A Critical Look at Critical Race Theory

Some people are more critical than others. They question, probe, and frequently disagree. Likewise, some theories are more critical than others and none is more so than critical theory.

Critical Theory

Critical theory began in the 1920s as a social philosophy in Germany’s Frankfurt School. According to its name, this theory seeks to criticize or point out problems in society. In particular, it targets the problem of an abusive yet hidden power structure. Critical theorists believe they can unveil this hierarchy by categorizing everyone into one of two groups: oppressor (privileged) or oppressed.

But the goal is not simply to reveal the problem and preserve the status quo. The goal is to free the oppressed— “to liberate human beings from the circumstances that enslave them.” The reference to “circumstances” shows that critical theory is primarily concerned with the underlying system or societal structure and not merely enslaved individuals. Which group is on the top? Which group is on the bottom? How did society become arranged in this way? How can society be rearranged? In essence, then, the objective is to identify the abusive power structure and start a revolution. (The Frankfurt School was deeply influenced by Marxism.)

The methods and goals of critical theory eventually took root in various areas of social science, including communications, education, and ethnic studies. But the nature of critical theory does not allow it to be incorporated easily with other concepts. Attempting to incorporate critical theory is like asking the most critical person you know to come and take a look at something. You are going to get a lot of negative feedback. With critical theory, however, the criticism is always the same—an abuse of power. But that analogy does not go far enough because critical theory does not merely critique; it questions with the goal of dismantling established disciplines, which are all viewed as expressions of power. In fact, the postmodern twist is that conventional language itself is a power play.

In the same way, using critical theory on a specific society poses a threat to the foundations of that society. Turning critical theory on Western culture, for example, means finding fault with the Enlightenment, reason, the scientific method, objective truth, the Constitution, and individual rights.

Derrick Bell and Critical Race Theory 

So what is critical race theory (CRT)? It is critical theory with a particular focus on race. Thus, the power structure governing Western society is racist and built on racist foundations. The goal, then, is to deconstruct the system and free the oppressed race(s).

Rather than attempting to summarize all of critical race theory, I will highlight statements made by one of the founders or the “godfather” of CRT, Derrick Bell (1930-2011) along with criticisms offered by his colleague, Randall Kennedy. In his 1976 essay, Serving Two Masters, Bell, then a professor at Harvard Law School, turns a critical eye to the civil rights movement:

The tactics that worked for civil rights lawyers in the first decade of school desegregation . . . are no longer unfailingly effective. In recent years, the relief sought and obtained in these suits has helped to precipitate a rise in militant white opposition and has seriously eroded carefully cultivated judicial support. Opposition to any civil rights program can be expected, but the hoped-for improvement in schooling for black children that might have justified the sacrifice and risk has proven minimal at best. It has been virtually nonexistent for the great mass of urban black children locked in all-black schools, many of which are today as separate and unequal as they were before 1954. (515)

While Bell acknowledges that civil rights lawyers were initially effective, he immediately takes a pessimistic turn: “helped to precipitate a rise in militant white opposition . . . minimal at best . . . virtually nonexistent for the great mass of urban black children.” Ultimately, Bell is saying that the civil rights movement only produced a negative outcome for black Americans. Allow the previous sentence to sink in.

There are two ideas here that became key features of critical race theory. First, no matter what “progress” is made, racism in the United States is endemic and permanent. “Racism lies at the center, not the periphery; in the permanent, not in the fleeting.” As a result, progress within the current system is not possible. Second, contrary to popular opinion, the law is not neutral. In fact, it is part of the problem because it is used to uphold the racist system. Notice how Bell asserts that legal victories served to damage the movement for social justice: “helped to precipitate a rise in militant white opposition and has seriously eroded carefully cultivated judicial support.” Thus, the liberal legal system must be deconstructed and a new system must be built from the ground up.

Who is responsible for this racism? White people.

Progress in American race relations is largely a mirage, obscuring the fact that whites continue, consciously or unconsciously to do all in their power to ensure their dominion and maintain control.

