JWW ON CRITICAL RACE THEORY PART II: TAKING ON THE MYTHS

Our last post laid out the definition of critical race theory (CRT) as developed by the legal scholars who’ve led and participated in the CRT movement since its inception in the mid-1980s.  We explained the differences among us about interpreting the definitions offered bythose scholars and we set out CRT’s six most fundamental principles for considering racial issues in legal contexts. Now we take on perhaps a bigger task – sorting through the misinformation about CRT perpetrated not only by right wing zealotseager for an attack on any effort at understanding the true history of race in America and its impact on our laws and norms, but also by ordinary people who’ve bought into the disinformation campaign now swirling around CRT.

CRT has become shorthand for every program, every effort aimed at uncovering America’s true racial history. Those

squawking loudest about CRT don’t want to uncover that history in hopes of maintaining the status quo. We think it important that Americans know CRT isn’t the enemy and that laws aimed at keeping the truth about our history hidden do liberty, justice, and equality no favors.  

The Myths

As we explained last time, right wingcommentators like Tucker Carlson and Mark Levine have blasted out dire warnings about what CRT could do to our society. Those warnings rest on falsehoods and myths the right has pushed about CRT:
·    Schools are using CRT to teach childrento hate America – as we pointed out, hardly any elementary or secondary schools incorporate CRT into their curriculum. More importantly, CRT does not advocate hating America. Only law schools (and maybe a few graduate schools) would dare trying to teach the complicated concepts that go with real CRT. We’ve watched the eyes of college graduates glaze over when we’ve delved into detailed CRT analysis. This may represent the most dangerous and outrageous falsehood ginned up in the current craziness.  

·    CRT “disregards” the idea all people are created equal -- buying into this mythdemonstrates the distinction between CRT’s real focus and what the right claims it does. Our study of original works describing or applying CRT makes clear this notion hasno basis in fact. We suggest anyone adhering to this idea read Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism. The book endorses no such idea. Bell helped popularize the concept of CRT in the American lexicon during his distinguished academic career. 

·    CRT is inherently divisive – parents objecting to CRT have advanced this noble sounding idea in opposition to teaching CRT in schools.As we’ve pointed out, nobody is teaching CRT in schools, except perhaps colleges, law schools, and professional schools.  We suspect this kind of criticism actually aims at preventing a more honest picture of America’s racial history. Those who object to such honesty should at least get their facts straight. If they don’t want more honesty about America’s racial history, they should say so, not blame a theory they understand marginally or not at all.

CRT has come to encompass all efforts at greater honesty about America’s history withrace. Conservatives have tried equating CRT with the 1619 Project, an award-winning journalism program developed by the New York Times that promotes a more realistic look at how slavery,in particular, actually unfolded and affected race relations in America. The right hopes Americans can’t tell the difference between CRT and other anti-racism efforts.

What the Fight Really Means

We see it as unfortunate that CRThas become a  bogeyman/whipping boy in the culture wars. CRT has a meaningful place in legal scholarship. It represents the work of some of America’s best legal minds on a topic that has troubled this nation since its inception. If our grandchildren attend law school, we know they’ll still learn about the law and the impact of racial considerations on the law. They may find CRT useful in grasping that subject.

By grabbing on to CRT, an obscure, decades-old legal theory that only the most elite academics fully understand and making it the whipping boy for simmering racial grievance, the right has found a way to take attention from its failings of leadership and its lack of ideas for governing.   Republicans apparently have given up on being a party of ideas. They offer nothing at the federal level

and only voter suppression at the state level. Republicans now care about little more than acquiring and keeping power. If they have ideas about moving America forward on tough issues that affect people’s lives – health care, finishing the job on the, pandemic, infrastructure, climate change – they aren’t telling us about them. Instead, they’ve ginned up this CRT dust storm.  Such side shows demonstrate their immaturity and unfitness to lead.

 

·  CRT involves making white students hate themselves and their ancestors – CRT tools and principles offer methods of analysis of how law operates in our society and how racism often influences law. That’s a far cry from indoctrinating someone to hate themselves.

 

What they won’t find helpful is the debate that erupted over CRT in 2021. That debate concerns politics, not legal analysis. Republicans, looking at a shrinking portion of the electorate (remember, they’ve lost the popular vote in every presidential election since 1988 except one) apparently feel they must do two things : (1) keep their base agitated and (2) troll for more angry white voters potentially attracted to their grievance politics. Misrepresentations about the meaning and purpose of CRT offer the best possibilities.

People say America needs two vibrant political parties. At some level, that’s true. It doesn’t need this Republican Party.    

