Critical Race Theory

What Is Critical Race Theory?

Legal AssistantCivil Rights, Constitutional Law

In September 2020, a Trump executive order was issued to exclude any diversity and inclusion training in federal contracts. The presidential directive targeted programs whose subject matter revolved around concepts like “gender or race-based scapegoating,” “gender or race-based stereotyping,” and “divisive concepts.”

Among the notions deemed “divisive” is the Critical Race Theory (CRT).

In response to the controversial directive, the African American Policy Forum launched a campaign dubbed #TruthBeTold to shed light on the danger posed by the executive order. The presidential directive resulted in the cancellation of more than 300 diversity and inclusion programs.

What is Critical Race Theory, and what effect does its prohibition have on civil rights for minority groups in the country? Here’s everything you need to know.

Critical Race Theory Definition

CRT was developed at Harvard Law School several decades ago as an intellectual framework. It hypothesizes that racism goes beyond individual bias, putting forth the idea that it is deeply rooted in the policies and legal systems within society.

In January 2021, the Republican member of the New Hampshire House, Rep. Keith Ammon, introduced a bill that rides on the concepts introduced in the 2020 Trump executive order. The premise of the proposed legislation is to bar educational institutions and organizations with an existing contract or subcontract with the state from perpetuating and endorsing “divisive concepts.”

The bill specifically proposes banning concepts that:

  • Suggest the country is fundamentally racist at its core
  • Question the value of meritocracy
  • Promote gender or race-based scapegoating

The New Hampshire bill is one of several proposed state legislation across the country and in the US Congress that have been drafted with similar prohibitions.

Lawmakers in Arkansas recently passed a directive aimed at banning state contractors and subcontractors from offering training programs that promote social justice for, resentment of, and division between groups, on the basis of their gender, race, or political affiliation.

Similarly, the Idaho state legislature enacted a bill designed to bar public education institutions from making it compulsory for students to adhere, adopt, or personally affirm specific beliefs about gender, race, or religion. Even the Louisiana legislature has passed similar directives.

To get a firm handle on the spirit and repercussions of such laws and measures, you first need to understand the origin of the Critical Race Theory and what it proposes.

Who Developed Critical Race Theory

The origin of the CRT dates back to the 1970s in the publications of renowned American legal scholars like Mari Matsuda, Kimberlé Crenshaw, Alan Freeman, Derrick Bell, Patricia Williams, and Richard Delgado. By the 1980s, it had evolved into a movement that reworked the existing theories in Critical Legal Studies (CLS), placing more emphasis on race.

During that period, students of color enrolled in Harvard Law School organized a series of protests highlighting the curriculum, student population, and faculty’s lack of racial diversity.

Derrick Bell, who was a professor at Harvard Law before becoming the dean at the School of Law in the University of Oregon in 1980, crafted several new programs during his tenure at the institution. These courses were designed to study the American legal system but from a racial standpoint.

After Bell resigned from Harvard Law, citing the institution’s discriminatory practices, the university rejected requests from students of color who wanted the new courses taught. The reason given by the administration was that there was no Black faculty member qualified enough to teach Bell’s courses.

Instead, the university employed what the students described as an “archetypal white liberal” instructor. According to them, this move was yet another attempt to interdict the growth of African-American leadership.

The result? Several colored students, including Mari Matsuda and Kimberlé Crenshaw, boycotted and went on to create an “Alternative Course” drawing from the core concepts of Bell’s work.

Why Critical Race Theory Emerged

To draw connections between the theoretical concepts of Critical Legal Studies and the everyday reality of racial politics in America, the first formal workshop dubbed “New Developments in Critical Race Theory” was held in 1989. At the time, only Matsuda, Crenshaw, and a handful of other scholars knew that there were no “new developments” in the field and that it was just a made-up name.

Nonetheless, that was the turning point that marked the divergence of CRT from CLS, emphasizing the racial importance of the emerging field. While CLS did criticize the role that the American Legal System played in legitimizing and generating social constructs that were oppressive in nature, it did not offer any solutions or alternatives.

As a result, the gap left behind for failing to address race and racial prejudice in its analysis meant that CLS did not suggest any viable alternatives for social transformation.

This marked the Critical Race Theory origin.

A total of 24 American scholars of color attended the 1989 workshop, which was held at the University of Wisconsin-Madison. In the years following this landmark event, many scholars went on to publish higher volumes of literary works that centered on CRT, some notable ones being Bell’s Faces at the Bottom of the Well and Patricia Williams’ The Alchemy of Race and Rights.

What Are the Five Principles of Critical Race Theory

Critical Race Theory is constantly evolving. Below is an overview of the five key principles of CRT.

1. Intercentricity of Race and Racism

The initial premise of CRT posits that race and racial prejudice are a fundamental, permanent, endemic, and central part of explaining and defining the operation and functioning of US society.

It further proposes that racialized subordination based on class, gender, accent, phenotype, surname, immigration status, and sexuality is deeply embedded into the system, making it inextricable.

2. Challenge to Dominant Ideology

This second principle counters the concept of White privilege. It opposes the assertions educational institutions across the country make toward equal opportunity, objectivity, the neutrality of race, meritocracy, and color-blindness.

CRT exposes deficiently informed research that distorts, ignores, or silences the epistemologies of people of color. It further asserts that the traditional knowledge that exists serves to camouflage the privilege, power, and self-interest of the dominant groups within society.

