Richard Delgado and Jean Stefancic published an annotated bibliography of CRT references in 1993, listing works of legal scholarship that addressed one or more of the following themes: "critique of
liberalism"; "
storytelling/counterstorytelling and 'naming one's own reality'"; "revisionist interpretations of American civil rights law and progress"; "a greater understanding of the underpinnings of race and racism"; "
structural determinism"; "race, sex, class, and their intersections"; "
essentialism and anti-essentialism"; "cultural nationalism/separatism"; "legal institutions,
critical pedagogy, and minorities in the bar"; and "criticism and
self-criticism". When
Gloria Ladson-Billings introduced CRT into education in 1995, she cautioned that its application required a "thorough analysis of the legal literature upon which it is based".
Critique of liberalism First and foremost to CRT legal scholars in 1993 was their "discontent" with the way in which liberalism addressed race issues in the US. They critiqued "liberal jurisprudence", including
affirmative action,
color-blindness,
role modeling, and the
merit principle. Specifically, they claimed that the liberal concept of value-neutral law contributed to maintenance of the US's racially unjust social order.An example questioning foundational liberal conceptions of
Enlightenment values, such as
rationalism and
progress, is
Rennard Strickland's 1986
Kansas Law Review article, "Genocide-at-Law: An Historic and Contemporary View of the Native American Experience". In it, he "introduced Native American traditions and world-views" into law school curriculum, challenging the entrenchment at that time of the "contemporary ideas of progress and enlightenment". He wrote that US laws that "permeate" the everyday lives of Native Americans were in "most cases carried out with scrupulous legality" but still resulted in what he called "cultural genocide".In 1993,
David Theo Goldberg described how countries that adopt
classical liberalism's concepts of "individualism, equality, and freedom"such as the United States and European countriesconceal
structural racism in their cultures and languages, citing terms such as "
Third World" and "
primitive".In 1988,
Kimberlé Williams Crenshaw traced the origins of the
New Right's use of the concept of color-blindness from 1970s
neoconservative think tanks to the
Ronald Reagan administration in the 1980s. She described how prominent figures such as neoconservative scholars
Thomas Sowell and
William Bradford Reynolds, who served as
Assistant Attorney General for the Civil Rights Division from 1981 to 1988, called for "strictly color-blind policies". Sowell and Reynolds, like many conservatives at that time, believed that the goal of equality of the races had already been achieved, and therefore the race-specific civil rights movement was a "threat to democracy". The color-blindness logic used in "
reverse discrimination" arguments in the
post-civil rights period is informed by a particular viewpoint on "
equality of opportunity", as adopted by Sowell, in which the state's role is limited to providing a "
level playing field" rather than promoting an equal distribution of resources.Crenshaw claimed that "equality of opportunity" in
antidiscrimination law can have both an expansive and a restrictive aspect. Crenshaw wrote that formally color-blind laws continue to have racially discriminatory outcomes. According to her, this use of formal color-blindness rhetoric in claims of reverse discrimination, as in the 1978 Supreme Court ruling on
Bakke, was a response to the way in which the courts had aggressively imposed affirmative action and busing during the Civil Rights era, even on those who were hostile to those issues. In 1990, legal scholar
Duncan Kennedy described the dominant approach to affirmative action in legal academia as "colorblind meritocratic fundamentalism". He called for a postmodern "race consciousness" approach that included "political and cultural relations" while avoiding "racialism" and "essentialism".Sociologist
Eduardo Bonilla-Silva describes this newer, subtle form of racism as "
color-blind racism", which uses frameworks of abstract liberalism to decontextualize race, naturalize outcomes such as segregation in neighborhoods, attribute certain cultural practices to race, and cause "minimization of racism".In his influential 1984 article, Delgado challenged the liberal concept of
meritocracy in civil rights scholarship. He questioned how the top articles in most well-established journals were all written by white men.
