Racism, Justified: A Critical Look at Critical Race Theory

By now, most of you have heard of Critical Race Theory. Its narrative, ideology, and even vocabulary have become a familiar refrain. “Systemic oppression,” “institutional racism,” and “white privilege” have become common topics of debate. At Harvard Law, a group of protestors calls for $5 million and three tenure-track faculty to establish a program on Critical Race Theory at HLS. But, beneath the demands, there remains a lack of clarity about what Critical Race Theory actually means.

Critical Race Theory Calls for Permanent, Codified Racial Preferences

At the heart of Critical Race Theory lies the rejection of colorblind meritocracy. “Formal equality overlooks structural disadvantages and requires mere nondiscrimination or “equal treatment.”[1] Instead, Critical Race Theory calls for “aggressive, color conscious efforts to change the way things are.”[2] It contemplates, “race-conscious decision making as a routine, non-deviant mode, a more or less permanent norm”[3] to be used in distributing positions of wealth, prestige, and power.[4]

Critical Race Theorists wish to move beyond the narrow scope of current American affirmative action policies, “which strangles affirmative action principles by protecting the property interest of whiteness.”[5] Instead, Critical Race Theorists argue for a “conception of affirmative action where existing distributions of property will be modified by rectifying unjust loss and inequality.”[6] “Property rights will then be respected, but they will not be absolute; rather, they will be considered against a societal requirement for affirmative action.”[7] “In essence this conception of affirmative action is moving towards reallocation of power.”[8] Race-conscious decision making is necessary to “deliberately structure institutions so that communities and social classes share wealth and power”[9] where race is seen as “a rough but adequate proxy for connection with a subordinated community.”[10]

Meanwhile, Critical Race Theory treats the idea of meritocracy—or the idea, in this context, that the law can and should treat all equally regardless of the color of their skin—as “a vehicle for self-interest, power, and privilege”[11] This “myth of meritocracy” is merely a tool to perpetuate the existing power structures that are based on white supremacy and white privilege. Thus, the myth of meritocracy marginalizes people of color.[12] The only alternative, then, is to use racial preferences to “delegitimize the property interest of whiteness—to dismantle the actual and expected privilege that has attended ‘white’ skin.”[13]

Critical Race Theory Rejects Liberalism

Along with meritocracy, Critical Race Theory “rejects the traditions of liberalism.”[14] As described by Critical Race theorist Richard Delgado, “[Critical Race theorists] are suspicious of another liberal mainstay, namely rights.”[15] “Particularly some of the older, more radical Critical Race Theory scholars…believe that moral and legal rights are apt to do the right holder much less good than we like to think.”[16] “In our system, rights are almost always procedural (such as due process) rather than substantive (for example, to food, housing, or education).”[17] “Moreover, rights are said to be alienating. They separate people from each other ‘stay away, I’ve got my rights’—rather than encouraging them to form close, respectful communities.”[18]

As a result, Critical Race theorists tend to be less protective of traditional liberal rights, most notably those involving speech. Critical Race theorists have called for “tort remedies for racist speech”[19] and some theorists believe that “formal criminal and administrative sanction—public as opposed to private prosecution—is also an appropriate response to racist speech.”[20] These debates, once academic in nature, have become increasingly salient with the recent wave of campus protests.[21] Concerns about free speech are interpreted by some Critical Race theorists as an expression of “white fragility,” which is “in and of itself an expression of white supremacy.”[22]

Critical Race Theory’s Narrative Approach to Truth

Critical Race Theory is uniquely reliant on narrative to substantiate its claims. “An essential tenant of Critical Race Theory is counter storytelling.”[23] Narrative analysis can be used “to reveal the circular, self-serving nature of particular legal doctrines or rules.”[24] “Most mainstream scholars embrace universalism over particularity, and abstract principles and ‘the rule of law’ over perspectivism.”[25] “Clashing with this more traditional view, Critical Race Theory emphasizes the opposite, in what has been termed the ‘call to context.’”

“For Critical Race Theorists, general laws may be appropriate in some contexts (such as, perhaps, trusts and estates, or highway speed limits), but political and moral discourse is not one of them.”[26] Narratives need not necessarily be true to prove their point. “In order to appraise the contradictions and inconsistencies that pervade the all too real world of racial oppression, I have chosen in this book the tools not only of reason but of unreason, of fantasy.”[27]

Narratives are employed to shore up other basic premises of Critical Race Theory, such as the notion that “racism is a permanent component of American life” and that racism continues to play a “dominant role” in American society.[28] For instance, Critical Race Theorists use individual narratives of hate crime incident to explore the import and impact as hate speech in order to argue for the inadequacy of current punishment.[29] Salient to the current campus debate, campus protestors often employ narratives to argue that Harvard today engages in “systemic racism and exclusion.”[30]

A Brief Critique

Critical Race theory offers a potent mix: rejecting racial neutrality in the law, rejecting the liberal emphasis on individual rights, rejecting the possibility of objectively neutral legal analysis and embracing “the tools not only of reason but of unreason.”[31] It is an unusual combination for a theory originating on the far left.

