Why Did Critical Race Theory Emerge from Legal Studies?

Everyone knows that CRT emerged from legal studies. This article asks why.

Critical Race Theory

WHY DID CRITICAL RACE THEORY EMERGE FROM LEGAL STUDIES?

Everyone knows that CRT emerged from legal studies. This article asks why.

By the editors of JFBT

In Critical Race Theory: An Introduction (3rd edition, 2017), CRT founders Richard Delgado and Jean Stefancic explain that, "unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law" (p. 3). 

It’s good to question things. That’s part and parcel of liberalism—allowing everything, including liberalism’s own premises, to be questioned. But what does CRT’s questioning of liberalism look like?

Here’s what Delgado’s fictional interlocutor tells him in “Rodrigo's Seventh Chronicle: Race, Democracy, and the State” (1993): “Liberal democracy and racial subordination go hand in hand, like the sun, moon, and stars. Enlightenment is to racism as sexuality is to women's oppression—the very means by which we are kept down” (p. 735).

It may be unfair to take Rodrigo, a fictional character, as a mouthpiece for Delgado, or for CRT—yet it must be said that the Delgado character says very little in the dialogue that pushes back against Rodrigo’s view.

Indeed, a review of the legal studies literature suggests that when CRT “questions the very foundations of the liberal order,” this is no grad-school intellectual exercise, but rather a strategy for transforming our entire legal system into one that privileges group rights over individual rights. If you want to transform the foundations of American society (without using rifles), you need a theory of the law, and you need a farm system for training federal judges. (Just ask the Federalist Society.) This, in a nutshell, is why CRT emerged from legal studies. In this essay, we’ll examine what that theory of the law looks like as well as a dissent in a recent federal circuit court case that reflects its spirit.

Liberalism in the civil rights tradition seeks to minimize racial gaps (e.g., in homeownership, education, employment, representation in corporate leadership, and income) with narrowly-tailored affirmative action and broadly-applied (colorblind) social welfare policy—what Delgado and Stefancic disparage as “incrementalism and step-by-step progress.” CRT, by contrast, wants to use the law to force-close all racial gaps: “The critique of color blindness may, one day, persuade the U.S. Supreme Court to accept race-conscious measures in employment and education, leveling the playing field for those [racially defined groups] who have long been excluded from society’s bounty” (Delgado and Stefancic, p. 134).

A gauntlet of 14th Amendment and Title VII case law currently stands in the way of CRT’s accomplishing this. CRT legal activists know the real battle is against individual rights—the core of liberalism (and of the 14th Amendment and Title VII of the Civil Rights Act of 1964).

This battle against individual rights demands the creation of a legal framework in which virtually all racial gaps are attributed to (1) racist policies and practices, and (2) government—insofar as it is government that encodes racist policies and practices in law and in programs that purport but fail to be race-neutral. If “liberal democracy and racial subordination go hand in hand,” as the fictional Rodrigo tells Delgado, there can be no racially neutral policy anyway, so we should drop the race-blind pretense and commit to adopting explicitly race-based policies aimed at achieving equality of outcome, viz., equity.  

Thus, it should be no surprise that CRT legal studies scholars seek to overturn case law prohibiting or limiting new, more expansive, race-based policies, and to hold the government liable for closing racial gaps and imposing equity across the board. This legal vision was clearly articulated by Cheryl Harris in her foundational essay, “Whiteness as Property” (1993). Here she considers how a legal expansion of affirmative action, inspired by the redistributive policies of the African National Congress (ANC) in post-apartheid South Africa, could become a model for the U.S., authorizing the government to seize land and property from former (or current?) oppressors at below market value:

The South African conception of affirmative action expands the application of affirmative action to a much broader domain than has typically been envisioned in the United States. That is, South Africans consider affirmative action a strategic measure to address directly the distribution of property and power, with particular regard to the maldistribution of land and the need for housing. This policy has not yet been clearly defined, but what is implied by this conception of affirmative action is that existing distributions of property will be modified by rectifying unjust loss and inequality. Property rights will then be respected, but they will not be absolute and will be considered against a societal requirement of affirmative action. (p. 1790)

Recent race-based policies in the U.S. are described by Wesley Yang in his essay, “Welcome to Year Zero”:

The Small Business Administration [SBA] prioritized emergency Covid grants to restaurants by race. The Department of Agriculture prioritized funding to black farmers. The state of Vermont allowed BIPOC residents early access to the vaccine. The state of California mandates diverse representation on corporate boards. San Francisco introduced a pilot public/private partnership program offering monthly cash payments reserved exclusively for black and Pacific Islander women. […]

None of these are "excesses" of the anti-racist movement. They are the practical application of the principles laid out by the anti-racist texts that became required reading across corporate America during the racial reckoning of 2020. In the words of one of the two most required authors, Ibram X. Kendi, "the only remedy of past discrimination is present discrimination."

