Met their boss lady once in Berlin, quite a few Nubian goddesses where also attending. This book was the preparation. Maybe also read Richard Hanania's

The Origins of Woke: Civil Rights Law, Corporate America, and the Triumph of Identity Politics nock yourself out lawfags.

If this is to much to read for you, just watch this video an call it a day.

Quote from Critical Race Theory Richard Delgado, Jean Stefancic, Angela Harris (Foreword)

Some people see things as they are and say, why? I dream things that never were and say, why not? —ROBERT F. KENNEDY, quoting George Bernard Shaw...

We read books in which feminists attacked Freud and Third World women talked back to First World pieties. And we fought with the university administration over our demands for more programs, more resources, and more support for students of color on campus.

In 1983 I was a first-year law student at the University of Chicago. In my entering class of roughly 180 students, there were four African American students, including myself; one Asian American student; and two Latinos. All of our professors were white, and all but two were male.

...law. None of my professors in the first year talked about feminism or the concerns of women, either. These concerns were also, apparently, irrelevant. Nowhere, in fact, did the cases and materials we read address concerns of group inequality, sexual difference, or cultural identity. There was only one Law, a law that in its universal majesty applied to everyone without regard to race, color, gender, or creed.

Some of us successfully agitated to get Professor Catharine MacKinnon, the pathbreaking feminist legal scholar, invited to speak (though not invited to join the faculty). Some of us even succeeded in getting permission for Professor Mary Becker to teach a seminar in feminist jurisprudence (though the dean asked us, somewhat bewilderedly, whether men would be excluded from the reading list). In reading groups we began to explore the literature of critical legal studies. But there seemed to be no critical literature on race and the law.

As first-year, then second-year, then third-year law students, we had no inkling of the struggles going on at Harvard Law School over the work and teachings of Derrick Bell or of the few scholars—one coauthor of this book among them—who had begun to apply the tools of critical theory to the law.

Three years after I got my law degree, in the summer of 1989, I was a first-year law teacher invited to attend the first-ever workshop on something called “critical race theory,” to be held at the St. Benedict Center in Madison, Wisconsin. At that workshop, I discovered what had been missing for me as a student. I met some of the people who, by then, had begun to be recognized across the nation as major intellectual figures: Derrick Bell, Kimberlé Crenshaw, Richard Delgado, Mari Matsuda, Patricia Williams.

...scholars not only from the United States but from countries including Canada, Australia, England, India, and Spain now...

That is where this book comes in. Richard Delgado and Jean Stefancic have written a primer for nonlawyers that makes the now sprawling literature of critical race theory easily accessible to the beginner. From the earliest social and intellectual origins of the movement to its key themes and debates to its methods to its future, Delgado and Stefancic offer a lively, lucid guide to critical race theory and a starting place for further reading and thinking. With the help of this book, even students who find their official course reading lists as barren as I did in 1983 will find their way into a rich and important intellectual debate.

Critical race theory not only dares to treat race as central to the law and policy of the United States; it dares to look beyond the popular belief that getting rid of racism means simply getting rid of ignorance or encouraging everyone to “get along.” To read this primer is to be sobered by the recognition that racism is part of the structure of legal institutions but also to be invigorated by the creativity, power, wit, and humanity of the voices speaking about ways to change that structure.

The country’s demography has changed, as well. Latinos, at about 17 percent of the population, are now the largest minority group, having displaced African Americans, who make up about 13 percent. Asian Americans, although smaller numerically, have increased even more rapidly than the other two larger groups. In California, minorities of color together exceed the white population in size, if not yet in influence. Other states are not far behind.

President Barack Obama’s two terms elicited a vigorous response in the form of the Tea Party movement as well as an upsurge in hate speech and opposition to immigration, some of it taking the form of blogs, Internet websites, and talk-radio programs. Globalization, outsourcing, and maquiladoras continued to remove tens of thousands of jobs, so that the gap in income and family wealth between the richest few and the rest of society stands at one of the highest levels ever. Police profiling and shootings, the war on drugs, and harsh sentencing policies heightened minority miseries and swelled the prison population. More than fifteen years later, many of these problems remain.

Critical race theory has taken note of all these developments. As the reader will see, a new generation of critical race scholars has examined these issues and more.

Thanks, as well, to Niko Pfund, past editor in chief at New York University Press, for encouraging us to write this book; to Deborah Gershenowitz, who encouraged us to create a second edition; and to Clara Platter, who prompted us to prepare a third. Anna Frederiksen-Cherry, Peter Lee, Dorothea Reiff, Eugenia Jackson, Jami Vigil, Miriam Garza, and Jessica Lescau supplied editorial and research assistance.

You are a white person—the child, the shopper, the jogger. The responses are all from white people and are all negative. Are you annoyed? Do you, for even a moment, think that maybe you are receiving this treatment because of your race? Or might you think that all these people are merely having a bad day? Next suppose that the responses are from people of color. Are you thrown off guard? Angry? Depressed?

Do you immediately think that you might be treated in these ways because you are not white? If so, how do you feel? Angry? Downcast? Do you let it roll off your back? And if the responses come from fellow people of color, then what do you think? Suppose the person of color is from a group other than your own?

But at other times, race seems to play a part. When it does, social scientists call the event a “microaggression,” by which they mean one of those many sudden, stunning, or dispiriting transactions that mar the days of women and folks of color. Like water dripping on sandstone, they can be thought of as small acts of racism, consciously or unconsciously perpetrated, welling up from the assumptions about racial matters most of us absorb from the cultural heritage in which we come of age in the United States.

They negotiate, and she buys a car. Later she learns that she paid almost a thousand dollars more than what the average white male pays for that same car. (See Ian Ayres, Fair Driving, 104 Harv. L. Rev. 817 [1991]; Michael Luo, “Whitening” the Résumé, N.Y. Times, Dec. 5, 2009.) A fourth-grade teacher, shortly before beginning a unit on world cultures, passes out a form asking the children to fill out where their parents “are from.” The bright child who raised her hand earlier hesitates, knowing that her parents are undocumented entrants who fear being discovered and deported.

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.

After the first decade, critical race theory began to splinter and now includes a well-developed Asian American jurisprudence, a forceful Latino-critical (LatCrit) contingent, a feisty LGBT interest group, and now a Muslim and Arab caucus. Although the groups continue to maintain good relations under the umbrella of critical race theory, each has developed its own body of literature and set of priorities.

Critical race theory sprang up in the 1970s, as a number of lawyers, activists, and legal scholars across the country realized, more or less simultaneously, that the heady advances of the civil rights era of the 1960s had stalled and, in many respects, were being rolled back.

As the reader will see, critical race theory builds on the insights of two previous movements, critical legal studies and radical feminism, to both of which it owes a large debt. It also draws from certain European philosophers and theorists, such as Antonio Gramsci, Michel Foucault, and Jacques Derrida, as well as from the American radical tradition exemplified by such figures as Sojourner Truth, Frederick Douglass, W. E. B. Du Bois, César Chávez, Martin Luther King, Jr., and the Black Power and Chicano movements of the sixties and early seventies.

From critical legal studies, the group borrowed the idea of legal indeterminacy—the idea that not every legal case has one correct outcome. Instead, one can decide most cases either way, by emphasizing one line of authority over another or interpreting one fact differently from the way one’s adversary does. The group also incorporated skepticism of triumphalist history and the insight that favorable precedent, like Brown v. Board of Education, tends to erode over time, cut back by narrow lower-court interpretation, administrative foot dragging, and delay.

...as well as the unseen, largely invisible collection of patterns and habits that make up patriarchy and other types of domination. From conventional civil rights thought, the movement took a concern for redressing historical wrongs, as well as the insistence that legal and social theory lead to practical consequences. CRT also shared with it a sympathetic understanding of notions of community and group empowerment. From ethnic studies, it took notions such as…

Alan Freeman, who taught at the State University of New York at Buffalo Law School, wrote a number of leading articles, including one that documented how the U.S. Supreme Court’s race jurisprudence, even when seemingly liberal in thrust, nevertheless legitimized racism. Kimberlé Crenshaw, Angela Harris, Cheryl Harris, Charles Lawrence, Mari Matsuda, and Patricia Williams were major early figures, as well. Leading Asian scholars include Neil Gotanda, Mitu Gulati, Jerry Kang, and Eric Yamamoto. The top American Indian critical scholar is Robert Williams; prolific Latinos of a critical persuasion include Laura Gomez, Ian Haney López, Kevin Johnson, Gerald Lopez, Margaret Montoya, Juan Perea, and Francisco Valdes.…

The movement counts a number of fellow travelers and writers who are white, notably andré cummings, Nancy Levit, Tom Ross, Jean Stefancic, and Stephanie Wildman. (See also the…

Although CRT began as a movement in the law, it has rapidly spread beyond that discipline. Today, many scholars in the field of education consider themselves critical race theorists who use CRT’s ideas to understand issues of school discipline and hierarchy, tracking, affirmative action, high-stakes testing, controversies over curriculum…

They discuss the rise of biological racism in educational theory and practice and urge attention to the resegregation of American schools. Some question the Anglocentric curriculum and charge that many educators apply a “…

...teach material on critical white studies developed…

...viewpoint discrimination and whether Western philosophy is inherently white in its orientation,…

Unlike some academic disciplines, critical race theory contains an…

First, racism is ordinary, not aberrational—“normal science,” the usual way society does business, the common, everyday experience of most people of color in this country. Second, most would agree that our system of white-over-color ascendancy serves important purposes, both psychic and material, for the dominant group. The first feature, ordinariness...

