Critical Race Theory

Origins

Though the origins of CRT can be traced to the influential writings of early figures such as W. E. B. DuBois and civil rights leaders, such as Martin Luther King Jr. and César Chávez, its formal emergence dates to the mid-1970s and the writings of legal scholar Derrick Bell. Bell, among others, launched a critique of the legal system, arguing that its methods and practices perpetuated a racially stratified society. Though his considerable body of work offers numerous specific critiques, his larger argument can perhaps best be summarized as follows: Racial thinking is ingrained in U.S. history, culture, politics, law, and society in ways that often mask it, making both the racial thinking and the racist manifestations appear neutral. Moreover, the intersection of that racial thinking with the U.S. tradition of liberalism promotes practices and policies that appear to motivate change but that traditionally have enabled the perpetuation of both racial thinking and racist practice. A central such instance for Bell and other CRT scholars is civil rights legislation. While not denying the clear material changes brought about by civil rights, Bell argued, in instances such as the increasing attacks on affirmative action, that the gains made were being lost. CRT also owes debt for its emergence to the critical legal studies (CLS) movement. CLS scholars, writing mainly in the 1970s and 1980s, argued that while law tends to be thought of as neutral, it is heavily political. Indeed, they coined the argument that law is politics. By this, they sought to draw attention to the power-laden biases that drive legal thought and policy. Influenced by the writings of continental social theorists, CLS maintains that U.S. law has mostly served the interests of the dominant and functioned to justify the injustices that it enables. For CRT scholars, such arguments help illustrate the Whiteness that permeates law and society more generally. In response, Bell and the growing community of CRT scholars advocate new approaches to law and legal thinking that would both revise conceptions of race and racism and advocate for racial justice.

Fundamental Assumptions

The writings of CRT scholars are increasingly interdisciplinary and varied. Still, several assumptions are widely shared. United in its investment in the study of race, CRT argues that racism is not merely the seemingly pathological acts of a few extremists, such as members of the Ku Klux Klan, nor is it only the overt expressions of discrimination, such as expressed in Jim Crow laws. Instead, racism is expressed in everyday discourse and practice by much or even all society. In explanation, they argue that racism is a normal, not an exceptional, part of U.S. society; that is, race and racism are so deeply a part of U.S. thought and culture that racial thinking and racist practice have come to look “normal.” Given the invisibility of race and racism, CRT advocates careful historicized and localized studies of race and racism. In a sense, CRT argues for a constant mapping of the [Page 232]racial landscape. CRT argues that racist thought and practice are historically and contextually specific; this dynamism requires that scholars attend to its various manifestations. CRT scholars argue, for instance, that racism looks very different in a post-civil rights world than it did previously. Civil rights legislation required the ending of overt acts of racism—such as school segregation—but did not and does not end covert or institutionalized forms of racism. Thus, for instance, while de jure racial segregation is illegal, de facto racial segregation, in housing and education, continues, though its racial component is easily masked by its class component. These ways of thinking about race and racism are then closely linked to a third assumption, that traditional legal thinking is both racial and racist. Grounded in an ideology of liberalism, traditional legal thinking is invested in universalism and formal equality, both of which advantage dominant cultures and disadvantage marginalized ones. Here, CRT maintains, for instance, that universalism—or the argument that all similar instances be treated identically—protects some populations over others. It argues that all people, regardless of race, class, and gender, should be treated the same, but in doing so, it ignores the reality that race, class, and gender mean that people's experiences are not the same. Universalism, for instance, underlies arguments for formal equal opportunity as manifest in such practices as standardized testing. CRT scholars, however, note that, conceptualized as such, equal opportunity is in fact not equal, for standardized testing benefits racially and class-privileged populations. The critiques of the legal field captured in CRT discussions of liberalism, equality, and universalism all express the larger foundational argument that racial justice is unlikely to occur via traditional legal routes, which typically do not require rethinking of racial reasoning and racism.

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