Critical Race Theory | Reflections & Notes

Richard Delgado and Jean Stefancic. Critical Race Theory: An Introduction. [Third Edition]. New York University Press, 2017. (199 pages)


Our cultural debate around Critical Race Theory (CRT) has deeply clouded and damaged our collective consciousness around race relations in America. I lament this reality, and wish that the original sources of Critical Race Theory: An Introduction, (in addition to Critical Theory: A Very Short Introduction) when respectfully and accurately read and represented can help us advance the conversation towards effective and fruitful conversations, disabusing us of the unfortunate beliefs that CRT teaches that “white people are inherently racist,” that “all disparity equals discrimination” or that “America is intrinsically racist and it cannot be undone.” Too often these, and other ideas, are vehemently defended, an apologetic posture that is also terrible for solution making. This is not progress. This is cultural gridlock, and it’s damaging to all.

The widely diverse and complicated set of commentators and pundits who dare speak on the issue has led to an even wider confusion of ideas, beliefs, and policy implementations that have fractured CRT into a million different dendrites of “truths.” Making matters worse, the tone and emotion is quite heightened in many of the public exchanges that are happening, a mental state that is detrimental to our … (*ahem*) … critical and rational faculties. We are all suffering terribly from some form of “the rationalist delusion” and are worse off as a result.

It should be conceded that terrible ideas around race are being taught in all levels of education in some ways and there is a reasonable and honest argument to be made as to the detriments to our children and society, and what alternatives there are for the benefit of both. But the “culture war” outrage or worship of CRT is misplaced and needs to be redeemed.

In this regard, James Lindsey (@ConceptualJames) is correct in saying that CRT teaches that “racism is the ordinary state of affairs in our society [and if] we don’t drudge up a race consciousness that we can’t get over it.”:

Regardless of whether or not he believes or accepts this tenant, he is essentially embodying its truth. His dismissal of CRT hinders him and others from seeing race appropriately—and truly—in all its various manifestations. One cannot fix what one cannot see. (Reminds me of the prophecies of Isaiah). The cycle self-perpetuates and creates a need for, oh, let’s say, a critical analysis of this idea?

I’ll close with this tweet from @jlythcotthaims, shared just two days ago as I was typing up my notes for this book:


Shit it is. CRT is our pooper scooper. Grab a handle everyone, and let’s all start scooping. Together. How to scoop can be found below.


Foreword by Angela Harris

…Derrick Bell, Kimberlé Crenshaw, Richard Delgado, Mari Matsuda, Patricia Williams. (xv)

Critical race theory not only dares to treat race as central to the law and policy of the United States; it dares to look beyond the popular belief that getting rid of racism means simply getting rid of ignorance or encouraging everyone to “get along.” To read this primer is to be sobered by the recognition that racism is part of the structure of legal institutions but also to be invigorated by the creativity, power, wit, and humanity of the voices speaking (xvi) about ways to change that structure. (xvii)

Preface to the Third Edition


I Introduction

social scientists call the event a “microaggression,” by which they mean one of those many sudden, stunning, or dispiriting transactions that mar the days of women and folks of color. Like water dropping on sandstone, they can be thought of a small acts of racism, consciously or unconsciously perpetrated, welling up from the assumptions about racial matters most of us absorb from the cultural heritage in which we come of age in the United States. These assumptions, in turn, continue to inform our public civic institutions—government, schools, churches—and our private, personal, and corporate lives. (2)

A. What Is Critical Race Theory?

The critical race theory (CRT) movement is a collection of activists and scholars engaged in studying and transforming the relationship among race, racism, and power. The movement considers many of the same issues that conventional civil rights and ethnic studies discourses take up but places them in a broader perspective that includes economics, history, setting, group and self-interest, and emotions and the unconscious. Unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law. (3)

B. Early Origins

…early writers, such as Derrick Bell, Alan Freeman, and Richard Delgado, put their minds to the task. They were soon joined by others, and the group held its first workshop at a convent outside Madison, Wisconsin, in the summer of 1989.

C. Relationship to Previous Movements

…critical race theory builds on the insights of two previous movements, critical legal studies and radical feminism,… It also draws from certain European philosophers and theories, such as Antonio Gramsci, Michel Foucault, and Jacques Derrida, as well as from the American radical tradition exemplified by such figures as Sojourner Truth, Frederick Douglass, W .E. B. Du Bois, César Chávez, Martin Luther King, Jr. and the Black Power and Chicano movements of the sixties and early seventies. From critical legal studies, the group borrowed the idea of legal indeterminacy—the idea that not every legal case has one correct outcome. Instead, one can decide most cases either way, by emphasizing one line of authority over another or interpreting one fact differently from the way one’s adversary does. The group also incorporated skepticism of triumphalist history and the insight that favorable precedent, like Brown v. Board of Education, tends to erode over time, cut back by narrow lower-court interpretation, administrative foot dragging, and delay. The group also built on feminism’s insights into the relationship between power and the construction of social roles, as well as the unseen, largely invisible collection of patterns and habits that make up patriarchy and other types of domination. From conventional civil rights thought, the movement took a concern for redressing historical wrongs, as well as the insistence that legal and social theory lead to (5) practical consequences. CRT also shared with it a sympathetic understanding of notions of community and group empowerment. From ethnic studies, it took notions such as cultural nationalism, group cohesion, and the need to develop ideas and texts centered around each group and its situation. (6)