In Who’s Afraid of Critical Race Theory? (1995), Bell articulates the value of being white:

In ways so embedded that they are rarely apparent, the set of assumptions, privileges, and benefits that accompany the status of being white have become a valuable asset that whites sought to protect and that those who passed sought to attain—by fraud if necessary. Whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law. Even though the law is neither uniform nor explicit in all instances, in protecting settled expectations based on white privileges, American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated. (906)

Bell believes that whiteness is a property, bestowing special status on its owners. (This has led to whiteness studies, now taught in all Ivy League schools and institutions around the world.) But note the difficulty of identifying the precise way this idea manifests in society: “In ways so embedded that they are rarely apparent . . . Even though the law is neither uniform not explicit in all instances, . . . American law has a property interest in whiteness that, although unacknowledged . . .” The references to obscurity fit with critical theory’s search for a hidden power structure. Also pay attention to these general and undefined words: “the set of assumptions, privileges, and benefits . . .” And again, we have blame placed on the legal system—American law is biased in favor of white Americans.

Bell continues by acknowledging criticisms of critical race theory. According to some, it lacks an analytical dimension because it relies on narrative and testimony. Another critique, he notes, comes from Randall Kennedy, also a black professor at Harvard Law School. Bell writes,

Perhaps critical race theory’s most politically damaging critic is Randall Kennedy, whose blackness lends his critique a super legitimacy inversely proportional to the illegitimacy bequeathed to critical race theory. Kennedy notes the “insurgent” quality of minority scholars whose “impatience” has succeeded in making the race question a burning issue as never before in legal academia. But, he says, the writings of critical race theory reveal “significant deficiencies”; they “fail to support persuasively their claims of racial exclusion or their claims that legal academic scholars of color produce a racially distinctive brand of scholarship.”

Kennedy adds to his critique by severely criticizing critical race theory’s race-conscious perspective. (908)

What is Kennedy’s criticism according to Bell? Critical race theory makes too much out of race (i.e., making it “a burning issue as never before in legal academia”), fails to support its claims, and does not produce “a racially distinctive brand of scholarship.” In sum, Kennedy believes CRT’s “race-conscious perspective” is a problem.

Kennedy’s Criticism

In his 2019 paper Derrick Bell and Me, Randall Kennedy reflects on his relationship with Derrick Bell. After narrating Bell’s life story and expressing admiration for the first black tenured professor in Harvard Law School’s history, Kennedy begins his analysis.

Bell left key terms – “racism,” “quasi citizenship,” “full equality” – undefined. He omitted metrics that could assist in confirming or rebutting his proposition. He offered no suitable baseline for assessing whether we are moving forward or backward or are locked in stasis. He offered no comparisons between the United States and other divided societies. He was drawn to grand generalities that crumple under skeptical probing. . . . Nor did he show interest in reckoning with analyses that challenged his thesis. . . Bell’s refusal to acknowledge certain obvious progressions discredited his analysis. (18-20)

These are damning academic accusations. Scholars and even students know the importance of defining “key terms” and supporting assertions with evidence, but Bell failed to do so. Additionally, Kennedy believes Bell failed to wrestle with counter evidence and had a single-minded focus on negative aspects in American society, blinding him to any signs of progress. Kennedy continues:

Keenly aware of the communal roots of individual flourishing, Bell might have offered a useful antidote to the excesses of meritocratic individualism. But he grossly over-corrected and in so doing subordinated the individual effort and talent much too much in his portrayal of achievement. (37-8)

According to Kennedy, Bell could have provided a helpful correction “to the excesses of meritocratic individualism.” These individualistic “excesses” in Western culture lead many to ignore the fact that individuals flourish within communities. Success is not all about individuals doing everything on their own. But the answer to this over-emphasis on the individual is not to go to the other extreme, as Bell did, causing the individual to be minimized or absorbed into the community.

Kennedy then expresses gratitude for the mutual support they were able to offer each other as both lost their wives due to cancer. Nevertheless, this was followed by “increasingly bitter disagreements” (47). Two reasons are noted for these disputes. First, Bell disagreed with the way Kennedy taught a course on race relations law because he accused Kennedy of dropping its “advocacy orientation.” This disagreement appears to stem from their different philosophies of education, and perhaps different mindsets—dogmatic vs. open-minded. Kennedy says:

Derrick was supremely confident that he knew what policy positions were the correct positions to adopt and thus the ones to urge his students to follow. He was so confident that he became impatient with others who lacked his certitude. He displayed this impatience by routinely portraying opponents as racists, naifs, or opportunists. I lack his certitude and believe that there is good reason to be open-minded about a variety of hotly-contested debates regarding race policy. I therefore believe that a well-constructed course on race relations law should provide room for exploration of alternative resolutions to the dilemmas we face. (49)

Unsurprisingly, these professors clashed over various issues, such as why selective schools had low numbers of black legal scholars. In line with his belief that pervasive racism is the cause of all disparities, Bell attributed this phenomenon to “unfair regimes of selection,” whereas Kennedy recognized a number of explanations.