Storytelling/counterstorytelling and "naming one's own reality" This refers to the use of narrative (
storytelling) to illuminate and explore
lived experiences of
racial oppression.One of the prime tenets of liberal jurisprudence is that people can create appealing narratives to think and talk about greater levels of justice. Delgado and Stefancic call this the
empathic fallacythe belief that it is possible to "control our consciousness" by using language alone to overcome bigotry and narrow-mindedness. They examine how people of color, considered outsiders in mainstream US culture, are portrayed in media and law through stereotypes and stock characters that have been adapted over time to shield the dominant culture from discomfort and guilt. For example, slaves in the 18th-century
Southern States were depicted as childlike and docile;
Harriet Beecher Stowe adapted this stereotype through her character
Uncle Tom, depicting him as a "gentle, long-suffering", pious Christian. Following the
American Civil War, the African-American woman was depicted as a wise, care-giving "
Mammy" figure. During the
Reconstruction period, African-American men were stereotyped as "brutish and bestial", a danger to white women and children. This was exemplified in
Thomas Dixon Jr.'s novels, used as the basis for the epic film
The Birth of a Nation, which celebrated the
Ku Klux Klan and
lynching. During the
Harlem Renaissance, African-Americans were depicted as "musically talented" and "entertaining". Following
World War II, when many Black veterans joined the nascent
civil rights movement, African Americans were portrayed as "cocky [and] street-smart", the "unreasonable, opportunistic" militant, the "safe, comforting, cardigan-wearing" TV sitcom character, and the "super-stud" of
blaxploitation films. The empathic fallacy informs the "time-warp aspect of racism", where the dominant culture can see racism only through the hindsight of a past era or distant land, such as South Africa. Through centuries of stereotypes, racism has become normalized; it is a "part of the dominant narrative we use to interpret experience". Delgado and Stefancic argue that speech alone is an ineffective tool to counter racism, since the system of
free expression tends to favor the interests of powerful elites and to assign responsibility for racist stereotypes to the "
marketplace of ideas". In the decades following the passage of civil rights laws, acts of racism had become less overt and more covertinvisible to, and underestimated by, most of the dominant culture. Since racism makes people feel uncomfortable, the empathic fallacy helps the dominant culture to mistakenly believe that it no longer exists, and that dominant images, portrayals, stock characters, and stereotypeswhich usually portray minorities in a negative lightprovide them with a true image of race in America. Based on these narratives, the dominant group has no need to feel guilty or to make an effort to overcome racism, as it feels "right, customary, and inoffensive to those engaged in it", while self-described liberals who uphold freedom of expression can feel virtuous while maintaining their own superior position.
Standpoint epistemology This is the view that members of racial minority groups have a unique authority and ability to speak about racism. This is seen as undermining dominant narratives relating to racial inequality, such as legal neutrality and personal responsibility or
bootstrapping, through valuable first-hand accounts of the experience of racism.