D. Principal Figures

Derrick Bell; Alan Freeman; Kimberlé Crenshaw; Angela Harris; Cheryl Harris; Charles Lawrence; Mari Matsuda; Patricia Williams; Neil Gotanda; Mitu Gulati; Jerry Kang; Eric Yamamoto; Robert Williams; Laura Gomez; Ian Haney López; Kevin Johnson; Gerald Lopez;Margaret Montoya; Juan Perea; Francisco Valdes; Paul Butler; Devon Carbado; Lani Guinier; Angela Onwuachi-Willig; andré cummings; Nancy Levit; Tom Ross; Jean Stefancic; Stephanie Wildman

E. Spin-Off Movements

Unlike some academic disciplines, critical race theory contains an activist dimension. It tries not only to understand our social situation but to change it,… (8)

F. Basic Tenets of Critical Race Theory

What do critical race theorists believe? Probably not every writer would subscribe to every tenet set out in this book, but many would agree on the following propositions. First, racism is ordinary, not aberrational—”normal science,” the usual way society does business, the common, everyday experience of most people of color in this country. Second, most would agree that our system of white-over-color ascendancy serves important purposes, both psychic and material, for the dominant group. The first feature, ordinariness, means that racism is difficult to address or cure because it is not acknowledged. (8)

The second feature, sometimes called “interest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class whites (psychically), large segments of society have little incentive to eradicate it. (9)

A third theme of critical race theory, the “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are categories that society invents, manipulates, or retires when convenient. People with common origins share certain physical traits, of course, such as skin color, physique, and hair texture. But these constitute only an extremely small portion of their genetic endowment, are dwarfed by what we have in common, and have little or nothing to do with distinctly human, higher-order traits, such as personality, intelligence, and moral behavior. That society frequently chooses to ignore these scientific truths, creates races, and endows them with pseudo-permanent characteristics is of great interest to critical race theory. (9)

| Another, somewhat more recent, development concerns differential racialization and its consequences. Critical (9) writers in law, as well as in social science, have drawn attention to the ways the dominant society racializes different minority groups at different times, in response to shifting needs such as the labor market. (10)

Closely related to differential racialization—the idea that each race has its own origins and ever-evolving history—is the notion of intersectionality and antiessentialism. (10) … Everyone has potentially conflicting, overlapping identities, loyalties, and allegiances. (11)

| A final element concerns the notion of a unique voice of color. Coexisting in somewhat uneasy tension with antiessentialism, the voice-of-color thesis holds that because of their different histories and experiences with oppression, black, American Indian, Asian, and Latino writers and thinkers may be able to communicate to their white counterparts matters that the whites are unlikely to know. Minority status, in other words, brings with it a presumed competence to speak about race and racism. (11)

G. How Much Racism Is There in the World?

I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean, ipso facto, that he is anti-white; no more than being Jewish implies being anti-Catholic, or being Catholic implies being anti-Protestant. As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice. This is evident by the plain historical fact that for more than two and a half centuries, millions of blacks were slaves under the rule and sanction of law a fate which confronted no other major minority in this country. Every presidential commission and almost every Supreme Court opinion dealing with racial matters have noted the fact that in this country, there has often been racial injustice for blacks.

Thus a threshold question which might be inferred from defendants’ petition is: Since blacks (like most other thoughtful Americans) are aware of the “sordid chapter in American history” of racial injustice, shouldn’t black judges be disqualified per se from adjudicating cases involving claims of racial discrimination? Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants’ standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination.

To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system. If defendants are not implying this extreme position about blackness per se as a basis for disqualification, then one must examine the rationale of their other allegations.

[via: The use of historical oppression as a rationale for current or future disqualification from civil authority and participation is stunning.]

H. Organization of This Book

Questions and Comments for Chapter I

  1. Is critical race theory pessimistic? Consider that it holds that racism is ordinary, normal, and embedded in society and, moreover, that changes in relationships among the races (which include both improvements and turns for the worse) reflect the interest of dominant groups, rather than idealism, altruism, or the rule of law. Or is it optimistic, because it believes that race is a social construction? (As such, it should be subject to ready change.)
  2. And if CRT does have a dark side, what follows from that? Is medicine pessimistic because it focuses on diseases and traumas?
  3. Most people of color believe that the world contains must more racism than white folks do. What accounts for this difference?
  4. Is race or class more important in determining one’s life chance?
  5. Why have scholars in the field of education, particularly, found CRT’s teachings helpful?
  6. Is racism essentially a cognitive error—a product of ignorance or lack of experience—and so correctable through teaching and learning?
  7. If you are a community activist, what lessons from this chapter could you apply to your daily work?
  8. Have you read any books, published before 1989 perhaps, that were works of critical race theory, even if they were not designated as such?

