What is “Critical Race Theory”? A Meditation on Several Answers. (Part IV)

Note

This is the fourth meditation of a multipart series considering different proposals about what constitutes Critical Race Theory’s common themes (or, for some, central tenets). The first meditation is here; the second is here; the third is here.

To be clear: The goal of this series is to consider and compare how some self-identified CRT scholars have characterized CRT in print. I am not offering a definitive take on which, if any, of these characterizations is correct. Still, seeing and comparing these presentations should help many who are asking, “What is Critical Race Theory?”

Enjoy y ¡Saludos!

Signposting

This post has three parts. First, I discuss the historic context informing the book Words that Wound: Critical Race Theory, Assaultive Speech, And the First Amendment. Because this text is the first book-length collaboration by CRT scholars (written by Kimberlé Crenshaw, Richard Delgado, Charles Lawrence III, and Mari Matsuda), we do well to consider how it describes CRT. Second, I offer a close reading of the book’s opening presentation of CRT. Third, I conclude with a brief intermission noting what I did and did not say.

Part One: Background

Racist assaultive speech was on the rise. Indeed, it permeated universities and colleges across the US. In those institutions of higher education, faculty, staff, and administrators repeated the refrain: “We have never seen anything like this.”

Mari Matsuda captured the nation-wide academic shock at the marked rise in racist assaultive speech in a lecture she delivered throughout the US entitled “Assaultive Speech and Academic Freedom.” From the vantage point of the early 1990s, Matsuda writes:

At every single university at which I spoke [during the 1980s]—north, south, east, and west—I learned of serious incidents of racist or anti-Semitic assault. University administrators reported that they had never seen anything like it. A pattern emerged in the 1980s of the new integration colliding with the new racism—or the new old racism. The universities—long the home of institutional and euphemistic racism—were now seeing something different: the worst forms of gutter racism. Swastikas appearing on Jewish holy days, cross burnings, racist slurs, and verbal assaults so degrading and vicious I found I could not reprint some of them, even for educational purposes, in the article I wrote.

Those inhabiting and working in US higher education in the 1980s did not witness the advent of racist assaultive speech on their campuses. They witnessed the increased spread and corrosiveness of this old US practice—the “new old racism.”

One of the most infamous examples of the rise of racist assaultive speech in the 1980s is Stanford University’s “Ujamma incident.” As Charles Lawrence III, then professor at Stanford Law School, summarized:

Two white freshmen had defaced a poster bearing the likeness of Beethoven. They had colored the drawing of Beethoven brown, given it wild curly hair, big lips, and red eyes, and posted it on the door of an African-American student’s dorm room in Ujamaa, the Black theme house. The two white students involved had been in an argument with the Black student the night before. They had contested the Black student’s assertion that Beethoven was of African descent. Another poster, advertising a Black fraternity dance, was also found defaced on the dorm bulletin board. The word “niggers” had been written in large letters across the face of the poster. After investigating the incident the university’s office of general counsel held that the offending students could not be disciplined under the university’s disciplinary rules because their actions constituted protected speech.

The racist events Lawrence describes happened in October of 1988—one month after Lee Atwater persuaded candidate George H. Bush to run the racist “Willie Horton ad” so that “By the time we’re finished, they’re going to wonder whether Willie Horton is Dukakis’ running mate.”

(Two notes: (1) Horton’s first name was William, not “Willie”; (2) Atwater, Bush’s campaign manager, made the name change because “Willie” sounded “Black” and was more likely to “stick” with the white male voters Bush was attempting to woo than “William.”)

The increase in racist assault speech that Matsuda described and Lawrence wrote about carried into the 1990s. Howard J. Ehrlich documented this in his 1990 report on campus ethnoviolence for The National Institute Against Prejudice and Violence. Ehrlich found that “65 to 70 percent of the nation’s minority students reported some form of ethnoviolent harassment, and the number of college students victimized by ethnoviolence is in the range of 800,000 to 1 million annually.” Ehrlich notes that much of this ethnoviolent harassment was racist hate speech.

