By Joy Radachy
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29 Aug, 2023
Critical Race Theory (CRT) has become controversial in media, particularly in the United States. We’ve all heard it mentioned. But what does it mean? At its most basic, “ critical race theory states that U.S. social institutions (e.g., the criminal justice system, education system, labor market, housing market, and healthcare system) are laced with racism embedded in laws, regulations, rules, and procedures that lead to differential outcomes by race.” This can seem like an overwhelming definition. A good way to start is by touching on its beginnings. Critical Roots Critical Race Theory began with its sister theory, Critical Legal Theory, in challenging accepted practices in American legal systems. Jim Crow laws promoted segregation, ensuring the marginalization of Black Americans by prohibiting them from voting, getting an education, or holding jobs. Black people were forced into indentured servitude without legal means to make a living. Segregation provided substandard resources and amenities for Black communities and restricted Black citizens from using those designated for white people. BlackPast explains, “In 1881, U.S. Supreme Court Justice Oliver W. Holmes wrote The Common Law , which stated, ‘The life of the law has not been logic, but experience. The felt necessities of the time, the prevalent moral and political theories… even the prejudices which judges share with their fellow men, have had a good deal more to do than [the idea of equality before the law] in determining the rules by which men should be governed.’” In other words, a Supreme Court Justice expressed that factors other than logic or equality had been determining laws. These factors included moral theories and prejudices. Twenty-six years later, Supreme Court Justice Charles Evans Hughes added to Holmes’s thoughts on the flexibility of the Constitution (BlackPast). “The Constitution is what the judges say it is,” he wrote. Although the Constitution was supposed to be a living document that protected the rights of all Americans, Hughes pointed out that it failed in that regard. In the 1930s, Yale Law School professor Jerome Frank added further to these thoughts: “Law may vary with the personality of the judge who happens to pass upon any given case.” Frank, and other “legal realists,” spurned the concept of a blind Lady Justice. Instead, they posited that a truly righteous Lady Justice also sees social nuances. While those observations seem obvious now, they were groundbreaking at the time. Those who determined and enforced laws had long benefited from the oppression of People of Historically Racially Marginalized Groups (PHRMG). So they saw no reason to question or change laws. Even still, these declarations and discussions laid the foundation for CRT. As time marched on, progress was slow but not stagnant. Early CRT champions, Alan David Freeman of the University of Buffalo Law School, and Harvard Law Professor, Derrick Bell, penned articles dissecting the status quo. In his 1978 piece, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine , Freeman wrote, “The color-blind theory has never [been] the law; the Supreme Court has, in fact, explicitly upheld the use of racial classification on a number of occasions .” Many cite Derrick Bell’s Race, Racism and American Law as the innovative stepping stone to Critical Race Theory. Although precursors started long before, Critical Race Theory was officially organized in 1989. According to Boston University School of Law , Kimberle’ Crenshaw, a former student of Bell’s, organized a conference dedicated to CRT in Madison, Wisconsin. More than twenty scholars gathered "who were interested in defining and elaborating on the lived reality of race, and who were open to the aspiration of developing theory.” It was here that Crenshaw coined the terms Critical Race Theory and intersectionality. Intersectionality refers to how systems of social categorization intersect to create unique, overlapping effects. She argued addressing the challenges of only one experience or demographic is ineffective. Intersectional Justice explains, “All forms of inequality are mutually reinforcing and must therefore be analyzed and addressed simultaneously to prevent one form of inequality from reinforcing another.” The 1989 conference established CRT as a vital critique of legal theory, acknowledging the prevalence of racism in American society but vowing to continue to combat it. Critical Race Theory Tenets But what is Critical Race Theory? According to the American Civil Liberties Union (ACLU) , ”The term ‘critical race theory’ has been co-opted by opponents as a catchall term to apply broadly to classroom discussions about race and racism, gender identity, sexuality, and sexism.” Unfortunately, the sweeping use of the term muddies its meaning. The following defined tenets help us understand CRT: Racism is a social construct, not biologically inevitable. Racism is normal in the U.S., not an aberration. It is the ordinary experience of most PHRMG. Interest Convergence: Bell’s theory that social change for minority groups occurs only when their interests align with those of the majority. Social construction of race: the idea that society trains us how to view race. “Differential racialization” attributes negative stereotypes to PHRMG. Storytelling and counter-storytelling: Counter-storytelling ensures the dominant culture’s voice does not dominate and “whitewash” the experiences of marginalized communities. “The self-expressed views of victims of racism and other forms of oppression provide essential insight into the nature of the legal system .” White people have actually been recipients of civil rights legislation. Majority culture promotes a notion of “color-blindness” and “meritocracy,” and serves