Critical Race Theory

A paper Submitted

By

Sudip Patra

Under the guidance of

Prof. S. Matilal

Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology, Kharagpur
Octobor-2014

S. No.

Topic

Pg. No

1.

Definition of Critical Race Theory (CRT)

2.

Key elements

3.

Applications

4.

Critiques

5.

Offshoot fields

10

6.

Controversies and impact

11

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Definition of Critical Race Theory (CRT)

Critical race theory (CRT) is an academic discipline focused upon the application of critical
theory,a critical examination of society and culture, to the intersection of race, law, and
power.Critical race theory is often associated with many of the controversial issues involved
in the pursuit of equality issues related to race and ethnicity.

The movement is loosely unified by two common themes. First, CRT proposes that white
supremacy and racial power are maintained over time, and in particular, that the law may
play a role in this process. Second, CRT work has investigated the possibility of transforming
the relationship between law and racial power, and more broadly, pursues a project of
achieving racial emancipation and anti-subordination.

Appearing in U.S. law schools in the mid- to late 1980s, critical race theory began as a
reaction to critical legal studies.Scholars such as Derrick Bell applauded the focus of civil
rights scholarship on race, but were deeply critical of civil rights scholars' commitment to
colorblindness and their focus on intentional discrimination, rather than a broader focus on
the conditions of racial inequality.Likewise, scholars like Patricia Williams, Kimberl
Williams Crenshaw, and Mari Matsuda embraced the focus on the reproduction of hierarchy
in critical legal studies, but criticized CLS scholars for failing to focus on racial domination
and on the particular sources of racial oppression.
By 2002, over 20 US law schools and at least 3 foreign law schools offered critical race
theory courses or classes which covered the issue centrally. Critical race theory is taught and
innovated in the fields of education, political science, women's studies, ethnic studies, and
American studies.
According to the UCLA School of Public Affairs: CRT recognizes that racism is engrained in
the fabric and system of the American society. The individual racist need not exist to note
that institutional racism is pervasive in the dominant culture. This is the analytical lens that
CRT uses in examining existing power structures. CRT identifies that these power structures
are based on white privilege and white supremacy, which perpetuates the marginalization of
people of color.
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Legal scholar Roy L. Brooks has defined CRT as "a collection of critical stances against the
existing legal order from a race-based point of view," and says it focuses on the various ways
in which the received tradition in law adversely affects people of color not as individuals but
as a group. Thus, CRT attempts to analyze law and legal traditions through the history,
contemporary experiences, and racial sensibilities of racial minorities in this country. The
question always lurking in the background of CRT is this: What would the legal landscape
look like today if people of color were the decision-makers.

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Key Elements
Critical race theory draws on the priorities and perspectives of both critical legal studies and
conventional civil rights scholarship, while sharply contesting both of these fields. Angela
Harris describes CRT as sharing "a commitment to a vision of liberation from racism through
right reason" with the civil rights tradition.It deconstructs some premises and arguments of
legal theory and simultaneously holds that legally constructed rights are incredibly
important.As described by Derrick Bell and Angela Harris, critical race theory is committed
to "radical critique of the law (which is normatively deconstructionist) and ... radical
emancipation by the law (which is normatively reconstructionist)."
CRT's theoretical elements are provided by a variety of sources.
Richard Delgado and Jean Stefancic have documented the following major themes as
characteristic of work in critical race theory:
A critique of liberalism: CRT scholars favor a more aggressive approach to social
transformation as opposed to liberalism's more cautious approach, favor a race conscious
approach to transformation rather than liberalism's embrace of color blindness, and favor an
approach that relies more on political organizing, in contrast to liberalism's reliance on rightsbased remedies.
Storytelling/counterstorytelling and "naming one's own reality"using narrative to
illuminate and explore experiences of racial oppression.
Revisionist interpretations of American civil rights law and progresscriticizing civil rights
scholarship and anti-discrimination law. An example is Brown v. Board of Education.
Derrick Bell, one of CRTs founders, argued that civil rights advances for blacks coincided
with the self-interest of white elitist. Mary Dudziak performed extensive archival research in
the US Department of State and US Department of Justice, as well as the correspondence by
US ambassadors abroad. She found that passing of the laws in the US was not because people
of color were discriminated against, rather it was to improve the image of the US to Third
World countries that the US needed as allies during the Cold War.
Applying insights from social science writing on race and racism to legal problems.