Recognizing this more than decade-long increase in assaultive racist speech, four members of the newly formed Critical Race Theory movement agreed to collaborate on a book project: Words that Wound: Critical Race Theory, Assaultive Speech, And the First Amendment. Initially published in 1993 in Westview Press’s series “New Perspectives on Law, Culture, and Society,” this book combines three previously published essays (one by Richard Delgado, one by Matsuda, and one by Lawrence) with a new essay by Kimberlé Crenshaw, an introduction by all the contributors, and an epilogue by Matsuda and Lawrence. The authors’ goal: “to analyze a pressing public issue [e.g., rise in racist assaultive speech] form within the emergent intellectual movement called critical race theory.” This would be the movement’s first book-length collaboration.

Part Two: Turning to The Text

Writing the introduction to Words that Wound presented its authors a unique challenge, which we can formulate as a question: How to present CRT to the uninitiated within the claustrophobic confines of an introduction to an academic legal textbook? Matsuda et al. could not presume their readers were familiar with CRT. Moreover, even if their readers had heard or read about the movement, it was highly likely that they had only encountered the negative publicity and distortions that came with the media attention given to CRT-rejecters such as Randall Kennedy, Daniel Farber, Suzanna Sherry, George Will, and Nat Hentoff.

Within this confined and contentious context, one might expect Matsuda et al. to present their understanding of CRT through a set of clear, enumerated elements or themes that characterize the movement. Matsuda et al meet this expectation—but that is only part of what they do. Many sloppy, unjust readings, frequently motivated to find and isolate CRT’s “central tenets,” miss that the authors of Words that Wound locate this list within a cleverly crafted textual garden, the boundaries and contents of which further specify what CRT is. The list, then, is the resting area at the garden’s center. Readers are to linger there and meditate on its specific contents. But readers can only appreciate and understand what they’re experiencing in this center if they contextualize it within its surroundings. The tall, dense boundary hedges, for example, frame what the garden’s visitors are intended to see and hear.

Matsuda et al surround their central list with two kinds of hedges: a tradition of radical teaching and postcolonial aspirations. The emphasis on a tradition of racial teaching serves as the entrance hedge through which one must pass to reach the garden’s interior. As such, it also serves as a reference point throughout the “Introduction.” Likewise, one finds that this species of hedge wholly or partially constitutes all the garden’s hedges. I say “or partially” because the garden’s rear hedge is a blend of the tradition of radical teaching and postcolonial aspirations.

What then is the tradition of radical teaching that structures so much of the “Introduction”? Matsuda et al answer thus: “The historian Vincent Harding describes this tradition as a vocation of struggle against dehumanization, a practice of raising questions about the reasons for oppression, an inheritance of passion and hope.” The authors of Words that Wound link CRT to the historic liberative pedagogical practices Vincent Harding details in There is a River: A Black Struggle for Freedom in America. Thus Matsuda et al present CRT as rooted in a tradition of race-coconscious struggle marked by a pedagogy that stresses word and deed, reflection and action. This presentation serves as both an alert and invitation. It alerts those who would engage CRT to the need to understand it in terms of an historic tradition full of insights and practices, not mere abstracted tenets. And it invites readers to learn about, join, and extend this tradition.

(Note: Readers should question why Matsuda et al have identified with one tradition rather than multiple traditions. This question is especially germane given that Matsuda et al speak of this tradition as an inheritance from their “parents and grandparents and from countless others who have resisted racial oppression.” Is what Harding recounts this kind of multi-racialized tradition, or is it more racially particular, even if, in some sense, it is open to all?)

For Matsuda et al, the invitation they extend others is something they too must daily accept. Though this historic tradition is their inheritance, they must choose it. They write:

Harding’s description begins with the word “vocation.” The inference is that one must choose to accept the gift and the burden of this inheritance. One must choose to embrace the values of humanism. One must choose to engage in the practice of liberationist teaching. One must make that choice each day.

Entering and dwelling in the CRT garden is costly. The toll exacted on those who promote race-conscious liberation in the tradition Harding describes is real, not merely metaphorical. It’s a struggle. Daily choosing to participate in this tradition of struggle, Matsuda et al claim, “is the most important part of our common identity.”  It is the hedge through they daily enter and gain their bearings.

