Hallmark Critical Race Theory Themes
Imagine that a pair of businessmen pass a beggar on a busy downtown street. One says something disparaging about “those bums always sticking their hands out—I wish they would get a job.” His friend takes him to task for his display of classism. He explains that the street person may have overheard the remark and had his feelings hurt. He points out that we should all strive to purge ourselves of racism, classism, and sexism, that thoughts have consequences, and that how you speak makes a difference. The first businessman mutters something about political correctness and makes a mental note not to let his true feelings show in front of his friend again. Is the beggar any better off?
Or imagine that a task force of highly advanced extraterrestrials lands on Earth and approaches the nearest human being they can find, who happens to be a street person relaxing on a park bench. They offer him any one of three magic potions. The first is a pill that will rid the world of sexism—demeaning, misogynist attitudes toward women. The second is a pill that will cure racism; the third, one that will cure classism—negative attitudes toward people of lower socioeconomic station than oneself. Introduced into the planet’s water system, each pill will cure one of the three scourges effectively and permanently. The street person, of course, chooses classism and throws pill number three into a nearby water department reservoir.
Will the lives of poor people like him improve very much the next day? Perhaps not. Passersby may be somewhat kinder, may smile at them more often, but if something inherent in the nature of our capitalist system ineluctably produces poverty and class segregation, that system will continue to create and chew up victims, irrespective of our attitudes toward them. Individual street people may feel better, but they will still be street people. And the free-enterprise system, which is built on the idea of winners and losers, will continue to produce new ones every day.
What about racism? Suppose a magic pill like the one mentioned above were invented, or perhaps an enterprising entrepreneur developed The Ultimate Diversity Seminar, one so effective that it would completely eliminate unkind thoughts, stereotypes, and misimpressions harbored by its participants toward persons of other races. The president’s civil rights adviser prevails on all the nation’s teachers to introduce it into every K–12 classroom, and on the major television networks and cable network news to show it on prime time.
Would life improve very much for people of color?
This hypothetical question poses an issue that squarely divides critical race theory thinkers—indeed, civil rights activists in general. One camp, which we may call “idealists,” holds that racism and discrimination are matters of thinking, mental categorization, attitude, and discourse. Race is a social construction, not a biological reality, they reason. Hence we may unmake it and deprive it of much of its sting by changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by which we convey to one another that certain people are less intelligent, reliable, hardworking, virtuous, and American than others.
A contrasting school—the “realists” or economic determinists—holds that though attitudes and words are important, racism is much more than a collection of unfavorable impressions of members of other groups. For realists, racism is a means by which society allocates privilege and status. Racial hierarchies determine who gets tangible benefits, including the best jobs, the best schools, and invitations to parties in people’s homes. Members of this school of thought point out that antiblack prejudice sprang up with slavery and capitalists’ need for labor. Before then, educated Europeans held a generally positive attitude toward Africans, recognizing that African civilizations were highly advanced with vast libraries and centers of learning. Indeed, North Africans pioneered mathematics, medicine, and astronomy long before Europeans had much knowledge of these disciplines.
Materialists point out that conquering nations universally demonize their subjects to feel better about exploiting them, so that, for example, planters and ranchers in Texas and the Southwest circulated notions of Mexican inferiority at roughly the same period that they found it necessary to take over Mexican lands or, later, to import Mexican people for backbreaking labor. For materialists, understanding the ebb and flow of racial progress and retrenchment requires a careful look at conditions prevailing at different times in history. Circumstances change so that one group finds it possible to seize advantage or to exploit another. They do so and then form appropriate collective attitudes to rationalize what was done. Moreover, what is true for subordination of minorities is also true for its relief: civil rights gains for communities of color coincide with the dictates of white self-interest. Little happens out of altruism alone.
