Critical Race Theory Research Paper

Writers who associate themselves with critical race theory take the position that racism is ordinary and normal in American society (Delgado 1994), indeed perhaps integral to it. Accordingly, critical race theorists attempt to show how contemporary law— including contemporary antidiscrimination law— accommodates and even facilitates racism. The critical race theory project inevitably calls into question fundamental assumptions about legal institutions and legal reasoning, about the trajectory of American history, and about the nature of injustice.

One tendency within critical race theory, deriving from the tradition of civil rights activism and jurisprudence, is strongly reformist in bent and seeks to galvanize moral outrage and direct it toward constructive legal change. A second influence on critical race theory is the poststructuralist tradition, within which the very possibility of overcoming racism through discursive structures such as law is considered a false hope. Critical race theory thus reflects a distinctive mix of reformist zeal and critical pessimism (Harris 1994). For example, Derrick Bell has urged civil rights activists to accept that, although there is a moral duty to challenge racism, racism is a permanent feature of American society (Bell 1992).

1. Origins Of Critical Race Theory

Critical race theory emerged in the USA in the 1980s as a product of political, intellectual, and sociological developments in American legal academia. Politically, the 1980s were a time when many American civil rights activists and left-wing legal scholars felt themselves caught up in a conservative backlash against the gains of the 1960s. The scholars who would later call themselves critical race theorists sought explanations for why formal legal equality had produced only modest success in improving the lived experience of most African–Americans and other people of color, and why hopes for social ‘integration’ with whites seemed largely to have faded (Crenshaw 1988).

Intellectually, the early 1980s saw the heyday of Critical Legal Studies (CLS) in the American legal academy. CLS introduced into legal scholarship poststructuralist ideas that had already permeated other disciplines focused on the interpretation of texts, including philosophy, literary criticism, and anthropology. Within legal studies, CLS scholars challenged the divide between ‘law’ and ‘politics,’ arguing that legal rules were radically indeterminate. CLS called for the deconstruction or ‘trashing’ of legal doctrine in order to expose the reification of legal concepts and the hegemonic function of traditional legal reasoning (Kelman 1987). CLS also provided an intellectual opening for broad-based critiques of law based on hidden norms of race and gender exclusion. For example, the first collection of essays in critical race theory appeared under the title ‘Minority Cri-tiques of the Critical Legal Studies Movement’; its authors were CLS sympathizers who nonetheless were disappointed with CLS’s failure to extensively engage with racism (Delgado 1987, Williams 1987).

Sociologically, the 1980s saw the gradual entry into legal academia of African–Americans and other people of color, albeit in small numbers. Many of these new scholars were drawn to study race and the law, were frustrated by the disappointing outcomes of traditional avenues of legal reform in an era of backlash, and perceived traditional civil rights scholarship as a literature that ignored the voices of people of color (Delgado 1984). Several key figures in what would become critical race theory were radicalized as students by the departure of Derrick Bell—one of the pioneering African–American scholars critical of existing civil rights jurisprudence—from Harvard Law School, and by the administration’s failure to hire an adequate replacement. These Harvard students created their own course on race, racism and the law, and staffed it with visiting scholars from around the country. The movement known as ‘critical race theory,’ and the term itself, emerged from this working group of students and teachers (Crenshaw et al. 1995).

2. Themes Of Critical Race Theory

One of the earliest themes to appear within critical race theory was epistemological in nature, and was reflected in a distinctive method. Why were people of color much more likely to see American society as racist and to be pessimistic about the possibility of eliminating racism than whites? Did they know some-thing whites did not? Was there a distinctive ‘voice of color’ that was missing in public policy, indeed in legal scholarship? Many critical race theorists argued that existing antidiscrimination law omitted the perspectives of the racially subordinated, and that sub-ordinated groups in any social system have knowledge that the privileged lack. Thus, in a famous essay Mari Matsuda argued that civil rights scholarship and practice should ‘look to the bottom’ of society for leadership and insight (Matsuda 1987).

