Written by: Nathan Benson
Recently, a legal theory which crystalized in the 1980s has created both political and legal controversy. This November, a group of conservative South Carolina state legislators sued Lexington County School District One for teaching concepts drawn from Critical Race Theory (CRT) and promised more suits would follow. In August, the ACLU, the Legal Defense Fund, and a national law firm came to CRT’s defense by suing state officials over Florida’s “Stop WOKE Act,” a recent bill banning public schools from teaching CRT. The Florida suit represents one of many challenges to nearly identical legislation passed in other states within the last two years. Interestingly, participants on both sides of the conflict characterize their opponents’ position as racist. Having spent the last twelve years studying CRT, I believe the nature of CRT itself explains this phenomenon. In this post, I will attempt to explain CRT and its philosophical framework, primarily drawing from the Introduction to the anthology Critical Race Theory: The Key Writings That Formed the Movement, as it represents several CRT scholars’ own attempt to identify commonalities within the diverse texts which comprise CRT. (Introduction, in Critical Race Theory: The Key Writings That Formed the Movement I (Kimberlé Crenshaw et al. eds., 1995)). However, I will occasionally draw from other works in the volume and outside sources to provide a more systematic account.
Traditional Civil Rights Discourse
CRT primarily arose out of dissatisfaction with the shape of racial civil rights reform throughout the 1960s and 70s. During this period, the Court defined racism as “an intentional, albeit irrational, deviation by a conscious wrongdoer from otherwise neutral, rational, and just ways of distributing jobs, power, prestige, and wealth.” In other words, racism only occurs when an individual or institution consciously bases its decisions on race. This definition consequently positioned “color-blind” policies and practices as race-neutral and just. Furthermore, deeming race-conscious action as itself racist quashed political movements, such as Black Nationalism, pushing for radical race-based social change. The Court’s interpretation also constricted the use of race-based policies such as affirmative action and legitimized color-blind merit as the most just selection process. Ultimately, mainstream civil rights discourse preserved and legitimized the bulk of institutional and social practices which organized society during the period of legal racial discrimination, many of which systemically disadvantage people of color without using explicit racial categories.
The Court’s conception of racial justice, however, did not align with certain legal scholars’ lived experience of racial oppression, stimulating them to develop an alternative framework for understanding racism, its causes, and its solutions. CRT’s “critical” component draws upon elements of postmodern thought to analyze the presuppositions underpinning the Court’s decisions. (See, e.g. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, in Critical Race Theory: The Key Writings That Formed the Movement 357, 375 (Kimberlé Crenshaw et al. eds., 1995)). Poststructuralism holds that consciousness can only know reality through an interpretive framework created by language, or anything which conveys meaning. More specifically, linguistic structures create mental structures which, in turn, organize sensations into objects of knowledge. Because language is a social product, poststructuralism generally regards reality, which also encompasses individual identity, as socially constructed.
One particular strand of poststructuralist thought inaugurated by philosopher/historian Michel Foucault focuses on discourses, substructures of linguistic practice that constitute particular objects of knowledge. By defining an object, Foucault posited that a discourse also constructs knowledge of that object, and in doing so, it also constructs social power. For example, the “discourse of Western science” defines procedures and requirements for producing scientific knowledge, the qualifications a scientist must possess, and the practices and policies which organize scientific institutions. The “discourse of Western science” consequently disempowers, or marginalizes, shamanism and shamans while granting considerable power to an M.I.T. professor. Since no standard exists for rendering one discourse more valid or “true” than another, Foucault concluded that contingent social and cultural factors, themselves created through discourse, not only shape discourse but also determine which discourses have authority in a particular setting. (See Vivien Burr, Social Constructionism 73-75, 79-80 (3rd ed. 2015)).
The Politics of Traditional Civil Rights Discourse
Foucauldian discourse theory creates a very powerful tool for analyzing and deconstructing the Court’s conception of racial justice. According to Gary Peller, traditional civil rights discourse equates “truth, universalism, and progress.” (Gary Peller, Race-Consciousness, in Critical Race Theory: The Key Writings That Formed the Movement 130 (Kimberlé Crenshaw et al. eds., 1995)). Under this framework, universal reason serves as a neutral, objective standard for distinguishing truth from error, knowledge from ignorance. Since experience establishes that any individual can possess certain character traits regardless of physical differences, reason suggests that all individuals share a common human nature, rendering particular physical characteristics irrelevant to individual identity. Regarding shared physical traits, such as skin color, as essentially linked to personal qualities is therefore irrational, ignorant, and biased. Consequently, the most fair and just system treats everyone according to a common standard unbiased toward or against irrelevant characteristics such as race, sex, or ethnicity.
Utilizing the poststructuralist paradigm, however, reveals the bias within this discourse. Structured by binary oppositions, this discourse opposes reason to emotion, the universal to the particular, and objectivity to personal experience. Furthermore, the first term in each binary constitutes a neutral norm outside of social power, making the second term subjectively biased. However, nothing necessitates utilizing binary oppositions, privileging one term over the other, or choosing this discourse over others. Consequently, this discursive structure and its use stem from bias.