...means that racism is difficult to address or cure because it is not acknowledged.

Color-blind, or “formal,” conceptions of equality, expressed in rules that insist only on treatment that is the same across the board, can thus remedy only the most blatant forms of discrimination, such as mortgage redlining or an immigration dragnet in a food-processing plant that targets Latino workers or the refusal to hire a black…

The second feature, sometimes called “interest convergence” or material determinism, adds a further dimension. Because racism advances the interests of both white elites (materially) and working-class whites (psychically), large…

A third theme of critical race theory, the “social construction” thesis, holds that race and races are products of social thought and relations. Not objective, inherent, or fixed, they correspond to no biological or genetic reality; rather, races are…

That society frequently chooses to ignore these scientific truths, creates races, and endows them with pseudo-permanent characteristics is of…

At another time, the Japanese, including citizens of long standing, may have been in intense disfavor and removed to war relocation camps, while society cultivated other groups of color for jobs in war industry or as cannon fodder on the front. In one era, Muslims are somewhat exotic neighbors who go to mosques and pray several…

Later, after circumstances change, they emerge as fanatical, religiously crazed terrorists bent on destroying America…

Closely related to differential racialization—the idea that each race has its own origins and…

...is the notion of intersectionality and…

No person has a single, easily stated, unitary identity. A white feminist may also be Jewish or working class or a single mother. An African American…

Everyone has potentially conflicting, overlapping identities,…

A final element concerns the notion of a unique voice of color. Coexisting in somewhat uneasy tension with antiessentialism, the voice-of-color thesis holds that because of their different histories and experiences with oppression, black, American Indian, Asian, and Latino writers and thinkers may be able to communicate to their white counterparts matters that the whites are unlikely to know. Minority status, in other words, brings with it a presumed competence to speak about race and racism. The “legal storytelling” movement urges black and brown writers to recount their experiences with…

Many modern-day readers believe that racism is declining or that class today is more important than race. And it is certainly true that lynching and other shocking expressions…

I concede that I am black. I do not apologize for that obvious fact. I take rational pride in my heritage, just as most other ethnics take pride in theirs. However, that one is black does not mean . . . that he is anti-white. . . . As do most blacks, I believe that the corridors of history in this country have been lined with countless instances of racial injustice. . . . Thus a threshold question which might be inferred from defendants’ petition is: Since blacks (like most…

...be disqualified per se from adjudicating cases involving claims of racial discrimination?

Studies show that blacks and Latinos who seek loans, apartments, or jobs are much more apt than similarly qualified whites to suffer rejections, often for vague or spurious reasons. Even highly placed black or Latino lawyers or executives may attract suspicion while riding a commuter train or upon arriving at their offices earlier than usual. The prison population is largely black and brown; chief executive officers, senators, surgeons, and university presidents are almost all white. In recent years, almost all Oscar-winning actors have been white. Poverty, however, has a black or brown face: black families command, on the average, about one-thirteenth of the assets of their white counterparts. They pay more for many products and services, including cars. People of color lead shorter lives, receive worse medical care, complete fewer years of school, and occupy more menial jobs than do whites. A recent United Nations report showed that African Americans in the United States would make up the twenty-seventh-ranked nation in the world on a combined index of social well-being; Latinos would rank thirty-third.

Critical Race Theory: An Introduction addresses, in simple, straightforward language, the foregoing and additional ideas characteristic of critical race jurisprudence. Chapter 2 presents four large themes in that body of thought—interest convergence or material determinism, revisionist interpretations of history, the critique of liberalism, and structural determinism.

...the idea that minorities should attempt to assimilate and blend into mainstream society. Do immigrants weaken American solidarity and identity?

Chapter 5 explores this issue, as well as whiteness studies. Social scientists have long put minority groups under the lens, examining their culture, intelligence, motivation, family arrangements, music, and much more. Recently scholars on both sides of the color line have switched perspective and are examining whites as a group. One topic that critical white studies addresses is whether such a thing as white privilege exists and, if so, what it consists of. Chapter 5 also looks at the scholarship of other racial groups such as LatCrits, critical Asian writers, feminists, and LGBT theorists.

Chapter 6 examines the main challenges that writers from both the Left and the Right have leveled at this approach to civil rights.

Is critical race theory pessimistic? Consider that it holds that racism is ordinary, normal, and embedded in society and, moreover, that changes in relationships among the races (which include both improvements and turns for the worse) reflect the interest of dominant groups, rather than idealism, altruism, or the rule of law. Or is it optimistic, because it believes that race is a social construction? (As such, it should be subject to ready change.)

Is race or class more important in determining one’s life chances?

Have you read any books, published before 1989 perhaps, that were works of critical race theory, even if they were not designated as such?

Imagine that a pair of businessmen pass a beggar on a busy downtown street. One says something disparaging about “those bums always sticking their hands out—I wish they would get a job.” His friend takes him to task for his display of classism. He explains that the street person may have overheard the remark and had his feelings hurt. He points out that we should all strive to purge ourselves of racism, classism, and sexism, that thoughts have consequences, and that how you speak makes a difference. The first businessman mutters something about political correctness and makes a mental note not to let his true feelings show in front of his friend again. Is the beggar any better off?

Or imagine that a task force of highly advanced extraterrestrials lands on Earth and approaches the nearest human being they can find, who happens to be a street person relaxing on a park bench. They offer him any one of three magic potions. The first is a pill that will rid the world of sexism—demeaning, misogynist attitudes toward women. The second is a pill that will cure racism; the third, one that will cure classism—negative attitudes toward people of lower socioeconomic station than oneself. Introduced into the planet’s water system, each pill will cure one of the three scourges effectively and permanently. The street person, of course, chooses classism and throws pill number three into a nearby water department reservoir. Will the lives of poor people like him improve very much the next day? Perhaps not. Passersby may be somewhat kinder, may smile at them more often, but if something inherent in the nature of our capitalist system ineluctably produces poverty and class segregation, that system will continue to create and chew up victims, irrespective of our attitudes toward them. Individual street people may feel better, but they will still be street people. And the free-enterprise system, which is built on the idea of winners and losers, will continue to produce new ones every day.

What about racism? Suppose a magic pill like the one mentioned above were invented, or perhaps an enterprising entrepreneur developed The Ultimate Diversity Seminar, one so…

...thoughts, stereotypes, and misimpressions harbored by its participants toward persons of other races. The president’s civil rights adviser prevails on all the nation’s teachers to introduce it into every K–12 classroom, and on the major television networks and cable network news to…

This hypothetical question poses an issue that squarely divides critical race theory thinkers—indeed, civil rights activists in general. One camp, which we may call “idealists,” holds that racism and discrimination are matters of thinking, mental categorization, attitude, and discourse. Race is a social construction, not a biological reality, they reason. Hence we may unmake it and deprive it of much of its sting by changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by…

A contrasting school—the “realists” or economic determinists—holds that though attitudes and words are important, racism is much more than a collection of unfavorable impressions of members of other groups. For realists, racism is a means by which society allocates privilege and status. Racial hierarchies determine who gets tangible benefits,…

For materialists, understanding the ebb and flow of racial progress and retrenchment requires a careful look at conditions prevailing at different times in history. Circumstances change so that one group finds it possible to seize advantage or to exploit another. They do so and then form appropriate collective attitudes to rationalize what was done. Moreover, what is true for subordination of minorities is also true for its relief: civil rights gains for communities of color coincide with the dictates of white self-interest. Little happens out of altruism alone.

Derrick Bell argued that civil rights advances for blacks always seemed to coincide with changing economic conditions and the self-interest of elite whites.

Sympathy, mercy, and evolving standards of social decency and conscience amounted to little, if anything. Audaciously, Bell selected Brown v. Board of Education, the crown jewel of U.S. Supreme Court jurisprudence, and invited his readers to ask themselves why the American legal system suddenly, in 1954, opened up as it did. The NAACP Legal Defense Fund had been courageously and tenaciously litigating school desegregation cases for years, usually losing or, at best, winning narrow victories.

During that period, as well, the United States was locked in the Cold War, a titanic struggle with the forces of international communism for the loyalties of uncommitted emerging nations, most of which were black, brown, or Asian. It would ill serve the U.S. interest if the world press continued to carry stories of lynchings, Klan violence, and racist sheriffs. It was time for the United States to soften its stance toward domestic minorities. The interests of whites and blacks, for a brief moment, converged.

