Another look at critical race theory

CRITICAL RACE THEORY: The Key Writings That Formed the Movement, edited by Kimberle Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas, introduction by Cornell West (1995)

Up until a couple of years ago, hardly any of US Americans outside academia has heard of something called “critical race theory.”   Now public opinion polls show about two-thirds of us have heard of it, and more than one-third think they have a good idea of what it is.  Republicans think it will be a winning issue for them in the 2022 elections and beyond.

Critics blame critical race theory for everything they dislike about affirmative action, cancel culture and Black Lives Matter protests.  Defenders say it mere consists of facing well-established and obvious facts about racism and racial prejudice in the past and present USA.

For the past month, I’ve been reading up on what critical race theorists have to say for themselves.  My latest reading is the 1995 Critical Race Theory anthology, which consists of writings of the founders of the movement.  I admit I read only some of the 27 essays and skimmed the rest.  I have links below to 15 that I have read.

I don’t claim this makes me an expert on a topic to which some have devoted years of study–only that I know more than those who haven’t read anything at all about it.

Critical race theory arose from the disappointment in the results of the civil rights revolution of the 1960s and 1970s.  

After a heroic struggle, in which churches were bombed, protesters were jailed and beaten and some were murdered, African-Americans, with the support of white allies, achieved full civil rights and protection of the law.  And then they found that most of them were as poor and just as unequal as they were before.

Some responded by trying to broaden the struggle to achieve equality for all Americans, and not just black people.  This was the idea of the Poor People’s Campaign planned by the Rev. Martin Luther King Jr. just before his death.  It was the idea behind Jesse Jackson’s Rainbow Coalition campaigns in 1984 and 1988 and the current Poor People’s Campaign led by the Rev. William J. Barber II

Others decided that African-Americans needed to double down on black interests and black identity, and not worry about white opinion.  Instead of thinking of themselves as citizens who were denied their individual rights, they should think of themselves as part of an oppressed nation, like people under colonial rule.

During this time, there was a movement among legal scholars called critical legal theory.  Critical legal theorists said it was a mistake to look at the law as a quest, however flawed, for justice.  The whole purpose of the law, they said, was to codify and maintain injustice.

The moral was that if you are lawyer, prosecutor or judge who believes in social justice, you need not think about whether the law is being correctly applied.  You should only think how to interpret the law in ways to help the oppressed.

The critical race theorists picked up this idea and applied it to race.  It is not an accident that most of the original critical race theorists were law school professors and published their findings in law journals.  

Their idea was that whole social structure, including the law, is set up to serve the interests of white people and repress black people.   The purpose of critical race studies is to show how this works.

Not all critical race theorists are black.  And not all African-American scholars agree with critical race theory.  Many critical race theorists’ writings are black people critiquing other black people.  And critical race theorists don’t necessarily agree among themselves.  Which, of course, is right and proper for an academic discipline.

I began this reading from a standpoint of defensiveness against the critical race theorists rejection of liberalism, universalism, impartial justice and other things I believe in.  I haven’t changed my mind about these things, but immersing myself in critical race theory writings has made me more sympathetic than I was.

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In the famous 1896 Plessy v. Ferguson decision, the Supreme Court held that racial segregation laws were Constitutional if accommodations were “separate but equal.”  Justice John Marshall Harlan, in an eloquent dissent, said the Constitution does not allow legal distinctions based on race.  “Our Constitution is colorblind,”

The lawsuit was filed by Homer Plessy, who was arrested for sitting in the white section of a Mississippi railroad car.  I learned from reading his anthology that part of Plessy’s complaint was that he was seven-eighths white, and there was no basis for classifying him as black. 

I learned that Justice Harlan went on to say that the white race was so superior in its accomplishments to the black race that it did not need segregation laws to maintain its dominant position.  

This is a recurrent theme through critical race theory writings—that so many of the supposedly great statements or great advances in civil rights aren’t what they’re cracked up to be.

Critical race theorists say the superior position of the white race is due to historic injustice, not superior accomplishments, but they agree with Justice Harlan that whites do not need segregation laws to maintain its dominant position.  Historic inertia is enough.  That is why they say affirmative action is needed, and being colorblind is not enough.

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Cheryl I. Harris began her article on “Whiteness as Property” with an account of the hard life of her Mississippi-born grandmother, who was only able to survive by passing as white, which was the only way she could get a job in a department store.

Harris told about how Andrew Hacker asked white students how much they’d have to paid to be transformed into blacks.  On average, they said they’d want $1 million a year.

There is a proven economic advantage in being white that continues today.  Testers repeatedly find that employers are willing to hire less-qualified whites over more-qualified blacks, and the same is true in banks’ lending practices.