Suggested Reading

II Hallmark Critical Race Theory Themes

A. Interest Convergence, Material Determinism, and Racial Realism

One camp, which we may call “idealists,” holds that racism and discrimination are matters of thinking, mental categorization, attitude, and discourse. Race is a social construction, not a biological reality, they reason. Hence we may unmake it and deprive it of much of its sting by changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by which we convey to one another that certain people are less intelligent, reliable, hardworking, virtuous, and American than others. (21)

| A contrasting school—the “realists” or economic determinists—holds that though attitudes and words are important, racism is much more than a collection of unfavorable impressions of members of other groups. For realists, racism is a means by which society allocates privilege and status. (21)

Materialists point out that conquering nations universally demonize their subjects to feel better about exploiting them, so that, for example, planters and ranchers in Texas and the Southwest circulated notions of Mexican (21) inferiority at roughly the same period that they found it necessary to take over Mexican lands or, later, to import Mexican people for backbreaking labor. …what is true for subordination of minorities is also true for its relief: civil rights gains for communities of color coincide with the dictates of white self-interest. Little happens out of altruism alone. (22)

[via: cf. Ibram X. Kendi’s ‘ideas follow policies’.]

…the legal historian Mary Dudziak carried out extensive archival research in the files of the U.S. Department of State and the U.S. Department of Justice. Analyzing foreign press reports, as well as letters from U.S. ambassadors abroad, she showed that Bell’s intuition was largely correct. When the Justice Department intervened (23) on the side of the NAACP for the first time in a major school-desegregation case, it was responding to a flood of secret cables and memos outlining the United States’ interest in improving its image in the eyes of the Third World. (24)

B. Revisionist History

Revisionist history reexamines America’s historical record, replacing comforting majoritarian interpretations of events with ones that square more accurately with minorities’ experiences. It also offers evidence, sometimes suppressed, in that very record, to support those new interpretations. (25)

C. Critique of Liberalism

Critical race theorists (or “crits,” as they re sometimes called) hold that color blindness of the latter forms will allow us to redress only extremely egregious racial harms, ones that everyone would notice and condemn. But if racism is embedded in our thought processes and social structures as deeply as many crits believe, then the “ordinary business” of society—the routines, practices, and institutions that we rely on to do the world’s work—will keep minorities in subordinate positions. Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery. As an example of one such strategy, one critical race scholar proposed that society “look to the bottom” in judging new laws. If they would not relieve the distress of the poorest group—or, worse, if they compound it—we should reject (27) them. (28)

Crits are suspicious of another liberal mainstay, namely, rights. Particularly some of the older, more radical CRT scholars with roots in racial realism and an economic view (28) of history believe that moral and legal rights are apt to do the right holder much less good than we like to think. In our system, rights are almost always procedural (for example, to a fair process) rather than substantive (for example, to food, housing, or education). Think how that system applauds affording everyone equality of opportunity but resists programs that assure equality of results, such as affirmative action at an elite college or university or efforts to equalize public school funding among districts in a region. Moreover, rights are almost always cut back when they conflict with the interest of the powerful. (29)

Moreover, rights are said to be alienating. They separate people from each other—”stay away, I’ve got my rights”—rather than encouraging them to form close, respectful communities. (29)

D. Structural Determinism

Everyone has heard the story about Eskimo languages, some of which supposedly contain many words for different kinds of snow. Imagine the opposite predicament—a society that has only one word (say, “racism”) for a phenomenon that is much more complex than that,… (31)

Or imagine a painter raised by parents and preschool teachers who teach him that the world contains only three colors, red, blue, and yellow; or a would-be writer who is raised with an artificially low vocabulary of three hundred words. … These examples point out the concept that lies at the heart of structural determinism, the idea that our system, by reason of its structure and vocabulary, is ill equipped to redress certain types of wrong. (31)

1. Tools of Thought and the Dilemma of Law Reform

As a thought exercise, the reader is invited to consider how many of the following terms and ideas, mentioned in this book and highly relevant to the work of progressive lawyers and activists, are apt to be found in standard legal reference works: intersectionality, interest convergence, microaggressions, antiessentialism, hegemony, hate speech, language rights, black-white binary, jury nullification. How long will it take before these concepts enter the official vocabulary of law? (33)

2. The Empathic Fallacy

The idea that one can use words to undo the meanings that others attach to these very same words is to commit the empathic fallacy—the belief that one can change a narrative by merely offering another, better one—that the reader’s or listener’s empathy will quickly and reliably take over. (34)

Classroom Exercise

3. Serving Two Masters

A lawyer representing a poor client may want to litigate the right to a welfare hearing, while the client may be more interested in a new pair of Sunday shoes for his or her child. … Which master should the lawyer serve? … For example, does a black president or senator, by the very nature of his or her role, have to cownplay his or her blackness in fulfilling obligations to the country as a whole? (37)