Bell’s article evoked outrage and accusations of cynicism. Yet, years later, the legal historian Mary Dudziak carried out extensive archival research in the files of the U.S. Department of State and the U.S. Department of Justice. Analyzing foreign press reports, as well as letters from U.S. ambassadors abroad, she showed that Bell’s intuition was largely correct. When the Justice Department intervened on the side of the NAACP for the first time in a major school-desegregation case, it was responding to a flood of secret cables and memos outlining the United States’ interest in improving its image in the eyes of the Third World.

American leadership in the 21st century. . . . means a wise application of military power, and rallying the world behind causes that are right. . . . That’s why I will keep working to shut down the prison at Guantanamo. It is expensive, unnecessary, and only serves as a recruitment brochure for our enemies. . . .

His Holiness, Pope Francis, told this body from the very spot that I’m standing on tonight that “to imitate the hatred and violence of tyrants and murderers is the best way to take their place.” When...

Derrick Bell’s analysis of Brown illustrates a second signature CRT theme. Revisionist history reexamines America’s historical record, replacing comforting majoritarian interpretations of events with ones that square more accurately with minorities’ experiences. It...

...also offers evidence, sometimes suppressed, in that very record, to support those new interpretations. Revisionist historians often strive to unearth little-known chapters of racial struggle, sometimes in ways that reinforce current reform efforts.

Revisionism is often materialist in thrust, holding that to understand the zigs and zags of black, Latino, and Asian fortunes, one must look to matters like profit, labor supply, international relations, and the interest of elite whites. For the realists, attitudes follow, explain, and rationalize what is taking place in the material sector.

If one is an idealist, campus speech codes, tort remedies for racist speech, media stereotypes, diversity seminars, healing circles, Academy Awards, and increasing the representation of black, brown, and Asian actors on television shows will be high on one’s list of priorities.

A middle ground would see both forces, material and cultural, operating together so that race reformers working in either area contribute to a broad program of racial reform.

As mentioned earlier, critical race scholars are discontented with liberalism as a framework for addressing America’s racial problems. Many liberals believe in color blindness and neutral principles of constitutional law. They believe in equality, especially equal treatment for all persons, regardless of their different histories or current situations. Some...

Color blindness can be admirable, as when a governmental decision maker refuses to give in to local prejudices. But it can be perverse, for example, when it stands in the way of taking account of difference in order to help people in need. An extreme version of color blindness, seen in certain Supreme Court opinions today, holds that it is wrong for the law to take any note of race, even to remedy a historical wrong. Critical...

The black lieutenant is needed because the black inmates are believed unlikely to play the correctional game of brutal drill sergeant and brutalized recruit unless there are some blacks in authority in the camp. This is not just speculation, but is backed up by expert evidence that the plaintiffs did not rebut.

For then a security staff less than 6 percent black (4 out of 71), with no male black supervisor, would be administering a program for a prison population almost 70 percent black. . . .

Crits are suspicious of another liberal mainstay, namely, rights. Particularly some of the older, more radical CRT scholars with roots in racial realism and an economic view of history believe that moral and legal rights are…

...think. In our system, rights are almost always procedural (for example, to a fair process) rather than substantive (for example, to food, housing, or education). Think how that system applauds affording everyone equality of opportunity but resists programs that assure equality of results, such as affirmative action at an elite college or university or efforts to equalize public school funding among districts in a…

...minorities, gays, lesbians, and other outsiders, receives legal protection, while speech that offends the interests of empowered groups finds a…

Think, for example, of speech that insults a judge or other authority figure, that defames a wealthy and well-regarded person, that divulges a government secret, or that deceptively advertises products, thus cheating a large class of middle-income consumers. Think of speech that…

And with civil rights, lower courts have found it easy to narrow or distinguish the broad, ringing landmark decision like Brown v. Board of Education. The group that supposedly benefits always…

...after the singing and dancing die down, the breakthrough is quietly cut back by narrow interpretation, administrative obstruction, or delay. In the end, the minority group is left…

Lest the reader think that the crits are too hard on well-meaning liberals, bear in mind that in recent years the movement has softened somewhat. When it sprang up in the 1970s, complacent, backsliding liberalism represented the principal impediment to racial progress. Today that obstacle has been replaced by rampant, in-your-face conservatism that co-opts Martin Luther King, Jr.’s language; finds little use for welfare, affirmative action, or other programs vital to the poor and minorities; and wants to…

Welfare payments, they say, merely create dependency…

Because most critical race theorists believe things are more complicated than that, many of them have stopped focusing on liberalism and its ills and have…

...predicament—a society that has only one word (say, “racism”) for a phenomenon that is much more complex than that, for example, biological racism; intentional racism; unconscious racism; microaggressions; nativism; institutional racism; racism tinged with homophobia or sexism; racism that takes the form of indifference, coldness, or implicit associations; and white privilege, reserving favors, smiles, kindness, the best stories, one’s most charming side, and invitations to real intimacy for one’s own kind or class.

Children raised in smoggy Mexico City are said to paint pictures with a brownish-yellow, never blue, sky. These examples point out the concept that lies at the heart of structural determinism, the idea that our system, by reason of its structure and vocabulary, is ill equipped to redress certain types of wrong. Structural determinism, a powerful notion that engages both the idealistic and the materialistic strands of critical race theory, takes a number of forms. Consider the following four.

Even when a new idea, such as jury nullification, was beginning to catch on, the legal indexers who compiled the reference books and indexing tools may have failed to realize its significance.Even when a new idea, such as jury nullification, was beginning to catch on, the legal indexers who compiled the reference books and indexing tools may have failed to realize its significance.

When Sir William Blackstone’s Commentaries on the Laws of England laid down the basic structure of liberal/capitalist thought, this served as a template for future generations of lawyers, so that legal change thereafter came slowly. Once the structure of law and legal categories takes form, it replicates itself much as, in the world of biology, DNA enables organisms to replicate. In some respects, the predicament is the old one about the chicken and the egg. It is hard to think about something that has no name, and it is difficult to name something unless one’s interpretive community has begun talking and thinking about it.

...highly relevant to the work of progressive lawyers and activists, are apt to be found in standard legal reference works: intersectionality, interest convergence, microaggressions, antiessentialism, hegemony, hate speech, language rights, black-white binary, jury nullification. How long will it take before these concepts enter the official vocabulary of law?

...a particular type of tough-minded participant is apt to urge a free-market response: if a minority finds himself or herself on the receiving end of a stinging remark, the solution, it is said, is not to punish the speaker or to enact some kind of campus hate-speech rule but to urge the victim to speak back to the offender. “The cure for bad speech is more speech.”

How can one talk back to messages, scripts, and stereotypes that are embedded in the minds of one’s fellow citizens and, indeed, the national psyche? Trying to do so makes one come across as humorless or touchy. The idea that one can use words to undo the meanings that others attach to these very same words is to commit the empathic fallacy—the belief that one can change a narrative by merely offering another, better one—that the reader’s or listener’s empathy will quickly and reliably take over.

One of the reasons for avoiding excessive sentences is that the empathy required of . . . citizens in a democracy . . . is stunted when parents are away in prison. “[W]ithout regular comforting, physical contact and sensory stimulation from birth, the biological capacity for sociality—the precondition for empathy and conscience—cannot develop . . . and [e]mpathy requires the nurturing required by early social relationships.” Breaking...

Suppose, however, that the client and his or her community do not want the very same remedy that the lawyer does. The lawyer, who may represent a civil rights or public interest organization, may want a sweeping decree that names a new evil and declares it contrary to constitutional principles. He or she may be willing to gamble and risk all. The client, however, may want something different—better schools or more money for the ones in his or her neighborhood. He or she may want bilingual education or more black teachers, instead of classes taught by prize-winning white teachers with Ph.D.s.

A lawyer representing a poor client may want to litigate the right to a welfare hearing, while the client may be more interested in a new pair of Sunday shoes for his or her child. These conflicts, which are ubiquitous in law-reform situations, haunt the lawyer pursuing social change and seem inherent in our system of legal remedies.

Aziz, who missed an opportunity to present his latest paper, is furious and wants you to help redress the harm he has suffered and make sure that it does not happen again to him. In short, he wants the government to take his name off the list so that he can fly once again. Your research shows that the no-fly list is full of errors and results in the grounding of many innocent passengers, some of whom, like Aziz, merely happen to have the same name as someone who has attracted the attention of the authorities. Aziz is the perfect candidate to challenge the list, since he has a sparkling record, is a former Marine officer and Boy Scout troop leader, and was an alternate to the U.S. Olympic team in the long jump. Aziz, however, is mainly interested in getting himself off the list. Should you take his case?

Some crits, such as Derrick Bell and Alan Freeman, even argue that our system of civil rights law and enforcement ensures that racial progress occurs at just the right slow pace. Too slow would make minorities impatient and risk destabilization; too fast could jeopardize important material and psychic benefits for elite groups.

When the gap between our ideals and practices becomes too great, the system produces a “contradiction-closing case,” so that everyone will think that it is truly fair and just.

If society agreed to think only kind thoughts about people of color, would their condition improve very much? How much, and in the short or the long run?

If society agreed to treat everyone, including people of color, exactly the same, would the condition of communities of color improve very much? Again, in the short or the long run?

