As Thomas Kuhn has shown, paradigms resist change. It should come as no surprise, then, that critical race theory, which seeks to change the reigning paradigm of civil rights thought, has sparked stubborn resistance. During the movement’s early years, the media treated critical race theory relatively gently. As it matured, however, critics felt freer to speak out. Some of the areas that drew critical attention are storytelling; the critique of merit, truth, and objectivity; and the matter of voice. Many of these early critiques are cited in the list of readings at the end of this chapter. Here we take up only a few.
Among the initial critiques, one by Randall Kennedy and another by Daniel Farber and Suzanna Sherry are notable. Kennedy took issue with the idea that minority scholars speak in a unique “voice” about racial issues. He also took the movement to task for accusing mainstream scholars of ignoring the contributions of writers of color, an accusation that found its most forceful expression in Richard Delgado’s “Imperial Scholar” article. Kennedy reasoned that legal scholarship is like a marketplace. Good articles and books attract “buyers”—recognition, citation, reprintings. Thus, pointing out that certain texts have fallen into a void does not, by itself, prove discrimination. It is first necessary to establish that those articles were of high quality and deserved recognition. Kennedy thus charged the crits with failing to examine their premises and painting themselves as victims when they had not shown that they deserved better treatment than they had received.
For their part, Farber and Sherry accused critical race theorists of hiding behind personal stories and narratives to advance their points of view, as well as lacking respect for traditional notions of truth and merit. Citing the example of Jews and Asians—two minority groups that have achieved high levels of success by conventional standards—they argued against the idea that the game is rigged against minorities. If conventional tests and standards are unfair and biased against minorities, as the crits assert, how can one account for the success of these two groups? Did they cheat or take unfair advantage? Are they unimaginative mimics and drones? All possible explanations are implausible. Therefore, CRT’s critique of merit is implicitly anti-Semitic and anti-Asian.
The crits’ responses were not long in coming. In a series of articles, including a special colloquy in the Harvard Law Review, critical race theorists and their defenders argued that Randall Kennedy himself was guilty of misstatement and an unsympathetic reading of CRT texts. Because Kennedy approached the new movement through conventional criteria, he missed opportunities to help take racial analysis to a new level.
As for Farber and Sherry, the crits replied that if Asians and Jews succeeded despite an unfair system, this is all to their credit. But why should pointing out unfairness in universal merit standards, like the Scholastic Aptitude Test (SAT), bespeak a negative attitude toward members of those groups? As the crits saw it, Farber and Sherry confused criticism of a standard with criticism of individuals who performed well under that standard. Judge Richard Posner and the New Republic writer Jeffrey Rosen also took issue with the crits along predictable lines.
Recently, the right wing has mounted a furious attack on civil rights and critical race theory, with conservative bloggers, talk-radio hosts, and devotees of color blindness leading the way. With the advent of the Obama presidency, detractors have stepped up their assault, some trying to link the nation’s first black president with the critical race theory guru Derrick Bell, who taught at Harvard during the time when the young Obama studied law there. Many of them charged that with his presidency, the nation had overcome its racist past and that no further efforts were necessary. Any more would amount to catering to undeserving minorities. Whether the United States is now a postracial society is now a prime point of contention.
In addition to responding to outside criticism, critical race theory has engaged in intensive self-criticism, often outside the public view. This critique takes two forms, one having to do with the pragmatic, on-the-ground value of critical race theorizing, the other with the worth of the theories themselves.
Is critical race theory pragmatic? Some of the issues that arise in the internal critique (self-criticism) are ones any new movement might expect to address. What is its practical worth? Why is it not down in the trenches, helping activists deal with problems of domestic violence, poor schools, and police brutality? Why is it so hard on liberals or so disdainful of existing civil rights statutes and remedies? What is the purpose of critique unless one has something better to replace it with? Should crits work together in an interracial coalition or separately, with blacks and Latinos, for example, pursuing slightly different agendas? Should whites be welcome in the movement and at its workshops and conferences? Should the critical race theory movement expand to include religious discrimination, against Jews and Muslims, for example? To the extent that a cohesive set of answers has emerged from self-criticism, one may summarize by noting that most crits agree that theory and practice need to work together. Street activists, for their part, need new theories to challenge a social order that treats minority communities and the poor so badly. By the same token, theorists need the infusion of energy that comes from exposure to real-world problems, both as a galvanizing force for scholarship and as a reality test for their writing.
