A few weeks ago Marcus Ranum asked me via a secret backchannel communication conduit (read: email) if I wanted to tag team some CRT education here on FtB. I said sure, but then quickly hit writers’ block. (And also didn’t keep up with the email. Sorry, Marcus! It’s all me, you did nothing wrong!). The biggest reason I’ll get to at the end, but it hugely contributed to the block. My second biggest problem, though, would have been enough on its own even without the biggest: There’s so much to write about! And although I might possibly be the only blogger on this network who has actually studied this stuff in the law school classrooms where it was meant to be taught, that doesn’t mean I’m an expert. Far from it.

Yet it’s true that I’m probably more expert than you, dear reader. It’s certain that you could find better sources for information about CRT than me, but as stuck as I was trying to write this piece, and as much as imposter syndrome has hit me since, as I have said, I’m not actually a critical race theorist, people still keep misunderstanding this stuff on basic levels. So I feel the need to actually move forward and do this, whether I’m the perfect conduit for this information or not. I’m going to set things up Q&A style, but more than anything, I want people to ask new questions in the comments since I don’t actually know what things you need to know to talk to your neighbors, friends, family, airplane aislemate, or whomever it is rants at you about these things.

Most often I overexplain, but in this case, I think I would rather under explain, then pick up your questions and turn them into the next post in the series. Despite having failed in timely communication with Marcus, he went & got his part done here, with a lot of generally great background on critical studies. Go read that thing if you haven’t already!

It’s a great explainer about how the thinking of CRT came to differ from other types of study. But what wasn’t covered there was a lot of specifics about what it is that CRT actually does, and simple facts about the who, where when & why of CRT. Let’s get some of those basics covered. As seemingly essential as it might be, today I’m not going to try to cover the what of CRT. What it says is… whole books! What characterizes it so we know when we’re dealing with CRT? Well, that’s a bit fuzzy. So half of what is too long for today, and the other half of what is too vague for today, since with my wordy perfectionism I would immediately turn “too vague for today” into just another dose of “too long for today”.

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So… who?

Who started CRT?

The initiator of the work that later became known as Critical Race Theory is a man named Derrick Bell. When he began this enterprise he was a professor at Harvard Law. Bell left for (ever)greener pastures, accepting an offer in 1980 to become the dean of the University of Oregon law school, but without relinquishing tenure at Harvard. UofO refused to hire a woman of color he recruited for the faculty, causing him to resign his appointment there in 1985. He spent a year at Stanford before returning to Harvard in 1986. In 1990 he took a leave of absence to protest the lack of women of color on the faculty there. The administration didn’t help anything when they made a public statement that they would have to lower their faculty standards if they were to higher women of color. This, of course, is only possible to parse as saying that there’s not a single woman of color good enough to teach law at Harvard. He accepted a temporary appointment to NYU, eventually relinquishing his Harvard tenure to maintain his protest/leave as Harvard had yet to hire any Black women professors to teach in the law school.

Who coined CRT?

While Bell was first at Harvard and calling attention to the lack of women of color faculty, law student Kimberlé Crenshaw (of inventing intersectionality fame) and graduate student Mari Matsuda took up his cause & organized meetings to teach what Bell might have taught during his classes on race and the law, typically using the textbook (called a “casebook” as law school texts typically quote extensively from specific cases and organize lessons around those cases) written by Bell called Race, Racism, and the Law for a course he had taught at Harvard on the subject during the 70s. In different places I have read that Crenshaw coined CRT and that Crenshaw & Matsuda jointly coined CRT during this time of Bell’s absence and their joint organizing (sometime between 1981 and 1983, but probably closer to the beginning of that time).

Who wrote the first book on CRT?

Well, Bell’s casebook Race, Racism, and the Law might be called the first, but as it was written before CRT had a name, back when it was just that idiosyncratic thing that Bell was doing on his own, the first book on CRT was probably The Alchemy of Race and Rights: A Diary of a Law Professor by Patricia Willams (published in 1991), followed closely by Bell’s own Faces at the Bottom of the Well: The Permanence of Racism (1992). In my own personal experience The Alchemy of Race & Rights was more commonly read by people I’ve known, and seemed to be the more influential (again, just among people I have known), but Bell’s work is obviously foundational and I don’t mean to minimize it.

So tell me who again?

Derrick Bell laid the foundation. Kimberlé Crenshaw or Crenshaw & Mari Matsuda together coined the term. Crenshaw & Matsuda did early organizing work to bring the topic up with more people and help create the discipline. Patricia Williams wrote the first book that was recognized as being a book on/about CRT, a book that was pretty broadly influential.

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And, where…? 

So, where did all this take place?