In the early years of critical race theory, the realists were in a large majority. For example, scholars questioned whether the much-vaunted system of civil rights remedies ended up doing people of color much good. In a classic article in the Harvard Law Review, Derrick Bell argued that civil rights advances for blacks always seemed to coincide with changing economic conditions and the self-interest of elite whites. Sympathy, mercy, and evolving standards of social decency and conscience amounted to little, if anything. Audaciously, Bell selected Brown v. Board of Education, the crown jewel of U.S. Supreme Court jurisprudence, and invited his readers to ask themselves why the American legal system suddenly, in 1954, opened up as it did. The NAACP Legal Defense Fund had been courageously and tenaciously litigating school desegregation cases for years, usually losing or, at best, winning narrow victories.
In 1954, however, the Supreme Court unexpectedly gave them everything they wanted. Why just then? Bell hypothesized that world and domestic considerations—not moral qualms over blacks’ plight—precipitated the pathbreaking decision. By 1954 the country had ended the Korean War; the Second World War was not long past. In both wars, African American soldiers had performed valiantly in the service of democracy. Many of them returned to the United States, having experienced for the first time in their lives a setting in which cooperation and survival took precedence over racism. They were unlikely to return willingly to regimes of menial labor and social vilification. For the first time in years, the possibility of mass domestic unrest loomed.
During that period, as well, the United States was locked in the Cold War, a titanic struggle with the forces of international communism for the loyalties of uncommitted emerging nations, most of which were black, brown, or Asian. It would ill serve the U.S. interest if the world press continued to carry stories of lynchings, Klan violence, and racist sheriffs. It was time for the United States to soften its stance toward domestic minorities. The interests of whites and blacks, for a brief moment, converged.
Bell’s article evoked outrage and accusations of cynicism. Yet, years later, the legal historian Mary Dudziak carried out extensive archival research in the files of the U.S. Department of State and the U.S. Department of Justice. Analyzing foreign press reports, as well as letters from U.S. ambassadors abroad, she showed that Bell’s intuition was largely correct. When the Justice Department intervened on the side of the NAACP for the first time in a major school-desegregation case, it was responding to a flood of secret cables and memos outlining the United States’ interest in improving its image in the eyes of the Third World.
Since Bell first propounded interest convergence, critical race theorists have applied it to understand many of the twists and turns of minority legal history, including that of Latinos. (See, e.g., Richard Delgado, Rodrigo’s Roundelay: Hernandez v. Texas and the Interest-Convergence Dilemma, 41 Harv. C.R.-C.L. L. Rev. 23 [2006].) Others have sought to apply it to the current world situation as the United States struggles to strengthen the hand of moderate Islam vis-à-vis its more fundamentalist faction.
American leadership in the 21st century. . . . means a wise application of military power, and rallying the world behind causes that are right. . . . That’s why I will keep working to shut down the prison at Guantanamo. It is expensive, unnecessary, and only serves as a recruitment brochure for our enemies. . . .
The world respects us not just for our arsenal; it respects us for our diversity, and our openness, and the way we respect every faith. . . .
His Holiness, Pope Francis, told this body from the very spot that I’m standing on tonight that “to imitate the hatred and violence of tyrants and murderers is the best way to take their place.” When politicians insult Muslims, whether abroad or our fellow citizens, when a mosque is vandalized, or a kid is called names . . . that’s . . . just wrong. It diminishes us in the eyes of the world. It makes it harder to achieve our goals. It betrays who we are as a country.
President Barack Obama, State of the Union address, 2016
Derrick Bell’s analysis of Brown illustrates a second signature CRT theme. Revisionist history reexamines America’s historical record, replacing comforting majoritarian interpretations of events with ones that square more accurately with minorities’ experiences. It also offers evidence, sometimes suppressed, in that very record, to support those new interpretations. Revisionist historians often strive to unearth little-known chapters of racial struggle, sometimes in ways that reinforce current reform efforts. (See, e.g., Lobato v. Taylor and Mabo v. Queensland, two land-reform cases cited in chapter 5.) Revisionism is often materialist in thrust, holding that to understand the zigs and zags of black, Latino, and Asian fortunes, one must look to matters like profit, labor supply, international relations, and the interest of elite whites. For the realists, attitudes follow, explain, and rationalize what is taking place in the material sector.