Some of these measures almost certainly violate the Constitution and the Civil Rights Act of 1964. The courts brushed them back in certain cases and will likely continue to do so as challenges emerge. But that we enacted them is a victory for those seeking the drastic expansion of what they call "race-conscious policy" beyond the relatively constrained area in which affirmative action in college admissions, government contracting, and hiring has been allowed to operate.

A federal judge halted the black farmers’ program, and in response to injunctions, the government has suspended disbursing funds under the SBA program.

Let’s look more closely at the SBA case, because it—along with the majority decision regarding it, and the dissent—mirror and instantiate the debate we're currently having about race and justice in America. Before turning to the case, we need to set it up by briefly reviewing the legal issues in the background. The Equal Protection Clause of the 14th Amendment requires the government to treat individuals equally under the law—a cornerstone of liberalism. The judicial review standard of “strict scrutiny” allows for a law or policy infringing a constitutional right (including, of course, the Equal Protection Clause) to stand as constitutionally valid if the government can demonstrate to a court that it’s the only way to achieve a “compelling state interest,” that it’s “narrowly tailored,” and that it employs the “least restrictive means.” 

Some race-based policies that would seem to violate the Equal Protection Clause have managed to meet this standard. Both public and private entities are allowed to consider race under certain conditions and with certain limitations. The history is complex, but two cases stand out:

(1) In Regents of the University of California v. Bakke (1978), SCOTUS found affirmative action to be allowable in university admissions, as diversity in the classroom was a compelling state interest; in the same ruling, it forbade racial quotas. (Fisher v. University of Texas [2016] reinforced Bakke.)

(2) In Adarand Constructors, Inc. v. Peña (1995), SCOTUS affirmed the government could use its spending power to address past discrimination through race-conscious federal procurement programs, but only under the strict scrutiny standard.

A common theme in the case law is that racial preferences must be narrowly tailored and address a compelling state interest. 

Now we may turn to the SBA case:

On May 27th, in Antonio Vitolo, et al v. Isabella Guzman, the U.S. Court of Appeals for the Sixth Circuit decided that the race-based Covid relief funding program for restaurants, administered by the Small Business Administration, was unconstitutional. Judge Amul Thapar (an American son of Indian immigrants) wrote the majority opinion, a textbook example of liberal jurisprudence. In her dissent, Judge Bernice Bouie Donald (a distinguished jurist, well-published scholar, and the first black woman to serve as a judge in Tennessee) made an argument that, like the SBA program itself, reflects ideas consonant with CRT. 

We examine Thapar’s majority opinion and Donald’s dissent below. Note that we do not argue that the SBA program and Donald’s dissent can be traced to some specific CRT text or theorist. Donald's copious scholarship contains occasional references to CRT scholars, sometimes addresses topics of especial interest in CRT, such as implicit bias, and occasionally raises concerns about the limitations inherent to liberal ideals such as rule of law, but does not in any obvious way constitute doctrinaire "CRT scholarship" itself. Thus, we argue merely that Donald’s dissent, like the SBA program, is consistent with and reflects a CRT vision of the (legal) world that is irreconcilable with Thapar’s liberal one.

The SBA program in question in Vitolo privileged “socially disadvantaged individuals,” defined according to the criteria in this “Business Development Program Suitability Assessment Tool” as

those individuals who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities and the social disadvantage must stem from circumstances beyond their control. The following groups of individuals are deemed to be socially disadvantaged:

-Black Americans

-Hispanic Americans

-Native Americans

-Asian Pacific Americans

-Subcontinent Asian Americans

In his majority opinion, Judge Thapar begins by citing principles from case law that the government must address to pass judicial review; here is a summary (we’ve shortened the paragraphs and removed case law citations to increase readability):

The government must show that favoring one race over another is necessary to achieve a compelling state interest. And even when the government can show that it has a compelling interest, it must narrowly tailor its remedy to advance that interest. 

The government has a compelling interest in remedying past discrimination only when three criteria are met: 

First, the policy must target a specific episode of past discrimination. [... T]here must be prior discrimination by the governmental unit involved.

Second, there must be evidence of intentional discrimination in the past. [...] Statistical disparities don’t cut it, although they may be used as evidence to establish intentional discrimination.

Third, the government must have had a hand in the past discrimination it now seeks to remedy. [...] But if the government cannot show that it actively or passively participated in this past discrimination, race-based remedial measures violate equal-protection principles. 