For CRT, this bias resulted from the racial power that has structured American society throughout its history. The authors define race as a discursively constructed category that divides American society into whites and non-whites and grants power to the former while oppressing the latter. By constructing race in this way, discourse also constructs political interests. Whites have an interest in maintaining the social structure which grants them power and privilege while people of color have an interest in creating a more liberatory social system. These political interests, in turn, determine which discourses each group accepts or rejects. According to the authors, whites primarily maintain social dominance through hegemony, which a group attains by controlling social institutions and systems, such as churches, schools, and the economy. (See Bill Ashcroft Et Al., Post-Colonial Studies: The Key Concepts 106-107 (2nd ed. 2007)). These institutions, themselves organized by dominant discourse, propagate dominant ideology until it gains widespread acceptance as “common sense,” thus appearing “natural” and “inevitable,” rather than politically motivated. Widespread acceptance of a dominant discourse also marginalizes the experience of those it dominates by positioning their perspective as subjective, thereby preventing them from exerting social influence.
This model of racial domination shapes CRT’s liberatory strategies. First, it shifts the focus of critique from individual attitudes to the discourses and systems which create and justify those attitudes. Also, by revealing the political bias behind all knowledge-claims, CRT erases the concept of race neutrality. In doing so, CRT creates space for overtly race-conscious critique and activism, a space closed by the Court’s “unbiased” equation of racial justice with color-blindness. As a result, CRT has generated scholarship revealing the way in which popular conceptions of merit, equal opportunity, and justice systemically oppress people of color. Such scholarship often uses “critical historical method,” which examines abstract legal concepts within the historical context from which they emerged. Doing so reframes them as products of “political, cultural, and institutional conflicts and negotiations” rather than dispassionate observation and legal reasoning. Exposing America’s social structure as a product of racial hegemony also explains the necessity of race-based policies such as affirmative action. If racist policies persist because whites control institutions of power, social change depends upon populating those institutions with more people of color.
CRT scholars also fight racial domination by relating their experiences of racial subordination. They regard their writings as “contributions to what Edward Said has called ‘antithetical knowledge,’ the development of counter accounts of social reality by subversive and subaltern elements of the reigning order.” In Covering Islam, Said explains the way in which Western political and economic interests influence scholars to construct Islam in a way which furthers those interests. (See Edward Said, Covering Islam: How the Media and the Experts Determine How We See the Rest of the World 145 (1981)). Antithetical knowledge is produced by scholars who are aware that social context shapes knowledge and “quite consciously consider themselves to be writing against the prevailing orthodoxy.” For CRT, producing antithetical knowledge consists of writing from an overtly personal perspective Doing so not only draws attention to the way race shapes consciousness but also raise awareness among individuals with similar perspectives, leading them to organize against racial oppression and create alternative, liberatory discourses.
CRT and Essentialism
Some accuse CRT of essentializing race. In the Introduction, the authors reference the “whiteness” of certain groups, note the way that race shapes institutional practices, and highlight the influence one’s race exerts on her conception of reality. Such assertions could create the impression that whites and people of color are innately different homogenous blocs whose race determine the thoughts, values, and identities of their constituent members. CRT scholars themselves have struggled to navigate the tension between legitimizing the value of writing from a race-conscious perspective while avoiding essentialist stereotypes. (See Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L.J. 2012(1991)). The Introduction therefore emphasizes that social experience creates group identity. Individuals sharing a similar social context will inevitably have significantly overlapping perspectives, providing “some basis for a collective identity.” Because the discourse of race has created very different social experiences for whites and people of color, it follows that individuals of the same race tend to have similar outlooks. CRT’s rejection of essentialism most clearly emerges in its doctrine of intersectionality. Intersectionality recognizes that members within a racial group experience unique forms of oppression because their race “intersects” with other socially significant categories which shape experience, such as gender. Consequently, the way a Black male theorizes racism does not embody “the Black perspective,” and regarding it as such fails to identify and address oppression unique to Black females.
Engaging in productive debates over CRT—debates currently occurring in classrooms, on television, and in the courts—requires some understanding of the topic. Because it challenges common notions of truth, knowledge, identity, and reality and draws from many unfamiliar disciplines and perspectives, CRT defies simple definition. However, this post hopefully provides some clarity or inspires readers to do their own research. As Delgado and Stefancic note in Critical Race Theory: An Introduction, “Although CRT began as a movement in the law, it has rapidly spread beyond the discipline.” (Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 6-7 (2nd ed., 2012). Other fields such as education, political science, women’s studies, and sociology are employing Critical Race strategies and principles to understand the unseen racial dimensions structuring society, including their own arena of activity. As conflict inevitably arises over the clash of competing paradigms, a better understanding of those paradigms is essential to navigating the conflict.