The African-American socioeconomic position in American society has actually declined in the last two decades. Average annual family income for African-Americans dropped 9% from the 1970’s to the 1980’s […] Since 1969, the proportion of Black men between 25 and 55 earning less than $5000 a year rose from 8% to 20 […] African-American enrollment in universities and colleges is also on the decline.
Such material statistics highlighted that despite the supposed legal guarantees of equality, the material justice which was called for during the civil rights movement was yet to be realized. Indeed, this material reality was connected to the additional retrenchment of the civil rights rhetoric at a discursive level. Crenshaw (1988) analyses this retrenchment through focusing on the rise of ‘new right’ neoliberalism and neoconservatism, which accelerated under Reagan’s administration in the 1980s. This neoconservative culture was constellated around the belief that ‘the goal of the civil rights movement – the extension of formal equality to all Americans regardless of color – has already been achieved’ (Crenshaw 1988: 1334). This new right vision – typified by thinkers such as Thomas Sowell – was held together by a contradictory view that the very existence of civil rights legislation was evidence that the US provided equal opportunities to everyone, and therefore that there was in fact no need for the continuing presence of such equal opportunities legislation. By a similar circular logic, such new right intellectuals and politicians argued that civil rights activists were demanding equal outcomes, rather than equal opportunities – and the duty of the state was only to offer the latter. Indeed, this neoconservatism was steeped in cultural racism in the way it argued that because Black Americans had equal opportunities but not equal outcomes, these unequal outcomes were the fault of Black people themselves for not taking advantage of their equal opportunities.
Of course, there are many critiques of this period of neoconservatism, especially from theorists of racial capitalism such as Angela Davis (1983). What sectioned off CRT as its own paradigm, however, was its empirical focus on how the US legal system was continuing to reproduce racial inequality in the supposed era of ‘civil rights’. It was in this context that CRT was deliberately focusing on how the US legal system was itself a racializing force – that is, how the US legal framework made race and sustained racial domination. As the advocates of this position put it themselves:3
We began to think of our project as uncovering how law was a constitutive element of race itself: in other words, how law constructed race […] Laws produced racial power not simply through narrowing the scope of, say, anti-discrimination remedies, nor through racially biased decision-making, but instead, through myriad legal rules […] that continued to reproduce the structures and practices of racial domination.
This is not to say that CRT scholars thought that the use of the legal system to sustain racial domination was by any means a ‘new’ development in racial politics. In contrast, such legal scholars were aware that this was primarily an issue of continuity, whereby the US legal system, since its birth, has been founded on the rationalization of white domination over racialized others. This is well spelled out in Cheryl Harris’ (1993) ‘Whiteness as property’, where she shows how the US legal system constituted a network of racializing and racist forces: from the US Constitution defining the enslaved as ‘three-fifths of all other persons’, the one-drop laws dictating that the children of enslaved Black women – even when the father was white – were themselves Black and therefore owned by the slaver, the legal use of the enslaved ‘as a stand-in for actual currency’ (Harris 1993: 1720) in legal disputes, and the Homestead Acts which reallocated indigenous land to white Americans and failed to recognize indigenous property ownership, it is clear that the US legal system has been used to define and maintain the racial status quo.
Rather than saying that the entanglement of racism and law was a new development, therefore, CRT scholars were interested in how this entanglement – or articulation – was playing out in the current moment of the post-civil rights era. Of particular interest to these thinkers was a desire to show how ‘civil rights reformism has helped to legitimize the very social practices – in employment offices and admissions departments – that were originally targeted for reform’ (Crenshaw et al. 1995: xv).
This critique of civil rights legislation actually facilitating further racial inequality is demonstrated in Derrick Bell’s scholarship.4 Take, for instance, Bell’s criticism of legal reform post-Brown v. Board of Education – the 1954 case which made it unconstitutional to segregate public schools by race. As Bell points out, the legacy of this case meant that US courts were much more concerned with questions of statistical, demographic desegregation (for instance, having schools that roughly represent the racial demographics of their district) rather than questions of actual educational quality which was accessible to Black students. This is important because in a context of civil rights legislation, many whites feared the integration of Black folks into their public institutions, and consequently took flight from their urban areas to create white enclaves.5 This meant that while educational segregation was de jure unconstitutional, it was de facto still very much the norm. Indeed, the US legal system was shaped so that such de facto segregation could not be understood as a form of discrimination; schools could only be accused of segregation if plaintiffs could prove that such segregation was itself the result of ‘discriminatory actions intentionally and invidiously conducted or organised by school officials’ (Bell 1995b: 24) – a criterion that was both equivocal and deliberately near-impossible to attain.
Part of the issue of this period, from the CRT position, therefore, was that the legal system only understood ‘racial discrimination’ through a ‘perpetrator perspective’ that does more harm than it does good.6 Through this perspective, ‘the law views racial discrimination not as a social phenomenon but merely as the misguided conduct of particular actors’7 – in other words, racism becomes an issue of bad actors rather than an issue of social (including legal) structure(s). This legal perspective on racism meant that there were many contradictory instances where anti-discrimination laws were invoked in courts to legitimize racial discrimination. An early case where this figured was Milliken v. Bradley (1974), where the Supreme Court refused a remedy for racial segregation in Detroit (where the whites had fled to the suburbs, leaving Black people concentrated in urban areas, de facto segregated both residentially and educationally in poorer social and educational spaces).8 Despite the district court proposing a scheme that would integrate across the urban and suburban schools, in order to battle educational segregation, the Supreme Court directly invoked the anti-discrimination law that ‘an inter-district remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race’, but that they found no evidence of either of these violations.9
It was in this context, therefore, that CRT scholars argued that Black people were ‘worse off in terms of legal theory’ in the post-civil rights era ‘than they were under the former “separate but equal” doctrine’.10 Indeed, the veracity of this argument can be demonstrated through raising some questions: if civil rights legislation was supposed to realize racial equality, how could the very same laws be used by whites to claim anti-white discrimination in university admissions?11 If the legal system was supposed to bring material racial equality, how come the primary beneficiaries of the resulting affirmative action have been white women?12 These questions seem to point us towards the CRT position that, despite the pretence of being race-neutral, the US legal system is in fact deeply articulated in racialized processes.
From a movement to a theory?
Through its critiques of legal reform, CRT became recognized as a growing academic paradigm in the US – by critics and advocates alike. However, both critics and advocates of CRT failed to really spell out the ‘T’ in CRT – that is, they failed to really think about what made critical race theory theoretical. While critics saw this as a problem for CRT, advocates saw this absence of discussion as a deliberate strategy; upon reflection, Crenshaw