Critical race theory

Critical Race Theory (CRT) is a movement that studies and attempts to transform the relationship between race and power by examining the role of race and racism within the foundations of modern culture, as far back as the principles of Enlightenment thought that form the basis for many modern views of equality and law; as a movement, it has moved beyond law and has now become common in the academic disciplines of ethnic studies, political science and education.

CRT began as a response to interdisciplinary legal studies. The earliest writings on Critical Race Theory can be traced to the works of Derrick Bell as a rejection of the belief that the legal reforms of the Civil Rights movement positively affected both the construction and application of laws. CRT is concerned with the idea of inescapable and inherent racism in the American legal system, as well as the consistent application of racial subordination and discrimination in the practice of law, with the exception of "interest-convergence" issues, in which both the white majority and minorities profit from the expansion of rights (as argued by Bell in “Brown v. Board of Education and the Interest-Convergence Dilemma” ).

CRT rejects interdisciplinary legal studies' belief in the transformative power of society. It emphasizes the socially constructed nature of race and considers judicial conclusions to be based on inherently racist social assumptions. Analyses of racial inequity as the social construction of race and discrimination are present in the scholarship of such established critical race theorists as Derrick Bell, Kimberlé Williams Crenshaw, Richard Delgado, Neil Gotanda, Cheryl I. Harris, Charles Lawrence III, Mari Matsuda, and Patricia J. Williams in the legal field. In the field of education, notable scholars include Gloria Ladson-Billings, Laurence Parker, Daniel Solórzano and William Tate.

Key theoretical elements
Richard Delgado and Jean Stefancic note the following major themes in critical race theory writings:


 * A critique of liberalism: critical race theorists object to political liberal's cautious approach to social transformation, to color blindness as a solution to racism (favoring instead challenges to the way racism can be embedded in apparently neutral standards), and have criticized the limitations of a rights-based approach to resolving racism
 * Storytelling/counterstorytelling and "naming one's own reality"
 * Revisionist interpretations of American civil rights law and progress
 * Applying insights from social science writing on race and racism to legal problems
 * Structural determinism, how "the structure of legal thought or culture influences its content"
 * The intersections of race, sex, and class
 * Essentialism and anti-essentialism
 * Cultural nationalism/separatism, Black nationalism
 * Legal institutions, Critical pedagogy, and minorities in the bar
 * Criticism and self-criticism

Critical race theory emerged in part from the milieu of Critical Legal Studies (CLS), a field of inquiry that argues that preserving the interests of power, rather than the demands of principle and precedent, is the guiding force behind legal judgments. CLS theorists suggest that the existing precedents are indeterminate, allowing the judiciary wide freedom to interpret them according to prevailing balance of power. Both CLS and Critical Race Theory scholars engage in deconstructing extended arguments to demonstrate that legal precedents are not based on a consistent application of legal principles. Critical Race Theory shares an overlapping literature with both CLS and critical theory, feminist jurisprudence, and postcolonial theory.

Applications
Critical Race Theory has been applied in a variety of contexts where institutionalized oppression of racial minorities has been litigated in courts (critical race theorists often present amicus curiae briefs, or critically examine the rulings of these cases).

One particular application has been to hate crime and hate speech legislation. In response to Justice Scalia's opinion in a paradigm hate speech case, R.A.V. v. City of St. Paul (which addressed cross burning as an act of hate speech), Mari Matsuda and Charles R. Lawrence III presented a critical race theory argument against Scalia's opinion. While Scalia posits that speech is protected independent of content, Matsuda and Lawrence argue that historical and social context is paramount. When acts of speech are acts of intimidation and threaten violence, backed up by a historical force, then those words become a mechanism for social control and domination. Justice Scalia delivered the opinion of the Court, in which Chief Justice Rehnquist, Justice Kennedy, Justice Souter, and Justice Thomas joined. All 9 justices concurred in the judgment of the Court that city's ordinance was facially invalid under the First Amendment.

Delgado also draws on CRT in calling for a tort action for racial insults, looking to the historical pattern of speech and the serious psychological harm inflicted on its victims as just measures for evaluating hate speech.

Critical race theory has become especially important in education where the educational experience and results for both children and adults are often connected to racial background. Critical race theorists can argue that the possession of "whiteness" and property are correlated everything from test scores to teacher ethnicity, and these results form the basis for the future acquisition of income, wealth, health, and longevity.

Criticisms
CRT and its methodology have not gained acceptance in the mainstream legal world. African-American attorney and author Winkfield F. Twyman, a graduate of the Harvard Law School, investigated the impact that CRT has made in law courts by conducting a search of Westlaw to determine the number of times this theory has been cited in rulings. As of December 2005, he found that “out of tens of thousands of federal cases at every level — U.S. Supreme Court to the lowest federal district court — only one judge has ever cited to ‘Critical Race Theory.’ And that lonely cite was in one obscure case involving a challenge to New York City’s termination of fire and police employees for participating in a parade. Locurto v. Giuliani, 269 F. Supp. 2d 368, S.D. N.Y. (2003).” He concluded that “For all intents and purposes, Critical Race Theory is a non-issue in the real world.”

Many mainstream legal scholars of various ethnicities have criticized CRT for its use of narrative and storytelling. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago has “label[ed] critical race theorists and postmodernists the ‘lunatic core’ of ‘radical legal egalitarianism.’” He writes, "What is most arresting about critical race theory is that...it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal — designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites."

Critical Race Theorists do not dispute this allegation of a-rationality. Gloria Ladson-Billings writing the foreword for the book Critical Race Theory in Education: All God's Children Got a Song states that "CRT never makes claims of objectivity or rationality." Derrick Bell writes that mainstream scholars often reject lines of inquiry that seek to expose what CRT scholars believe is inherent White supremacy.

Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, writes Critical Race Theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable. "The radical multiculturalists' views raise insuperable barriers to mutual understanding. Consider the Space Traders story. How does one have a meaningful dialogue with Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to the aliens. The story is also a poke in the eye of American Jews, particularly those who risked life and limb by actively participating in the civil rights protests of the 1960's. Bell clearly implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust — as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned — and rightly so."

Offshoot fields
Within Critical Race Theory, nuances have emerged that take into consideration gender, linguistic and immigration oppression. See for example, Critical Race Feminism (CRF), Latino Critical Race Studies (LatCrit) Asian American Critical Race Studies (AsianCrit) and American Indian Critical Race Studies (sometimes called TribalCrit).

Critical Race Theory has also begun to spawn research drawing upon its methods to look at circumstances outside the United States.