Classroom Exercise

4. Race Remedies Law as a Homeostatic Device

Questions and Comments for Chapter II

  1. If society agreed to think only kind thoughts about people of color, would their condition improve very much? How much, and in the short or the long run?
  2. If society agreed to treat everyone, including people of color, exactly the same, would the condition of communities of color improve very much? Again, in the short or the long run?
  3. If American Indians discovered gold on the reservation or blacks did the same in the inner city, so that the average wealth and family income of Indians and blacks were exactly the same as those of whites, would racism abate? Become more intense? Stay the same?
  4. Today more African Americans attend segregated schools than they did when Brown v. Board of Education was decided. What does this say about reform through law?
  5. Beginning with Brown and continuing through the sixties and early seventies, the Supreme Court handed down a number of decisions favorable to blacks and other minorities. Now it has been limiting affirmative action and weakening enforcement under antidiscrimination laws. What explains the shift?
  6. Is society, over time, becoming more, or less, fair in its treatment of minorities? If your answer is “more fair,” why are courts making it harder to vote? If your answer is “less fair,” how do you account for Obama’s presidency?
  7. When is a favorable judicial decision a contradiction-closing case?
  8. Suppose you are litigating an employment-discrimination case on behalf of a black woman who suffered ill treatment at work on account of her black womanhood. The employer points out that he does not discriminate against black men (and rather likes them) or against white women. Your suit, in short, requires that the law recognize a new cause of action for intersectional categories, such as black women, who are members of two groups at the same time. Do you suspect that legal research in a commercial database would unearth the few decisions that have adjudicated such claims? Suppose the category, as yet, lacks an agreed-upon name?
  9. You are a social activist who has recently come to believe that Derrick Bell’s interest-convergence hypothesis—that whites allow breakthroughs for black sonly when it serves whites’ interests—makes sense. Will this change your approach to activism, and, if so, how?

Suggested Readings

III Legal Storytelling and Narrative Analysis

A. Opening a Window onto Ignored or Alternatives Realities

One premise of legal storytellers is that members of this country’s dominant racial group cannot easily grasp what it is like to be nonwhite. Few have what W. E. B. Du Bois described as “double consciousness.” (46)

How can there be such divergent stories? Why do they not reconcile? To the first question, critical race theory answers, “experience.” People of different races have radically different experiences as they go through life. ( Derrick Bell would add a further reason: “interest convergence”—people believe what benefits them.) To the second, it answers that empathy is in short supply. (48) … Literary and narrative theory holds that we each occupy a normative universe or “nomos” (or perhaps many of them), from which we are not easily dislodged. … The hope is that well-told stories describing the reality of black and brown lives can help readers to bridge the gap between their worlds and those of others. (49)

B. Counterstorytelling

Some of the critical storytellers believe that stories also have a valid destructive function. (49)

In legal discourse, preconceptions and myths, for example, about black criminality or Muslim terrorism, shape mindset… These cultural influences are probably at least as determinative of outcomes as are the formal laws, since they supply the background against which the latter are interpreted and applied. (50)

C. Cure for Silencing

Many victims of racial discrimination suffer in silence or blame themselves for their predicament. Others pretend that it didn’t happen or that they “just let (60) it roll off my back.” All three groups are more silent than they need be. Stories can give them voice and reveal that other people have similar experiences. Stories can name a type of discrimination…once named, it can be combated. If race is not real or objective but constructed, racism and prejudice should be capable of deconstruction; the pernicious beliefs and categories are, after all, our own. (51)

The differend [Jean-Françoi Lyotard’s concept] occurs when a concept such as justice acquires conflicting meanings for two groups. (51)

D. Storytelling in Court

…attention to the narrative side of lawyering can enable lawyers representing the poor and disenfranchised to achieve a better brand of justice. … Children and certain other witnesses are permitted to testify in the room of an uninterrupted narrative, rather than through question-and-answer examination. With sexual-offense victims, shield laws and evidentiary statutes protect them against certain types of examination, even though the Sixth Amendment’s confrontation Clause would otherwise permit the other side to attack their narrative forcefully. (53)

E. Storytelling on the Defensive

Questions and Comments for Chapter III

  1. Why are most legal storytellers black or brown (Derrick Bell, Richard Delgado, Patricia Williams, Tara Yosso, Matthew Fletcher, Mari Matsuda, etc.)?
  2. Do white people tell stories, too, but deem them not stories at all but the truth?
  3. If one wanted to change another person’s mind about something, say, the death penalty, what would be more effective, an array of statistics or a good story or movie?
  4. “Once upon at time…” Do stories (at least ones that are well told) cause the reader or listener to suspend disbelief, and, if so, is this a good or a bad thing?
  5. Suppose you have a particular account of the world. For example, as a result of experience you have come to believe that virtue is almost always rewarded and that people generally get what they deserve. Social handouts and welfare just make matters worse. Someone tells you a story about a welfare recipient who used her allotment to raise her children, then went to school and became a Ph.D. and owner of a start-up computer company. How do you react? Do you reconsider your views—or merely pronounce her an exception?
  6. What stories do you tend to hear in the debate over affirmative action? Which ones do you hear over and over again during presidential campaigns? (Self-made man? Patriotic American? tells it l like it is? Defender of the Constitution?) During judicial confirmation hearings? (Will stick to the rule of law? Future judicial activist? Understands the common man?)
  7. Is capitalism—our society’s dominant mode of doing business—a collection of stories, for example, that the market is the best way of allocating resources, that if everyone pursues his or her own self-interest, society will benefit from the citizenry’s energy and inventions, and that state control is almost always bad If it is, will capitalism’s periodic crises and crashes eventually cause its supporters to modify their views? Or are stories of this kind impervious to experience?
  8. If you hear a given story too often, does a discrepant item of evidence merely cause you to ignore it?
  9. Suppose you have a friend who believes in a militarized border and strict enforcement of immigration laws. During a discussion, you learn that she believes that immigration brings Mexican criminals and terrorists into the country and increases the chance of the “next 9/11.” You have read studies showing that regions that have experienced increased immigration, including the undocumented kind, see decreasing (not increasing) crime rates. You have also read that to date not a single foreign terrorist is know to have snaked across the border from Mexico. Ares studies like these likely to persuade her to change her views on immigration, and, if not, why not?
  10. How can a community activist employ storytelling in his or her work?

