Critical Race Theory
An Organization Forms
Others (including Richard Delgado, one of the authors of this essay) soon joined Bell and Freeman, and in the summer of 1989 about thirty law scholars of color from around the United States met at a convent outside Madison, Wisconsin, to forge a new movement in the law. Settling on a name (critical race theory) and a general program, the group resolved to coordinate their scholarship and hold future meetings aimed at developing a new, radical approach to race, racism, and American law. Since then, the group has held a series of public conferences and periodic smaller workshops aimed at the development of particular themes. The group's scholarship grew rapidly to include a few dozen books and hundreds of law-review articles and essays. Many law schools around the country include critical race theorists among their ranks; perhaps two-thirds of all law schools offer one or more courses on it or a related subject.
The movement's ideas also spread to other fields. Educators use its approaches and theories to help understand hierarchy in schools, tracking, school discipline, and battles over the Western canon. Political scientists are intrigued by its studies of the role of courts in law reform; sociologists, by its analyses of racial power and authority; American Studies scholars and rhetoricians, by its use of storytelling, counterstorytelling, and revisionist history. What are some of the movement's dominant ideas? Critical race theory is a very loose collection of scholars, not all of whom would agree on this or any other platform or set of defining tenets. But most "race-crits" would acknowledge some of the following as the movement's defining themes:
Interest convergence and material determinism.
Just as the movement began with Derrick Bell's impressive analysis of the role of white institutional self-interest and its relation to racial reform, critical race theorists have continued to explore this dimension of American society. Scholars such as Lani Guinier examine how voting behavior and laws affect the quality of the representation that the minority community receives in national and state legislatures. Guinier and others study the idea of merit, standardized testing, and occupational qualifications in order to see how seemingly neutral measuring instruments and criteria incorporate bias. Writers such as Spencer Overton examine the role of property, wealth, and ownership in inhibiting black advances. A host of scholars examines affirmative action and job-hiring patterns in higher education.
Racism as ordinary and normal.
Most Americans believe that their society is fair and just, and the legal system frames antidiscrimination law and doctrine with this presupposition in mind. Most critical race theorists believe the opposite is true, however; racism for them is ordinary, normal, and deeply embedded in everyday life and institutions. From songs, rhymes, and nursery stories such as Snow White, to movie roles and stereotypes, job and school criteria, and old-boy informal networks, favoritism for white, European ways exerts a subtle, ever-present force. If racism and race-themed ideas and preferences are everywhere, this makes them invisible and difficult to confront. They seem ordinary and natural; the person seeking to challenge them strikes others as impossible, nitpicky, or lacking in a sense of proportion. Litigants suing for discrimination confront the same obstacle. Unless what the defendant did was outrageous, intentional, and outside the pale, courts are unlikely to award relief.
Critique of color blindness.
Currently, one of society's—and the legal system's—dominant approaches to race is color blindness. This perspective insists that race does not matter. The law should not take account of race either for the purpose of helping or handicapping any group. By the same token, advocates of color blindness assert that in ordinary life one should behave the same way—simply refusing to take note of the race of people with whom one comes into contact.
Some critical race theorists have mounted a powerful and sustained attack on the idea of color blindness, pointing out, for example, that to disregard another person's race, one first has to notice it, and that many color-blind institutions—such as an alumni preference at private colleges—strengthen white privilege and disadvantage blacks and other minorities.
The social construction of race.
Most race-crits hold that race is not real and objective but that ideas of race nevertheless exert great social power. Supported by scientific findings that individuals of different races share a huge majority of their genes (perhaps as much as 99.9 percent) and the scientific community's agreement that the few genes that do account for minor differences such as hair texture and skin color cannot possibly influence distinctively human traits such as intelligence, personality, or propensity for moral or immoral behavior, critical race theorists examine how we nevertheless come to believe in the reality of race. If race is a social construction—something we choose to believe in the face of scientific evidence to the contrary—what are the mechanisms of that social construction and what keeps them in place? Social constructionists examine how scripts, narratives, stories, and habits enable society to continue to believe that something important distinguishes blacks and whites, for example, and hold to those beliefs even in the face of evidence that people everywhere are pretty much alike (some good, some bad). They also examine the role of law in maintaining racial lines and classifications through such measures as immigration categories, rules forbidding intermarriage, and state statutes defining blackness, such as the "one-drop rule," according to which any individual with a detectable trace of black blood is black.