4. Today more African Americans attend segregated schools than they did when Brown v. Board of Education was decided. What does this say about reform through law?

Suppose you are litigating an employment-discrimination case on behalf of a black woman who suffered ill treatment at work on account of her black womanhood. The employer points out that he does not discriminate against black men (and rather likes them) or against white women. Your suit, in short, requires that the law recognize a new cause of action for intersectional categories, such as black women, who are members of two groups at the same time. Do you suspect that legal research in a commercial database would unearth the few decisions that have adjudicated such claims? Suppose the category, as yet, lacks an agreed-upon name?

...that whites allow breakthroughs for blacks only when it serves whites’ interests—makes sense. Will this change your approach to activism, and, if so, how?

Or perhaps you have had the experience of discussing with a friend a famous case, such as the one growing out of the death of Trayvon Martin or one having to do with an accused terrorist who was tortured. You and she agree on most of the facts of what happened, but you put radically different interpretations on them. You are left wondering how two people can see “the same evidence” in such different lights.

Korematsu (the Japanese-internment case) or Plessy v. Ferguson (the separate-but-equal case). Other...

Although some writers criticize CRT for excessive negativity and failure to develop a positive program, legal storytelling and narrative analysis are clear-cut advances that the movement can claim. Even some minority judges are finding it useful from time to time to insist on the validity of the perspective of color.

One premise of legal storytellers is that members of this country’s dominant racial group cannot easily grasp what it is like to be nonwhite. Few have what W. E. B. Du Bois described as “double consciousness.” History books, Sunday sermons, and even case law contribute to a cultural hegemony that makes it difficult for reformers to make race an issue. How to bridge the gap in thinking between persons of good will whose experiences, perspectives, and backgrounds are radically different is a great challenge.

At the same time, it is important not to go too far in providing special benefits for blacks. Doing so induces dependency and welfare mentality. It can also cause a backlash among innocent whites who believe they have suffered reverse discrimination. Most Americans are fair-minded individuals who harbor little racial prejudice. The few who do can be punished when they act on those beliefs.

“gory, brutal, filled with more murder, mutilation, rape, and brutality than most of us can imagine or easily comprehend”

How can there be such divergent stories? Why do they not reconcile? To the first question, critical race theory answers, “experience.” People of different races have radically different experiences as they go through life. (Derrick Bell would add a further reason: “interest convergence”—people believe what benefits them.) To the second, it answers that empathy is in short supply. (See the discussion of the empathic fallacy in chapter 2.) Literary and narrative theory holds that we each occupy a normative universe or “nomos” (or perhaps many of them), from which we are not easily dislodged. Talented storytellers nevertheless struggle to reach broad audiences with their messages. “Everyone loves a story.” The...

Thus, concluding that race is not an issue in this case because juror 32 is not a member of a racial minority, misses the point. Race is an issue.

Some of the critical storytellers believe that stories also have a valid destructive function. Society constructs the social world through a series of tacit agreements mediated by images, pictures, tales, tweets, blog postings, social media, and other scripts. Much of what we believe is ridiculous, self-serving, or cruel but is not perceived to be so at the time. Attacking embedded preconceptions that marginalize others or conceal their humanity is a legitimate function of all fiction.

Stories can name a type of discrimination (e.g., microaggressions, unconscious discrimination, or structural racism); once named, it can be combated. If race is not real or objective but constructed, racism and prejudice should be capable of deconstruction; the pernicious beliefs and categories are, after all, our own. Powerfully written stories and narratives may begin a process of correction in our system of beliefs and categories by calling attention to neglected evidence and reminding readers of our common humanity.

Even the conservative judge Richard Posner has conceded that major reforms in law often come through a conversion process or paradigm shift similar to the one Thomas Kuhn describes and minority storytellers advocate...

The philosopher Jean-François Lyotard’s concept of the differend helps explain the value of narratives for marginalized persons. The differend occurs when a concept such as justice acquires conflicting meanings for two groups. A prime example would be a case in which a judge seeks to hold responsible an individual who does not subscribe to the foundational views of the regime that is sitting in judgment of him or her. In situations like this, the subordinate person lacks language to express how he or she has been injured or wronged.

For example, when contemporary Euro-Americans resist even discussing reparations for blacks on the grounds that a black person living today has never been a slave and so lacks standing, nor has any white person alive today been a slaveholder, the black person who wishes to discuss these questions and is shunted aside suffers the differend. The...

...prevailing conception of justice deprives him or her of the chance to express a grievance in terms the system will understand. Until very recently, women who suffered childhood incest or battered-wife syndrome were victims of the differend, as were Latino undocumented persons who suffered workplace discrimination but could not complain for fear of being deported. Narratives...

Despite this and other criticisms, law has been slowly moving in the direction of recognizing the legitimacy and power of narrative. Children and certain other witnesses are permitted to testify in the form of an uninterrupted narrative, rather than through question-and-answer examination. With sexual-offense victims, shield laws and evidentiary statutes protect them against certain types of examination, even though the Sixth Amendment’s Confrontation Clause would otherwise permit the other side to attack their narrative forcefully.

Some of it comes from conservatives, like federal judge Richard Posner, who disagree, substantively, with what the crits are saying. But criticism also comes from leftist scholars, like Mark Tushnet, who consider that the genre is an ineffective and analytically unsound form of discourse, and from self-professed liberals, like Daniel Farber and Suzanna Sherry, whose critiques are discussed in chapter 6.

Suppose you have a particular account of the world. For example, as a result of experience you have come to believe that virtue is almost always rewarded and that people generally get what they deserve. Social handouts and welfare just make matters worse. Someone tells you a story about a welfare recipient who used her allotment to raise her children, then went to school and became a Ph.D. and owner of a start-up computer company. How do you react? Do you reconsider your views—or merely pronounce her an exception?

(Self-made man? Patriotic American? Tells it like it is? Defender of the Constitution?) During judicial confirmation hearings? (Will stick to the rule of law? Future judicial activist? Understands the common man?)

Is capitalism—our society’s dominant mode of doing business—a collection of stories, for example, that the market is the best way of allocating resources, that if everyone pursues his or her own self-interest, society will benefit from the citizenry’s energy and inventions, and that state control is almost always bad? If it is, will capitalism’s periodic crises and crashes eventually cause its supporters to modify their views? Or are stories of this kind impervious to experience?

You have read studies showing that regions that have experienced increased immigration, including the undocumented kind, see decreasing (not increasing) crime rates. You...

...have also read that to date not a single foreign terrorist is known to have sneaked across the border from Mexico. Are studies like these likely to persuade her to change her views on immigration, and, if not, why not?

...antiessentialism; the tensions between nationalism and assimilation; and racial mixture and identity.

“Intersectionality” means the examination of race, sex, class, national origin, and sexual orientation and how their combination plays out in various settings. These categories—and still others—can be separate disadvantaging factors. What...

Our plaintiff, then, will probably be unable to prove discrimination based on either race or sex. Yet she suffers discrimination based on her black womanhood. This is one aspect of the intersectional dilemma.

...out of the white female experience, for example, the glass ceiling, abortion rights, and the election of a female president of the United States. She is more interested in day-care reform and Head Start programs for her young children. She may also be interested in protection from domestic abuse at the hands of black men.

Imagine, then, that she resolves to join the civil rights movement, hoping to address the type of discrimination that she suffers at work. This time she finds that racism is indeed the primary focus of the group. It supports affirmative action, restructuring the criminal justice system to eradicate racial disparities, and electing black mayors. It supports measures to end racial profiling and highway stops for “driving while black.” But while these concerns are ones she shares as a black person, they are not necessarily the ones at the top of her agenda. The male-dominated civil rights movement will welcome her and persons like her, needing their numbers, but until women become a significant force within the group, it is apt to afford her concerns scant attention. Movement leaders may even ask her to stuff envelopes, run errands, answer the telephone, or make coffee.

...while the black men may be so caught up with life-and-death issues, such as disproportionate imposition of the death penalty or Tasering of black male motorists who do not respond quickly enough to police commands, that they react impatiently to her requests to consider her predicament at work.

This get-tough viewpoint is an example of what has been called a “politics of respectability” and disavows any identification with black criminality. It wants more, not fewer, police and harsher, not softer, sentences for black offenders. The opposite perspective within the black community is sometimes called the “politics of identification.”

Persons of this persuasion identify with the “race rebel” aspect of some black criminals and support them, at least if they are young, redeemable, and a potential asset to the community. African Americans who hold this view want the police to leave certain black offenders alone and let the community handle them. Antisnitching campaigns in black neighborhoods are evidence of this attitude.

Perspectivalism, the insistence on examining how things look from the perspective of individual actors, helps us understand the predicament of intersectional individuals.

When we think of the term “essentializing,” we think of paring something down until the heart of the matter stands alone. Essentialism has a political dimension. As mentioned in the previous section, the goals of a “unified” group may not reflect exactly those of certain factions within it, yet the larger group benefits from their participation because of the increased numbers they bring. We saw this in the case of the single black mother who sought to identify with a social movement but was thwarted on finding that the priorities of the two groups most likely to welcome her did not correspond to her life experience.

