Critical Race Theory
by legal theory: critical theory — https://cyber.harvard.edu/bridge/CriticalTheory/critical4.htm
Abstract: Critical race theorists reject the idea that "race" has a natural referent. Instead, it is a product of social processes of power. People do not have a race, writes Kendall Thomas; they are "race-d." Unveiling the legal, social, and cultural operations by which people are assigned and invested with races is one central project of critical race theory. They urge re-cognizing race not as an inherent characteristic of people but instead a product of social practices. Because unconscious as well as intentional practices construct racial status, stereotypes, and practices, legal reforms must address unconscious practices as well as intentional ones.
Critical race theories combine progressive political struggles for racial justice with critiques of the conventional legal and scholarly norms which are themselves viewed as part of the illegitimate hierarchies that need to be changed. Scholars, most of whom are themselves persons of color, challenge the ways that race and racial power are constructed by law and culture. One key focus of critical race theorists is a regime of white supremacy and privilege maintained despite the rule of law and the constitutional guarantee of equal protection of the laws. Agreeing with critical theorists and many feminists that law itself is not a neutral tool but instead part of the problem, critical race scholars identify inadequacies of conventional civil rights litigation. Critical race theorists nonetheless fault critical legal scholars as failing to develop much to attract people of color and for neglecting the transformative potential of rights discourse in social movements, regardless of the internal incoherence or indeterminacy of rights themselves.
Critical race theorists thus try to combine pragmatist and utopian visions; they draw upon a variety of critical strategies to expose how law constructs race to disadvantage persons of color while joining larger struggles for social transformation and counter-mobilization against right-wing retrenchment in struggles for racial justice.
Not a set of abstract principles but instead a collection of people struggling inside and outside legal scholarship, critical race theorists are engaged in building a movement to eliminate racial oppression, and other forms of group-based oppression. The scholars pursue individual routes, methods, and ideas. Nonetheless, they converge around the belief that racism is endemic, not aberrational, in American society; that liberal legal ideals of neutrality and color-blindness have replicated rather than undone racism; that analysis should be informed by personal experience and contextual, historical studies; and that pragmatic and eclectic strategies should be pursued in the struggle for racial and social justice.
Critique of Liberal Antiracism
Derrick Bell, for example, wrote a controversial critique of the desegregation litigation strategy of the NAACP Legal Defense Fund (National Association for the Advancement of Colored People) for failing to put quality of education ahead of racial mixing of students. Neil Gotanda, Kimberle Crenshaw ,Gary Peller, and Alan Freeman demonstrated the failure of struggles for race-blindness to dislodge white supremacy. Liberal law reform tends to treat racism as irrational, aberrational, and intentional; accordingly, race consciousness in any form is bad, even when advanced by people of color. Affirmative action can be defended by conventional liberal lawyers only as a short-term, limited remedy that departs from the ideals of objectivity and merit.
In contrast, critical race scholars identify and embrace a radical tradition of race-conscious mobilization as an empowerment strategy for African-Americans, Latinos, Asians, and other persons of color. Affirmative action is a wedge allowing a broader inquiry into why wealth, education, power, and employment are distributed as they are and also a way to re-invigorate nationalist, rather than integrationist, approaches to racial justice. They oppose apparently neutral rules, such as color-blindness, and one-person, one-vote, because they have helped to produce school systems, employment settings, mass media outlets, and housing arrangements that are racially segregated or vehicles for white domination of persons of color. Selection practices for highly sought after educational opportunities and jobs should include proportional representation, lotteries, and other methods that reject the pretense of merit and objectivity.
Critique of Whiteness
Critical race theorists reject the idea that "race" has a natural referent. Instead, it is a product of social processes of power. People do not have a race, writes Kendall Thomas; they are "race-d." Unveiling the legal, social, and cultural operations by which people are assigned and invested with races is one central project of critical race theory. They urge re-cognizing race not as an inherent characteristic of people but instead a product of social practices. Because unconscious as well as intentional practices construct racial status, stereotypes, and practices, legal reforms must address unconscious practices as well as intentional ones.
Exposing and dismantling the usually invisible privileges of white people is a related major focus of critical race scholarship. Ian Haney Lopez traced how unspoken assumptions about whiteness informed crucial Supreme Court decisions in immigration and citizenship cases and defined who would be eligible for whiteness and who would not. Richard Delgado exposed how criminality tracks images of the nonwhite, despite statistical evidence that crime by whites is more serous, more common, and more hurtful. Richard Ford explored the use of the colored line to demarcate urban and suburban spaces in property, land-use, local government, and voting laws. Cheryl Harris developed a conception of whiteness as property, a resource of considerable value and investment receiving massive legal protections. Derrick Bell suggests that law schools resist hiring professors of color beyond token numbers in order to maintain the white character of the institutions. [12]
Re-envisioning Race and Society
Because critical race theorists argue that the imperial, objective voice of law so often veils the perpetuation of racial hierarchy, many of these scholars celebrate personal, passionate voices in their voices and teaching. Narratives infuse their works: autobiographical, fictional, and allegorical. Critiques of popular culture and contributions to it also characterize critical race writings.