Matsuda et al further emphasize the link between CRT and the tradition of radical teaching in the opening of their section on CRT proper. They write:

Teachers of color in the legal academy who choose to join this tradition of radical teaching have sought, in their teaching and scholarship, to articulate the values and modes of analysis that inform their vocation of struggle. These efforts have produced an emerging genre known as critical race theory.

Racialized minority law professors carrying on the tradition of radical teaching have made CRT.

This initial description of CRT is doubly striking. First, it is striking that it omits contributions that racialized white scholars such as Gary Peller and Jean Stefancic made to the CRT movement. Granted, the description doesn’t rule-out these contributions. But this silence is noteworthy, and is characteristic of the entire “Introduction,” which only mentions examples of white scholars or students who fail to promote antiracism. Second, it is striking that the description categories CRT as a “genre.” Neither of the previous two presentations of CRT we’ve considered deemed it a “genre” (see here and here). And though Matsuda et all refer to CRT as a genre several more times in the “Introduction,” they never clarify what they mean by the phrase.

They do clarify, however, some of what characterizes CRT—and this before getting to that frequently cited list of defining elements.

Critical race theory is grounded in the particulars of a social reality that is defined by our experiences and the collective historical experience of our communities of origin. Critical race theorists embrace subjectivity of perspective and are avowedly political. Our work is both pragmatic and utopian, as we seek to respond to the immediate needs of the subordinated and oppressed even as we imagine a different world and offer different values. It is work that involves both action and reflection. It is informed by active struggle and in turn informs that struggle.

CRT is perspectival. It employs the socially situated knowledge CRT scholars gain from their experiences and the historic experiences of their respective communities. Both perspectives are deeply political and “subjective,” coming from a specific socio-historic location rather than an imagined “objective” view from nowhere. Given its member’s movement’s situatedness and commitment to the tradition of radical teaching, CRT is pragmatic and idealist, informed by active struggle, and so defined by action and reflection aimed at resisting and remediating historic forms of subordination and oppression.

Lest readers fail to appreciate the centrality of history in CRT, Matsuda et al stress this structural point—again. They write:

Critical race theory cannot be understood as an abstract set of ideas or principles. Among its basic theoretical themes is that of privileging contextual and historical descriptions over transhistorical or purely abstract ones. It is therefore important to understand the origins of this genre in relation to the particulars of history.

As I mentioned in this series’ first and second posts, CRT scholars deny that you can understand—and here “understand” connotes a deep appreciation of something—CRT if you construe it as a set of abstracted ideas or principles. CRT scholars often resist referring to CRT as something with “central tenets” to underscore the need to engage it historically. Even one of its main theoretical themes—not central tenets—is the “privileging contextual and historical descriptions over transhistorical or purely abstract ones.”

Matsuda et al transition from this emphasis on historically understanding CRT to outlining some, though not all, of the movement’s history. They argue that CRT developed gradually in response to the Civil Rights Movement’s stalling out and the rolling back of many of its major gains. As individual law professors and students resisted these trends, they began to form “a movement or group” marked by an oppositional stance “to visions of race, racism, and law dominant in [the] post-civil rights period.” Moreover, “the movement and the theory” manifested values and community “that were inherited from generations of radical teachers before us.”

(Note: Matsuda et al have thus far referred to CRT as a genre, movement, and theory. They have not clarified what they mean by these terms or how they relate.)

Matsuda et al all endorse Kimberlé Crenshaw’s contention that the student boycott over Harvard Law School’s failure to hire racialized minority faculty in 1981 helped forge what became CRT. Here are the “Introduction’s” only words about Derrick Bell, CRT’s founding father. These words present Bell through absence, noting that, because he had taken a deanship at Oregon and hadn’t been replaced by a racialized minority faculty, students invited other scholars to teach his book and former course in an alternative course designed in part to protest HLS’s course offerings and hiring practices. It is in this alternative pedagogical space that Crenshaw, Delgado, Lawrence, and Matsuda met.

