Critical Race Theory And Its Conservative Critics

Monica Schipper | Getty Images

In 1989, a youngish black law professor named Kimberle Crenshaw introduced two terms into academic discourse—“critical race theory” and “intersectionality.” Of the two terms, “critical race theory” became a significant school of legal thought and is taught mostly in law schools while “intersectionality” has had a monumental impact on sociology, anthropology, history, and any field that deals with women, masculinity, race, ethnicity, disabilities, immigrants, colonialism, and the like. Indeed, intersectionality may be the single most influential conceptual innovation of the last 40 years. Coining critical race theory made Crenshaw important but intersectionality made her a legend. To give a sports analogy, it’s as if Simone Biles was not only the greatest gymnast of all time but a highly ranked tennis pro as well.

What is Critical Race Theory? Let’s start with some basics. Critical Race Theory is a legal literature that was developed by a multiracial set of Black, Asian, Native American, Hispanic lawyers and sought mostly to rethink the working of race in American legal doctrine. In the civil rights court decisions of the 1970’s and 1980’s, the prevailing assumption was that individuals, private business, and government were “color-blind,” and that racial discrimination should be thought of as a deviation from that standard. Under the color-blind standard, Minneapolis police officer Derek Chauvin was rightly found guilty for his murder of George Floyd, but he would have been considered in individual terms a “bad apple” motivated by overt racism rather than an example of a pattern. Traditional civil rights law would not have seen the Minneapolis Police Department as discriminatory or racist even though there were six previous complaints about Chauvin putting non-white men into chokeholds, an incident of Chauvin kneeling “on the back of a 14-year-old Black boy for 17 minutes” in 2017, and 18 complaints filed against Chauvin altogether. There would not have been any questions about the training of Minneapolis police officers, the rules governing police conduct, the ways in which rules were applied in encounters between white police and non-white populations, and the extent to which police violence against racial minorities was seen as a positive or normal thing by the white population. To the contrary, Critical Race Theorists believe that white supremacy is normalized in institutional hiring practices, training, salary scales, promotion decisions, and human relations practices and the term “systemic racism” became prominent during the aftermath of the George Floyd murder.

Critical Race Theory works like any critical methodology. It takes established points of view that are considered fair, just, or methodologically correct, and demonstrates that there are hierarchies, interests, or domination in the working of the system. Early Christianity was known for its deconstruction of the traditional Roman gods as myths, idols, or demons. Fifteen hundred years later, Karl Marx sought to show that far from involving a “rational distribution” of wealth as proponents claimed, the free exchange of the capitalist system resulted in class exploitation, crisis, and revolution. What Critical Race Theory uncovers is that white racial consciousness is an important element in an American legal system that’s officially dedicated to ideals of color-blind equality. From the Critical Race Theory perspective, Officer Chauvin would not have been a “bad apple” in an otherwise non-discriminatory police department so much as an example of the white racial antagonism among urban police, biased rules and procedures in the Minneapolis Police Department, and popular white support for harsh police treatment of minorities.  

In an early essay in the Critical Race Theory collection, Crenshaw identifies white race consciousness in this way:

My purpose here is to examine the deep-rooted problem of racist ideology—or white race consciousness—and to suggest how this form of consciousness legitimates prevailing injustices and constrains the development of new solutions that would benefit black Americans.

Critical Race Theory is also known for defining race as “socially constructed” rather than biological, relying on narrative story telling as an alternative to legal or social science analysis, and critical understanding of classic Supreme Court decisions like Brown v Board of Education as serving elite white liberal political interests as well as racial justice. One of the best articles in the Critical Race Theory literature is “Whiteness as Property” by UCLA law professor Cheryl Harris. Harris begins by discussing how her grandmother spent several years passing as “white” in order to hold a job at a high-end clothing outlet because such jobs were limited to whites. In this sense, whiteness was a form of property that made Harris’ grandmother eligible for certain kinds of employment or higher levels of income. I’m interested in that because my mother’s side of the family has gone through at least two rounds of mixed-race marriage, passing, and “re-whitening” after their arrival in 1640’s New Amsterdam.

“Whiteness as Property” is brilliant scholarship that is still vital 30 years later.

The same can’t be said for conservative critics of Critical Race Theory. The steep decline in conservative intellectual life doesn’t get much attention, but there’s been no monumentally important conservative work to match The 1619 Project or the long string of great books by Patricia Hill Collins, Catherine MacKinnon, Michel Foucault, the British historian E.P. Thompson, and others going back to WWII. Structural anthropology, feminism, the Frankfurt School, post-structuralism, post-modernism, black feminism, and the linguistic turn are all still influential, but conservatives made no effort to keep up, and in many ways, have lost contact with the mainstream of Western and Global intellectual life.

In this sense, it shouldn’t be a surprise that the white conservative campaign against Critical Race Theory has been so intellectually lazy and incompetent.

The primary white conservative critic of Critical Race Theory, Christofer Rufo, views Critical Race Theory as “little more than reformulated Marxism.” Likewise, Sen. Marco Rubio of Florida says that  “Critical race theory is Marxist-inspired indoctrination.” However, Crenshaw and the critical race theorists have a critical analysis of whiteness and racial hierarchy—not capitalism and class hierarchy. They want reform, not revolution. They write about the legal system not the economic system. The Critical Race Theorists don’t have anything analogous to what Neo-Marxists concepts of hegemony or the culture industry either. In fact, Critical Race Theory is best understood as a successor to the civil rights movement of the 1950’s and 1960’s, is influenced mostly by Martin Luther King and the social movements influenced by civil rights thinking, especially black feminism, immigrant rights activism, LGBT rights campaigns, disability activism, and Native American politics. Given the crucial importance of civil rights for American politics and culture, Critical Race Theory is much better connected to the mainstream of American life than most forms of intellectual conservatism have been for decades.

Rufo claims that Critical Race Theorists don’t believe any progress has been made for black people, but Crenshaw and others given enormous credit to the Civil Rights movement for gaining rights and making progress for black Americans and cite that progress as part of their argument for rejecting Marxism. Their critique of civil rights law concerns the barriers that the Supreme Court has created to further progress on desegregation, racial discrimination, and police violence. By the way, Rufo read the same authors as I did but is neither skilled enough nor honest enough to acknowledge the distinction.

Other critics have expanded on Rufo to promote blatant lies about Critical Race Theory advocating many positions they clearly do not hold, i.e., —that “all whites are … inherently racist,” that white people are “should feel guilty because of their skin color,” that America is inherently evil,” etc. And Rufo is fine with this because his criticisms of Critical Race Theory were all about marketing: quoting “We have successfully frozen their brand—’critical race theory’—into the public conversation… as we put all of the various cultural insanities under that brand category.” And what has gone under the “Critical Race Theory Brand” and been removed from public school reading lists and libraries also includes the novels of Toni Morrison and white classics like “The Diary of Anne Frank” and “To Kill a Mockingbird.” Not being honest about Critical Race Theory in the first place, critics of Critical Race Theory are now putting all kinds of anti-race materials and really, any kind of mainstream non-conservative history, under the Critical Race Theory label and trying to ban them from public education.

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