Harvard, obviously, was the location where Bell worked while creating Race, Racism & the Law and otherwise laying the groundwork for CRT. Early CRT idea sharing and excitement building also took place at Harvard, then its ideas percolated through the 80s in a number of law schools, but key among them were probably Harvard, the University of Oregon, the University of Wisconsin, Stanford, and NYU. Williams was working at Wisconsin when she published Alchemy of Race & Rights, Bell at NYU when he published Faces at the Bottom of the Well. Crenshaw was also at Wisconsin in the latter 80s when organizing the first conference on CRT (see below) and writing her landmark papers, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” and “Mapping the Margins: Intersectionality, Identity Politics and Violence against Women of Color”.

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When, exactly? 

When did CRT get its name?

Well, as I mentioned the term was most likely coined in the fall 1981 to spring 1982 academic year, and was certainly coined by the end of calendar 1983.

But when did CRT actually become a thing?

But there weren’t any CRT focussed journals or conferences or even informal gatherings until the latest 80s, when Crenshaw pushed a group including Matsuda, Williams & Bell to have a first conference on CRT. IIRC it was called something like, “New Developments in Critical Race Theory.” Crenshaw herself said this was a bit grand as there were no developments, new or old, in Critical Race Theory as an academic discipline. The conference was not so much to share the accomplishments of the school of thought as it was to will such a school into existence. But even if it wasn’t known outside of a small group of practitioners, 1989 can be said to be the year it first became a thing.

And when did it actually start having an impact outside its circle of founders?

There are two answers here. First, it’s important to note that the Crenshaw paper that first introduced intersectionality as a term and the model we now know by that name was also published in 1989 and made an instant splash in gender studies circles. For that reason, intersectionality is often thought of as a feminist theory, and it is, but strictly speaking Crenshaw, in trying to get a new movement off the ground, promoted it as Critical Race Theory, and it is clearly that, too. Thus for some fairly large group of non lawyers, but most of whom were academic feminists, some awareness of CRT began with Crenshaw’s gift of intersectionality, even before Williams’ book. But I’m not sure how many gender studies academics really credited it as a work of CRT. It’s typically introduced in feminist classrooms as a work of feminism. So what CRT produced got significant notice in 1999, but I don’t think that CRT itself got noticed until later.

So, when, later?

The best approximation is 1991 when Williams’ book put it on the map in a way that others outside the small circle busy creating CRT finally noticed.

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So… I’ll do you one better: Why is CRT?

Oof. That’s a hard one to explain, and I’m likely to go on too long here, but I’ll try to keep it brief. Despite that goal, though, I need a brief aside to mention that there’s a thing called “legal positivism”. I’m going to talk in this section about the confidence of legal institutions in their own ability to fix problems, but I need you to know that this is not legal positivism, no matter how happy & positive that outlook may sound. Legal positivism is a whole ‘nother thing which we are not addressing here. Got it? Good.

When you go to law school, there’s a huge amount of emphasis put on the idea that two smart, dedicated advocates fighting out a dispute before a neutral arbiter can produce amazing, positive results. It’s hard to really understand just how much law schools can push this view. It’s so bad that even though they tell you things like, “hard cases make bad law,” and “the perfect judge does not exist” (in a number of contexts this “perfect judge” is called Judge Hercules, and we are invited to ask ourselves, WWJHD?) they still go on with classes as if those statements have no bearing on how law is or should be practiced.

It’s true that we have some professional boundaries beyond which violations can be punished by stripping the ability to practice law (either temporarily or permanently), and it’s true that no one is perfect, and it’s true that we’re going to have to go ahead and practice this law stuff anyway, despite our imperfections, since it’s gotta get done and no perfect advocates are available to do it.

That said, there’s just this tremendous, sunny optimism (that I believe should not exist) that we’re just going to get this stuff right. We’re so damn confident that even if we’re not perfect, we’re good enough and we can do this. We who are teaching and attending law school trust the output of the courts to a degree I find frightening.

As a consequence of this, we really do tend to believe (tend, remember, not to the same degree for every person, or even at all for a few people) that once we say that the law does not discriminate on the basis of race, then, well, PRESTO!, the law does not discriminate on the basis of race.

Critical race theory exists because of this tendency, because we who practice law have too much power not to be slapped in the face with the fact that saying something does not make it so, even in the realm of law.

One particular hobby horse of mine, which has implications both for racialized and otherwise marginalized people, is the courtroom dress code. We literally justify the dress code to each other by telling each other that if we dress casually or unconventionally our clothing will undermine public confidence in the honesty, neutrality, and competence of the legal system and its practitioners.  We cannot make this case to each other without accepting as fact that the people who participate in court as jurors will judge people at least a little bit differently based solely on their clothing.

