Critical Race Theory: The Beginnings
As Crenshaw et al. (1995b, p. xix) explain, Critical Race Theory (CRT) emerged in the interstices of the political and institutional dynamic created by the disintegration of the center ground, and represented an attempt to inhabit the space between two very different ideological and intellectual formations. First, Critical Race Theory (CRT) was a reaction to Critical Legal Studies, criticizing CLS for its undue emphasis on class and economic structure, and insisting that ‘race’ is a more critical identity. As Cornel West (1995, p. xi) puts it, ‘critical legal studies writers ... “deconstructed” liberalism, yet seldom addressed the role of deep-seated racism in American life’. Second, CRT ‘sought to stage a simultaneous encounter with the exhausted vision of reformist civil rights scholarship’ (Crenshaw et al. 1995b, p. xix), its liberal tradition having directly impinged on the lived experiences of people of color in the law schools (ibid.). As Crenshaw et al. (ibid.) put it:
We both saw and suffered the concrete consequences that followed from liberal legal thinkers’ failure to address the constrictive role that racial ideology plays in the composition and culture of American institutions, including the American law school.
As they go on, CLS ‘provided a language and a practice for viewing the institutions in which we studied and worked both as sites of and targets for our developing critique of law, racism, and social power’ (ibid.). Critical Race Theorists sought ‘a left intervention into race discourse and a race intervention into left discourse’ (ibid.).7
CRT is generally thought to derive from a number of sources: the work of Frantz Fanon who perceived the world to be divided between ‘two different species’, a ‘governing race’ and ‘zoological’ natives (Fanon 1963, pp. 40-42, cited in Mills 1997, p. 112); and from the writings of W. E. B. Du Bois, for whom ‘the problem of the Twentieth Century [was] the problem of the color-line’ (Du Bois 1903).8 Richard Delgado and Jean Stefancic (2001, p. 4) also add as influential the names of [the humanist Marxist] Antonio Gramsci, of [post-structuralist] Jacques Derrida, of [abolitionist and women’s rights activist] Sojourner Truth, [abolitionist and equality advocate] Frederick Douglass, [labor leader and civil rights activist] Cesar Chavez and [civil rights activist and civil rights activist and campaigner for workers’ rights] Martin Luther King, Jr. (see the Conclusion of this volume for a discussion of King), as well as the Black Power and Chicano movements of the sixties and early seventies, and radical feminism.
While there is no definitive birth date to the movement, according to Kimberle W. Crenshaw (cited in Lawrence et al. 1993, p. 4) CRT’s social origins lay in a student boycott and alternative course organised at the Harvard Law School in 1981. The main objective of the protest was to persuade the administration to increase the number of tenured professors of color in the faculty. Derrick Bell, Harvard’s first African American professor, had left to take up the position of Dean of the law school at the University of Oregon (ibid.). This left only two professors of color in the Harvard Law School. Students demanded that Harvard begin to rectify the situation by hiring a person of color to teach the course, ‘Race, Racism and American Law’ that had regularly been taught by Bell (Lawrence et al. 1993, p. 4). When it became clear that the administration was not prepared to meet their demand, the students organized an alternative course, with leading academics and practitioners invited on a weekly basis to lecture and lead discussion on Bell’s book (Bell 1973) which had the same title as the course (ibid.), and which had regularly been taught by Bell (Isaksen 2000, p. 696). Crenshaw et al. (1995b, p. xxi) describe this alternative course as ‘in many ways the first institutionalized expression of Critical Race Theory’. The course led to study groups, conferences and a proliferation of CRT scholarship (Isaksen 2000, p. 696). As Crenshaw et al. (1995b, p. xxii) put it ‘[t]he Alternative Course reflected—as well as helped to create—the sense that it was meaningful to build an oppositional community of left scholars of color within the mainstream legal academy’.9
A turning point in the CLS/CRT distinction occurred at the 1986 CLS Conference. Feminist legal theorists who organized this conference invited scholars of color to facilitate discussions about ‘race’. The latter posed the question, ‘what is about the whiteness of CLS that discourages participation by people of color?’ which produced a pitched and heated debate, a dialogue to which some CLS scholars were resistant (ibid., xxiii).