If Critical Race theory were just about affirmative action, perhaps we could let such indulgences slide. But Critical Race theory not only directs how to structure the university, but also how to structure the relation of the individual to the state. Racially-based taxes, racially-based employment quotas, racially-based redistributions of wealth: none would be beyond the theoretical horizon of Critical Race theory. All are justified by an appeal to inadequate racial justice, an appeal that can neither be proved nor disproved, an appeal that can just as easily be used for naked racial subordination. All fall within a context where speech labeled as “hurtful” and “racist” could be punishable by law, and opponents of the racial regime would be silenced.

To teach Critical Race Theory is to teach the latest in a sad line of theoretical justifications for legally-codified racism. As a proponent of academic freedom, I have no problem with this, just as I would have no problem for studying the legal justifications for other regimes that have codified race into law. But let’s not pretend that we are doing anything else, and let’s certainly not mandate the teaching of any such ideology.

Bill Barlow is a 3L.


 

[1] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 289

[2] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012), 49

[3] Kennedy, Duncan, “A Cultural Pluralist Case for Affirmative Action in Legal Academia. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 164

[4] Guinier, Lani, “Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 215, making the case that “race is as effective as geography in functioning as a political proxy.” The article defends certain principles behind race-conscious districting. This article does not, however, call for explicit transfer of political power on the basis of race, only race conscious decision making in districting.

[5] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 290

[6] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 290

[7] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 290

[8] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 290

[9] Kennedy, Duncan, “A Cultural Pluralist Case for Affirmative Action in Legal Academia. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 162

[10] Kennedy, Duncan, “A Cultural Pluralist Case for Affirmative Action in Legal Academia. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 162

[11] “What is Critical Race Theory?” Form the UCLA School of Public Affairs, see https://spacrs.wordpress.com/what-is-critical-race-theory/

[12] See “What is Critical Race Theory?” Form the UCLA School of Public Affairs, see https://spacrs.wordpress.com/what-is-critical-race-theory/. See also Godsey, Mark A., “The Myth of Meritocracy, and the Silencing of Minority Voices: The Need for Diversity on America’s Law Reviews” (1995). Faculty Articles and Other Publications. Paper 84. http://scholarship.law.uc.edu/fac_pubs/84

[13] Harris, Cheryl. “Whiteness As Property”. Critical Race Theory: The Key Writings That Formed The Movement. Kimberle Crenshaw. 1st ed. New York: New York Press, 1995. 288

[14] See “What is Critical Race Theory?” Form the UCLA School of Public Affairs, see https://spacrs.wordpress.com/what-is-critical-race-theory/. See also Anthology, xix-xx, on the divide between Critical Race Theory and traditional liberalism.

[15] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012),50

[16] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012),50

[17] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012),50

[18] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012),51

[19] Richard Delgado & Jean Stefancic, Critical race theory: an introduction (2012),47

[20] Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2321 (1989).

[21] For a short review of some recent conflicts between protestors on issues of free speech, see “Fascism at Yale”. http://hlrecord.org/2015/11/fascism-at-yale/

[22] “Free speech, Black lives, and white fragility” by Bennett Carpenter, Duke Chronicle, January 19, 2016. http://www.dukechronicle.com/article/2016/01/free-speech-black-lives-and-white-fragility

[23] “DeCuir, J. T., & Dixson, A. D.. (2004). “So When It Comes out, They Aren’t That Surprised That It Is There”: Using Critical Race Theory as a Tool of Analysis of Race and Racism in Education. Educational Researcher33(5), 27.

[24]Richard Delgado & Jean Stefancic, Critical race theory: THE CUTTING EDGE (2000) https://www.temple.edu/tempress/chapters_1100/1169_ch1.pdf xvii

[25] Richard Delgado & Jean Stefancic, Critical race theory: THE CUTTING EDGE (2000) https://www.temple.edu/tempress/chapters_1100/1169_ch1.pdf xvii

[26] Richard Delgado & Jean Stefancic, Critical race theory: THE CUTTING EDGE (2000) https://www.temple.edu/tempress/chapters_1100/1169_ch1.pdf xvii

[27] Derrick Bell, And we are not saved: the elusive quest for racial justice (1987). 5.

[28] “DeCuir, J. T., & Dixson, A. D.. (2004). “So When It Comes out, They Aren’t That Surprised That It Is There”: Using Critical Race Theory as a Tool of Analysis of Race and Racism in Education. Educational Researcher33(5), 27

[29] “DeCuir, J. T., & Dixson, A. D.. (2004). “So When It Comes out, They Aren’t That Surprised That It Is There”: Using Critical Race Theory as a Tool of Analysis of Race and Racism in Education. Educational Researcher33(5), 28

[30]See https://reclaimharvardlaw.wordpress.com/ for the point that Reclaim Harvard Law believes that Harvard engages in systemic racism and exclusion. The import of personal narratives to this conclusion is evident in the community meetings as well as personal discussions with members of the protest movement.

[31] Derrick Bell, And we are not saved: the elusive quest for racial justice (1987). 5.

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