3. Commitment to Social Justice

CRT offers a transformative and liberatory response to class, gender, and racial oppression. The social justice agenda as proposed by the Critical Race Theory aims to empower subordinated groups including people of color, eliminate poverty, sexism, and racism, and expose the “interest-convergence” of the educational “gains” as it pertains to civil rights.

4. Significance of Experiential Knowledge

CRT acknowledges that teaching, analyzing, and understanding racial-based subordination requires experiential awareness that only people of color would have. It further states that this knowledge is critical, appropriate, and legitimate and draws explicitly on the life experiences of people of color through methods such as family histories, storytelling, parables, scenarios, narratives, chronicles, and biographies.

5. Transdisciplinary Perspective

Critical Race Theory transcends all disciplinary boundaries to evaluate race and racial-based prejudice in contemporary and historical contexts. It draws on scholarships from various fields, including psychology, law, history, sociology, ethnic studies, theatre, film, and several others.

Critical Race Theory Criticism

Critical Race Theory Criticism

Opponents of the CRT framework contend that examining the role of race in the US legal system, structures, and society is not only divisive but racist as well. Some critics have gone as far as to state that the very nature of the Critical Race Theory draws on a Marxist ideology – whose whole premise revolves around the nation being fundamentally evil at its core and that White people should feel guilty about the color of their skin.

In May 2021, several Republican Congress members proposed a bill that bans CRT training programs in federal institutions, in addition to a resolution meant to highlight the “dangers” of teaching critical race theory in schools.

According to the representatives, the theory promotes division and discrimination. It preserves the idea of treating people differently based on the color of their skin, which undermines equal protection in the eyes of the law and civil rights as guaranteed by the Constitution.

Project PAC

A political action committee, also known as PAC, was established to support school board candidates opposed to CRT. PAC argues that supporters of this intellectual framework not only reject capitalism, but the principles created by the nation’s founding fathers as well. It further contends that the principles fronted by CRT are “hostile to White people.”

Although the Critical Race Theory may not be innately Marxist, a loose link exists between the two. Neo-Marxists and other oppositionist varieties in law schools were included in Critical Legal Studies – which was the precursor to CRT. Critical race theorists diverged from CLS and focused their studies on race and racial prejudice.

According to some factions of CRT proponents, racism continues to exist because of its profitability since fighting it also means suppressing capitalism. However, not all critical race theorists agree with this opinion.

Critical Race Theory and Law

CRT hypothesizes that the civil rights laws in the US have continued to serve the interests of White people. It emerged as part of CLS to specifically address the issues of racial subordination, racism, and discrimination and oppose all continued judicial considerations formed on those ideals. The relationship between Critical Race Theory and law has two fundamental viewpoints.

1. Derrick Bell Approach

Critical Race Theory founding father Derrick Bell put forward three major propositions related to the racial patterns observed in the American legal system.

  • Constitutional contradiction: In this argument, Bell maintained that those who framed the Constitution made the decision to choose the rewards that came with property acquisition rather than seek out justice.
  • The principle of interest convergence: In this argument, Bell proposed that White people support racial-based advances for Black people only when those advances also promote the self-interest of White people.
  • The price of racial remedies: The third proposition puts forward the idea that White people would never promote civil rights policies that may pose a threat to their social status.

2. Freeman Approach

According to Alan Freeman, the idea of racial prejudice and discrimination can be looked at from the perspective of either the victim or the perpetrator. Freeman argued that racial discrimination looks at the circumstances of social existence from the perspective of the victim belonging to a perpetual class. On the other hand, a violation as per the provisions of anti-discrimination law is rooted in the perspective of the perpetrator.

The Affirmative Action Law Through the Lens of the Critical Race Theory

Affirmative action in the US refers to a set of administrative practices, guidelines, and policies designed to end and rectify the impact of specific forms of discrimination. Some of the practices and guidelines include voluntary private programs, as well as government-sanctioned and government-mandated programs.

The idea behind these laws is to help even out the playing field by increasing opportunities in the education sector or the workplace for historically disadvantaged groups based on factors like their race, gender, color, national origin, or religion.

Affirmative action goals rely on “good-faith efforts” to seek out, select, and train qualified disadvantaged individuals and not necessarily conform to specific quotas.

Such goals in the university admissions context, for instance, use racial minority status positively to determine which applicants to accept into a program. Minority applicants would be awarded extra points to remedy the deeply-rooted societal discrimination rooted in certain protected characteristics.

CRT in affirmative action laws puts forward that such practices, guidelines, and policies compensate for the disparity that would otherwise perpetuate racial privilege, given that standardized tests are typically skewed in favor of White students.

The Way Forward

Although the former President issued an executive order to ban all Critical Race Theory-related training programs, a federal judge blocked this directive. President Joe Biden later rescinded the order once he took office, with his administration pushing for federal funding to support programs that “reflect diversity.”

Although some state legislatures – like those in Texas, Tennessee, Idaho, Oklahoma, and Arkansas – with Republican majorities have passed measures to ban CRT training, others have restricted the programs to lower-level classrooms and public colleges.

Despite the attempts to ban the teaching of CRT, the question of whether such actions infringe on the Constitutional right to free speech is still up in the air. For now, it is still unclear which way the courts will rule.

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