Another defining moment occurred during the 1987 CLS conference, entitled ‘The Sounds of Silence’, during discussions about what Crenshaw et al. (ibid., p. xxiv.) refer to as ‘racialism’. As used here this does not refer to the erstwhile everyday meaning of the term,10 but to ‘theoretical accounts of racial power that explain legal and political decisions which are adverse to people of color as mere reflections of underlying white interest’ (ibid.). For CLS scholars this was too deterministic an account and resonated with their distrust of ‘vulgar’ Marxism, a form of Marxism where the economic base determines the superstructure (of which law is a constituent element) (ibid.).11 As Crenshaw et al. (ibid.) explain, during the 1980s, CLS scholars had shown scepticism toward this form of Marxism. They argued instead that, rather than being a mere instrument of class interests, ‘the law is an active instance of the very power politics it purports to avoid and stand above’ (Crenshaw et al. 1995b, xxiv). Drawing on these premises, Critical Race Theorists began to think of their project as ‘uncovering how law was a constituent element of race itself: in other words, how law constructed race’ (ibid., p. xxv). Crenshaw et al. (ibid.) explain how the dialectical model of CLS informed CRT:
we accepted the crit [CLS] emphasis on how law produces and is the product of social power and we cross-cut this theme with an effort to understand this dynamic in the context of race and racism.
This was something, Crenshaw et al. (ibid.) argue, CLS was for the most part unable to do.
The 1987 CLS Conference plenary saw large numbers of scholars of color articulate how ‘institutional practices and intellectual paradigms functioned to silence insurgent voices of people of color’ (ibid., p. xxvi). Another scholar of color responded to this point by presenting the view that scholars of color needed to stop complaining and start to write (ibid.). This conference was attended by scholars such as Richard Delgado, Mari Matsuda and Pat Williams who were to become leading lights in the movement and led to a symposium issue of the Harvard Law Review that included a lot of the early signature CRT pieces (Delgado 2008, personal correspondence). In addition the Boalt Hall Coalition for a Diversified Faculty held a series of lectures in the late 1980s and, like the 1987 conference, led to tangible consequences including some published papers and a national strike for diversity (ibid.) This highly successful nationwide law student strike on April 6, 1989 involved at least thirty schools (Kidder 2003, p. 37), and entailed students boycotting class and carrying out teach-ins to protest against ‘discrimination based on race, gender, economic class, and sexual orientation within America’s law schools’ (Herrera 2002, pp. 80-81, cited in Kidder 2003, p. 37).
Crenshaw et al. (1995b, p. xxvi) conclude that the ‘1986 and 1987 CLS conferences ... marked significant points of alignment and departure, and should be considered the final step in the preliminary development of CRT as a distinctly progressive critique of legal discourse on race’. CRT is aligned with CLS in the sense of ‘radical left opposition to mainstream legal discourse’ (ibid., pp. xxvi-xxvii), and differentiated in its focus on ‘race’ (ibid., p. xxvii).
The key formative event, however, according to Crenshaw et al. (1995b, p. xxvii) was the founding of the Critical Race Theory workshop in 1989. The workshop was financed by a grant provided by David Trubek, a founding member of the Critical Legal Studies Conference and drew together thirty five law scholars. The organizers, principally Kimberle Crenshaw, Neil Gotanda, and Stephanie Philips, coined the term ‘Critical Race Theory’ to make it clear that their work was located in the ‘intersection of critical theory and race, racism and the law’. This workshop featured a couple days of discussion aimed at finding out whether all the participants shared a common core of principles and ideas, and if so which ones. The ideas in Crenshaw’s influential paper entitled ‘Race, Reform and Retrenchment: Transformation and Legitimization in Antidiscrimination Law’, which had been published in the Harvard Law Review in 1988 were central to these discussions.
By the mid-1990s, according to leading Critical Race Theorist, Gloria Ladson-Billings (2005, p. 57) legal scholars had written more than 300 leading law review articles and a dozen books on CRT.
Cementing the pivotal relationship between CRT and law, a pioneering (1995) article by Ladson-Billings and William Tate traces the development of what they refer to as the Property Issue in the US. This, they note to be a defining feature of the society encompassing a sequence of exploitative events which began with the removal of native Americans from the land, continued through military conquest of the Mexicans to the construction of Africans as property.
Ladson-Billings and Tate begin by stating that racism is endemic and deeply ingrained in American life and that the cause of African-American underachievement is ‘institutional and structural racism’ (Ladson-Billings and Tate 1995, p. 55). They then go on argue that segregation continues in US schools with African-American and Latino/a students still faring badly as compared to white students. Following Delgado et al. (1989), they argue that the dominant group justifies its power with stories that ‘construct reality in ways to maintain their privilege’ (Ladson-Billings and Tate 1995, p. 58).
Assuming that Ladson-Billings and Tate meant the dominant economic group, rather than white people per se, Marxists would be in full agreement with these observations. Moreover, ‘justifying power with stories’ has a certain resonance with structural Marxist, Louis Althusser’s (1971) concept of the interpellation of subjects.12