JWW ON CRITICAL RACE THEORY PART I

LET’S AT LEAST GET THE DEFINITION RIGHT

Like a raging wildfire, angst about critical race theory (CRT) has swept across the American political landscape in 2021.  Everybody’s

talking about something most just heard of recently. Nationally syndicated columnist Leonard Pitts, who contends he’s “forgotten more about race than most people have ever

known” noted he first heard of CRT in January.  He surveyed other African-American journalists who frequently write about race. Only one had heard of CRT before this year.

So, what’s going on?  Why the phobia among state legislators, school board members, U.S. Senators, and ordinary citizens?  WHAT IS CRT?  We’ve studied it, read books and articles about it, and discussed it with academics and other professionals interested in the subject. We also understand the cynical exploitation of an obscure academic concept for political gain. In this and our next post, we’ll unpack the definition of CRT and how it’s been misused.

 

The History Lesson

CRT didn’t magically appear from thin air. It originated in the mid-1980s. It’s a way

academics, most of them law professors, talk to each other about race and its interface with law and culture. It’s not the language of the streets or even the kitchen table. Right wing politicians and others with an agenda use it as if it were.

In the words of one of its founders, CRT is “a body of legal scholarship… [developed by theorists] ideologically committed to the struggle against racism, particularly as institutionalized in and by law.” Derrick Bell (1930 - 2011) offered that in a 1995 University of Illinois Law Review article titled “Who’s Afraid of Critical Race Theory?”  Professor Bell identified himself and four others (Richard Delgado, Charles Lawrence, Mari Matsuda, and Patricia Williams) as CRT’s “founding members.”

We believe it appropriate that we look to Professor Bell’s article and other works by those founding members in defining CRT. We’ve discovered that even we disagree about the proper interpretation of their definitions.  This post explores our differences.  We agree, however, about how the right has misused CRT in sparking fear and mistrust among Americans, most of them white, for political gain. We’ll explore that next time.

 

The Definitional Disagreement

University of Alabama law professor Richard Delgado and Jean Stefancic, who now teaches law at the University of Pittsburg,

collaborated in 2017 on Critical Race Theory: An Introduction,  3rd ed. They defined CRT as a movement by “a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power.” This sounds like Professor Bell’s 1995 definition. Delgado and Stefanic added, however, that CRT “questions the very foundation of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”

In discussing CRT, Rob and Henry, for slightly different reasons, have vigorously supported the idea the Delgado/Stefancic addition constitutes an indispensable element in CRT’s definition. Rob asserts that his review of Professor Bell’s work, particularly his books

And We Are Not Saved: The Elusive Quest for Racial Justice and Faces at the Bottom of the Well: The Permanence of Racism, provide graphic  examples of the kind of explorations of racially-tinged legal issues encompassed in the Delgado/Stefancic addition. Henry, relying on his judicial experience, sees their formulation as essential to any practical application of CRT in the legal process.

Woodson notes, however, that Professor Bell didn’t include the Delgado/Stefancic addition in that seminal Illinois Law Review article. Because of his prominence in developing CRT, Woodson thinks if he’d wanted to include that, he would  have. As importantly, Woodson seesopportunities for mischief in the Delgado/Stefancic addition. To the uninitiated, arguably vague terms like “Enlightenment rationalism” and “neutral principles of constitutional law” leave running room for misguided claims about CRT that have emerged in the current debate.

Right wing commentators like Fox News host Tucker Carlson have, for example, claimed

CRT represents a “poison” that could destroy American civilization. Mark Levin, an assertive proponent of laws that keep CRT out of classrooms, has argued it could “destroy the

existing society.” No basis exists for such ideas, but definitions matter. Good reasons abound for being careful about those that open the door for disinformation.

 

The Big Six

Beyond the definitional debate, we think CRT

offers useful ideas for exploring and understanding racism and its impact on legal norms.  We need creative ways of studying racial issues. No matter how the right twists itself into a pretzel in distorting CRT, its basic tenets remain useful for an important endeavor America still must undertake:

 

·    Racism is ordinary, not aberrational;

·    white over color serves important psychic and material purposes for the dominant group;

·    as a matter of social construction, race and races are products of social thought and relations;

·    how a dominant society racializes minority groups differs and depends on shifting needs, such as labor markets;

·    in terms of intersectionality and anti-essentialism, each race has its own origins and ever evolving history; and

·    the voice of color exists because it’s unlikely whites can convey the history and experiences of people of color.

                 

Hardly any elementary or secondary schools now teach CRT. No reason exists for fears about school children being indoctrinated to “hate America,” as some have claimed. Misuse of CRT, as columnist Pitts suggested, developed from those who “fear nothing quite so much as the loss of whiteness and its privileges.”

What if students explored America’s racial past guided, in part, by CRT’s six ideas? Would the world end if pupils studied slavery, Jim Crow, income inequality, and criminal justice inequity with these principles in mind? Of course not!

We  think it more likely all ethnic groups would come to grips with the negative effects of racism on American laws and norms, resulting in a more sensitive, just, and egalitarian society.