Revisionist interpretations of American civil rights law and progress Interest convergence is a concept introduced by
Derrick Bell in his 1980
Harvard Law Review article, "
Brown v. Board of Education and the Interest-Convergence Dilemma". In this article, Bell described how he re-assessed the impact of the hundreds of
NAACP Legal Defense and Educational Fund (LDF) de-segregation cases he won from 1960 to 1966 and how he began to believe that in spite of his sincerity at the time,
anti-discrimination law had not resulted in improving Black children's access to quality education. He listed and described how Supreme Court cases had gutted civil rights legislation, which had resulted in African-American students continuing to attend all-black schools that lacked adequate funding and resources. In examining these Supreme Court cases, Bell concluded that the only civil-rights legislation that was passed coincided with the self-interest of white people, which Bell termed
interest convergence. One of the best-known examples of interest convergence is the way in which American geopolitics during the
Cold War in the aftermath of World War II was a critical factor in the passage of civil rights legislation by both Republicans and Democrats. Bell described this in numerous articles, including the aforementioned, and it was supported by the research and publications of legal scholar
Mary L. Dudziak. In her journal articles and her 2000 book
Cold War Civil Rightsbased on newly released documentsDudziak provided detailed evidence that it was in the interest of the United States to quell the negative international press about treatment of African-Americans when the majority of the populations of newly decolonized countries which the US was trying to attract to Western-style democracy, were not white. The US sought to promote liberal values throughout Africa, Asia, and Latin America to prevent the Soviet Union from spreading
communism. Dudziak described how the international press widely circulated stories of segregation and violence against African-Americans. The
Moore's Ford lynchings, where a World War II veteran was lynched, were particularly widespread in the news. American allies followed stories of American racism through the international press, and the Soviets used stories of racism against Black Americans as a vital part of their propaganda. Dudziak performed extensive
archival research in the
US Department of State and
Department of Justice and concluded that US government support for civil-rights legislation "was motivated in part by the concern that racial discrimination harmed the United States' foreign relations". When the
National Guard was called in to prevent nine African-American students from integrating the Little Rock Central High School, the international press covered the story extensively. The then-Secretary of State told President
Dwight Eisenhower that the Little Rock situation was "ruining" American foreign policy, particularly in Asia and Africa. The
US's ambassador to the United Nations told President Eisenhower that as two-thirds of the world's population was not white, he was witnessing their negative reactions to American racial discrimination. He suspected that the US "lost several votes on the Chinese communist item because of Little Rock."
Intersectional theory This refers to the examination of race, sex, class,
national origin, and
sexual orientation, and how their intersections play out in various settings, such as how the needs of a Latina are different from those of a Black male, and whose needs are promoted. For example, a Latina woman may encounter language barriers and sex-based challenges in the work field, not typically faced by a Black male, whereas a Black male may be more likely to experience racial profiling. Policies addressing discrimination might be geared towards race-based discrimination in general, undermining the needs of both parties. These intersections provide a more holistic picture for evaluating different groups of people.
Intersectionality is a response to
identity politics insofar as identity politics does not take into account the different intersections of people's identities.
Essentialism vs. anti-essentialism Delgado and Stefancic write, "Scholars who write about these issues are concerned with the appropriate unit for analysis: Is the black community one, or many, communities? Do middle- and working-class African-Americans have different interests and needs? Do all oppressed peoples have something in common?" This is a look at the ways that oppressed groups may share in their oppression but also have different needs and values that need to be analyzed differently. It is a question of how groups can be
essentialized or are unable to be essentialized. From an essentialist perspective, one's identity consists of an internal "essence" that is static and unchanging from birth, whereas a non-essentialist position holds that "the subject has no fixed or permanent identity." Racial essentialism diverges into biological and cultural essentialism, where subordinated groups may endorse one over the other. "Cultural and biological forms of racial essentialism share the idea that differences between racial groups are determined by a fixed and uniform essence that resides within and defines all members of each racial group. However, they differ in their understanding of the nature of this essence." Subordinated communities may be more likely to endorse cultural essentialism as it provides a basis of positive distinction for establishing a cumulative resistance as a means to assert their identities and advocacy of rights. By comparison, biological essentialism may be unlikely to resonate with marginalized groups because historically dominant groups have used genetics and biology in justifying both racism and oppression. Essentialism is the idea of a singular, shared experience between a specific group of people. Anti-essentialism, on the other hand, believes that there are other various factors that can affect a person's being and overall life experience. The race of an individual is viewed more as a social construct that does not necessarily dictate the outcome of their life circumstances. Race is viewed as "a social and historical construction, rather than an inherent, fixed, essential biological characteristic." Anti-essentialism "forces a destabilization in the very concept of race itself…" Critical race theorists
Richard Delgado and Jean Stefancic argue that
anti-discrimination law has blindspots for non-black minorities due to its language being confined within the black–white binary. == Applications and adaptations ==