Patricia Williams juxtaposes analyses of judicial opinions with reflections on campus struggles over racism, her own encounters with prejudices on the basis of race, and her observations about how a person undergoing a sex-change observation was shunned by persons of all kinds. Derrick Bell spins powerful parables through allegorical dialogues with an imaginary civil rights activist. Kimberle Crenshaw criticizes both the criticisms of a Black rap group and the group itself.
Anthony Cook draws upon the theological and political practices of Dr. Martin Luther King, Jr., to elucidate a reconstructive vision of community, which links rights to socially conscious and egalitarian duties. Drawing on inspirational figures in African-American history and literature, Charles Lawrence urges professors in law schools to reject the false neutrality of the conventional scholar and teacher, and instead to embrace storytelling and the personal voice with efforts to transpose "feelings and experience into language as a political discipline." In these and other works, critical race scholars propose compelling visions alongside their critiques of racial and cultural dominance by whites.
Intersectionality and Division
Rejecting the idea of race as a natural category, critical race scholars join feminists and queer theorists in the project of unearthing the social, cultural, and legal constructions of identities. They study the inflection of racial identities by gender, call mistaken the assumption that race and gender can simply be analogized, expose the social receptiveness to negative images of Black women, and identify the failures of liberal law reform to address the complex features of oppressions experiences especially by poor women of color. Even progressives tend to erase the situations of women of color in their analyses and proposals or else require those very individuals to pick one group—defined either by race or gender. Here, critical race theorists join some feminist theorists in emphasizing the potential fluidity and latitude for contest over gender, racial, and sexual identities. Mari Matsuda, for example, urges new kinds of law to accommodate "multiple consciousness" framed by conflicting and intersecting group experiences of oppression.
Recently, subgroups of Lat-Crits and Asian-Crits have organized their own conferences and symposia, seeking to articulate distinctive applications of critical approaches to the histories and aspirations of their groups. As rich and original as these efforts may be, they threaten to further fragment the critical legal studies movement that is already considerably fragmented.
Examples of Critical Race Analysis: Hate Speech Regulation and Legal Education
Several critical race theorists became mobilized in the 1980s by incidents of hate speech on college campuses and elsewhere. They developed analyses of the injuries experienced by students of color who were targets of such incidents and critiques of the prevailing First Amendment/freedom of speech approach taken by the campus administrators. Words do wound, they argued. They worked to articulate codes for regulating campus speech and defended those codes against First Amendment challenges offered by both theorists and plaintiffs in courts. Noting that freedom of speech is never given absolute protection, they argued that curbs on hate speech would have much in common with existing defamation and obscenity laws and the doctrines excluding fighting words and threats from First Amendment protection. They argued that law, and the First Amendment, could be interpreted to fight subordination. They also argued that the First Amendment’s values of self-fulfillment, knowledge, and participation are undermined, not served, when hate speech gains legal protection. Although no court upheld hate speech codes against First Amendment challenges, the critical race theorists’ effort altered the terms of the debate and taught many about the kinds of injuries tolerated in the name of the First Amendment.
Critical race theorists afford law students and lawyers materials with which to challenge conventional notions of the intent requirement in equal protection analysis with contrasting studies of structural and unconscious racisms. They point out ways to remake the scope of basic law school courses in property, contracts, and torts by locating slavery, Indian law, and racial harassments as crucial topics for study.
Opponents of critical race theory argue that the work substitutes emotions for reason and self-dealing for fairness. Daniel Farber and Suzanna Sherry argue that critical race theorists manifest anti-Semitism and anti-Asian tendencies in their attacks on conventional notions of merit-based selection by schools and employers. Randall Kennedy specifically responds to critical race theorists who have argued that law reviews and law schools silence people of color. Instead, argues Kennedy, the relative paucity of legal scholarship by people of color and the low numbers of law professors of color reflects low productivity, poor quality work, and failures to work hard enough. Critical race scholars have responded that Kennedy wrongly presumes that academic discourse is open to any scholar of merit; instead, these scholars maintain that law schools, like other places of power, reflect and reinforce traditional hierarchies of racial power.
