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Critical race theory: What it is and what it isn’t

President Lyndon Johnson signing the 1964 Civil Rights Act, which aimed to do away with racial discrimination in the law. But discrimination persisted. (AP file photo)

U.S. Rep. Jim Banks of Indiana sent a letter to fellow Republicans on June 24, 2021, stating: “As Republicans, we reject the racial essentialism that critical race theory teaches … that our institutions are racist and need to be destroyed from the ground up.”

Kimberlé Crenshaw, a law professor and central figure in the development of critical race theory, said in a recent interview that critical race theory “just says, let’s pay attention to what has happened in this country, and how what has happened in this country is continuing to create differential outcomes. … Critical Race Theory … is more patriotic than those who are opposed to it because … we believe in the promises of equality. And we know we can’t get there if we can’t confront and talk honestly about inequality.”

Rep. Banks’ account is demonstrably false and typical of many people publicly declaring their opposition to critical race theory. Crenshaw’s characterization, while true, does not detail its main features. So what is critical race theory and what brought it into existence?

The development of critical race theory by legal scholars such as Derrick Bell and Crenshaw was largely a response to the slow legal progress and setbacks faced by African Americans from the end of the Civil War, in 1865, through the end of the civil rights era, in 1968. To understand critical race theory, you need to first understand the history of African American rights in the U.S.

The history

After 304 years of enslavement, then-former slaves gained equal protection under the law with passage of the 14th Amendment in 1868. The 15th Amendment, in 1870, guaranteed voting rights for men regardless of race or “previous condition of servitude.

Between 1866 and 1877 – the period historians call “Radical Reconstruction” – African Americans began businesses, became involved in local governance and law enforcement and were elected to Congress.

This early progress was subsequently diminished by state laws throughout the American South called “Black Codes,” which limited voting rights, property rights and compensation for work; made it illegal to be unemployed or not have documented proof of employment; and could subject prisoners to work without pay on behalf of the state. These legal rollbacks were worsened by the spread of “Jim Crow” laws throughout the country requiring segregation in almost all aspects of life.

Grassroots struggles for civil rights were constant in post-Civil War America. Some historians even refer to the period from the New Deal Era, which began in 1933, to the present as “The Long Civil Rights Movement.”

The period stretching from Brown v. Board of Education in 1954, which found school segregation to be unconstitutional, to the Fair Housing Act of 1968, which prohibited discrimination in housing, was especially productive.

The civil rights movement used practices such as civil disobedience, nonviolent protest, grassroots organizing and legal challenges to advance civil rights. The U.S.’s need to improve its image abroad during the Cold War importantly aided these advancements. The movement succeeded in banning explicit legal discrimination and segregation, promoted equal access to work and housing and extended federal protection of voting rights.

However, the movement that produced legal advances had no effect on the increasing racial wealth gap between Blacks and whites, while school and housing segregation persisted.

A young Black man on a skateboard pushes his son in a stroller on a sidewalk past blighted buildings in Baltimore.

The racial wealth gap between Blacks and whites has persisted. Here, Carde Cornish takes his son past blighted buildings in Baltimore. ‘Our race issues aren’t necessarily toward individuals who are white, but it is towards the system that keeps us all down, one, but keeps Black people disproportionally down a lot more than anybody else,’ he said. (AP Photo/Matt Rourke)

What critical race theory is

Critical race theory is a field of intellectual inquiry that demonstrates the legal codification of racism in America.

Through the study of law and U.S. history, it attempts to reveal how racial oppression shaped the legal fabric of the U.S. Critical race theory is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law.

There are a few beliefs commonly held by most critical race theorists.

First, race is not fundamentally or essentially a matter of biology, but rather a social construct. While physical features and geographic origin play a part in making up what we think of as race, societies will often make up the rest of what we think of as race. For instance, 19th- and early-20th-century scientists and politicians frequently described people of color as intellectually or morally inferior, and used those false descriptions to justify oppression and discrimination.