Suggested Readings

IV Looking Inward

A. Intersectionality

“intersectionality” means the examination of race, sex, class, national origin, and sexual orientation and how their combination plays out in various settings. (58)

“politics of identification.” Persons of this persuasion identify with the “race rebel” aspect of some black criminals and support them, at least if they are young, redeemable, and a potential asset to the community. (62)

Perspectivalism, the insistence on examining how things look from the perspective of individual actors, helps us (62) understand the predicament of intersectional individuals. (63)

A related critical tool that has proven useful in this respect is the notion of multiple consciousness, which holds that most of us experience the world in different ways on different occasions, because of who we are. The hope is that if we pay attention to the multiplicity of social life, perhaps our institutions and arrangements will better address the problems that plague us. (63)

B. Essentialism and Antiessentialism

Do all oppressed people have something in common? … On one level, the answer is obvious: of course all oppressed people have something in common—their oppression. But the forms of that oppression may vary from group to group. And if they do, the needs and political strategies of groups fighting for social change will vary as well. When a group organizes for social change, it must have a clear concept of what it is fighting to achieve. Essentialism, then, entails a search for the proper unit, or atom, of social analysis and change. (63)

| When we think of the term “essentializing,” we think of paring something down until the heart of the matter stands alone. (63)

When we are tackling a structure as deeply embedded as race, radical measures are in order—otherwise the system merely swallows up (64) the small improvement one has made, and everything goes back to the way it was. (65)

| Ignoring the problem of intersectionality, as liberalism often does, risks doing things by half measures and leaving major sectors of the population dissatisfied. Classical liberalism also has been criticized as overly caught up in the search for universal, such as admissions standards for universities or sentencing guidelines that are the same for all. The crits point out that this approach is apt to do injustice to individuals whose experience and situation differ from the norm. They call for individualized treatment—”context”—that pays attention to minorities’ lives. (65)

C. Nationalism versus Assimilation

Nationalists are apt to describe themselves as a nation within a nation… (69)

Classroom Exercise

D. Racial Mixture

Questions and Comments for Chapter IV

  1. An Asian woman has been raising her hand at a meeting of white feminists planning a march to protest the “glass ceiling” in corporate management positions. When they finally recognize her, it turns out she wants to know when the group will discuss oppressive labor conditions in the garment industry. Is she being divisive?
  2. Suppose the group responds that the agenda should reflect only items that concern all women “as women” and not ones that have to do with small factions, such as seamstresses in the clothing industry. Is the group implicitly adopting a middle-class white agenda?
  3. Should minorities make an effort to “fit in” in social and work situations? Why or why not? Wouldn’t this just be a lot of extra work?
  4. If blacks or Chicanos sit at separate tables in the cafeteria, is that self-segregation? Should whites politely ask if they can join them?
  5. Should minorities make an effort to do business with minority firms? Assume that Firm A and Firm B offer the same product or service, but one is run by Mr. Gonzalez and the other by a person whose ancestors came over on the Mayflower. Which one should the person of color patronize?
  6. A politician is born in the United States to a white mother and a black father from Kenya. His parents separate while he is young, and he is raised, first, by his mother and then, when she dies, by hi white grandparents, who send him to elite schools. He speaks unaccented English, wears impeccable clothing, and exercises every day. Is he white, black, or neither? [via: Gee, quite the “hypothetical” (😉)]
  7. Can a white person ever pass as black? Why would he? [via: Or, “she”?]
  8. COnsider Devon Carbado and Mitu Gulati’s notion of performative identity in the workplace, as well as Kenji Yoshino’s concept of “covering,” in which gays and lesbians work hard to conceal their identity from others. In performative identity, according to Carbado and Gulati, some workers of color carry the heavy burden of reassuring their coworkers on a daily basis that they are not threatening, uncouth, incompetent, and jivey. They do all this, of course, in addition to their assigned work, a type of double duty not expected from others. Should minorities indignantly refuse to do this, and what if it endangers their standing at work?

Suggested Readings

V. Power and the Shape of Knowledge

A. The Black-White Binary

That paradigm, the black-white binary, effectively dictates that nonblack minority groups must compare their treatment to that of African Americans to redress their grievances. (77)

The differential socialization thesis,…embraced by most contemporary students of race, maintains that each disfavored group in this country has been racialized in its own individual way and according to the needs of the majority group at particular times in its history. (79)

cf. Indian Appropriation Act; the Dawes Act; the Chinese Exclusion Act (1882); California’s Proposition 187

In addition to pitting one minority group against another, binary thinking can induce a minority group to identify with whites in exaggerated fashion at the expense of other groups. (82)

Anglocentric standards of beauty divide Mexican and black communities, enabling those who most closely conform to the Euro-American ideal to gain jobs, desirable mates, and social acceptance and, sometimes, to look down on their darker-skinned brothers and sisters. (83)

Black-white or any other kind of binary thinking can also cause a minority group to go along with a recurring play in which whites select a particular group—usually a small, nonthreatening one—to serve as tokens and overseers of the others. (83)

Finally, dichotomous thinking and exceptionalism impair the ability of groups to form coalitions. (83)

Will minority groups learn to put aside narrow nationalisms and binary thinking and work together to confront the forces that suppress them all? … If contextualism and critical theory teach anything, it is that we rarely challenge our own preconceptions, privileges, and the standpoint from which we reason. (84)

B. Critical White Studies

…how did the white race in America come to exist, that is, how did it come to define itself? (85)

In the semantics of popular culture, whiteness is often associated with innocence and goodness. (85)

In contrast, darkness and blackness often carry connotations of evil and menace. (86)

Whiteness is also normative;

[via: In addition to the positive metaphors for “white,” there are also positive metaphors for “black,” e.g. “black tie event,” “__ is the new black.” There are also negative metaphors for “white,” e.g. “white out,” “white as a sheet,” “white washing.” I mention this simply to point out that the color metaphors are not absolute.]