Harris agued that affirmative action equalizes things by giving African-Americans an economic advantage to offset the economic advantages that whites continue to enjoy.

One aspect of today’s cancel culture, or political correctness, or whatever you want to call it, is that it has made us white people self-conscious about our race and about how we are perceived in a way that black people in the USA have always been.  Turnabout is fair play, I suppose.

For myself, I don’t think of the advantages I enjoy over black people as privileges, because privileges are something you don’t deserve and should be taken away from you.  

I think that, for example, being able to go peaceably about my business without being hassled by police and other authority figures is not a privilege.  It is a right that everyone should enjoy.  

That’s different from the privileges whites had in the Jim Crow South, of being free to insult or harm black people and suffer no consequences.  Nobody should have those powers.

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Kimberle Crenshaw was an early proponent of the idea of “intersectionality.”  She said that oppression is not just domination of whites over blacks and other people of color, but of men over women, straights over gays, native-born over immigrants, able-bodied over disabled, and so on.

This idea has been widely mocked, as an assumption that oppression is a matter of checking boxes.  Is a white lesbian Spanish-speaking immigrant more oppressed than a straight native-born black ban?

Crenshaw, in her “Mapping the Margins” article, showed how these different factors play out in the lives of real people—for example, battered women.

One of the white stereotypes of black people is that they are more highly sexed than white people.  In the Old South, that meant that white men had to protect their women from being seduced or raped by, in effect, emasculating black men.  Any sign of assertiveness by black men was put down ruthlessly.   Black women, on the other hand, were regarded as Jezebels and temptresses, but fair game for seduction.

What this has meant is that many black women have felt an obligation to build up the confidence of black men and affirm their masculinity.  And that, in turn, has meant pressure to subordinate themselves and be silent about abuse.

Many black people, both male and female, felt an obligation to defend Mike Tyson against rape charges and Clarence Thomas against sexual harassment charges, because of historic memories of how black men were lynched for being accused of rape, or even of making sexual advances to white men.  

They ignored the fact that their (alleged) victims were black.  The same thing plays out with battered black women, Crenshaw wrote.  They’re told to be silent out of racial solidarity.  Intersectionality is a fancy word, but it can refer to real things.

###

Gary Peller, in “Race Consciousness,” criticized the liberal idea of impartial treatment of everyone, regardless of race, because black people start out from a position of subordination based on past and present racism.  

He said what’s typical of whites is regarded as normal, and what’s typical of blacks is regarded as a deviation from the norm.

Although he didn’t make these specific comparisons, I would say he sees African-Americans are an oppressed people, like Jews in the Russian Empire or maybe Palestinian Arabs in Israel.  Their goal is not for black people to be treated impartially as individuals, but to achieve liberation, self-determination and redress for past wrongs.

If that is true, there is no possibility of solidarity between black wage-earners and white wage-earners.  Rather rich, poor and middle-class black people should unite in a common struggle.

The question of whether African-Americans are a nation within a nation is not a question I get to vote on.  The definition of what constitutes a nation is circular.  African-Americans are a nation if they collectively decide they are a nation.  If they do, this is a fact that liberal white people like me will have to reckon with.

Peller’s idea is that if blacks and whites both start thinking of themselves as unified groups, the black community will be in a position to demand the white community pay reparations.  Maybe that would happen.  

Until a couple of years ago, I would have thought it highly unlikely.

But public opinion polls show a critical mass of white people agree that black people are held back by past and present racial discrimination, and this needs to be overcome.  In fact, on key points, white liberals are more militant in their anti-racism than average black people

I never would have predicted the Black Lives Matter movement would be supported by. so many whites who dutifully refrain from saying “all lives matter.”  But last year’s BLM protests were the most powerful U.S. protest movement of my adult lifetime, and they drew both blacks and whites.

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Summing up, I’ve learned something of where critical race theorists are coming from, which I didn’t understand before.  And I’ve become more understanding and sympathetic to them without changing my basic views.

My problem with critical race theory is not so much what its proponents say as what they leave out.  They wrote a lot about affirmative action and reparations, but very little about unemployment, low wages, medical care and other problems they have in common with white people.  

This follows from the idea of black nationalism.  It means you don’t stress things black people and white people have in common.

You can find a racial angle in anything unjust in American life.  You also can find a money angle, and you need to understand both.

The writers are eloquent and insightful about the history of racism, and about how past injustices perpetuate themselves into the present. They are equally eloquent and insightful about their insights into white hypocrisy and about things that are seemingly fair and just, but really aren’t.