Next, Thapar applies these principles to the specifics of the case:

First, the government points generally to societal discrimination against minority business owners. But it does not identify specific incidents of past discrimination. And since “an effort to alleviate the effects of societal discrimination is not a compelling interest,” the government’s policy is not permissible. [...]

Second, the government offers little evidence of past intentional discrimination against the many groups to whom it grants preferences. Indeed, the schedule of racial preferences detailed in the government’s regulation—preferences for Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners—is not supported by any record evidence at all. 

When the government promulgates race-based policies, it must operate with a scalpel. And its cuts must be informed by data that suggest intentional discrimination. [... W]hen it comes to general social disparities, there are simply too many variables to support inferences of intentional discrimination.

Third, the government has not shown that it participated in the discrimination it seeks to remedy. [...] To satisfy equal protection, the government must identify “prior discrimination by the governmental unit involved” or “passive participa[tion] in a system of racial exclusion.” [...] 

Even if the government had shown a compelling state interest in remedying some specific episode of discrimination, the discriminatory disbursement of Restaurant Revitalization Funds is not narrowly tailored to further that interest.

For a policy to survive narrow-tailoring analysis, the government must show “serious, good faith consideration of workable race-neutral alternatives.” [...]

Here, the government could have used any number of alternative, nondiscriminatory policies. Yet it failed to do so. For example, the government contends that minority-owned businesses disproportionately struggled to obtain capital and credit during the pandemic. But an obvious race-neutral alternative exists: The government could grant priority consideration to all business owners who were unable to obtain needed capital or credit during the pandemic. 

[... Or t]he government could simply grant priority consideration to all small business owners who have not yet received coronavirus relief funds. Indeed, the government already requires applicants to disclose what prior assistance they have received—it need only make that criterion dispositive.

Because these race-neutral alternatives exist, the government’s use of race is unconstitutional. Aside from the existence of race-neutral alternatives, the government’s use of racial preferences is both overbroad and underinclusive. This is also fatal to the policy. 

In her dissent, Judge Donald makes two broad claims: (1) The SBA funding gap between minority-owned and non-minority-owned businesses is attributable to "centuries of intentional discrimination and oppression of racial minorities," and (2) the U.S. government is responsible for past and present racist policies and practices that created this and virtually every other racial gap. Here’s a summary (again, we’ve shortened the paragraphs and removed case law citations to increase readability):

The majority’s reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated. The majority’s reasoning suggests we live in a world in which the COVID-19 pandemic did not exacerbate the disparities enabled by those centuries of discrimination. The majority’s reasoning suggests that we live in a world in which Congress passed the Restaurant Revitalization Fund (“RRF”) not to aid the nation’s economic recovery, but to arbitrarily provide special treatment to racial minorities and women. [...]

The district court noted that Congress also considered testimony indicating that, within general historical discrimination in the banking industry, entrepreneurs of color have had specific difficulty in accessing business capital. Witnesses testified that banks require more documentation from minority applicants but approve loans less often or for lower amounts. In addition, witnesses testified that, because of historical difficulties in navigating the banking industry, minority entrepreneurs had lower familial and household incomes, decreasing access to private capital. 

Moreover, the district court highlighted testimony indicating that minority business owners lagged behind their white counterparts in access even to SBA programs. [...]

Taken together, that testimony was enough for the district court to conclude that Congress had a “strong basis in evidence for its conclusion that remedial action was necessary” to address specific past discrimination, particularly as it related to the pandemic. [...]

In addition to the ample testimony presented to Congress, history itself speaks to a long tradition of intentional discrimination by the federal government in housing and banking. For example, in 1934, the federal government established the Federal Housing Administration (“FHA”), a government agency that was intended to facilitate the purchase of affordable housing. In practice though, African-American families and other people of color were excluded from the many benefits afforded by the FHA as a result of the discriminatory practice known as redlining. [...] Moreover, through the 1990s, the federal government persistently denied African-American farmers applications for farm loans, credit, and other benefit programs. [...] These actions created generational wealth and stability for white families and generational poverty and instability for African Americans and other people of color.

Donald does not join Thapar in applying all of the liberal principles of judicial review—strict scrutiny, narrow tailoring, least restrictive means, and race-neutral alternatives—to the details of the case. Citing the decision of the lower court—which draws more heavily on non-judicial testimony before Congress than on case law—Donald calls upon the witness of “history itself,” which—far beyond any specifics of the SBA program and its documentable effects on small restaurants owned by racially-defined “socially disadvantaged individuals”—“speaks to a long tradition of intentional discrimination by the federal government,” in banking, housing, and farm loans. 