During the more than 150 years that the requirement remained in place, U.S. courts decided many cases determining who was white and who was not. (87)

The legal definition of whiteness took shape in the context of immigration law, as courts decided who was to have the privilege of living in the United States. … Only those who were deemed white were worthy of entry into our community. (87)

Another aspect of the construction of whiteness is the way certain groups have moved into or out of that race. (88)

A recent manifestation of white consciousness is its exaggerated form seen in white-supremacy and white-power groups. (89)

“White privilege” refers to the myriad of social advantages, benefits, and courtesies that come with being a member of the dominant race. (89)

This has prompted one commentator to remark that our system of race is like a two-headed hydra. One head consists of outright racism—the oppression of some people on the grounds of who they are. The other consists of white privilege—a system by which whites help and buoy each other up. (90)

Indeed, one aspect of whiteness, according to some scholars, is its ability to seem perspectiveless or transparent. (91)

Classroom Exercise

C. Other Developments: Latino and Asian Critical Thought, Critical Race Feminism, LGBT Theory

Allied with the model minority myth is the idea that Asians are to successful—soulless, humorless drones whose home countries are at fault for the United States’ periodic economic troubles. (94)

cf. Vincent Chin [cf. From a Whisper to a Rallying Cry: The Killing of Vincent Chin and the Trial that Galvanized the Asian American Movement, by Paula Yoo]

Questions and Comments for Chapter V

  1. If an African American asserts that, because of slavery, blacks truly are exceptional and should receive priority over other groups in jobs and social programs, is he or she asserting a form of property interest in blackness? (See Cheryl Harris, Whiteness as Property, 106 Harv. I., Rev. 1707 [1993].) Is he or she demonstrating ignorance of other groups’ histories?
  2. Does white privilege exist? If so, give an example. Is there such a thing as black, Chicano, or Asian privilege? How about the privilege to be uninhibitedly exuberant with one’s friends?
  3. If slavery is the central, foundational element in blacks’ history in the United States, what serves that function for Latinos? For Indians? For Asians?
  4. If it is legitimate for a school to have a black or Latino student organization, is it equally legitimate to allow white students to form a white student organization? And to use student fees to fund it?
  5. Would it not be logical for blacks, Latinos, Asians, and Native Americans to unite in one powerful coalition to confront the power system that is oppressing them all? If so, what prevents them from doing so?
  6. Are Latinos and American Indians exceptional? Asian Americans? Are all the groups exceptional?
  7. Which groups should have a category in the U.S. Census? During certain periods, Latinos have had a category of their own, but at other times, they have not. Are they a race? An ethnicity? What is a Hispanic?
  8. Should multiracial people have a census category? Several? How many?
  9. Suppose that a Latino worker’s coworkers make fun of his lunch food, calling him a “taco eater.” They also joke about his family’s being “wetbacks” and his friends “lettuce pickers.” (See Alvarado v. Shipley Donut Flour & Supply Co., Inc., 526 F. Supp. 2d 746 [S.D. Tex. 2007]; Lopez v. Union Car. Co., 8 F. Supp. 2d 832 [N.D. Ind. 1998]; Machado v. Goodman Mfg. Co., 10 F. Supp. 2d 709 [S.D. Tex. 1997].) Is this racial discrimination for which the worker can sue under a federal civil rights statute? If your answer is no, is that because you have adopted, whether you realize it or not, a black-white binary paradigm of race?
  10. Is a police program that keeps an eye on Muslims and mosques racist? Or is it merely a sensible measure aimed at improving the security of all Americans? Will it go down in history as a shameful action like Japanese internment?

Suggested Readings

VI Critiques and Responses to Criticism

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. (102)

A. “External” Criticism

cf. Randall Kennedy; Daniel Farber; Suzanna Sherry

B. “Internal” Criticism

1. The Activist Critiques

Is critical race theory pragmatic? (105)

2. Critique of the Intellectual Heart of the Movement

A persistent internal critique accuses the move-(106)meant 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. (107)

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. (107)

A further internal critique raises the question of whether critical race theory takes adequate account of economic democracy. … 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? (18)

C. Critical Race Theory as a Method of Inquiry in New Fields and Countries

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). (108)

Classroom Exercise

Questions and Comments for Chapter VI

  1. Reconsider the question posed at the end of chapter 1: Is critical race theory too pessimistic?
  2. Do CRT’s critics make the mistake of holding up the new paradigm of civil rights thought to the standard of the old one? Is this like deeming Martin Luther a heretic because he sought to change the teachings of the Catholic Church or like judging Jesus by the standards of the Roman Empire?
  3. Is it problematic that before a certain point, most of the civil rights literature in law was written by a small, but growing, literature written by scholars of color? Or might it have one or more perfectly logical explanations?
  4. Are stories based on firsthand experience—for example, racial discrimination at a department store—irrefutable (because only the author was there), and, if so, how can other scholars build on or criticize them? Are they power moves? Exclusionary? Useful raw experience or data?
  5. Is it a waste of time for a movement that seeks social justice to focus on internal issues of identity and the relations of subgroups within itself?
  6. Is working within the system or outside it the best way to bring about change? Which would you choose, and why?
  7. If Group A (say, Jews) is successful and Group B (say, blacks) is not, and Group B charges that the system is rigged, is that an implied criticism of Group A, because it implies that they took advantage of an unfair system to get ahead?

