and Asian success as demonstrative of the potential for educational advancement for all individuals and groups that truly seek to advance.

Of those farther to the right and writing at a later date (the year 2000), Christopher Rugo (then an obscure personality on Fox News, also associated in time with Discovery Institute in Seattle WA [for disseminating ideas pertinent to Creationism and Intelligent Design]), issued a scathing attack on Critical Race Theory, flooding the ether of popular conservative advocacy with a view of CRT as inimical to the well-being of mainstream society.  Donald Trump saw Rugo’s Fox Television show and discerned an opportunity for polemical gain;  he issued an executive order limiting the teaching of  certain topics opposed by supporters, presaging the attacks on multicultural curriculum and library books that we witness in the year 2023.

Meanwhile, CRT intellectuals continued to develop additional CRT lines of reasoning and concern:

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.  Charles Lawrence, Mari Matsuda, Richard Delgado took on the issue of hate speech.  Devon Carbado and Mitu Gulati became key opponents of workplace discrimination.  And Kimberly Crenshaw focused on the problems engendered by intersectional discrimination.

Many of those CRT advocates of the original materialist, determinist, realist mode thought that some CRT writers focused too much on the realm of the superstructure, on identity issues such as social construction of race, multiracial identity, and “passing,” urging a shift back to more foundational matters pertinent to the economy and institutional structures.

 

Critical Race Theory Today

Today CRT is much in the national spotlight, taking hits from right-wing ideologues who range themselves against bilingualism, affirmative action, police reform, immigration, Critical Race Studies, hate-speech legislation, welfare, and legal measures for increasing BIPOC representation.  From the right but also in centrist mainstream society there appears to be a slide into racial indifference, in which those who are weary of races issues recoil against the persistence of those who insist that race still matters very much and must be considered if we are ever to the achieve of multiracial equity;  or, voiced and demonstrated by a very vocal contingent who influence is greater than their numbers   convey hostility to specific measures meant to ensure the advancement of those comprising BIPOC groups.

But again such attacks must compete with relentless CRT advocates ever watchful of whites seeking to protect their advantages and CRT activists who focus on housing and neighborhood segregation;  what they assert are discriminatory standardized tests;  the location of industrial polluting sites; and the persistence of generational African American poverty.

CRT intellectuals also give us reams of data and fact-based analysis, such as the circumstance of African American men who murder whites being ten times more likely to be convicted than whites who murder African Americans;  and, so well-known as to have entered mainstream consciousness, that young African American men are more likely to be in prison than in college.  They examine, too, greater social harm stemming from White collar versus street crime;  and the issues of racial profiling, local ordinances that prohibit people of specific groups hanging out or for wearing certain types of clothing deemed to be associated with gangs and other groups perceived to be threatening.

CRT advocates 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 monitored social media for hate speech and used that same media for counterattacks.  They have advanced arguments that have prevailed, notably amidst battles specifically in Arizona as to use of native language by non-English speakers in public institutions. 

CRT proponents, have effectively raised questions and advanced policies with regard to immigration, and they have examined who has benefited from private industry’s role in prison construction.  And they have trained a keen lens on the issue of felon disenfranchisement, countered with ideas for ensuring voting fairness.

 

Critical Race Theory and the Future of the United States

In looking to the future, CRT intellectuals ponder whether a power shift toward BIPOC communities will be peaceful, whether such a shift will create heightened tension, or whether there may be enough interest-convergence to create at an acceptable level of rancor a society in which multicultural sharing decision-making prevails. 

CRT analysts also ponder whether a shift toward a more inclusive, polyglot America will in time provoke cataclysmic disruptions;  whether they will engender adaptations of neocolonialist tactics and strategies on the part of white society;  whether a multicultural social shift will entail assimilation into heretofore white-dominated attitudes and institutions, or whether the result will be more pluralistic.  And the ever-present CRT hope is that structural change will eventually be made on the basis of broad public consensus.

CRT intellectuals conceive of four main possibilities as to the fate of Critical Race Theory: 

!)   CRT might become the new Civil Rights orthodoxy; 

2)  CRT might become marginalized and Ignored;

3)  CRT might gain analytical attention but ultimately be rejected;

4)  CRT might gain partial incorporation into the ideological and institutional constructs of society in the United States.

For authors Richard Delgado, Jean Stefancic, and others in the CRT community of scholars and activists, the goal is to replace the conventional Civil Rights approach with Critical Race Theory, embedded deeply in United States society, with widespread understanding how race-conscious institutions and ideas will or will not create a society of broadly shared, culturally pluralistic, judicial fairness.