Whereas the liberal Thapar is focused on the guilt of specific agencies—“To satisfy equal protection, the government must identify ‘prior discrimination by the governmental unit involved’ or ‘passive participa[tion] in a system of racial exclusion’”—Donald sidesteps the issue of the SBA's specific discriminatory practices and seeks to indict the SBA by association, i.e., by indicting numerous other agencies. Of course, those other agencies may well be culpable, but under a liberal understanding of culpability, that would need to be shown in each case, with all respect for due process, and their guilt, if any, should not infect the SBA, as if by contagion.  

Donald’s approach exemplifies the difference between CRT and liberal visions of the world: The CRT vision sees an overwhelming abundance of inequality that is causally linked to discrimination—“centuries of intentional discrimination and oppression”—and seeks redress anywhere and everywhere it can find it, whereas the liberal vision assesses culpability case by case and responds only where clear causal chains between acts of discrimination and specific inequalities (and specific institutions) can be found. 

Donald’s dissent is sermonic. It represents a sweeping moral vision. She asks, in effect, how the narrowly tailored remedies of liberal jurisprudence can possibly address a systemic moral injustice that spans centuries and runs deep. As Delgado and Stefancic explain, colorblind remedies cannot penetrate to the “thought processes” and “social structures” that anchor racism:

Critical race theorists…hold that color blindness will allow us to redress only extremely egregious racial harms, ones that everyone would notice and condemn. But if racism is embedded in our thought processes and social structures as deeply as many [of us] believe, then the “ordinary business” of society—the routines, practices, and institutions that we rely on to effect the world’s work—will keep minorities in subordinate positions. Only aggressive, color-conscious efforts to change the way things are will do much to ameliorate misery. (p. 22)

This CRT vision has an intuitive appeal: Whatever its wonders and triumphs, history, including American history, is also a gaping abyss of evil and inhumanity. There is no one alive, from the lowliest to the most exalted, who does not owe her position to injustices visited upon or by her ancestors, however near or distant. The urge to redress history itself is understandable and deceptively simple. All one must do is establish classes of citizens that have illegitimately benefitted from history and classes that have unjustly suffered due to history, and use the instrument of the law to balance the scales between them. 

But this unconstrained vision of justice suffers from practical limitations. It's hard to imagine that even the most ambitious new legal paradigm can "fix" human history, undoing endless centuries of individual and collective decisions and their consequences in the present. Moreover, given that disparity is the rule, not the exception, in every society that has ever existed, it is hard to imagine that disparities, even those manifestly owing to centuries of oppression, can ever be erased. 

Perhaps most importantly, any paradigm that privileges essentialist groups over individual human beings, in all their messy particularity, is bound to produce as many injustices as it redresses. Indeed, Thapar provides a telling thought experiment in his majority decision:

Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why? Because of his ethnic heritage. It is indeed “a sordid business” to divide “us up by race” [here Thapar has quoted Supreme Court Chief Justice John Roberts].

In other words, awarding benefits to some and sending others to the back of the line on the criterion of race rather than some other criterion, such as exigent need, is inherently unfair. Never mind what resentments and disharmonies such unfairness, or even the perception of such unfairness, might create in the world’s largest and most diverse multi-ethnic democracy.

The liberal vision is humbler, more practical, and more protective of the individual than that of CRT. These very qualities make it, too, a moral vision. It does not deny that there have been and are gross injustices in America, and that they need redress. But it respects the dignity of people as individuals, not as members of essentialist groups. It adheres to careful rules of evidence to establish culpability. Conscious of the limitations on the human capacity to undo that which has been done, it satisfies itself with piecemeal redress of grievances. And it accepts that in the face of human diversity in history, culture, geography, proclivities, and aspirations, disparities can only be ameliorated, never erased. This constrained vision may never be enough for those who seek to litigate and balance the scales of human history itself. But flawed as it is, it probably remains the best way to secure justice for all of us currently living.

As noted above, Vitolo reflects and exemplifies the debate about racial justice currently raging in legacy and social media and other public fora. If Donald’s opinion had been that of the majority, the Sixth Circuit would have dramatically altered the legal landscape, clearing it of generations of case law constraining race-based policy. And that’s the goal of CRT: to train enough judges to see in the sins of American history a summons to deprecate individual rights and replace strict scrutiny with sweeping mandates, narrowly tailored decisions with ones that are far-reaching, and justice that is blind with justice that sees color first and foremost. In brief, and in answer to the question of our title, CRT arose in legal studies because the law is where you go to overturn the old, liberal order that works, however imperfectly, and establish a new order, aspirational but untried, in its place.

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Henry Ossawa Tanner, Georgia Landscape, 1889.