Legal scholar Kimberlé Crenshaw, who devised the term ‘critical race theory,’ explains what it is – and isn’t.

Second, these racial views have been codified into the nation’s foundational documents and legal system. For evidence of that, look no further than the “Three-Fifths Compromisein the Constitution, whereby slaves, denied the right to vote, were nonetheless treated as part of the population for increasing congressional representation of slave-holding states.

Third, given the pervasiveness of racism in our legal system and institutions, racism is not aberrant, but a normal part of life.

Fourth, multiple elements, such as race and gender, can lead to kinds of compounded discrimination that lack the civil rights protections given to individual, protected categories. For example, Crenshaw has forcibly argued that there is a lack of legal protection for Black women as a category. The courts have treated Black women as Black, or women, but not both in discrimination cases – despite the fact that they may have experienced discrimination because they were both.

These beliefs are shared by scholars in a variety of fields who explore the role of racism in areas such as education, health care and history.

Finally, critical race theorists are interested not just in studying the law and systems of racism, but in changing them for the better.

What critical race theory is not

Florida Gov. Ron DeSantis, giving his version of what critical race theory is.

“Critical race theory” has become a catch-all phrase among legislators attempting to ban a wide array of teaching practices concerning race. State legislators in Arizona, Arkansas, Idaho, Missouri, North Carolina, Oklahoma, South Carolina, Texas and West Virginia have introduced legislation banning what they believe to be critical race theory from schools.

But what is being banned in education, and what many media outlets and legislators are calling “critical race theory,” is far from it. Here are sections from identical legislation in Oklahoma and Tennessee that propose to ban the teaching of these concepts. As a philosopher of race and racism, I can safely say that critical race theory does not assert the following:

(1) One race or sex is inherently superior to another race or sex;

(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;

(4) An individual’s moral character is determined by the individual’s race or sex;

(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.

What most of these bills go on to do is limit the presentation of educational materials that suggest that Americans do not live in a meritocracy, that foundational elements of U.S. laws are racist, and that racism is a perpetual struggle from which America has not escaped.

Americans are used to viewing their history through a triumphalist lens, where we overcome hardships, defeat our British oppressors and create a country where all are free with equal access to opportunities.

Obviously, not all of that is true.

Critical race theory provides techniques to analyze U.S. history and legal institutions by acknowledging that racial problems do not go away when we leave them unaddressed.

[Understand what’s going on in Washington. Sign up for The Conversation’s Politics Weekly.]The Conversation

David Miguel Gray, Assistant Professor of Philosophy, Affiliate, Institute for Intelligent Systems, University of Memphis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

8 comments

E Clem July 16, 2021 at 7:33 am

Thank you for shedding informed light on this hot- button issue that has itself created divisiveness through misinformation.

Michael McGuire July 16, 2021 at 4:02 pm

I’m not sure I buy Professor Gray’s optimistic take on Critical Race Theory (CRT). Reason, regardless of recent interviews CRT claims white supremacy is the underpinning of “Systemic Racism”. At least that is what Joy Reid, Don Lemon and others have been reporting on for months now.

But as the name implies CRT is a theory. It’s a theory that needs to stand it ground in the harsh light of public scrutiny and free speech without being propped up by institutionalized thuggery and biased media. To wit, are the current challenges in the black community a function of white supremacy as CRT claims? Or are they a by-product of decades of the political hoodwinking of vulnerable portions of our society via a soul crushing welfare system? Sidebar: Welfare and its attendant programs are the largest line items in our federal budget at well over a Trillion per year. He who controls welfare controls a vast amount of power.

CRT’s claim of everything wrong is due to white supremacy is naïve in that it does not explore the reasons for a current 72 percent out-of-wedlock birth rate and multi-generational welfare for a significant portion of the black community. However, in 1964 (LBJ’s Great Society) the out-of-wedlock birth rate for both whites and blacks was approximately 24 percent.