They also explain some of the crits’ impatience with liberalism. The reader will recall that CRT takes liberalism to task for its cautious, incremental quality (see chapter 2). When we are tackling a structure as deeply embedded as race, radical measures are in order—otherwise the system merely swallows up the small improvement one has made, and everything goes back to the way it was.

Ignoring the problem of intersectionality, as liberalism often does, risks doing things by half measures and leaving major sectors of the population dissatisfied. Classical liberalism also has been criticized as overly caught up in the search for universals, such as admissions standards for universities or sentencing guidelines that are the same for all.

The crits point out that this approach is apt to do injustice to individuals whose experience and situation differ from the norm. They call for individualized treatment—“context”—that pays attention to minorities’ lives. This deficiency is apt to be particularly glaring in the case of “double minorities,” such as black women, gay Latinos, or Muslim women wearing head scarves, whose lives are twice removed from the experience of mainstream Americans.

Some observers hold that all minority races should compromise their differences and form a united front against racism in general. The danger in this essentialized approach is that certain minority groups, socioeconomic classes, and sexual orientations may end up better off and others worse.

Debates about nationalism versus assimilation figure prominently in current discourse about race. One strand of critical race theory energetically backs the nationalist view, which is particularly prominent with the materialists. Derrick Bell, for example, urged his fellow African Americans to foreswear the struggle for school integration and aim for building the best possible black schools. Other CRT nationalists advocate gun ownership, on the grounds that historically the police in this country have not protected blacks against violence, indeed have often visited it upon them. Other nationalists urge the establishment of all-black inner-city schools, sometimes just for males, on the grounds that boys of color need strong role models and cannot easily find them in the public schools.

Nationalists of all types question the majoritarian assumption that northern European culture is superior. Most support ethnic studies departments at the university level.

At the high school level, a Latino studies program in at least one district (Tucson, Arizona) drew the ire of state officials, who enacted a ban on any program that teaches ethnic division. The program’s supporters, of course, pointed out that they were merely teaching students their own history and pride in their own culture. They also emphasized that the program was not closed to non-Latino students and was very popular. When local authorities gave in to state officials’ threat to cut the district’s funding and eliminated the program, the community exploded in outrage. Their...

...indignation increased when school officials removed the program’s texts, which included William Shakespeare’s The Tempest, Paolo Freire’s Pedagogy of the Oppressed, and the very book you are reading, from the shelves of the classrooms, in front of crying students. In response, the program’s defenders staged protests, marched on the capital, and filed suit in federal court.

Nationalists honor ethnic studies and history as vital disciplines and look with skepticism on members of their groups who date, marry, or form close friendships with whites or seek employment in white-dominated workplaces or industries. Many Latino nationalists are sympathetic to Rodolfo Acuña’s notion that Latinos in this country are an internal colony and that they should exploit that colonial status to build solidarity and resistance. Nationalists are apt to describe themselves as a nation within a nation and to hold that the loyalty and identification of black people, for example, should lie with that community and only secondarily with the United States.

A middle position, embraced by a few sophisticated thinkers, including on occasion Derrick Bell, holds that minorities of color should not try to fit into a flawed economic and political system but transform it. In this view, success, symbolized by a high income, token representation, and even a degree of influence, like that which William hopes to achieve, is not worth pursuing if the system itself remains unworthy and unjust.

Rebecca, whose skin is medium brown, wears her hair in a short Afro and grew up in an upper-class suburb, where she attended highly competitive public schools. In college, she was a member of both the black student caucus (where she met Jamal and William), as well as the international student organization, which she joined in order to meet Middle Eastern people like her mother and practice her Arabic. She is currently a third-year medical student whose dream job is to be a physician with Doctors Without Borders, practicing medicine in far-flung areas of the developing world. She and Jamal have had several intense conversations about the medical needs of impoverished black communities in the United States. Jamal wishes she would devote herself to the needs of domestic people of color. William, who is ambivalent on this issue, is sitting out this discussion.

This chapter addresses how we think about race and identity—the black-white binary, critical white studies, and Asian and Latino critical thought. Some of these issues are explosive, controversial, even divisive.

The paradigm holds that one group, blacks, constitutes the prototypical minority group. “Race” means, quintessentially, African American.

Imagine, for example, that Juan Dominguez, a Puerto Rican worker, is told by his boss, “You’re a lazy Puerto Rican just like all the rest. You’ll never get ahead as long as I’m supervisor.” Juan sues for workplace discrimination under a civil-rights-era statute designed, as most are, with blacks in mind. He wins because he can show that an African American worker, treated in similar fashion, would be entitled to redress. But suppose that Juan’s coworkers and supervisor make fun of him because of his accent, religion, or place of birth. African Americans generally do not suffer discrimination on these grounds, so Juan would likely go without recourse.

For example, when a recent president convened a group of scholars and activists to lead a yearlong national conversation on race, at its first meeting, the chair, an eminent African American historian, proposed that the group “for the sake of simplicity” limit its consideration to African Americans. When other members of the commission protested, he backed down, still insisting that he was right. Because “America cut its eyeteeth” on discrimination against blacks, he said, if one understood that sordid history, one would also understand and know how to deal with racism against all the other groups.

Few blacks will be yelled at and accused of being foreigners or of destroying the automobile industry. Few...

...will be told that if they don’t like it here, they should go back where they came from.

To make matters worse, not long afterward, the Dawes Act broke up land the tribes held in common, resulting in the loss of almost two-thirds of all Indian land. And in 1882 Congress passed the Chinese Exclusion Act; earlier California had made it a crime to employ Chinese workers.

Consider, as well, Justice Harlan’s dissent in Plessy v. Ferguson, reproduced in part in chapter 2 of this book, which sharply rebuked segregation for blacks but supported his point by disparaging the Chinese...

...who did have the right to ride in railway cars with whites.

In more recent times, during California’s Proposition 187 campaign, proponents for this anti-immigrant measure sought black votes by depicting Mexican immigrants as newcomers who took black jobs. And in recent years, anti-immigration forces whip up public sentiment against Muslims in minority and blue-collar communities by appealing to their patriotism.

In addition to pitting one minority group against another, binary thinking can induce a minority group to identify with whites in exaggerated fashion at the expense of other groups. For example, early in California’s history, Asians sought to be declared white so that they could attend schools for whites and not have to go to ones with blacks.

Anglocentric standards of beauty divide Mexican and black communities, enabling those who most closely conform to the Euro-American ideal to gain jobs, desirable mates, and social acceptance and, sometimes, to look down on their darker-skinned brothers and sisters. Similarly, “box checking” allows people of white or near-white appearance to gain the benefits of affirmative action without suffering the costs of being thought of and treated as black or brown.

If contextualism and critical theory teach anything, it is that we rarely challenge...

...our own preconceptions, privileges, and the standpoint from which we reason.

Ian Haney López, Cheryl Harris, Tim Wise, David Roediger, Alexander Saxton, and Theodore Allen address various aspects of this issue. The physical differences between light-skinned blacks and dark-skinned whites, just to take one example, are much less marked than those that separate polar members of either group.

In the semantics of popular culture, whiteness is often associated with innocence and goodness. Brides wear white on their wedding day to signify purity. “Snow White” is a universal fairy tale of virtue receiving its just reward. In talk of near-death experiences, many patients report a blinding white light, perhaps a projection of a hoped-for union with a positive and benign spiritual force.

In contrast, darkness and blackness often carry connotations of evil and menace. One need only read Heart of Darkness by Joseph Conrad to see how strongly imagery of darkness conveys evil and terror. We speak of a black gloom. Persons deemed unacceptable to a group are said to be blackballed or blacklisted. Villains are often depicted as swarthy or wearing black clothing.

In the fifty years or so following the Civil War, a large influx of people sought admission to the United States, making immigration policy a point of great concern. The last decade of the nineteenth century and first two of the twentieth were a period of particularly heavy immigration. Who was the young country going to let in? In 1790 Congress had limited naturalization (acquisition of U.S. citizenship) to free white persons only. With minor modifications, this racial qualification stood on the books until 1952.

During the more than 150 years that the requirement remained in place, U.S. courts decided many cases determining who was white and who was not. Are Indians from India white? What about Persians? Or light-skinned Japanese? Or children of mixed marriages, with a father from Canada and a mother from Indonesia? Judges developed two tests—“science” and “common knowledge”—to decide these questions. Reading the history of these strained, often overtly racist judicial opinions does much to dispel any notion that the American judiciary is fair, consistent, or wise.

On behalf of the appellant it is urged that we should give to [section 2169] the meaning which it had in the minds of its original framers in 1790 and that it was employed by them for the sole purpose of excluding the black or African race and the Indians then inhabiting this country. . . . It is not enough to say that the framers did not have in mind the brown or yellow races of Asia. It is necessary to go farther and be able to say that had these particular races been suggested the language of the act would have been so varied as to include them within its privileges.