Suggested Readings

VII Critical Race Theory Today

A. Right-Wing Offensive

The decade of the nineties saw the beginning of a vigorous offensive from the political Right. (114)

Critical race theorists took part in all those controversies. They also addressed identity issues within critical race theory, intergroup coalitions, and the use of empirical methods in theorizing and confronting discrimination. (114)

B. Front-Burner Issues

1. Race, Class, Welfare, and Poverty

Is racism a means by which whites secure material advantages, as Derrick Bell proposed? Or is a “culture of poverty,” including broken families, crime, intermittent employment, and a high educational dropout rate, what causes minorities to lag behind? (115)

| Critical race theory has yet to develop a comprehensive theory of class. (115)

A dynamic example of critical race theory in action, the environmental justice movement aims at forging a coalition between the hitherto white-dominated conservation movement and minority communities. If it succeeds, it will have created a truly powerful force for change. (117)

2. Policing and Criminal Justice

Building on the work of radical criminologists, one race crit shows that the disproportionate criminalization of African Americans is a product, in large part, of the way we define crime. (120)

3. Hate Speech, Language Rights, and School Curricula

One of the first critical race theory proposals had to do with hate speech—the rain of insults, epithets, and name-calling that many minority people face on a daily basis. (125)

A second speech-related issue concerns the rights of non-English speakers to use their native languages in the workplace, voting booth, schoolhouse, and government offices. (128)

4. Affirmative Action and Color Blindness

cf. Plessy v. Ferguson and John Harlan’s dissent (

cf. President Lydon Johnson’s Executive Order 11246 in 1965

Some current critics urge abolishing race-based affirmative action in favor of a version based on economic class. Such a program, they say, would help all kids who grew up poor, not just minorities. It would also be in harmony with the current vogue of color-blind remedies and approaches to race and racism. most educators, however, believe that such a shift would devastate the chances of communities of color, because the number of poor whites greatly (133) exceeds that of poor minorities. One scholar proposed that any institution tempted to implement an affirmative action plan of this type also take into account advantage or white privilege. (134)

5. Globalization and Immigration

If the materialist wing of critical race theory is right, domestic minorities have suffered at the hands of very similar forces. Indeed, their fates are linked with those of their overseas counterparts, since capitalists can always use the threat that industrial operations will relocate overseas to defeat unions, workplace regulations, welfare, and other programs of interest to U.S. minorities. Accordingly, some crits have begun reading or rereading the body of literature known as postcolonial studies in an effort to understand how their movement might dovetail with these other forces. (137)

| Another prominent area for critical race analysis is immigration law. (137) … The resulting harsh treatment of people fleeing poverty, gangs, death squads, or repression in their home countries offers what one critical race theorist has called a “magic mirror” into the heart of America. This mirror shows how American society really thinks of its own citizens of color and would treat them if it were not for the courts. (138)

6. Voting Rights

…in addition to “felon disenfranchisement,” communities of color suffer another kind simply by reason of their numerical minority status. In most elections, except for those of mayors of certain large cities, people of color will be in the minority. (139)

Until the country’s demographic makeup shifts even more decisively, efforts must continue to counter minority underrepresentation. Cumulative voting, proposed by a leading critical race theorist, would circumvent some of these problems by allowing voters facing a slate of ten candidates, for example, to place all ten of their votes on one, so that if one of the candidates is, say, an African American whose record and positions are attractive to that community, that candidate should be able to win election. (139)

C. Identity

Do all people of color share something in common, namely, their oppression, or can we only speak of oppression? (141)