As for criticizing the existing system, the crits respond that they are indeed at work developing a vision to replace it. As examples, they cite Derrick Bell’s theories of cultural and educational self-help; Lani Guinier’s efforts to reform electoral democracy; Charles Lawrence’s, Mari Matsuda’s, and Richard Delgado’s work developing a new theory of hate speech; Juan Perea’s arguments for linguistic pluralism; and Devon Carbado’s and Mitu Gulati’s analyses of workplace discrimination.
A jury found that defendants had engaged in employment discrimination, in part by permitting plaintiffs to be the target of racial epithets repeatedly spoken by a fellow employee. In addition to awarding damages, the trial court issued an injunction prohibiting the offending employee from using such epithets in the future. Defendants argue that such an injunction constitutes a prior restraint that violates their constitutional right to freedom of speech. For the reasons that follow, we hold that a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination.
Aguilar v. Avis Rent a Car System, Inc., 21 Cal. 4th 121, 126; 980 P.2d 846, 848 (1999)
Other questions go to the intellectual heart of critical race theory. A persistent internal critique accuses the movement of straying from its materialist roots and dwelling overly on matters of concern to middle-class minorities—microaggressions, racial insults, unconscious discrimination, and affirmative action in higher education. If racial oppression has material and cultural roots, attacking only its ideational or linguistic expression is apt to do little for the underlying structures of inequality, much less the plight of the deeply poor.
Another concern that some crits raise is that the movement has become excessively preoccupied with issues of identity, as opposed to hard-nosed social analysis. Armchair issues such as the social construction of race, the role of multiracial people, “passing,” and endless refinements of the antiessentialist thesis may pose intriguing intellectual puzzles, but they lie far from the central issues of our age. It seems difficult to imagine W. E. B. Du Bois, if he were alive today, writing a Ph.D. dissertation on passing or on whether a professor should be able to earn tenure on the basis of an article written entirely in the narrative voice. By the same token, it may be that lavish attention to the nuances of intersectional identity and the differences in perspective that separate, say, mixed-race women of Samoan-white parentage and black-looking, Spanish-speaking men from Brazil is less worthy than it was in early years. A furious right-wing attack on all people of color and the poor has, perhaps, rendered these differences less relevant than they were in former times. In general, the internal critiques go only to the movement’s emphasis and allocation of resources and attention. They do not threaten its solidarity, vitality, or ability to generate vital insights into America’s racial predicament (see chapter 7).
A further internal critique raises the question of whether critical race theory takes adequate account of economic democracy. If the emerging issues of the new century are world trade, globalization, workers’ rights, and who shares in the new wealth created by the technology revolution, a movement that has no theory of race and class is apt to seem increasingly irrelevant. The recent series of economic shocks heightens the need for such an inquiry. If racism is largely economic in nature—a search for profits—and hypercapitalism is increasingly showing itself as a flawed system, what follows for a theory of civil rights?
A final set of critiques question whether critical race theory or particular tools in its arsenal are still helpful or likely to remain so when they are exported to areas outside the setting (namely, domestic, U.S. racism in its late-1980s manifestations). Justin Driver, for example, has questioned whether Derrick Bell’s interest-convergence formula (see chapter 2) has any continuing validity. And a host of scholars in other disciplines or countries, while enthusiastically embracing the new perspectives CRT offers, advocate caution in extending it to new settings, such as the caste system in India or the Roma (“gypsies”) in Europe.
By the same token, American crits and their supporters may do well to follow carefully the alterations and advances that their counterparts in Europe, Canada, Australia, and Latin America are making. For example, British scholars in the field of education are developing intriguing analyses of class and maintaining lively exchanges with Marxist scholars, something that has been missing in the American scene, at least to date.
The program coordinator for the regional conference on critical race theory seeks your advice on the following question: The conference committee wishes to include a two-hour session, toward the end of the conference, dealing with extremely sensitive internal criticism of the direction the movement has been taking. Should the session be open or closed to the press? Should it be open only to persons who have participated in the movement for at least five years? Should whites be excluded? Should the organizers ask the participants to refrain from recording it?
In other words, what should one do about airing “dirty laundry”? One half of your group argues the let-it-all-hang-out position, while the other argues for a secret session. (See John Calmore, Airing Dirty Laundry: Disputes among Privileged Blacks—From Clarence Thomas to the Law School Five, 46 How. L.J. 175 [2003].)