to marginalize certain enclaves of people – predominately PHRMG. So, if Critical Race Theory is about pushing for true equal treatment, what is the problem? Why is there so much controversy surrounding CRT? Critical Controversy In 1896, Justice John Marshall Harlan stated , “Our Constitution is color blind.” He warned that “separate but equal” would “…stimulate aggressions… upon the admitted rights of the colored citizens.” But opponents have twisted a portion of this statement to suit their agendas. For instance, in 1989, Justice Scalia used Harlan’s words in the opposite manner in which they were intended. He argued against a program in Richmond, Virginia, which gave preference in awarding municipal contracts to minority businesses. Scalia argued that preferential treatment on the basis of race was “unconstitutional.” He used Harlan’s words but with a very different motivation, saying , “Discrimination on the basis of race is illegal” because “our Constitution is color-blind.” Color blindness actually does a disservice to PHRMG. To deny the existence of race denies the existence of inequalities, removing the search for and implementation of possible solutions. But this buzzphrase has been used to further discredit any attempts at equity. Rashawn Ray and Alexandra Gibbons of The Brookings Institute explain that CRT “has become the new bogeyman for people unwilling to acknowledge our country’s racist history and how it impacts the present.” Most people would not welcome the label of racist. And when American systems are criticized for being oppressive and racist, some people take offense, as if the very idea of America is under attack. It’s troubling to notice that racism is so deeply ingrained in American society that a denunciation of racism gets interpreted as a disparagement of American values. This could explain mainstream media openly attacking CRT without admittedly knowing what it is. Take Tucker Carlson, formerly of Fox News. Carlson regularly criticized CRT, claiming it created inappropriate conversations around race in spaces like schools. In fact, he confessed in 2021, “I’ve never figured out what ‘critical race theory’ is, to be totally honest, after a year of talking about it.” Despite not knowing what CRT entails, he called it “evil,” potentially influencing his millions of viewers to hate and fear something they do not understand. He’s not alone. Conservative thinktank, the Heritage Foundation , erroneously tied CRT to various events they oppose, such as LGBTQ clubs in schools, diversity training in federal organizations, 2020 Black Lives Matter protests, and more. The foundation asserted, “When followed to its logical conclusion, CRT is destructive and rejects the fundamental ideas on which our constitutional republic is based,” Subsequently, there was a public outcry to ban the purported destructive evil. Conservative Republicans appealed to ban books, discussions, or instruction on any issues they deem inappropriate, such as historical accounts of slavery. But, as the ACLU points out, “At their core, ‘anti-CRT’ laws are thinly veiled attempts to silence discussions of race, gender, and sexuality amongst students and educators. These laws suppress free speech and deny people the right to an accurate, complete, and inclusive learning environment.” Because of this popular attention, the movement has now gained traction in legislation. Some states have passed classroom censorship bills, restricting what can be taught to children and what books they can access at school. Further, “curriculum transparency laws” propose to require teachers to post all teaching materials online for public view. The Rigged Game So, why should you care? Let’s put aside the issue of censorship and surveillance for now. Imagine you are playing a board game with some friends. Those with a circular-shaped game piece get to roll two dice each turn. The square players can only use one. There are different rules for different players, influencing the outcome of the game and its likely victors. When you raise the issue of unfairness, you are scolded and criticized. Talking about the game isn’t allowed. Of course, this is a trivial comparison to the realities of racism. But the simplification highlights how anti-CRT movements seek to further oppress those in marginalized communities. However, too many white people are used to winning the rigged game. The imbalance is all they’ve ever known, and they hold tightly to what benefits them, what is familiar. Some even refuse to acknowledge or accept the existence of the systemic racism from which they gain. But we shouldn’t care about oppression or government overreach only when it directly affects us. Living in a society that devalues some lives based on race is disturbing. And those who allow the continuance of oppression become party to it. You’re either part of the problem or part of the solution. As Ibram X. Kendi , author and director of the BU Center for Antiracist Research, insists, “There’s no such thing as being ‘not racist.’ We are either being racist or antiracist.” The True Evil Critical Race Theory is neither evil nor designed to shame white people or indoctrinate children, as some claim. It is a decades-old academic concept asserting that racism is a social construct embedded in American legal systems and policies. The evil to be attacked and banished is racism itself, not the discussion of systemic racism or the attempts to dismantle a system that sustains inequality and oppression. The true evil lies in trying to silence those who speak out against racism and oppression. As with CRT, there is a lot of misinformation out there about Diversity, Equity, & Inclusion (DEI) practices. But we can help with that. We offer consultations to get any workplace, school, or organization on the right track. Contact us for more information.