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The intersections theory is the examination of race, sex, class, national origin, and sexual
orientation, and how their combination plays out in various settings, e.g., how the needs of a
Latina female are different from those of a black male and whose needs are the ones
promoted.
Essentialism philosophy reducing the experience of a category (gender or race) to the
experience of one sub-group (white women or African-Americans). Basically, all oppressed
people share the commonality of oppression. However, that oppression varies by gender,
class, race, etc., so the aims and strategies will differ for each of these groups.
Non-white cultural nationalism or separatism, Black nationalismexploring more radical
views arguing for separation and reparations as a form of foreign aid. Legal institutions,
critical pedagogy, and minority lawyers in the bar.
The concept of structural determinism, or how "the structure of legal thought or culture
influences its content," is a mode of thought or widely shared practice which determines
significant social outcomes. Usually this occurs without conscious knowledge and because of
this, our system cannot redress certain kinds of wrongs.
White privilege refers to the myriad of social advantages, benefits, and courtesies that come
with being a member of the dominant race, such as a clerk not following you around in a
store or not having people cross the street at night to avoid you.
Microaggression refers to the sudden, stunning, or dispiriting transactions that mar the days
of people of color. These include small acts of racism consciously or unconsciously
perpetrated and act like water dripping on a rock wearing away at it slowly. Microaggressions
are based on the assumptions about racial matters that are absorbed from cultural heritage.
Empathic fallacy is the belief that one can change a narrative by offering an alternative
narrative in hopes that the listeners empathy will quickly and reliably take over. Empathy is
not enough to change racism as most people are not exposed to many people different from
themselves and people mostly seek out information about their own culture and group.
Cheryl I. Harris and Gloria J. Ladson-Billings add the theoretical element of whiteness as
property. They describe whiteness as the ultimate property which whites alone can possess. It
is valuable and is property. The 'property functions of whiteness'rights to disposition, rights
to use and enjoyment, reputation and status property, and the absolute right to exclude - make
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the American dream a more likely and attainable reality for whites as citizens. For a CRT
critic, the white skin color that some Americans possess is like owning a piece of property. It
grants privileges to the owner that a renter (or a person of color) would not be afforded.
Karen Pyke documents the theoretical element of internalized racism or internalized racial
oppression. The victims of racism begin to believe the ideology that they are inferior and
white people and white culture are superior. The internalizing of racism is not due to any
weakness, ignorance, inferiority, psychological defect, gullibility, or other shortcomings of
the oppressed. Instead, it is how authority and power in all aspects of society contributes to
feelings of inequality.
Camara Phyllis Jones defines institutionalized racism as the structures, policies, practices,
and norms resulting in differential access to the goods, services, and opportunities of society
by race. Institutionalized racism is normative, sometimes legalized and often manifests as
inherited disadvantage. It is structural, having been absorbed into our institutions of custom,
practice and law, so there need not be an identifiable offender. Indeed, institutionalized
racism is often evident as inaction in the face of need. Institutionalized racism manifests itself
both in material conditions and in access to power. With regard to material conditions,
examples include differential access to quality education, sound housing, gainful
employment, appropriate medical facilities and a clean environment.
As a movement that draws heavily from critical theory, critical race theory shares many
intellectual commitments with critical legal studies, critical theory, feminist jurisprudence
and postcolonial theory. Though some authors like Tommy J. Curry have pointed out that
such epistemic convergences with critical legal studies, critical theory, etc. are emphasized
because of the idealist turn in Critical Race Theory which is interested in discourse (how we
speak about race) and the theories of white Continental philosophers, over and against the
structural and institutional accounts of white supremacy which were at the heart of the realist
analysis of racism introduced in Derrick Bell's early works articulated through Black thinkers
like W.E.B. DuBois, Paul Robeson, and Judge Robert L. Carter.
Recent developments in critical race theory include work relying on updated social
psychology research on unconscious bias to justify affirmative action and work relying on
law and economics methodology to examine structural inequality and discrimination in the
workplace

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Applications
Scholars in critical race theory have focused with some particularity on the issues of hate
crime and hate speech. In response to the US Supreme Court's opinion in the hate speech case
of R. A. V. v. City of St. Paul (1992), in which the Court struck down an anti-bias ordinance
as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence
argued that the Court had paid insufficient attention to the history of racist speech and the
actual injury produced by such speech.
Critical race theorists have also paid particular attention to the issue of affirmative action.
Many scholars have argued in favor of affirmative action on the argument that so-called merit
standards for hiring and educational admissions are not race-neutral for a variety of reasons,
and that such standards are part of the rhetoric of neutrality through which whites justify their
disproportionate share of resources and social benefits