Classroom Exercise

D. Critical Empirical Analysis

Questions and Comments for Chapter VII

  1. Now that you have come this far, revisit the question with which chapter 2 began: Would a determined campaign by every white person in this country to be color blind—to completely ignore the race of other people—eliminate the courage of racism and racial subordination? Or is racism so embedded in our social structures, rules, laws, language, and ways of doing things that the system of white-over-black/brown/yellow subordination would continue, as though on autopilot? Is racial subordination so profitable and familiar that society is unlikely ever to give it up?
  2. A majority of people of color support affirmative action; a majority of whites oppose it. Why is that?
  3. Does affirmative action reward incompetence? If so, why has the country’s productivity not slipped during the twenty-five years that the program has been in operation? And why do most large corporations favor it?
  4. Why should a light-skinned son of a black neurosurgeon with an SAT score of 1080 get the nod over the daughter of a Ukrainian immigrant who works in a furniture factory, had to learn English from scratch, and earned a score of 1250?
  5. If the police stop black male motorists 50 percent of the time and whites only 10 percent of the time and justify those stops by pointing out that black males commit more crime than whites, is that fair?
  6. If a white police officer sees two young black or Latino males walking down the sidewalk with no obvious destination or reason for being there, is it OK for the officer to ask them where they are going? Is it insulting and disrespectful to do so, even if the officer asks politely?
  7. The nation’s prisons and jails are full of minority inmates, especially young men. Is that racist, and if so, what should be done about it?
  8. How do you feel about back jurors who engage in jury nullification? Did our system do something similar in the South when courts failed to convict white killers of black civil rights protesters?
  9. If corporations and government agencies locate 50 percent of the biohazards (such as sanitation plants) in minority communities and 10 percent in white ones, is that fair? Suppose that land is cheaper in the minority neighborhood, so that the decision seems economically rational. Is that a good reason for locating these facilities there? Suppose that minority people have flocked to these areas because of the well-paying jobs they offer or because housing is cheaper there.
  10. If a U.S. corporation pays a Thai woman $1.10 per hour to work a ten-hour shift in a hot, noisy factory, and the prevailing rate in Thailand is $1.00 per hour for an eleven-hour workday, is that fair? Suppose that she insists that she wants to work there? What is a fair minimum wage in a developed country such as the United States?
  11. Blacks, Chicanos, and Asians are constantly outvoted by whites in elections, but is anything wrong with that? Shouldn’t the majority rule?
  12. Latinos are now 17 percent of the U.S. population and outnumber blacks as the largest ethnic minority group. Where do Latinos figure into the civil rights equation? Are they more like blacks? Whites? American Indians? Asian Americans? And who decides? Should they qualify for affirmative action and other government programs?
  13. Many of us like to think that society is less racist now than before, at least in a raw sense. But hate speech seems to be increasing in the age of blogs, websites, and talk radio. If so, what is the solution? Don’t conservative radio personalities and anonymous users of the Internet have the right to say what they think?
  14. The British and French colonial administrators wielded power over large native populations through a variety of strategies, including co-opting local elites by giving them midlevel jobs in the colonial administration and preaching Western superiority. Now that the U.S. population is beginning to resemble that of a colonial state, with a minority of whites and a preponderance of people of color, will these same neocolonial strategies find use once again? Is this already happening?
  15. Most people today believe that hate speech out to be discouraged. Even if one is angry at another individual, we think it is wrong to call him by a name marking an ethnic slur (“You __”). Suppose a rapper uses the same word. Is that hate speech? Why or why not?
  16. What should a social activist do if his or her school or other organization refuses to hire minorities, denies domestic-partner benefits to gay couples, and refuses to explore renewable sources of energy to run its campus or building?

Suggested Readings

VIII Conclusion

A. The Future

One school of social science holds that socioeconomic competition heightens racial tensions, at least in the short run. (153) At the same time, interest-convergence theory suggests that as the world become more cosmopolitan and minority status and linguistic competence evolve into positive assets, the opposite may occur, much as it has done during wartime. (154)

B. A Critical Race Agenda for the New Century

…civil rights activists and scholars will need to address a host of issues as the United States changes complexion. These include the continued deconstruction of race, so that biological theories of inferiority and hierarchy cannot ever again arise. (155)

Immigration law’s defects will need attention so that people, including young, often unaccompanied, children, escaping totalitarian regimes do not end up in large detention centers or deported back to whence they came, suffering nightmares, impaired cognitive development, other psychic ills, and even death in the process. (156)

[via: …ugh. Too late.]

C. Likely Responses to the Critical Race Theory Movement

1. Critical Race Theory Becomes the New Civil Rights Orthodoxy

cf. Lani Guinier; Mari Matsuda; Charles Lawrence; Richard Delgado

Might critical race theory one day diffuse into the atmosphere, like air, so that we are hardly aware of it anymore? (158)

2. Critical Race Theory Marginalized and Ignored

3. Critical Race Theory Analyzed but Rejected

4. Partial Incorporation

Classroom Exercise

Questions and Comments for Chapter VIII

  1. It is said that the arrow of progress is as often backward as forward. Which of the scenarios described in this chapter—or yet some other—do you see as most likely for America’s racial future?
  2. What role do you see for leftist political theory, such as CRT, in the years ahead? What role do you see for yourself?
  3. The philosopher Søren Kierkegaard once said that we are doomed to lead life forward but only to understand it backward, that is, in retrospect. Is this more or less true of relations among the races? (See chapter 2, discussing the “empathic fallacy.”)
  4. Critical race theory is expanding into other countries and academic disciplines, such as ethnic studies, political science, women’s studies, and American studies. It is also beginning to change how we approach crime, policing, and sentencing policy. Will the same happen, after a time, in other societies such as China and Indonesia and other disciplines such as medicine?
  5. Two crits (Devon Carbado and Mitu Gulati) point out that minority workers often find themselves performing “extra work” when they devote much time and energy to reassuring white fellow workers that they are just like them, that is, are not threats, inscrutable, or seething under the surface and have the same range of interests as they do and so on. Suppose the balance tips, so that whites are in a minority in the workplace. Will whites have to engage in “performative identity,” perhaps in order to reassure their colleagues of color that they are hip, cool, and musical, too?

Suggested Readings

About VIA

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  1. Pingback: From A Whisper To A Rallying Cry | Reflections & Highlights | vialogue

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