A recently developed theme within critical race theory discourse is differential racialization. This theory holds that the various racial groups in the United States—blacks, Latinos, Asian-Americans, and Native Americans, for example—have been racialized in different ways in response to different needs of the majority group. Moreover, the laws and legal structures society devises for each group—such as English-only laws for Latinos, alien land laws for Asians, and Jim Crow laws for blacks—operate differently in the case of the various groups. The groups feature different histories and struggles. They had to contend with different sets of discriminatory laws and practices. With Indians, for example, society wanted their land; with blacks, labor; with Latinos, first land, then labor; and so on. Social stereotypes of the various groups changed accordingly over time to facilitate society's obtaining what it wanted from the group in question. For example, during slavery, when southern whites had matters well in hand, the dominant narratives, songs, and stories about blacks were reassuring: Blacks were happy with their lives and pleased to serve whites. Later, when blacks received their freedom and were perceived as a threat, social images of them changed. Writers, cartoonists, and filmmakers depicted blacks as frightening, larger-than-life figures with (in the case of men, at least) designs on white women. These figures, of course, justified cruel repression. They would not have served well during the slave period because they would have suggested that blacks were unhappy with their lot.
The black/white binary of race.
Related to the above is the notion that American concepts—and laws—related to race incorporate a black/white binary paradigm, in which two, and only two, races define the study, and system, of race. Those two races are, of course, the white and the black. Other groups, such as Latinos, Asian-Americans, Indians, and Filipinos enter into the equation only insofar as their treatment and experiences can be analogized to those of African-Americans. Sometimes the analogy holds. If antidiscrimination law would afford redress for an African-American worker whose supervisor calls him a "lazy n——" and assigns him to the least desirable tasks, it would also provide relief for an Asian worker called a "damn chink" and sent off to do unpleasant work.
But suppose the basis for discrimination is that a Latino or Asian worker speaks with an accent, or because the employer fears, wrongly, that such a worker may be an undocumented alien. Neither accent nor national-origin discrimination affects most blacks; therefore, remedial law coined with them in mind may afford no redress for these other kinds of discrimination. By the same token, Asians may be discriminated against because of a radically different set of stereotypes—the super-achiever or humorless drone who steals jobs from more well-balanced American workers, while Latinos may suffer because of the opposite stereotype—the happy-go-lucky lover of song, dance, and women. Again, none of these stereotypes affects blacks generally, with the result that courts and other decision makers are apt to be unschooled in the need to be on guard against them.
Intersectionality and antiessentialism.
A further critical theme that, like differential racialization and the black/white binary, has to do with categories and power is intersectionality and antiessentialism. Opposite sides of the same coin, these two themes draw attention to the evils of overgeneralization. Both have to do with identity. Intersectionality names a phenomenon in which individuals are often found to exhibit identities that are complex. A Latino may also be black, or gay. An African-American may be female and a single parent. An Asian-American may have a parent who is Filipino or a grandparent who is Latino, and so on.
Complex identities may turn out to have legal consequences. For example, imagine an African-American woman worker who suffers discrimination on the job site because of her black womanhood. Her supervisor may dislike black women, believing them lazy or haughty. The supervisor may harbor no such dislike for black men or white women, and may treat them fairly. His discrimination runs only to black women.
Suppose that our hypothetical worker sues for workplace discrimination. How would she frame her case? She could invoke one existing body of case and statutory law that redresses discrimination on the grounds of sex. She is, after all, a woman, and her boss does discriminate against her because she is a woman—a black woman. Alternatively, she could file suit on the grounds of racial discrimination. Her supervisor treats her badly, in part, because she is an African-American. Regardless of the avenue she chooses, however, her suit will confront serious obstacles. Her boss can maintain, truthfully, that he does not discriminate against all women. In particular, he treats white women well, promoting them when they deserve it and otherwise treating them fairly.