Critical race theorists also frequently abandoned the third-person objective voice in their legal writing in order to openly ‘tell stories.’ For example, Derrick Bell’s ‘Civil Rights Chronicles’ featured an imaginary character who could travel through time, and who used her magical powers to criticize American civil rights doctrine from the founding of the Constitution to the present (Bell 1985, 1992). The telling of personal anecdotes or fables was intended not only to convey ideas that could not be expressed in traditional scholarly language, but also to criticize the assumption that the existing norms of legal scholarship, legal reasoning, and legal institutions operated objectively and produced neutral assessments of public policy. Critical race theorists hoped to show that the legal scholar’s ‘perspectivelessness’ (Crenshaw 1989b) was in fact a perspective aligned with white privilege. Thus, for example, Patricia Williams, trained in poststructuralist theory and CLS, used personal stories, a dense web of allusions, and literary techniques to critique the social and legal construction of racial realities (Williams 1991).

The assertion of a distinctive voice of color proved controversial; critical race theory, like CLS before it, was bitterly attacked as racial ‘special pleading’ and as degrading the rigorous standards of argument and research established by traditional legal scholarship (see, for example, Kennedy 1989). Legal ‘storytelling’ was similarly attacked as sloppy scholarship and as an attempt to destroy the legacy of the Enlightenment. In this attack critical race theory was taken to be a postmodernist assault on truth itself (see, for example, Farber and Sherry 1997).

Most of the writing within critical race theory, however, has not taken on philosophical questions but rather has consisted of a sustained attack on the US Supreme Court’s recent jurisprudence, particularly its constitutional jurisprudence. For example, through-out the 1980s and 1990s, the Court asserted its fidelity to four constitutional ‘traditions’ (Hayman Jr. 1995). First, the Court has increasingly favored a position of ‘colorblindness,’ under which all government racial classifications are presumptively un-constitutional, except perhaps when necessary to compensate a group of plaintiffs who can demonstrate the existence of conscious, deliberate racial bigotry that caused material disadvantage. Second, the Court has frequently deferred to legislatures, to state and local governments, and to the discretion historically exercised by public actors such as criminal prosecutors and juries when these actors are charged with racial discrimination. Third, the Court has deferred to private choices and free markets to produce the optimal allocation of resources. Fourth, the Court has supported traditional indicators of ‘merit’ when these are challenged as racially biased.

Critical race theorists have painstakingly attempted to show how these jurisprudential developments block the possibility of political, economic, and social redistributions that would disrupt systemic racism. Some critiques have focused on unpacking the rhetorical structure of judicial opinions concerning race, or the deep structure of the Court’s contemporary race jurisprudence (Ross 1989, Siegel 1997). Other scholars have mounted sustained attacks on recent doctrinal developments. For example, in an influential article Charles Lawrence III attacked the requirement that plaintiffs invoking the 14th amendment equal protection clause must prove that the defendants harbored the conscious desire to discriminate on the basis of race (Lawrence 1987). Lawrence, Mari Matsuda, Richard Delgado, and Kimberle Crenshaw have criticized the Court’s apparent elevation of first amendment speech rights over 14th amendment norms of equality; the authors suggest that racist hate speech may constitutionally be sanctioned (Lawrence and Matsuda 1993).

In keeping with CLS’s denial of any meaningful distinction between ‘law’ and ‘politics,’ critical race theorists have also sought to place jurisprudential developments in a larger political and historical context. For example, the Supreme Court trends just described coincided with political attacks on affirmative action by conservatives, a ‘war on drugs’ that locked up more and more African–American and Latino men in American prisons and jails, social panic about Asian and Mexican immigrants to the USA (reflected in nativist measures such as English-only laws and cutbacks of social welfare benefits for noncitizens), and the noisy public debate over whether curricula in American history and literature should be ‘multicultural.’ Critical race theorists sought to connect the Supreme Court’s jurisprudence with larger political developments in a narrative of resurgent racism—a racism that constantly changes in form and expression (Calmore 1997, Siegel 1997).

A third theme within critical race theory has been an effort to understand how racism interlocks with other forms of oppression, including those focusing on gender, class, and sexuality. From the beginning, many critical race theorists regarded themselves as feminists, and several addressed the failure of mainstream feminism to respond to the interests and perspectives of women of color (Crenshaw 1989a, Harris 1990). Later writers in this tradition sometimes refer to themselves as ‘critical race feminists’ (Wing 1997), and have produced a body of work that criticizes legal institutions and legal doctrine from the perspective of women of color, particularly African–American women (Roberts 1997). Most of the work in this tradition has come to treat ‘race’ as only one axis of a multidimensional system of status oppression (Hutchinson 1997). A notable exception is Regina Austin, who treats racial identity as the primary focus of her work and examines state and nonstate constraints on ‘the black public sphere’ (Austin 1994).