To counter this, in certain cases (like felony trials) we loan clothing to certain witnesses or defendants. But note here that in saying to jurors,

You think that people who dress unconventionally or poorly or sloppily are liars? Fine then, we’re going to dress people differently when they come to court,

we in the legal community have fully accepted that it’s acceptable that jurors judge people differently based on these social class signifiers. The right thing to do, the just thing to do, is to undermine the assumption that we can judge people based upon their appearance. If I were practicing, I would love to wear my best black suit with fire red hair standing straight up 5 inches and a faded Wonder Woman t-shirt beneath. I’d love to see the prosecutor dressed as a gang banger at every trial of a gang member. THAT would tell jurors that you can’t judge a case based on the appearance of the participants. Putting a gang member into a business suit, when they’re very likely to wear it uncomfortably and to sport still visible tattoos, that’s not the solution.

And, indeed, we know that’s not the solution. Credibility scores might increase when you clean someone up & put them in nice clothes, but they still aren’t equal to the credibility score of a cop in uniform, for instance.

CRT is made necessary by just this bizarre hubris where we literally acknowledge to each other that something is a problem, but never set out to actually cure the problem, only to sanitize the problem.

Legal scholar 1: Jurors are prejudiced against the testimony of certain people, and they identify those people by their appearance.

Legal scholar 2: Ah! I see the problem. it’s their clothing. Change their appearance and prejudice will disappear.

There are problems where laws simply discriminate unacceptably based upon race. But the truth is that most of the work of CRT is done in situations where law qua law does not discriminate, yet in practice discrimination results. Some of this we can determine through historical study, which is where Derrick Bell’s work began, but much of it is about finding the mechanisms through which racism is inflicted upon people of color even when the law does not (overtly, explicitly) dictate racist practices, even when the judge does her best to remain neutral, even when advocates fully embrace their roles in creating justice, even when the jurors do not believe themselves to be racist.

I find CRT to be incredibly optimistic, to be frank. Critical race theorists approach academic law differently, in ways that can be identified not as definitions of what CRT is, but as hallmarks of a CRT influenced approach. Not all CRT work includes all such hallmarks, and not all work is even clearly exhibiting or failing to exhibit such hallmarks since these hallmarks are best characterized as tendencies with no clear boundary on exactly how much such a tendency must be exhibited to qualify something as having the hallmark of CRT. But one hallmark is simply the expectation that if people of color speak of their own experiences, in their own voices, unsanitized by the conventions traditional legal writing, that the legal community will hear those people of color and change for the better.

Williams, for instance, writes in ways that remind me* of Maxine Hong Kingston, using autobiographical midrash to make important points. Most of what I’ve read by Crenshaw is more traditionally academic in tone. Bell was passionate and sometimes autobiographical, but more willing to use stories of others, it seems to me, then Williams. That’s at least somewhat of a middle ground between what I’ve read of Williams and what I’ve read of Crenshaw because what lawyers do is tell someone’s else’s story, argue someone else’s case, so even in a less academic, more story based structure, it’s at least somewhat more acceptable to traditional legal scholars to have a lawyer write about someone else’s experience.  Writing about one’s own experience passionately invites accusations of bias, but writing passionately about the experience of some other person for whom you’re advocating is, if not the dispassionate language of legal scholarship, at least the accepted professional language of a lawyer arguing a case.

And yet all of these writers truly seem to believe that if they put in the work, if they offer up their words, those of us with power will listen to the case and decide, fairly, to act.

It’s this last part that makes so much of what is being said recently so damn, Freuding heartbreaking to me. CRT is, if anything, a cry:

Listen to what has happened, listen to us argue our side as patiently as you have listened to voices of hubris and satisfaction with the status quo. Then, having heard both sides, perhaps for the first time, judge us fairly.

Knowing this is the cry, hearing the optimism of the late Bell, or those we still have with us, like Crenshaw and Matsuda and Williams, and then hearing masses of people unabashedly, unashamedly refusing to even hear what CRT is, what it argues, what it seeks, and judging it (and them!) so utterly unfairly, I am broken.

I can write more about the hallmarks of CRT. I can answer any of your questions, and I want you to ask those questions that this piece has not yet answered. I could speak of how CRT scholarship has changed my own life for the better. But if it has taken me far too long to get just this far, it’s because there is not, and should not be, any discussion of critical race theory today that does not pull on our tears beyond all capacity for resistance.

We can educate each other, we can lend strength and encouragement to each other, we can share strategies and tactics for resisting this current antiCRT movement, and we can mock Christopher Rufo who seems to have begun the contemporary demonization of CRT and its practitioners.

But I cannot, and we should not, do any of this without tears, without great sadness that this is the response of America to people of color who ask nothing less, but nothing more, than please judge us fairly. I can only imagine the pain of the people who have given their lives to this work.

 

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*”Reminding me” is not the same thing as saying that their writing is substantially the same, of course. Don’t take that too far.

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Don’t forget! Drop your CRT questions below to help me make these Q&A sessions as useful in everyday life as they can possibly be.