The difference between the materialists and the idealists is no minor matter. It shapes strategy on decisions of how and where to invest one’s energies. If the materialists are right, one needs to change the physical circumstances of minorities’ lives before racism will abate. One takes seriously things like unions, immigration quotas, the prison-industrial complex, and the loss of manufacturing and service jobs to outsourcing. If one is an idealist, campus speech codes, tort remedies for racist speech, media stereotypes, diversity seminars, healing circles, Academy Awards, and increasing the representation of black, brown, and Asian actors on television shows will be high on one’s list of priorities. A middle ground would see both forces, material and cultural, operating together so that race reformers working in either area contribute to a broad program of racial reform.
Racial insults are in no way comparable to statements such as, “You are a God damned . . . liar,” which [a standard guide] gives as an example of a “mere insult.” Racial insults are different qualitatively because they conjure up the entire history of racial discrimination in this country.
Taylor v. Metzger, 706 A. 2d 685, 695 (N.J. 1998), citing Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 157 (1982)
As mentioned earlier, critical race scholars are discontented with liberalism as a framework for addressing America’s racial problems. Many liberals believe in color blindness and neutral principles of constitutional law. They believe in equality, especially equal treatment for all persons, regardless of their different histories or current situations. Some even managed to convince themselves that with the election of Barack Obama, we arrived at a postracial stage of social development.
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. . . . But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.
Justice John Harlan, dissenting, in Plessy v. Ferguson, 163 U.S. 537, 545 (1896)
Color blindness can be admirable, as when a governmental decision maker refuses to give in to local prejudices. But it can be perverse, for example, when it stands in the way of taking account of difference in order to help people in need. An extreme version of color blindness, seen in certain Supreme Court opinions today, holds that it is wrong for the law to take any note of race, even to remedy a historical wrong. Critical race theorists (or “crits,” as they are sometimes called) hold that color blindness of the latter forms will allow us to redress only extremely egregious racial harms, ones that everyone would notice and condemn. But if racism is embedded in our thought processes and social structures as deeply as many crits believe, then the “ordinary business” of society—the routines, practices, and institutions that we rely on to do the world’s work—will keep minorities in subordinate positions. Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery. As an example of one such strategy, one critical race scholar proposed that society “look to the bottom” in judging new laws. If they would not relieve the distress of the poorest group—or, worse, if they compound it—we should reject them. Although color blindness seems firmly entrenched in the judiciary, a few judges have made exceptions in unusual circumstances.
We are mindful that the Supreme Court has rejected the “role model” argument for reverse discrimination. . . . The argument for the black lieutenant is not of that character. We doubt that many inmates of boot camps aspire to become correctional officers, though doubtless some do. . . . The black lieutenant is needed because the black inmates are believed unlikely to play the correctional game of brutal drill sergeant and brutalized recruit unless there are some blacks in authority in the camp. This is not just speculation, but is backed up by expert evidence that the plaintiffs did not rebut. The defendants’ experts . . . did not rely on generalities about racial balance or diversity; did not, for that matter, defend a goal of racial balance. They opined that the boot camp in Greene County would not succeed in its mission of pacification and reformation with as white a staff as it would have had if a black male had not been appointed to one of the lieutenant slots. For then a security staff less than 6 percent black (4 out of 71), with no male black supervisor, would be administering a program for a prison population almost 70 percent black. . . .
We hold . . . that . . . the preference that the administration of the Greene County boot camp gave a black male applicant for a lieutenant’s job on the ground of his race was not unconstitutional.
Judge Richard Posner, Wittmer v. Peters, 87 F.3d 916, 919–20 (7th Cir. 1996)
Crits are suspicious of another liberal mainstay, namely, rights. Particularly some of the older, more radical CRT scholars with roots in racial realism and an economic view of history believe that moral and legal rights are apt to do the right holder much less good than we like to think. In our system, rights are almost always procedural (for example, to a fair process) rather than substantive (for example, to food, housing, or education). Think how that system applauds affording everyone equality of opportunity but resists programs that assure equality of results, such as affirmative action at an elite college or university or efforts to equalize public school funding among districts in a region. Moreover, rights are almost always cut back when they conflict with the interests of the powerful. For example, hate speech, which targets mainly minorities, gays, lesbians, and other outsiders, receives legal protection, while speech that offends the interests of empowered groups finds a ready exception in First Amendment law. Think, for example, of speech that insults a judge or other authority figure, that defames a wealthy and well-regarded person, that divulges a government secret, or that deceptively advertises products, thus cheating a large class of middle-income consumers. Think of speech that violates the copyright of a powerful publishing house or famous author.