Another aspect of the construction of whiteness is the way certain groups have moved into or out of that race. For example, early in our history Irish, Jews, and Italians were considered nonwhite—that is, on a par with African Americans. Over time, they earned the prerogatives and social standing of whites by a process that included joining labor unions, swearing fealty to the Democratic Party, and acquiring wealth, sometimes by illegal or underground means. Whiteness, it turns out, is not only valuable; it is shifting and malleable.

A recent manifestation of white consciousness is its exaggerated form seen in white-supremacy and white-power groups. With these organizations, white solidarity presents problems and dangers that black solidarity does not.

When members of a minority group band together for social and political support, most observers will see that action as a natural and proper response against social pressures. But what if members of the majority race band together...

The formation of Aryan-supremacist and skinhead groups stands as a constant reminder of how easy it is for quiet satisfaction in being white to deteriorate into extremism. As we write, the Tea Party movement and its followers are urging each other to “take back our country.” Some of their rallies have featured signs lampooning President Barack Obama or depicting him with exaggerated racial features. A “birther” faction still challenges his right to hold office and insists that he prove he was born in the United States. They also urge abolishing welfare, affirmative action, and other special programs of interest to poor people and minorities of color. How much of this opposition stems from discomfort with a nonwhite leader?

“White privilege” refers to the myriad of social advantages, benefits, and courtesies that come with being a member of the dominant race.

According to a famous list compiled by Peggy McIntosh, white people enjoy and can rely on forty-six privileges that attach by reason of having white skin, including the assurance that store clerks will not follow them around, that people will not cross the street to avoid them at night, that their achievements will not be regarded as exceptional or “credits to their race,” and that their occasional mistakes will not be attributed to biological inferiority. Scholars of white privilege write that white people benefit from a system of favors, exchanges, and courtesies from which outsiders of color are frequently excluded, including hiring one’s neighbors’ kids for summer jobs, a teacher’s agreement to give a favored student an extra-credit assignment that will enable him or her to raise a grade of B+ to A−, or the kind of quiet networking that lands a borderline candidate a coveted position.

The other consists of white privilege—a system by which whites help and buoy each other up. If one lops off a single head, say, outright racism, but leaves the other intact, our system of white over black/brown will remain virtually unchanged. The predicament of social reform, as one writer pointed out, is that “everything must change at once.” Otherwise, change is swallowed up by the remaining elements, so that we remain roughly as we were before. Culture replicates itself forever and ineluctably.

By contrast, many critical race theorists and social scientists hold that racism is pervasive, systemic, and deeply ingrained. If we take this perspective, then no white member of society seems quite so innocent. The interplay of meanings that one attaches to race; the stereotypes one holds of other people; the standards of looks, appearance, and beauty; and the need to guard one’s own position all powerfully determine one’s perspective.

Indeed, one aspect of whiteness, according to some scholars, is its ability to seem perspectiveless or transparent. Whites do not see themselves as having a race but as being, simply, people. They do not believe that they think and reason from a white viewpoint but from a universally valid one—“the truth”—what everyone knows. By the same token, many whites will strenuously deny that they have benefited from white privilege, even in situations like the ones mentioned throughout this book...

The person is white with blue eyes and blond hair. Is she privileged? Unprivileged? Privileged in some respects but not others? Divide into small groups and argue this question. Then ask yourselves whether white privilege has any application beyond a narrow circle of elite prep-school products.

Invigorated, perhaps, by the antiessentialist strand of critical race theory, LatCrit scholars have called attention to such issues as immigration, language rights, bilingual schooling, internal colonialism, sanctuary for Latin American refugees, and census categories for Latinos. They...

They point out that nativism against Latinos and Asians thrives during times of economic hardship, when the labor supply is glutted, when workers are insecure, and when politicians rail against foreigners taking American jobs. Both groups staunchly resist the black-white paradigm but try to maintain friendly relations with African Americans.

Some Asian American writers focus on accent discrimination and the “model minority myth,” according to which Asians are the perfect minority group—quiet and industrious, with intact families and high academic aspiration and achievement.

This myth is unfair to the numerous Asian subgroups such as Hmong and Pacific Islanders who are likely to be poor and in need of assistance. It also causes resentment among other disfavored groups, such as African Americans, who find themselves blamed for not being as successful as Asians supposedly are. (“If they can make it, why can’t you?”).

Asians are too successful—soulless, humorless drones whose home countries are at fault for the United States’ periodic economic troubles. Such was the tragic fate of the Chinese American Vincent Chin, killed in 1982 by two Detroit autoworkers upset with Japan for destroying the U.S. automotive industry by producing better cars.

During World War II, when over one hundred thousand Japanese families living on the West Coast were removed to internment camps where they spent years behind barbed wire, many losing farms and businesses in the process, few Americans protested. It turned out later that much of the evidence of disloyalty and espionage was fabricated. Indeed, most Japanese Americans supported the war effort, and many young Japanese Americans served honorably in the U.S. armed forces, fighting against the Nazis in Europe and serving as interpreters in the battle against Japan.

Despite this sorry chapter in U.S. history, the United States was slow to consider compensating the Japanese for their losses. The descendants of Japanese Americans endured a legacy of suspicion and prejudice. A reparations bill did not enter into force until 1988.

...exclusion from the military area. Hirabayashi refused to honor the curfew or to report to the control station because he believed that the military orders were based upon racial prejudice and violated the protection the Constitution affords to all citizens. The Supreme Court reviewed his conviction for violating the curfew order and unanimously affirmed. . . .

Finally, in recent years a number of scholars of color have been examining issues at the intersection of feminism, sexual orientation, and critical race theory. Critical race feminism addresses issues of intersectionality, like those described in chapter 4. It also examines relations between men and women of color; sterilization of black, Latina, and Indian women; and the impact of changes in welfare, family policies, and child-support laws. It also analyzes the way the “reasonable man” standard that operates in many areas of the law incorporates a white male bias, making it difficult for a woman or a nonwhite person to receive justice in American courts.

LGBT (“queer-crit”) theorists examine the interplay between sexual norms and race. Why are Latino males sometimes depicted as ardent lovers, or Asian men as sexless or effeminate? Are sex and sexual orientation part of the construction of minority racial status? And what about the civil rights movement or Chicano liberation—are they historically homophobic? Accidentally or inherently so? Are gays and lesbians marginalized by the need of these groups to appear exemplary, all-American?

As Thomas Kuhn has shown, paradigms resist change. It should come as no surprise, then, that critical race theory, which seeks to change the reigning paradigm of civil rights thought, has sparked stubborn resistance. During the movement’s early years, the media treated critical race theory relatively gently. As it matured, however, critics felt freer to speak out. Some of the areas that drew critical attention are storytelling; the critique of merit, truth, and objectivity; and the matter of voice. Many of these early critiques are cited in the list of readings at the end of this chapter. Here we take up only a few.

Among the initial critiques, one by Randall Kennedy and another by Daniel Farber and Suzanna Sherry are notable. Kennedy took issue with the idea that minority scholars speak in a unique “voice” about racial issues. He also took the movement to task for accusing mainstream scholars of ignoring the contributions of writers of color, an accusation that found its most forceful expression in Richard Delgado’s “Imperial Scholar” article.

Kennedy reasoned that legal scholarship is like a marketplace. Good articles and books attract “buyers”—recognition, citation, reprintings. Thus, pointing out that certain texts have fallen into…

It is first necessary to establish that those articles were of high quality and deserved recognition. Kennedy thus charged the crits with failing to examine their premises and painting themselves as victims when they had not shown…

For their part, Farber and Sherry accused critical race theorists of hiding behind personal stories and narratives to advance their points of view, as well as lacking respect for traditional notions of truth and merit. Citing the example of Jews and Asians—two minority groups that have achieved high levels of success by…

The crits’ responses were not long in coming. In a series of articles, including a special colloquy in the Harvard Law Review, critical race theorists and their defenders argued that Randall Kennedy himself was guilty of misstatement and an unsympathetic reading of CRT texts. Because Kennedy approached the new movement through…

As for Farber and Sherry, the crits replied that if Asians and Jews succeeded despite an unfair system, this is all to their credit. But why should pointing out unfairness in universal merit standards, like the Scholastic Aptitude Test (SAT)…

As the crits saw it, Farber and Sherry confused criticism of a standard with criticism of individuals who performed well under that standard. Judge Richard Posner and the New Republic writer Jeffrey Rosen…

Recently, the right wing has mounted a furious attack on civil rights and critical race theory, with conservative bloggers, talk-radio hosts, and…

What is its practical worth? Why is it not down in the trenches, helping activists deal with problems of domestic violence, poor schools, and police brutality?

Why is it so hard on liberals or so disdainful of existing civil rights statutes and remedies? What is the purpose of critique unless one has something better to replace it with?

Should whites be welcome in the movement and at its workshops and conferences?

A jury found that defendants had engaged in employment discrimination, in part by permitting plaintiffs to be the target of racial epithets repeatedly spoken by a fellow employee. In addition to awarding damages, the trial court issued an injunction prohibiting the offending employee from using such epithets in the future. Defendants argue that such an injunction constitutes a prior restraint that violates their constitutional right to freedom of speech. For the reasons that follow, we hold that a remedial injunction prohibiting the continued use of racial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the continuation of a hostile or abusive work environment and therefore will constitute employment discrimination.