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Critiques
Some legal scholars have criticized CRT on a number of grounds, such as CRT scholars'
reliance on narrative and storytelling, or CRT's critique of objectivity. Judge Richard Posner
of the United States Seventh Circuit Court of Appeals has "labelled critical race theorists and
postmodernists the 'lunatic core' of 'radical legal egalitarianism.'"He writes,
What is most arresting about critical race theory is that...it turns its back on the Western
tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical
arguments and empirical data, critical race theorists tell stories fictional, science-fictional,
quasi-fictional, autobiographical, anecdotaldesigned to expose the pervasive and
debilitating racism of America today. By repudiating reasoned argumentation, the storytellers
reinforce stereotypes about the intellectual capacities of nonwhites.
Judge Alex Kozinski of the Ninth Circuit Court of Appeals writes that critical race theorists
have constructed a philosophy which makes a valid exchange of ideas between the various
disciplines unattainable.
The radical multiculturalists' views raise insuperable barriers to mutual understanding.
Consider the Space Traders story. How does one have a meaningful dialogue with Derrick
Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either
accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to
the aliens. The story is also a poke in the eye of American Jews, particularly those who risked
life and limb by actively participating in the civil rights protests of the 1960s. Bell clearly
implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's
insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the
Holocaustas close to a saint as Jews have. A Jewish professor who invoked the name of
Rosa Parks so derisively would be bitterly condemnedand rightly so.
Daniel Farber and Suzanna Sherry have argued that critical race theory, along with critical
feminism and critical legal studies, has antisemitic and anti-Asian implications, has worked to
undermine notions of democratic community and has impeded dialogue.
Henry Louis Gates Jr. has written a critical evaluation of CRT.Gates emphasizes how
campus speech codes and anti-hate speech laws have been applied to anti-white speech,
contrary to the intentions of CRT theorists: "During the year in which Michigan's speech
code was enforced, more than twenty blacks were charged by whites with racist speech. As
Trossen notes, not a single instance of white racist speech was punished."
Jeffrey Pyle wrote in the Boston College Law Review:Critical race theorists attack the very
foundations of the [classical] liberal legal order, including equality theory, legal reasoning,
Enlightenment rationalism and neutral principles of constitutional law. These liberal values,
they allege, have no enduring basis in principles, but are mere social constructs calculated to
legitimate white supremacy. The rule of law, according to critical race theorists, is a false
promise of principled government, and they have lost patience with false promises.

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In an article published in Slate, Will Oremus wrote that CRT is radical "in the sense that it
questions fundamental assumptions.... And unlike some strands of academic and legal
thought, critical race theory has an open and activist agenda, with an emphasis on storytelling
and personal experience. Its about righting wrongs, not just questing after knowledge" and
that CRT is not "radical today in the sense of being outside the mainstream: Critical race
theory is widely taught and studied."
Peter Wood considers CRT a "grievance ideology" and an "absurdity". He sees the central
tenet of "white racism in the American legal system" to be shown false because of items such
as the 14th Amendment, the Voting Rights Acts and Brown v. Board of Education.

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Offshoot fields
Within critical race theory, various sub-groupings have emerged to focus on issues that fall
outside the black-white paradigm of race relations as well as issues that relate to the
intersection of race with issues of gender, sexuality, class and other social structures. See for
example, critical race feminism (CRF), Latino critical race studies Asian American critical
race studies and American Indian critical race studies (sometimes called TribalCrit).
Critical race theory has also begun to spawn research that looks at understandings of race
outside the United States.

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Controversies and impact

Critical race theory has stirred controversy since the 1980s over such issues as its deviation
from the ideal of colorblindness, promotion of the use of narrative in legal studies, advocacy
of "legal instrumentalism" as opposed to ideal-driven uses of the law, analysis of the
Constitution and existing law as constructed according to and perpetuating racial power, and
encouraging legal scholars to be partial on the side of ending racial subordination.
Conservative opponents of political appointees including Lani Guinier have included a
general critique of critical race theory in their criticism of these figures' actions on racial
issues.
Critics including George Will saw resonances between Critical Race Theory's use of
storytelling and insistence that race poses challenges to objective judgments in the U.S. and
the acquittal of O.J. Simpson.
In 2012, Matt de la Peas young adult novel Mexican WhiteBoy, about a boy who wants to
grow up to become a baseball player, was banned from being taught in class and the
Mexican-American studies program in Tucson, Arizona, was disbanded in part because of
their connection to CRT, which was seen to be in violation of a recently passed state law that
"prohibits schools from offering courses that 'advocate ethnic solidarity instead of the
treatment of pupils as individu

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REFERENCES
1. Lewis R. Gordon (Spring 1999). "A Short History of the 'Critical' in Critical Race
Theory". American Philosophy Association Newsletter
2. Marxism and educational theory: origins and issues By Mike Cole
3. Richard; Jean Stefancic (December 2011). Critical Race Theory: An Introduction.
NYU Press.
4. Ladson-Billings, Gloria (1999). Race Is...Race Isn't: Critical Race Theory &
Qualitative Studies in Education.
5. Curry, Tommy J. "Will the Real CRT Please Stand Up: The Dangers of Philosophical
Contributions to The Crit: A Journal in Critical Legal Studies
6. Loyds Jurisprudence
7. Curry, Tommy J. "Will the Real CRT Please Stand Up: The Dangers of Philosophical
Contributions to The Crit: A Journal in Critical Legal Studies

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