Moreover, rights are said to be alienating. They separate people from each other—“stay away, I’ve got my rights”—rather than encouraging them to form close, respectful communities. And with civil rights, lower courts have found it easy to narrow or distinguish the broad, ringing landmark decision like Brown v. Board of Education. The group that supposedly benefits always greets cases like Brown with great celebration. But after the singing and dancing die down, the breakthrough is quietly cut back by narrow interpretation, administrative obstruction, or delay. In the end, the minority group is left little better than it was before, if not worse. Its friends, the liberals, believing the problem has been solved, go on to a different campaign, such as saving the whales, while its adversaries, the conservatives, furious that the Supreme Court has given way once again to undeserving minorities, step up their resistance. (See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? [2d ed. 2008].)
Lest the reader think that the crits are too hard on well-meaning liberals, bear in mind that in recent years the movement has softened somewhat. When it sprang up in the 1970s, complacent, backsliding liberalism represented the principal impediment to racial progress. Today that obstacle has been replaced by rampant, in-your-face conservatism that co-opts Martin Luther King, Jr.’s language; finds little use for welfare, affirmative action, or other programs vital to the poor and minorities; and wants to militarize the border and make everyone speak English when businesses are crying for workers with foreign-language proficiency.
Other conservatives have seized on President Barack Obama’s election to declare that America is now a postracial society, so that it is time for blacks and other minorities to stop complaining and roll up their sleeves like anyone else. Welfare payments, they say, merely create dependency and idleness. Because most critical race theorists believe things are more complicated than that, many of them have stopped focusing on liberalism and its ills and have begun to address the conservative tide. And a determined group maintains that rights are not a snare and a delusion; rather, they can bring genuine gains, while the struggle to obtain them unifies the group in a sense of common venture.
Everyone has heard the story about Eskimo languages, some of which supposedly contain many words for different kinds of snow. Imagine the opposite predicament—a society that has only one word (say, “racism”) for a phenomenon that is much more complex than that, for example, biological racism; intentional racism; unconscious racism; microaggressions; nativism; institutional racism; racism tinged with homophobia or sexism; racism that takes the form of indifference, coldness, or implicit associations; and white privilege, reserving favors, smiles, kindness, the best stories, one’s most charming side, and invitations to real intimacy for one’s own kind or class.
Or imagine a painter raised by parents and preschool teachers who teach him that the world contains only three colors, red, blue, and yellow; or a would-be writer who is raised with an artificially low vocabulary of three hundred words. Children raised in smoggy Mexico City are said to paint pictures with a brownish-yellow, never blue, sky. These examples point out the concept that lies at the heart of structural determinism, the idea that our system, by reason of its structure and vocabulary, is ill equipped to redress certain types of wrong. Structural determinism, a powerful notion that engages both the idealistic and the materialistic strands of critical race theory, takes a number of forms. Consider the following four. (A fifth, the black-white binary, comes in for discussion in chapter 5.)
Traditional legal research tools, found in standard law libraries, rely on a series of headnotes, index numbers, and other categories that lawyers use to find precedent. (With computerization, this reliance is somewhat less acute than it was formerly, but the problem still persists.) Suppose that no case is on point because the lawyer faces a problem of first impression—the first of its kind—requiring legal innovation. In such situations, commercial research tools will lead the lawyer to dead ends—to solutions that have not worked. What the situation calls for is innovation, not the application of some preexisting rule or category. Even when a new idea, such as jury nullification, was beginning to catch on, the legal indexers who compiled the reference books and indexing tools may have failed to realize its significance. When Sir William Blackstone’s Commentaries on the Laws of England laid down the basic structure of liberal/capitalist thought, this served as a template for future generations of lawyers, so that legal change thereafter came slowly. Once the structure of law and legal categories takes form, it replicates itself much as, in the world of biology, DNA enables organisms to replicate. In some respects, the predicament is the old one about the chicken and the egg. It is hard to think about something that has no name, and it is difficult to name something unless one’s interpretive community has begun talking and thinking about it.
