Beyond Labels

A 360° Discussion of Foreign, National and Local Policy Issues

Aug. 9: Critical Race Theory

Tomorrow, we’ll discuss Critical Race Theory. We’ll probably spend a bit of time on the theory itself, but will also talk about CRT as a shorthand in the current political debate about how we educate and what we teach–to our children, employees, etc.

Here’s a note from Michael Sinclair on the origins and “real” meaning of CRT, which is consistent with other descriptions I’ve seen:

As I understand it, Critical Race Theory can be viewed as an offshoot of Critical Legal Studies, a way of analyzing the law that takes into account how it reflects social issues (https://www.law.cornell.edu/wex/critical_legal_theory). My guess is that this approach to legal analysis began with the so-called Brandeis Brief in Muller v. Oregon (1908) (https://www.law.cornell.edu/wex/muller_v_oregon_(1908)), in which Louis Brandeis (before he joined the Supreme Court) defended a state law limiting the number of hours women could work in factories. His brief included, apparently for the first time before the Court, sociological data to defend the law.

I also think Critical Legal Studies is related to Legal Realism, a theory that holds that “[p]rior to the 1930s, American jurisprudence had been dominated by a formalist account of how courts decide cases, an account which held that judges decide cases on the basis of distinctly legal rules and reasons that justify a unique result. The legal realists argued that statutory and case law is indeterminate, and that appellate courts decide cases not based upon law, but upon what they deem fair in light of the facts of a case.” In other words, judges fit the law (and sometimes even the facts) to their desired outcomes in the cases before them. In my opinion, this is what is happening with increasing frequency at the Supreme Court, particularly in cases involving Constitutional law, in decisions regarding, for example, the 1965 voting rights act and the Second Amendment.

I think Critical Race Theory is a direct descendant of Critical Legal Studies and Legal Realism, in that Critical Race Theory “… critiques how the social construction of race and institutionalized racism perpetuate a racial caste system that relegates people of color to the bottom tiers.” (https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/; https://www.bookbrowse.com/reviews/index.cfm/book_number/4171/caste).

 I think the overwrought reaction of some right-leaning politicians and media outlets to Critical Race Theory is an often willful mischaracterization of what the theory is (https://www.brookings.edu/blog/fixgov/2021/07/02/why-are-states-banning-critical-race-theory/) and could be seen as strong evidence of its validity.

If you want to “freshen up” on some other recent activities that have been swept into the CRT debate (even though any actual link may be tenuous at best), here are a few:

And a couple of Ellsworth American links to provide some local flavor:

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