Other questions go to the intellectual heart of critical race theory. A persistent internal critique accuses the movement of straying from its materialist roots and dwelling overly on matters of concern to middle-class minorities—microaggressions, racial insults, unconscious discrimination, and affirmative action in higher education. If racial oppression has material and cultural roots, attacking only its ideational or linguistic expression is apt to do little for the underlying structures of inequality, much less the plight of the deeply poor.

Another concern that some crits raise is that the movement has become excessively preoccupied with issues of identity, as opposed to hard-nosed social analysis. Armchair issues such as the social construction of race, the role of multiracial people, “passing,” and endless refinements of the antiessentialist thesis may pose intriguing intellectual puzzles, but they lie far from the central issues of our age.

It seems difficult to imagine W. E. B. Du Bois, if he were alive today, writing a Ph.D. dissertation on passing or on whether a professor should be able to earn tenure on the basis of an article written entirely in the narrative voice. By the same token, it may be that lavish attention to the nuances of intersectional identity and the differences in perspective...

A furious right-wing attack on all people of color and the poor has, perhaps, rendered these differences less relevant than they were in former times. In general, the internal critiques go only to the movement’s emphasis and allocation of resources and attention. They do not threaten its solidarity, vitality, or ability to generate vital insights into America’s racial predicament...

...and hypercapitalism is increasingly showing itself as a flawed system, what follows for a theory of civil rights?

By the same token, American crits and their supporters may do well to follow carefully the alterations and advances that their counterparts in Europe, Canada, Australia, and Latin America are making. For example, British scholars in the field of education are developing intriguing analyses of class and maintaining lively exchanges with Marxist scholars, something that has been missing in the American scene, at least to date.

Critical race theory is taught at many law schools and has spread to other disciplines and countries. Some judges incorporate its ideas into opinions, often without labeling them as such. Lawyers use critical race theory techniques to advocate on behalf of clients and to expose bias within the system. In this chapter, we discuss some of these developments and the impact that CRT seems to be having on national discourse.

The decade of the nineties saw the beginning of a vigorous offensive from the political Right. Abetted by heavy funding from conservative foundations and position papers from right-wing think tanks, conservatives advanced a series of policy initiatives, including campaigns against bilingual education, affirmative action, employment and educational set-asides, and immigration. They also lobbied energetically against hate-speech regulation, welfare, and governmental measures designed to increase minorities’ political representation in Congress.

Some of the backers of these conservative initiatives were former liberals disenchanted with the country’s departure from color-blind neutrality. Others were nativists concerned about immigration or national security hawks worried about the threat of terrorism.

Postracialism and neoliberal politics that sought to split the difference (“triangulate”) between conservative and liberal policies did little to relieve black misery. Politicians and TV ideologues inveighed against the evils of undocumented immigration, heightening suspicion of Latinos, even ones whose families had been here for generations. After 9/11, Muslims fared even worse, including a rain of insults, surveillance, and even physical attacks on Middle Eastern–looking persons and mosques.

Is racism a means by which whites secure material advantages, as Derrick Bell proposed? Or is a “culture of poverty,” including broken families, crime, intermittent employment, and a high educational dropout rate, what causes minorities to lag behind?

Critical race theory has yet to develop a comprehensive theory of class. A few scholars address issues such as housing segregation in terms of both race and class, showing that black poverty is different from almost any other kind. Real estate steering, redlining, and denial of loans and mortgages, especially after the end of World War II, prevented blacks from owning homes, particularly in desirable neighborhoods. These practices also excluded blacks from sharing in the appreciation in real estate property values that some eras have witnessed.

Civil rights activists reply that the marketplace is far from neutral and that a corporation that takes advantage of a community’s financial vulnerability is engaging in predatory behavior, if not outright racism. They note that global warming is producing flooding in impoverished native villages in Alaska and small islands in the far Pacific. A dynamic example of critical race theory in action, the environmental justice movement aims at forging a coalition between the hitherto white-dominated conservation movement and minority communities. If it succeeds, it will have created a truly powerful force for change.

Formerly, the United States relied on redistributive measures such as a progressive income tax, public education, and a welfare safety net to prevent people at the bottom from slipping into permanent poverty.

Today, those programs command much less support than they did formerly. Some writers believe that the reason is that the public sees the recipients of welfare as having black and brown faces—even though more whites receive welfare than do people of color. In short, society tolerates poverty and blighted prospects for outsider groups.

Many critical race scholars recognize that poverty and race intersect in complex ways, so that the predicament of very poor minority families differs in degree from that of their white counterparts. White poverty—except, perhaps, for the rural kind—usually lasts only for a generation or two, even for white immigrant families.

Not so for black or brown poverty—it is apt to last forever. By the same token, middle-class or professional status for blacks, browns, or American Indians is less secure than for others. Their children can fall from grace with breathtaking speed; sometimes all it takes is one arrest or a few very low grades in school. But a general theory of race and economics remains elusive, at least for now.

...scholars and commentators who wish that society would stop thinking in terms of race but instead focus on efficiency, class, merit, and other means of ordering society.

Another set of contemporary issues has to do with addressing racism in the criminal justice system. On any given day, over 60 percent of the black men in the District of Columbia are enmeshed in that system—in jail or prison, on probation or parole, or wanted on a warrant. In East Los Angeles, 50 percent of young Mexican American men suffer the same fate. Black men who murder whites are executed at a rate nearly ten times that of whites who murder blacks. And as most readers of this book will know, the number of young black men in prison or jail is larger than the number attending college.

Many progressive people seek to understand the meaning of these figures and search for ways to combat the conditions that create them. Critical race theory’s contribution has taken a number of forms. Building on the work of radical criminologists, one race crit shows that the disproportionate criminalization of African Americans is a product, in large part, of the way we define crime. Many...

...lethal acts, such as marketing defective automobiles, alcohol, or pharmaceuticals or waging undeclared wars, are not considered crimes at all.

...things that young black and Latino men are prone to do, such as congregating on street corners, cruising in low-rider cars, or scrawling graffiti in public places, are energetically policed, sometimes under new ordinances that penalize belonging to a gang or associating with a known gang member. Crack-cocaine offenses still receive harsher penalties than those for powder cocaine. Figures show that white-collar crime, including embezzlement, consumer fraud, bribery, insider trading, and price fixing, causes more deaths and property loss, even on a per capita basis, than does all street crime combined.

...in an urban war zone. The four-square-block neighborhood, claimed as the turf of a gang variously known as Varrio Sureño Town, Varrio Sureño Treces (VST), or Varrio Sureño Locos (VSL) is an occupied territory. Gang members . . . congregate on lawns, on sidewalks, and in front of apartment complexes at all hours of the day and night. They display a casual contempt for notions of law, order, and decency—openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents’ cars. The people who live in Rocksprings are subjected to loud talk, loud music, vulgarity, profanity, brutality, fistfights and the sound of gunfire echoing in the streets. . . . Area...

Other critical race scholars urge jury nullification to combat the disproportionate incarceration of young black men. In this practice, the jury, which in most large cities will contain people of color, uses its judgment, sometimes ignoring instructions from the judge, on whether to convict a defendant who has committed a nonviolent offense, such as shoplifting or possession of a small amount of drugs. If the jury believes that the police system is racist or that the young man is of more use to the community free than behind bars, it will vote to acquit.

Still others examine the recent wave of prison building, including the outsourcing of incarceration to private entrepreneurs. They analyze who profits from this social trend. They also question why sentences in the United States are so long—among the longest in the world—and punitive in orientation rather than rehabilitative. The Prison-to-College Pipeline, initiated by the John Jay College of Criminal Justice, seeks to help inmates acquire skills that will enable them to make a successful reentry to postprison life.

States are beginning to heed these suggestions, in part out of interest convergence. In many states, the prisons are so crammed full that judges have ordered early release for some prisoners.