As a thought exercise, the reader is invited to consider how many of the following terms and ideas, mentioned in this book and highly relevant to the work of progressive lawyers and activists, are apt to be found in standard legal reference works: intersectionality, interest convergence, microaggressions, antiessentialism, hegemony, hate speech, language rights, black-white binary, jury nullification. How long will it take before these concepts enter the official vocabulary of law?
Consider how in certain controversies, for example, the one over hate speech, a particular type of tough-minded participant is apt to urge a free-market response: if a minority finds himself or herself on the receiving end of a stinging remark, the solution, it is said, is not to punish the speaker or to enact some kind of campus hate-speech rule but to urge the victim to speak back to the offender. “The cure for bad speech is more speech.”
One difficulty with this approach is that it may be physically dangerous to talk back. Much hate speech is uttered in several-on-one situations, where talking back would be foolhardy. At other times, it is delivered in anonymous or cowardly fashion, such as graffiti scrawled on the bulletin board of a minority-student group or an unsigned note in the mailbox of a student of color. In these instances, more speech is, of course, impossible.
But a more basic problem is that much hate speech is simply not perceived as such at the time. The history of racial depiction shows that our society has blithely consumed a shocking parade of Sambos, coons, sneaky Japanese, exotic Orientals, and indolent, napping Mexicans—images that society perceived at the time as amusing, cute, or, worse yet, true. How can one talk back to messages, scripts, and stereotypes that are embedded in the minds of one’s fellow citizens and, indeed, the national psyche? Trying to do so makes one come across as humorless or touchy. The idea that one can use words to undo the meanings that others attach to these very same words is to commit the empathic fallacy—the belief that one can change a narrative by merely offering another, better one—that the reader’s or listener’s empathy will quickly and reliably take over. (See Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 Cornell L. Rev. 1258 [1992].)
Unfortunately, however, empathy is in shorter supply than we think. Most people in their daily lives do not come into contact with many persons of radically different race or social station. We converse with, and read materials written by, persons in our own cultures. In some sense, we are all our stock of narratives—the terms, preconceptions, scripts, and understandings that we use to make sense of the world. They constitute who we are, the basis on which we judge new narratives—such as one about an African American who is a genius or a hardworking Chicano who holds three jobs. The idea that a better, fairer script can readily substitute for the older, prejudiced one is attractive but is falsified by history. Change comes slowly. Try explaining to someone who has never seen a Mexican, except for cartoon figures wearing sombreros and serapes, that most Mexicans wear business suits.
One of the reasons for avoiding excessive sentences is that the empathy required of . . . citizens in a democracy . . . is stunted when parents are away in prison. “[W]ithout regular comforting, physical contact and sensory stimulation from birth, the biological capacity for sociality—the precondition for empathy and conscience—cannot develop . . . and [e]mpathy requires the nurturing required by early social relationships.” Breaking up families by sending fathers and mothers to prison for unnecessarily long terms sows the seeds of problems for the next generation, particularly when, as is sometimes the case, the ex-prisoner becomes a “monster.”
Jack B. Weinstein, Senior Judge, U.S. District Court, Eastern District of New York, Adjudicative Justice in a Diverse Mass Society, 8 J. L. & Pol’y 385, 410 (2000)
Pair off with one other member of your class or study group. Each of you then write down on a piece of paper five propositions having to do with politics or social reality that you believe to be true, such as that women should have the right to choose whether to have an abortion, that everyone should be judged by the same standards for admission to school, or that the best government is one that governs least. You then offer a counterexample to one of the other person’s propositions, for example, a case of governmental intervention that worked.
