The Void That Critical Race Theory Was Created to Fill
"The movement’s architects saw the inadequacy of liberal solutions to racial injustice. Yet the term has become a lullaby by which liberals self-soothe.
In 1971, Derrick Bell, a forty-year-old civil-rights attorney, became the first Black professor to gain tenure at Harvard Law School. A soft-spoken and prolific scholar, with glasses and a short fro coming to a widow’s peak, Bell was a Pittsburgh native and Air Force veteran who, before his career in academia, had worked with Thurgood Marshall composing legal strategies against school segregation in the South, at the N.A.A.C.P. Legal Defense Fund, and as the deputy director of civil rights at the U.S. Department of Health, Education, and Welfare. At Harvard, he created and taught the school’s first course of its kind on civil-rights law, providing students the only sanctioned opportunity for left-of-liberal legal training on the interworking of race and power. As a scholar, he published studies such as “Serving Two Masters,” in which he argued that the pursuit of racial balance in schools following the landmark ruling in Brown v. Board of Education was eclipsing efforts to improve the quality of education for Black children, leaving civil-rights lawyers compromised between their clients’ interests and the law.
Bell was a knowing token of sorts. “It became untenable for them to be an all-white institution,” he recalled, of Harvard, in an interview in 1993. “The status quo was better stabilized by moving in this direction a little bit.” But over the years Bell grew increasingly displeased with the school’s stagnant hiring practices regarding minority professors. He threatened to leave, and, in 1980, he did, moving on to the University of Oregon, to become the dean of its law school. (He would later resign from that post, and from a second post at Harvard, over the institutions’ resistance to hiring women of color.) Upon his departure from Harvard, Constitutional Law and Minority Issues was dropped from the curriculum. The following academic year, the Black Law Students Association met with the school’s dean, James Vorenberg, urging that the course be continued and that a Black professor qualified to teach it be hired. According to the scholar Kimberlé Crenshaw, who was a Harvard Law School student at the time, Vorenberg asked the students what was “so special” about Constitutional Law and Minority Issues. In terms of hiring, would they not prefer an “excellent white professor” over a “mediocre Black one”? Rebuking this false choice, the students compiled a list of thirty Black professors whom the school might consider. (All ten of the professors hired that year were white.)
In the spring of 1982, Vorenberg announced a three-week course on civil-rights litigation, to be taught by two part-time hires, including the prominent white civil-rights attorney Jack Greenberg. To the students, this was a placative offering, which would remedy neither the void in their legal training left by Bell’s departure nor the need for a full-time minority hire. They boycotted the mini-course and held rallies and sit-ins. In response, the dean sent a letter to second- and third-year students (which he later released publicly), lodging what was more or less an accusation of reverse racism: protesting the course because it was co-taught by a white lawyer worked “against, not for, shared goals of racial and social justice,” he wrote. Even the civil-rights leader Bayard Rustin, in a letter to the Times, chastised the students for what he said was their “blatant racism.” (Never mind that many of the students who joined the protests were white—this was Harvard, after all.) At a picket outside the course’s first session, in January of 1983, Crenshaw, in her third year at the school, gently refused such framings. “This whole charge of reverse racism has done what it was intended to—to obscure the real issue,” she told an A.P. reporter. (Harvard Law School declined to comment.)
In the midst of this protracted conflict, students led by Crenshaw and another future scholar and professor of law, Mari Matsuda, devised a means of accessing the education that they needed. They designed what they called the Alternative Course, premised upon a concept of the law not as a static, neutral entity but as “fundamentally political.” More robust than a reading group or a workshop, the course featured guest lecturers such as Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado, all experts in the legal dimensions of civil rights who were developing studies of the law as a racial document. The Alternative Course laid the groundwork for understanding not only racism within the law but also “how law was a constitutive element of race itself: in other words, how law constructed race,” as the editors of “Critical Race Theory: The Key Writings That Formed the Movement,” from 1995, wrote. Its core text was a book, from 1973, by the man who had inspired the program’s founding: Bell’s “Race, Racism, and American Law.” The course, Crenshaw later wrote, “set in motion a chain of events that would provide fertile ground for the emergence of CRT,” or critical race theory (a term that, along with “intersectionality,” she has been credited with coining).
The Alternative Course cannot be counted as the sole genesis of critical race theory, which became a multidisciplinary movement that draws from the work of a mélange of theorists (including Antonio Gramsci, W. E. B. Du Bois, and Jacques Derrida) and earlier movements (critical legal studies, ethnic liberation groups), with contributions from legal scholars across the country. The core premises of critical race theory—that the invention and reinvention of race enable the status quo, and that liberal solutions prove insufficient—have been applied in recent decades within fields from education to disability studies. But the ideological necessity of the course at Harvard Law in the early eighties is key to understanding the role that critical race theory has sought to fill within post-civil-rights America writ large. The Manichaean bent of popular American race narratives would incline us toward discerning what happened at Harvard in terms of conservatives against liberals, racists against people of color, but the architects of what would become critical race theory saw things differently. Harvard administrators at the time possessed what they considered, and what students considered, a liberal view on race. Vorenberg and the students “shared a desire to work towards justice and diversity,” Crenshaw and another member of the Black Law Students Association, Donald Christopher Tyler, recalled in the Crimson. The fact that administrators could condemn race-based discrimination while also dismissing the study of race-based power exemplified the blinkered insights of the liberal doctrine. The vocabulary gifted by civil rights—“bias,” “discrimination”—amounted to a Pyrrhic win for racial discourse; the era’s legal victories outlawed only what the justice system narrowly understood racism to be. As Richard Thomas Ford, a professor at Stanford Law School, put it to me recently, critical race theory “is a reaction to a conventional liberal account that says, ‘Well, you know, if we just carry on with the mainstream civil-rights project, we will get to racial justice.’ ”
Lately, of course, this niche legal movement has found itself at the center of the culture wars, as a new bogeyman of the political right. Conservatives want it gone; liberals, in turn, insist that it’s necessary. Yet few from either squad seem to have thought much about what exactly “it” is. Something something “race,” something something “history,” something something “America.” That seems to more or less summarize the thinking behind HB 3979, a bill, recently signed into law by Texas’s governor, Greg Abbott, which seeks to regulate civic education in public schools by, among other things, stipulating that teachers should not be “compelled” to discuss current events or “currently controversial issues” and, most sensationally, that students (i.e., white students) should be spared any sense of “blame,” “guilt,” or other “psychological distress” on account of belonging to a dominating race or sex. HB 3979, which goes into effect this fall, does not name critical race theory explicitly, but it is the most high-profile of a cluster of new pieces of legislation prompting hand-wringing over the term. Last month, in Florida, the State Board of Education banned critical race theory by name and also the 1619 Project, the Times endeavor that foregrounds the arrival of African slaves in the founding narrative of American national identity. Florida’s governor, Ron DeSantis, appropriating the color-blind language of liberalism, has expressed his fear that critical race theory might “cause people to think of themselves more as a member of a particular race based on skin color, rather than based on the content of their character.” (Note how, as in the case of the critics of the Harvard boycott, progressive rhetoric is called upon to suppress a feared education.)