One scholar, Paul Butler, proposes that the values of hip-hop music and culture could serve as a basis for reconstructing the criminal justice system so that it is more humane and responsive to the concerns of the black community. That program of reconstruction needs to start soon. Police shootings and killings of unarmed black men have risen so…

“Black Lives…

Imprisonment for a felony often leads to disenfranchisement under state laws that deprive felons of the right to vote, even after serving their time. We take up the…

Additional issues have to do with speech and language. One of the first critical race theory proposals had to do with hate speech—the rain of insults, epithets, and name-calling…

Later articles and books built on this idea. One writer suggested criminalization as an answer; others urged that colleges and universities adopt student conduct rules designed to deter hate speech on campus. Still others connected hate speech to the social-construction-of-race hypothesis, pointing out that concerted racial vilification contributes to social images and…

...occasional plaintiffs have gained relief through the tort avenue, U.S. courts have treated campus hate-speech codes harshly, striking down at least four as violations of the First Amendment. Elsewhere, however, the Supreme Court of Canada upheld that country’s criminal-hate-speech provision, citing U.S. critical race theorists’ work, while many…

...theorists have been tackling some of the most common policy objections to hate-speech regulation, including that more speech is the best remedy for bad speech, that hate speech serves as a pressure valve relieving tension that might explode in an even more harmful manner…

In the meantime, American courts, seemingly influenced by critical race theory writing, have been upholding causes of action brought by minority victims of hate speech under…

While there, she encountered defendant Henry Metzger and Undersheriff Gerald Isham. Taylor said hello, and, in response, Metzger turned to Isham and stated: “There’s the jungle bunny.” Isham laughed. Plaintiff believed the remark to be a demeaning and derogatory racial slur, but she did not reply. She…

(“However irrational racist speech may be, it hits right at the emotional place where we…

As this book went to press, students on several dozen campuses were demonstrating for “safe spaces” and protection from racially hostile climates with daily insults, epithets, slurs,…

Hate speech on the Internet is posing a difficult problem. Blogs, tweets, cartoons (for example, of a disliked figure, such as the Prophet Muhammad), and other messages in this medium are inexpensive and easy to circulate, often anonymously. They enable those who dislike a person or race to find others of like mind, so that reinforcement builds, often unopposed. Society polarizes, with groups distrusting each other and believing the other side wrongheaded. Of course, counterspeech is easy and inexpensive on the…

Crits point out that language is an essential part of culture and identity, that having a French or British accent is deemed a mark of refinement, not a sign of deficiency, and that many foreign countries…

Although over half of American states have enacted English-only measures over the past two decades, the tide may be turning: the Arizona State Supreme Court recently declared unconstitutional that state’s harshly enforced…

However, the American tradition of tolerance “recognizes a critical difference between encouraging the use of English and repressing the use of other languages.” . . . If the wide-ranging language of the prohibitions contained in the Amendment were to be implemented as written,…

Arizona, of course, has been the site of considerable anti-immigrant ferment. With a large Spanish-speaking population and a long border with Mexico, the state recently enacted one of the country’s most overtly anti-immigrant laws. A 2010 statute empowered local police to request documentation of immigration status from persons with whom they come into contact and suspect may be undocumented. The state boasted, as well, a large and shifting contingent…

When Martin Luther King, Jr., issued his famous call for America to put aside its racist past and judge people not by the color of their skin but by the content of their character, he was echoing a demand with long roots in America’s history.

More than half a century earlier, in Plessy v. Ferguson, Justice John Harlan in a famous dissent protested the majority’s formalistic separate-but-equal decision. In Plessy, a black man had challenged a railroad’s rule prohibiting him from riding in a car reserved for whites. The railroad replied that it had set aside identical cars for black passengers, and, hence, its practice did not violate the Equal Protection...

Clause of the Fourteenth Amendment. The Supreme Court agreed with the railroad, establishing the principle of separate-but-equal that lasted until the Brown decision of 1954.

By the midseventies, affirmative action had become so unpopular in certain circles that Alan Bakke, who had been denied admission to the University of California at Davis Medical School, sued to declare race-conscious admissions in higher education unconstitutional. The Supreme Court’s splintered decision narrowed affirmative action by insisting that universities set aside no formal quota for minorities and that they compare every candidate with every other.

Some, such as the authors of The Bell Curve, have even argued that minorities may be biologically inferior to whites, so that disparate representation in selective schools and occupations should come as no surprise. Conservatives followed up their media campaign with a series of public referenda and initiatives aimed at declaring affirmative action illegal in particular states.

Civil rights organizations and progressive educators have sought to counter each of these efforts. Progressive scientists challenged the premises of The Bell Curve and similar neoeugenicist tracts, showing how they rest on discredited science. Critical race theorists have launched a thoroughgoing attack on the idea of conventional merit and standardized testing. Conservatives make points by charging that affirmative action gives jobs or places in academic programs to individuals who do not deserve them.

The public receives incompetent service, while better-qualified workers or students are shunted aside. This argument has resonated with certain liberals who equate fairness with color blindness and equal opportunity, rather than equal results (see chapter 2).

CRT’s critique of merit takes a number of forms, all designed to show that the notion is far from the neutral standard that its supporters imagine it to be. Several writers critique standardized testing, demonstrating that tests like the SAT or LSAT are coachable and reward people from high socioeconomic levels who can afford to pay for expensive test-prep courses...

Law-test scores predict little more than first-year grades—and those only modestly—and do not measure other important qualities such as empathy, achievement orientation, or communication skills. These writers point out that merit is highly situational.

A UCLA educator, Richard Sander, advanced a different critique. He argues that affirmative action in law schools merely places blacks in settings where they are in over their heads and fail at high rates. Without the lift of the unseen hand, minorities would attend schools further down the pecking order and be happier and more successful. Defenders counter that minority graduates of top schools who were admitted under affirmative action programs are, on the whole, well adjusted and successful in school and in later life. These schools have more resources, alumni networks, and smaller classes than ones further down the line, so that students of color who enroll there generally have good experiences and go on to contribute significantly to society.

Some current critics urge abolishing race-based affirmative action in favor of a version based on economic class. Such a program, they say, would help all kids who grew up poor, not just minorities. It would also be in harmony with the current vogue of color-blind remedies and approaches to race and racism. Most educators, however, believe that such a shift would devastate the chances of communities of color, because the number of poor whites greatly exceeds that of poor minorities.

One scholar proposed that any institution tempted to implement an affirmative action plan of this type also take into account advantage, or white privilege...

Most admissions officers, like most readers of this book, would undoubtedly favor the Chicano candidate despite his lower test scores, but why? Perhaps it is because we believe that Candidate B has not made the most of his opportunities, while Candidate A seems eager to do so. The author who developed this proposal drew on notions of white privilege to urge that admissions officers discount, or penalize, the scores of candidates like B, thus clearing a way for ones like A.

This measure would reduce the number of lackadaisical admits, clearing the way for even larger numbers of students of all races who have suffered real disadvantage and are eager to further their education.

A fifth issue that is very much at the forefront of critical race theory currently is international globalization. A globalizing economy removes manufacturing jobs from inner cities (often to other countries), creates technology and information industry jobs for which many minorities have little training, and concentrates capital in the pockets of an elite class, which seems little inclined to share it.

A globalizing economy often includes free-trade agreements, like NAFTA, which can decimate the economies of a weaker nation such as Mexico. At the same time, however, globalization offers opportunities for minorities to form coalitions with American blue-collar workers and unions that face similar issues—loss of jobs and a weakening wage structure.

...hypercapitalism is doomed to produce periodic crises and financial downturns during which minority fortunes, like…

History suggests that the scholars who call attention to these global developments may be right. Sweatshop and other exploitive conditions in overseas factories generally afflict poor, formerly colonized people of color, many of them women. Decontextualized free-market ideology would hold that American corporations…

Indian leaders such as Rigoberta Menchú and Subcomandante Marcos have led resistance movements in many Latin American countries, calling attention to the need for economic democracy and land reform. American corporations often oppose these changes. Many Latino-critical scholars and…

Indeed, their fates are linked with those of their overseas counterparts, since capitalists can always use the threat that industrial operations will relocate overseas to defeat unions, workplace regulations, welfare, and other programs of interest to U.S. minorities. Accordingly, some crits have begun reading or rereading the body of literature known as postcolonial…

Another prominent area for critical race analysis is immigration law. The United States tolerates and, in some cases, abets repressive murderous regimes abroad, often in small countries whose wealth it and other colonial powers have already plundered. People from these countries, unsurprisingly, often want to immigrate to the United States or to the prosperous industrialized countries of northern Europe. Although the United States dropped its racist…

Judicial review of immigration policy is sharply limited because of the plenary power doctrine, under which courts grant Congress virtually unlimited power to regulate immigration. Thus, treatment of countries or groups of would-be immigrants that would constitute clear-cut…

“magic…

It allows real terrorist groups in the Middle East to make propaganda capital at our expense. And it recalls unsavory chapters in U.S. history such as World War II–era internment of an entire domestic minority merely on the basis of the suspicion that a small subgroup might be harboring unpatriotic thoughts and plans.

One recent scholar notes the way presidential rhetoric in the War on Terror echoes old themes from the days of Indian frontier wars.

As mentioned, aggressive policing and incarceration create large numbers of civilians who are ex-cons and unable to vote. But in addition to “felon disenfranchisement,” communities of color suffer another kind simply by reason of their numerical minority status. In most elections, except for those of mayors of certain large cities, people of color will be in the minority. Even if they vote as a bloc, if whites vote that way as well, minorities are apt to be outvoted.

The Supreme Court has recently approved voting requirements that have a disproportionate effect on minority voting. Until the country’s demographic makeup shifts even more decisively, efforts must continue to counter minority underrepresentation. Cumulative voting, proposed by a leading critical race theorist, would circumvent some of these problems by allowing voters facing a slate of ten candidates, for example, to place all ten of their votes on one, so that if one of the candidates is, say, an African American whose record and positions are attractive to that community, that candidate should be able to win election. The same author has provided a number of suggestions aimed at ameliorating the predicament of the lone black or brown legislator who is constantly outvoted in the halls of power or is required to engage in exchanges of votes or favors to register an infrequent victory.

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