After the alternative HLS course, future CRT members met at conferences, seminars, and study groups. Prominent members of Critical Legal Studies (CLS) sponsored several of these events. Many eventual CRT scholars had affinities for CLS, a legal movement challenging most of the views historically linked to political and legal liberalism (for more, see this essay). But even among these relative allies, eventual CRTers “sometimes experienced alienation, marginalization, and inattention to the agendas and a misunderstanding of the issues we considered central to the work of combating racism.” And as these predominately racialized minority legal scholars continued meeting and producing scholarship aimed at recognizing, resisting, and remediating racism’s many forms, their consciousness of belonging to a distinctive movement grew.

These initial CRT scholars acknowledged borrowing from and critiquing other intellectual traditions. In addition the radical teaching tradition, they employed and criticized “liberalism, Marxism, the law and society movement, critical legal studies, feminism, poststructuralism/postmodernism, and neopragmatism.” Rather than explain how this twofold engagement went, Matsuda et al state that they used these traditions to examine “the relationships between naming and reality, knowledge and power.” These examinations focused upon “the role of liberal-capitalist ideology in maintaining an unjust racial status quo and the role of narrow legal definitions of merit, fault, and causation in advancing or impairing the search for racial justice.”  Matsuda et al mention one of the findings these examinations yielded.

We identified majoritarian self-interest as a critical factor in the ebb and flow of civil rights doctrine and demonstrated how areas of law ostensibly designed to advance the cause of racial equality often benefit powerful whites more than those who are racially oppressed.

For CRT scholars, this passage is glaring for what it does not say. Matsuda et al have given a nod to Derrick Bell’s interest-convergence thesis without mentioning it or him by name. The reasons for this dual omission are unclear.

What is clear, however, is that CRT scholars including Bell endorsed a conception of racism that differed from the one widely championed among law professors and policy makers during the 1980s. Matsuda et al write, “Our work presented racism not as isolated instances of conscious bigoted decisionmaking or prejudiced practice, but as larger, systemic, structural, and cultural, as deeply psychologically and socially ingrained.” One hears the echoes of Stokely Carmichael and Charles Hamilton, of Jennifer Hochschild and C. Vann Woodward.

Matsuda et al offer the previous presentation of CRT before providing a list of CRT’s “defining elements.” As teachers committed to radical pedagogy in classes and in print, they think that all the previous historicized description of CRT is necessary for understanding the movement and the list of defining elements they offer. The careful reader and loving neighbor should see and appreciate this pedagogical progression. And they should be willing to submit themselves to it to understand what Matsuda et al are teaching.

At this point, then, we may consider the defining elements of CRT at the “Introduction’s” center. I quote at length.

In a search for a tentative expository answer to the question “What is critical race theory?” critical race scholars have identified the following defining elements:

1.      Critical race theory recognizes that racism is endemic to American life. Thus, the question for us is not so much whether or how racial discrimination can be eliminated while maintaining the integrity of other interests implicated in the status quo such as federalism, privacy, traditional values, or established property interests. Instead we ask how these traditional interests and values serve as vessels of racial subordination.

2.      Critical race theory expresses skepticism toward dominant legal claims of neutrality, objectivity, color blindness, and meritocracy. These claims are central to an ideology of equal opportunity that presents race as an immutable characteristic devoid of social meaning and tells an ahistorical, abstracted story of racial inequality as a series of randomly occurring, intentional, and individualized acts.

3.      Critical race theory challenges ahistoricism and insists on a contextual/historical analysis of the law. Current inequalities and social/institutional practices are linked to earlier periods in which the intent and cultural meaning of such practices were clear. More important, as critical race theorists we adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines, including differences in income, imprisonment, health, housing, education, political representation, and military service. Our history calls for this presumption.

4.      Critical race theory insists on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society. This knowledge is gained from critical reflection on the lived experience of racism and from critical reflection upon active political practice toward the elimination of racism.

5.      Critical race theory is interdisciplinary and eclectic. It borrows from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism. This eclecticism allows critical race theory to examine and incorporate those aspects of a methodology or theory that effectively enable our voice and advance the cause of racial justice even as we maintain a critical posture.