Most recently, an offshoot of critical race theory— Latina Critical Theory or ‘LatCrit’ as it has been familiarly dubbed—has devoted itself explicitly to exploring the interplays of race, ethnicity, religion, national origin, class, and sexuality (Valdes 1998). The appearance of LatCrit also marks a move beyond the traditional ‘black white paradigm.’ Much traditional US civil rights jurisprudence, and much early critical race theory, focused on caste racism against Afri-can–Americans. Scholars associated with LatCrit have explored the racialization of Latinos, Asian– Americans, and American Indians, and have treated immigration law as a branch of race law (Williams 1991, Perea 1997). These scholars identify nativist racism as a phenomenon distinct from, although related to, caste racism (Chang and Aoki 1998). Critical race theorists have also sought to recover and examine aspects of American race history, such as Asian exclusion and the colonization of Puerto Rico, that have been neglected because they do not fit the traditional emphasis on African–American civil rights (Chin 1998, Roman 1997).

Finally, a fourth theme within critical race theory has been the effort to work out the implications for legal theory of understanding ‘race’ as a social construction, rather than a natural fact. Some scholars have imported the work of sociologists Michael Omi and Howard Winant on ‘racial formation’ into the legal academy, studying the influence of state law on the racialization of ‘whites’ and ‘Mexicans’ (Haney Lopez 1996, 1998). Others have traced the differing meanings of ‘race’ within judicial discourse and within social and political discourse, to show how conflicts often involve an unacknowledged manipulation of the term (Gotanda 1991, Hernandez 1998).

3. Future Directions For Critical Race Theory

One recently emerging interest for critical race theorists is reestablishing the ‘praxis’ link between the now-burgeoning theoretical literature and the world of practicing civil rights attorneys, for whom much critical race theory is foreign and intimidatingly ‘academic.’ Scholar–activists such as Eric Yamamoto have called for a reconstruction of civil rights practice in light of critical race theory’s skepticism about legal reasoning and legal institutions, its emphasis on coalition-building among groups suffering from dis-crimination, and its suggestion that law is only a weak and uncertain tool in the greater political struggle for empowerment (Yamamoto 1997).

Critical race theorists have also recently begun to incorporate in their analyses the facts that not all groups racialized as nonwhite experience racism in the same way, and that racial minorities are frequently in relations of competition and subordination rather than solidarity (Yamamoto 1999). As the white population of the USA shrinks and the Asian–American and Latino populations increase, the binary relationship of white versus nonwhite will be increasingly inadequate to understand racialized relations of power. Similarly, critical race theorists have begun to address the issue of class, ethnic, and color distinctions within particular ‘races.’

A third recent development within critical race theory has been a growing interest in ‘white privilege.’ One aspect of this development is an interest in exploring white identity, facilitated by the growing literature on ‘critical white studies’ outside the academy (Flagg 1998, Delgado and Stefancic 1997). Additionally, there is growing interest in taking racial ‘privilege’ rather than ‘discrimination’ as the object of study and critique (Wildman 1996). The traditional focus on racial victimization leaves unexamined the everyday ways in which persons who are not direct perpetrators of racism nevertheless benefit from racial hierarchies. In keeping with the structuralist ambitions of critical race theory, the turn toward privilege moves beyond the focus on immediate perpetrators and victims.

Moreover, critical race theory seems to be moving toward placing the US experience in the context of a world system of economic and status inequality. Scholars of international human rights and inter-national relations have begun to incorporate critical race theory into their work (Hernandez-Truyol 1996, Gordon 1997). LatCrit scholars have followed their interest in immigrant communities within the USA to the transnational relationships of labor and capital that govern immigrant flow. Critical Race Theory has begun to converge with postcolonial studies in developing a historical perspective on the USA that treats it as a country still in recovery from its colonial history. Critical race theory has also begun to see the USA as part of an international system that divides the ‘North’ from the ‘South’ and that concentrates economic and political power in the North. In contrast with its beginnings as a movement largely rooted in and focused on the USA, critical race theory in the twenty-first century seems to be ready to ‘go global.’

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