It should not be difficult to sell a reasonable person on the idea that the “critical race theory” of conservatives’ imaginations has little to do with critical theory as such. Writers and scholars such as Adam Harris, The New Yorker’s Jelani Cobband Benjamin Wallace-Wells, and Crenshaw herself (exhibiting a patience that we the people do not deserve) have more than adequately demonstrated that campaigns against critical race theory have in fact used the term to arouse generalized fears about the implications of liberal race talk, from cultural-competency seminars to the “cancellation” of public figures. In a recent interview with Wallace-Wells, Christopher Rufo, nominally a journalist, boasted of his part in turning critical race theory into a right-wing target. He explained that he’d gone truffle-hunting for incendiary ideas in the works of scholars such as Bell, Crenshaw, and Angela Davis, whose names he had found in the footnotes of anti-racism best-sellers. In terms of its ability to foster racial hysteria, critical race theory struck Rufo as more promising than reigning buzzwords such as “woke” or “cancel culture.” It was “the perfect villain,” he told Wallace-Wells.
What has exhausted me more than Rufo’s success at igniting right-wing race hysteria, though, is the manner in which liberals have chosen to rebut it. Bona-fide critical race theory, a scholarly movement, wouldn’t be taught in grade school any more than “drifting to a person in their first driving course,” as one writer, Michael Harriot, of the Root, put it to me recently. Yet those eager to cross swords with conservatives have worked themselves into a corner: in attempting to defend critical race theory, they have whittled a leftward strain of scholarship into a set of innocuous talking points that, indeed, sound fit for children. In May, for example, the Instagram account @thistletopics (“Colorful infographics on social issues and current events”) uploaded a slide-show explainer on critical race theory, written by an incoming college freshman: “Some people agree with CRT, while others don’t,” it coos. “Racism is embedded into society through systems and institutions.” The digital-news channel AJ+ used the occasion of Juneteenth to define critical race theory as “the study of racial injustice and its effects on law and culture in the past and present.” In a column for MSNBC, the Twitter-famous historian Kevin Kruse wrote that “racism is more deeply rooted in larger structural and systemic problems.”
None of these summations is incorrect, exactly—in an appearance on CNN, Crenshaw herself described critical race theory in similar terms, as a rejection of the idea that “what’s in the past is in the past, and that the laws and systems that grow from that past are detached from it.” And yet there is something about the homogeneity of these definitions, their recourse to coddling cliché, that makes critical race theory seem like just another version of a fluffier and more familiar three-word initialism, D.E.I.—diversity, equity, and inclusion. As with the less robust term “privilege,” the words “structural” and “systemic” are called upon with a suspiciously breezy regularity these days. Rather than carry on the edifying work that these words are meant to undertake—the project of implicating ourselves in the world that contains us—they have become a lullaby by which liberals self-soothe: it’s never you; it’s the system. Ibram X. Kendi, the best-selling author of “How to Be an Antiracist,” told Slate in a recent interview that the divide over critical race theory is based on a misunderstanding that it “seeks to attack white people” rather than “to attack structural racism.” Late last month, Twitter gathered in praise of General Mark Milley, the chairman of the Joint Chiefs of Staff, for expressing an “open mind” about critical race theory before the House Armed Services Committee: “What is wrong with understanding—having some situational understanding about the country for which we are here to defend?” This expression of tolerance from the seat of power exhibits how defanged the popular apprehension of racial critique has become.
Ultimately, the liberal defense of critical race theory ignores an aspect of the movement that many of its founders considered fundamental: the “desire not merely to understand the vexed bond between law and racial power but to change it,” as the editors of “Critical Race Theory” wrote. Many scholars, myself included, might debate the attainability of this goal—the subtitle of Derrick Bell’s book “Faces at the Bottom of the Well,” from 1992, is, after all, “The Permanence of Racism.” But the transformative aims of critical race theory, inspired by the as-yet-unrealized dreams of Jim Crow’s children, have been awfully undersold in the current liberal punditsphere. Critical race theory is not merely about making a better historical document but about movement toward the way things could be. If there is anything valid about conservatives’ cooked-up attack, it’s their sense that a free accounting of race in society cannot help but imply an unmaking of the rule of law as we know it. And, in that case, the influential liberal class might have good reason to diminish the movement’s teachings. As Bell and as his peers knew well, reformers can be corrosive, too."
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