Except for an article by Lani Gaunier’s article on election reform (no link available), the writers’ positive proposals are limited to reparations and affirmative action.  And they have little or nothing to say about strategies for achieving their goals.  

I’m in favor of discussing the ideas in critical race theory and seeing what is of value in them.  I’m opposed to making these ideas an orthodoxy that you can’t criticize without defining yourself as a racist.

Everything in Critical Race Theory: the Key Writings is from more than a quarter-century ago.  I didn’t see anything in them that foreshadows today’s cancel culture and political correctness, or the other excesses attributed to this theory.

I don’t see any possibility of forbidding the teaching of critical race theory in the public schools, or any benefit in trying.  Before you could ban something, you would have to define it.  And before you can criticize something, you have to have an idea of what it is. 

The book consists of 494 large pages covered with text in small type.  You would have to have a strong interest and a lot of free time to read it the whole way through.  I didn’t read it all, myself, but I did read all the articles I linked to. 

If you want to tackle it, I recommend reading the overall introduction, and the introductions to the different sections first, and then look at what articles seem most interesting.

Links to articles in Critical Race Theory: the Key Writings.

Serving Two Masters: Integration Ideals and Client Interests in Desegregation Litigation by Derrick Bell for Yale Law Review (1976)

Legitimizing Race Discrimination Through Antidisrimination Law: A Critical Review of Supreme Court Doctrine by Alan David Freeman for Minnesota Law Review. (1978)

Looking to the Bottom: Critical Legal Studies and Reparations by Mari J. Matsuda for the Harvard Civil Rights – Civil Liberties Law Review (1987)

The Clouded Prism: Minority Critique of Critical Legal Studies by Harlan J. Dalton for the Harvard Civil Rights – Civil Liberties Law Review (1987)

Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law by Kimberle Crenshaw for Harvard Law Review (1988)

Race-Consciousness by Gary Peller for Duke Law Journal (1990)

A Cultural Pluralist Case for Affirmative Action in Legal Academia by Duncan Kennedy for Duke Law Review (1990)

Translating “Yonnondio” by Precedent and Evidence: the Mashpee Indian Case by Gerald Torres and Kathryn Milun for Duke Law Review (1990)

A Critique of “Our Constitution Is Colorblind” by Neil Gotanda for Stanford Law Review. (1991)

A Straightforward Primer on Critical Race Theory (and Why It Matters) by Ilana Redstone for Forbes [Added 9/28/20210]. Hat tip to Hal Bauer.

Whiteness as Property by Cheryl I. Harris for  Harvard Law Review (1993)

Racial Realism by Derrick Bell for Connecticut Law Review (1992)

The Word and the River: Pedagogy as Scholarship as Struggle by Charles R. Lawrence III for Southern California Law Review (1992)

Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women by Kimberle Crenshaw for Stanford Law Review. (1991)

Sapphire Bound! by Regina Austin for Wisconsin Law Review (1989)

Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case by Kendall  Thomas for Southern California Law Review (1992)

Links to contemporary articles

Varieties of Black Political Philosophy by The Sooty Empiric.

What’s so bad about critical race theory? by Sam Kriss for Idiot Joy Showland.  Highly recommended.

The Void That Critical Race Theory Was Created to Fill by Lauren Michelle Jackson for The New Yorker.

I’ve Been a Critical Race Theorist for Years – Our Opponents Are Just Proving Our Point for Us by Gary Peller for Politico.

Who’s Afraid of Critical Race Theory? Not the Students in My Class by Vincent Jungkunz for The Washington Post.

The Conspicuous Absence of Derrick Bell–Rethinking the CRT Debate, Part One by Patrick D. Anderson for Black Agenda Report.

Realism, Idealism and the Deradicalization of Critical Race Theory–Rethinking the CRT Debate, Part Two by Patrick D. Anderson for Black Agenda Report.

The Theory of Intersectionality Arises Out of Racist, Colonialist Ideology, Not Radical Politics–Rethinking the CRT Debate, Part Three by Patrick D. Anderson for Black Agenda Report.

Critical Race Theory Debacle Signals the Collapse of the American Empire by Danny Haiphong for Black Agenda Report.

Twenty Years of Critical Race Theory: Looking Back to Move Forward by Kimberle Crenshaw for the Connecticut Law Review (2011)

Demarginalizing the Intersection of Race and Sex by Kimberle Crenshaw for the University of Chicago Legal Forum (1989)

A short primer on Critical Race Theory by Jerry A. Coyne on Why Evolution Is True [Added 9/28/2021]. Hat tip to Hal Bauer.  This sums up my own view.

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