Critical Race Theory

Critical race theory (CRT) is a movement that challenges the ability of conventional legal strategies to deliver social and economic justice and specifically calls for legal approaches that take into consideration race as a nexus of American life. The movement champions many of the same concerns as the civil rights movement, but places those concerns within a broader economic and historical context. It often elevates the equality principles of the Fourteenth Amendment above the liberty principles of the First Amendment.

CRT has its underpinnings in the philosophical writings of Derrick Bell in the 1970s and early 1980s. It was born out of the realization by legal scholars, lawyers, and activists that many of the advances of the civil rights era had stopped and in some circumstances were being reversed. Early on, legal scholars, including Bell, Alan Freemen, and Richard Delgado, began developing alternative legal theories and frameworks for combating racial inequality. Their approaches combined various other theoretical positions, among them critical legal studies, critical theory, feminist theory, postmodernism, and cultural studies. Some of the basic tenets of CRT rest on the belief that racism is a fundamental part of American society, not simply an aberration that can be easily corrected by law; that any given culture constructs its own social reality in its own self-interest, and in the United States this means that minorities’ interests are subservient to the system’s self-interest; and that the current system, built by and for white elites, will tolerate and encourage racial progress for minorities only if this promotes the majority’s self-interest.

In 1989 CRT became a unified movement at the first annual Workshop on Critical Race Theory. Other notable scholars from the original movement include Kimberle Crenshaw, Angela Harris, Charles Lawrence, Mari Matsuda, and Patricia Williams. Today CRT has expanded beyond its legal studies foundations into the fields of education, political science, American studies, and ethnic studies. It also has produced several offshoots, including critical white studies, Latino critical race studies, Asian American critical race studies, American Indian critical race studies, and critical queer studies.

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CRT scholars have critiqued many of the assumptions that they believe constitute the ideology of the First Amendment: for example, instead of helping to achieve healthy and robust debate, the First Amendment actually serves to preserve the inequities of the status quo; there can be no such thing as an objective or content-neutral interpretation in law in general or of the First Amendment in particular; some speech should be viewed in terms of the harm it causes, rather than all speech being valued on the basis of it being speech; and there is no “equality” in “freedom” of speech.

In terms of the First Amendment, the primary battlefield for CRT has been hate speech regulation. No one legal definition exists for hate speech, but it generally refers to abusive language specifically attacking a person or persons based on their race, color, religion, ethnic group, gender, or sexual orientation. Hate speech is currently still protected by the First Amendment. CRT scholars have critiqued this protection and the ideology driving it. Early on, these scholars focused primarily on the question of hate speech codes on college campuses and later moved on to review laws and court opinions concerning the broader societal regulation of hate speech. In general, these scholars argue that there is no societal value in protecting speech that targets already oppressed groups. They also question the logic of using the First Amendment to protect speech that not only has no social value, but also is socially and psychologically damaging to minority groups.

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