He can also prove that he does not discriminate against African-Americans across the board. In particular, he likes black men and treats them well at work. The black woman's claim, then, could fail because her discrimination is intersectional—aimed at her because of her status as a black woman, someone with an intersectional identity. All individuals with complex identities run the risk that a system of power and authority that hinges on prefabricated categories, none of which perfectly fit the individual's situation, fails to do them justice.
Antiessentialism points to the mirror image problem. An organization, such as a woman's group, whose dominant membership is, let us say, white, may give short shrift to the needs and priorities of nonwhite members because it thinks in terms of an "essential" woman, who is, of course, white. The organization then devises strategies to advance the objectives of this member, whose aims and needs are considered to be representative of the group. The needs of nonstandard members—say, white lesbians, or black single mothers—are deemed of secondary importance. The group will deal with them as soon as the needs of women, as women, are dealt with. And this paradigmatic woman is apt to turn out to be white and middle class.
Legal storytelling and narrative analysis.
Out of the concern that conventional legal discourse—and perhaps discourse of any kind—will fail to do justice to the needs, experiences, and histories of minorities, critical race theorists have been experimenting with new modes of presenting their ideas. These new vehicles include legal storytelling and narrative analysis. Legal storytelling received a large boost when Derrick Bell, at the height of his career, received a prestigious invitation to write the foreword to Harvard Law Review's 1985 Supreme Court issue, devoted to the analysis of recent opinions. Disdaining the usual heavily footnoted, ponderous prose in which most of the forewords are written, Bell instead published a series of conversations—"The Civil Rights Chronicles"—with an imaginary superheroine lawyer named Geneva Crenshaw. His alter ego is young and brash; his own voice is tempered and moderate. The two discuss the current racial scene and developments in the law. Bell tries to defend the system and its steady, incremental progress. Geneva destroys every illusion with devastating wit and analysis.
Others followed Bell's lead, using fable, myth, and close observation to unmask items of the liberal faith, such as that blacks are making constant progress, color blindness is capable of redressing most racial ills, and most social institutions are prepared to grant minorities full access so long as they meet the institution's standards. Storytelling aims at increasing empathy and allowing the reader a glimpse into what life is like for the author of color. Counterstorytelling aims to debunk the many myths and generalizations that white people believe and that enable them to be comfortable in a system in which they enjoy a disproportionate share of the benefits and privileges. Both types of writing aim at a broad, multiracial audience. Storytellers such as Patricia Williams, Robert Williams, and Richard Delgado have won wide audiences and national acclaim for their work.
Attorneys and legal scholars have also applied the lessons of legal storytelling and narrative analysis to judicial proceedings and the dynamics of the courtroom. A trial is, in some respects, a battle of narratives. And the relationship between an attorney and a client may be seen as an effort to impose a narrative, or understanding, on their mutual journey. Writers such as Lucie White and Anthony Alfieri show how attention to the narrative side of lawyering allows lawyers to understand their function and provide a better brand of justice.
Along with the above-mentioned emphasis on language, discourse, and narrative comes a focus on an especially problematic form of expression—hate speech. Some of the earliest critical race theory work, which continues today, examines the law's treatment of racial epithets, slurs, and name-calling. Speech is a highly protected value in our legal system, yet vicious put-downs based on a person's unchangeable characteristics endanger another set of values, including health, psychological well-being, and equality. Critical theorists such as Mari Matsuda, Charles Lawrence, and Richard Delgado analyze this conflict between free expression and equal dignity in an effort to provide greater protection for the latter value. Some have participated in the drafting of campus hate-speech codes aimed at assuring an atmosphere conducive to equal participation. They also address issues such as the Confederate flag, teams that sport demeaning Indian logos, and public monuments that memorialize slavery and a segregated past.