How did the other person react? Did he or she accept your argument and modify his or her position? What was the force of your “narrative,” and why did it succeed or fail? Then, reverse places and consider your partner’s case against one of your beliefs.
Derrick Bell has pointed out a third structure that impedes reform, this time in law. To litigate a law-reform case, the lawyer needs a flesh-and-blood client. One might wish to establish the right of poor consumers to rescind a sales contract or to challenge the legal fiction that a school district is desegregated if the authorities have arranged that the makeup of certain schools is half black and half Chicano (as some of them did in the wake of Brown v. Board of Education).
Suppose, however, that the client and his or her community do not want the very same remedy that the lawyer does. The lawyer, who may represent a civil rights or public interest organization, may want a sweeping decree that names a new evil and declares it contrary to constitutional principles. He or she may be willing to gamble and risk all. The client, however, may want something different—better schools or more money for the ones in his or her neighborhood. He or she may want bilingual education or more black teachers, instead of classes taught by prize-winning white teachers with Ph.D.s. A lawyer representing a poor client may want to litigate the right to a welfare hearing, while the client may be more interested in a new pair of Sunday shoes for his or her child. These conflicts, which are ubiquitous in law-reform situations, haunt the lawyer pursuing social change and seem inherent in our system of legal remedies. Which master should the lawyer serve? Do similar conflicts arise in the political realm? For example, does a black president or senator, by the very nature of his or her role, have to downplay his or her blackness in fulfilling obligations to the country as a whole?
Professor Hamar Aziz is a physicist of Egyptian descent who teaches at a major research university. Aziz recently attempted to fly to an international conference in Geneva but was turned aside at the local airport by TSA officials who told him that his name was on a no-fly list. Aziz, who missed an opportunity to present his latest paper, is furious and wants you to help redress the harm he has suffered and make sure that it does not happen again to him. In short, he wants the government to take his name off the list so that he can fly once again. Your research shows that the no-fly list is full of errors and results in the grounding of many innocent passengers, some of whom, like Aziz, merely happen to have the same name as someone who has attracted the attention of the authorities. Aziz is the perfect candidate to challenge the list, since he has a sparkling record, is a former Marine officer and Boy Scout troop leader, and was an alternate to the U.S. Olympic team in the long jump. Aziz, however, is mainly interested in getting himself off the list. Should you take his case?
Some crits, such as Derrick Bell and Alan Freeman, even argue that our system of civil rights law and enforcement ensures that racial progress occurs at just the right slow pace. Too slow would make minorities impatient and risk destabilization; too fast could jeopardize important material and psychic benefits for elite groups. When the gap between our ideals and practices becomes too great, the system produces a “contradiction-closing case,” so that everyone will think that it is truly fair and just. And on those rare occasions when social conditions call for a genuine concession, such as affirmative action, the costs of that concession are always placed on minorities—in the form of stigma—or on working-class whites, like Alan Bakke, who sought admission to the University of California at Davis Medical School, who are least able to incur them.
In her amended complaint, Monteiro alleged that her ninth-grade daughter and other similarly situated African-American students attended a school where they were called “niggers” by white children, and where that term was written on the walls of the buildings in which they were supposed to learn civics and social studies. It does not take an educational psychologist to conclude that being referred to by one’s peers by the most noxious racial epithet in the contemporary American lexicon, being shamed and humiliated on the basis of one’s race, and having the school authorities ignore or reject one’s complaints would adversely affect a Black child’s ability to obtain the same benefit from schooling as her white counterparts. . . . It is the beginning of high school, when a young adolescent is highly impressionable and is making decisions about education that will affect the course of her life. . . . [A] school where this sort of conduct occurs unchecked is utterly failing in its mandate to provide a nondiscriminatory educational environment. Accordingly, we find that the complaint sets forth allegations that satisfy the first factor of the test for a Title VI violation.
Monteiro v. Tempe Union High School District, 158 F.3d 1022, 1039 (9th Cir. 1998) (Before Monteiro, a nearly unbroken string of decisions rejected relief for minority plaintiffs subjected to racist slurs and struck down campus speech codes.)