Why did this happen? Could it be that welfare resulted in a 50-year path of broken dreams and lost opportunity for poor Americans of all colors. Welfare strips men of dignity, women of stability, and children of opportunity. This virtually ensures the generational economic and social decline for anyone caught in its system. True there are exceptions but that’s just it – they are exception, not the rule. If it were the rule, welfare would have put itself out of business in short order. Maybe that is why there are only exceptions.

Sadly, it is acceptable today to blame/attack Judeo-Christian beliefs and ethics but consider that is was the Judeo-Christian community that started the worldwide movement to abolish slavery in the late 1700’s. It was the Judeo-Christian culture of the Norther States that made the choice to go to war in 1860 when they simply could have let the South go since it was an economic backwater and social pariah given its predilection for slavery.

As I recall it was the Democratic Southern states that took another 100 years post-Civil War before their political leaders grudgingly accepted equal rights for all. The North was all in from 1776 and sacrifice nearly 600,000 mostly white men dead, wounded or missing in action (Civil War) in support of a simple concept – all men are created equal.

Today we are faced with a loss of confidence in our Government and our Institutions. Interesting that CRT is coming to light now amid all the noise of cancel culture, big-tech censorship, woke ideology, journalistic cheerleading, globalization, and the truly glaring lack of character of our pollical leaders on both sides of the aisle.

Mr. Gray and Ms. Crenshaw may want to take a deeper dive (under the welfare rock perhaps) into what ails the black community and stop blaming white people. Or maybe they are part of the hoodwinking.

Niz July 17, 2021 at 12:27 pm

Ok McGuire well put, in detail w/ back up!
All whites are not suppressing all brown skin are not victims. It’s the racist individuals that are practicing inequality & not getting revealed w/ proof by colleagues & community that’s an issue in my opinion. It’s starts in the home, at the heart.

Alexis July 17, 2021 at 7:49 pm

Michael – Did you even read and/or comprehend the analysis of critical race theory? Have you considered that stubborn, unrelenting, centuries-long legal discrimination and racism may be a contributing factor to the items you note in your piece?

Cathy Travers July 18, 2021 at 8:24 am

Michael Maguire speaks the reality of our history .. we all know mistakes were made and that racism exists but welfare in the twentieth century has done more harm then good … equal education opportunities would have and should have done more for people of color yet in the majority of cases it still has not.. racial and cultural prejudices have always existed for every race and every culture as has extreme poverty… yet races and cultures rise above it ..African Americans generations and decades later ,even with overwhelming laws and opportunities given them financially and within the workplace as well as in educational opportunities still choose a different path .. platitudes and programs and the blame game of what a horrible country we are and we were solves nothing but further seperating races and cultures .. i come from a poor immirgrant family who suffered all the insults we talk about today yet we never took a dime of government money we just worked and kept moving forward and learning and succeeding of our own accord and hate no race no culture .life is about choices

Bryan Meek July 18, 2021 at 8:35 am

Can someone explain why you need a valid Government ID to get public housing and other benefits? Isn’t that discriminatory?

Leroy Jenkins July 19, 2021 at 12:35 pm

There has never been a better and more compelling argument to homeschool your children…. Get them away from this evil socialist doctrine as soon as you can

Alexis July 19, 2021 at 7:34 pm

Cathy- While no amount of prejudice, bigotry and discrimination is appropriate, the treatment that you and your family experienced was bigotry and not systemic racism. What Mr. Gray, chronicles in his piece – speaks to 304 years of systemic racism that was codified by U.S. law(basis of CRT – intersection of racism and law). White people, on the other hand, were not systemically denied access to housing, education, etc. based on skin color. Considering the Fair Housing Act was passed in 1968 – that means it has only been 53 years that a Black person has been able to legally purchase a house! I recommend you research redlining, steering, and blockbusting.

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