6.      Critical race theory works toward the end of eliminating racial oppression as part of the broader goal of ending all forms of oppression. Racial oppression is experienced by many in tandem with oppression on grounds of gender, class, or sexual orientation. Critical race theory measures progress by a yardstick that looks to fundamental social transformation. The interests of all people of color necessarily require not just adjustments within the established hierarchies, but a challenge to hierarchy itself. This recognition of intersecting forms of subordination requires multiple consciousness and political practices that address the varied ways in which people experience subordination.

This list recapitulates much of the previous material. But, of course, recapitulations contain changes—additions or subtractions—to what was prior. Point (2), for example, adds the notion of “color blindness” to the former discussion of CRT’s rejecting the conceptions of “objectivity,” “neutrality,” and “merit” housed in historic political liberalism. If time and space permitted, we’d contrast what came before with what Matsuda et al offer here. Sadly, I must leave that to the reader. (Note: In a future post, I will compare the listed descriptions of CRT I’ve presented).

I conclude this section with two points. First, Matsuda et al conclude the “Introduction” with another recapitulation: they return to discussing the tradition of radical teaching to which they belong.

It is inevitable that our work on the first amendment brings us to intellectual and political crossroads we have come to before, because these intersections are found on the path that defines the tradition and practice of radical teaching that we have chosen as our own.

Participating in this tradition and practice has proven costly. In this case, the chief spokespersons leading the backlash against CRT scholars are their “polite and polished colleagues.” I again quote Matsuda et al at length.

The code words of this backlash are words like merit, rigor, standards, qualifications, and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend that the powerful have become powerless.

These colleagues mourn the passing of an era when we “all” read the “great books,” when we knew what it meant to be an “educated man,” and when we were not afraid to require our students and colleagues to meet that standard. They call for the reinstitution of compulsory courses on “Western Civilization” and resist the inclusion of significant non-European or women’s writings in those courses. They are profoundly critical of any effort to change the composition of the academic community or the content of the intellectual discourse by giving attention to the race or gender of potential participants.

This extended quotation reveals that Matsuda et al locate the rise of racist assaultive language and of CRT in the failure of “integration.” The roots of this failure are long, stretching back to Slave Codes that forbade African slaves in “America” from learning to read and write. Of course, these roots also carry the tradition of liberative teachers Vincent Harding described. European colonialism and settler colonialism have always faced resistance from the underside. Groups of the racially oppressed have always taught a decolonizing message with an eye to a postcolonial world. As those choosing to stand in this tradition, Crenshaw, Delgado, Lawrence, and Matsuda write:

The struggle against institutional, structural, and culturally ingrained unconscious racism and the movement toward a fully multicultural, postcolonial university is central to the work of the liberationist teacher. This is at bottom a fight to gain equal access to the power of the intelligentsia to construct knowledge, social meaning, ideology, and definitions of who “we” are.

Words that Wound’s authors are CRT teachers striving to “use the words of law and politics to fight the words that wound and exclude.” Because these wounds and modes of exclusion have their origins in the colonial wound, Matsuda et al conclude the tour of their textual garden with the postcolonial hedge.

Intermission

This is another long post. But, like the last one, it needed to be. Given the recent barrage of unjust “list reciting” going on in discussions about “CRT,” the world—and especially mi gente in the struggle—needed a just alternative that recapitulated Matsuda et al’s resistance to engaging movements or traditions strictly through a set of enumerated, abstracted principals. 

Within this long post, I have discussed the historical context for Matsuda et al’s Words that Wound: Critical Race Theory, Assaultive Speech, And the First Amendment. I have also offered a close reading of portions of the text’s “Introduction,” noting some of its structure, themes, and shortcomings. Throughout, I have tried to offer an exposition that echoes the authors. But I have not endorsed this presentation of CRT as the right take on CRT. And I have not tried to offer thorough defenses of the author’s claims. I make these points to minimize the likelihood that people misread and misrepresent this post.

More to come (in a while).

Saludos y’all.