In the following passage Kennedy elaborates on their different approaches to the course. (I have deleted many footnotes.)

A good course on race relations law in the United States would show that any group, like any person, is capable of perpetrating racial harms upon others. It would show how people of Chinese ancestry have attempted to deflect anti-Asian animus by scapegoating Indians and blacks; how some Indians enslaved African Americans even as they themselves were being cruelly ousted from their lands by Euro-Americans; how people of African ancestry have attempted to escape anti-Black animus by scapegoating Indians; how Jews have attempted to escape anti-Semitism by scapegoating Negroes; how some African Americans have racially-targeted Korean Americans; and how, of course, whites of various ethnicities have attempted to subordinate blacks and other people’s of color. Derrick was really interested only in the last of these topics. When one looks up the key term “racism” in the third edition of Race, Racism and American Law, one finds the following entry: “Racism – See White racism.” That remark stems from a theory that racially oppressed peoples cannot be “racist” because “racism” can only be manifested by groups with power. According to this theory, “racism” equals prejudice plus power. According to proponents of this theory, blacks can be “prejudiced”, but blacks cannot be “racist” because they lack the power to effectuate the prejudices they may harbor. Material that should be part of a good course on race relations law would enable a student to see the speciousness of this theory. In an appreciable number of locales and institutions, blacks do occupy positions of authority from which they could, if they so choose, use their power to effectuate prejudices. Scores of cities, police departments, military units, prisons, personnel offices, and social service agencies are directed by blacks who, like their white counterparts, make numerous low-visibility, discretionary choices that are routinely granted tremendous deference both within and without the bureaucracies in which they function. For eight years the President of the United States was black! (50-52)

This is a powerful statement, affirming the universal nature of racism. Although Kennedy believed in taking a global scope, Bell was only interested in white racism against black Americans. This is due to Bell’s understanding of racism: “racially oppressed peoples cannot be ‘racist’ because ‘racism’ can only be manifested by groups with power. . . ‘racism’ equals prejudice plus power.”

Another cause for their disagreements was Kennedy’s contradiction of two key theses of critical race theory: (1) “CRT scholars had failed to support persuasively their allegation of racial discrimination” and (2) they failed to support “their claim that legal academic scholars of color produce a racially distinctive brand of valuable scholarship.” Kennedy explains:

Their exclusion thesis contended that in legal academia the scholarship of professors of color was wrongfully ignored or undervalued. Their racial distinctiveness thesis maintained (1) that minority scholars have experienced racial oppression; (2) that that experience inclines them to view the world with a different perspective than white colleagues; and (3) that this different perspective displays itself in valuable ways in their scholarship. I argued that the CRT scholars had failed to support persuasively their allegation of racial discrimination or their claim that legal academic scholars of color produce a racially distinctive brand of valuable scholarship. (48)

This reiterates the point already made: Bell made substantial claims but failed to support them.

Bell’s Response

Although Derrick Bell and Me was written after Bell died, we have seen that Bell was aware of several of Kennedy’s criticisms. How did Bell respond? Let’s return to his essay, Who’s Afraid of Critical Race Theory?“ (The following points are my enumeration.)

First, Bell says that Kennedy’s arguments will predictably get the attention of those who rarely listen to scholars of color. Specifically, this audience will take notes then use those notes as fuel “for the legitimacy debate that has always attended renegade movements” (908). Second, “critics serve as reminders that we are being heard, if not always appreciated” (908). Third, Bell admits that his method is nontraditional, but this does not invalidate it. He points to the spirituals sung by slaves, explaining that although the music was not in classical form and thus judged inferior or non-artistic, slaves were producing something deep, meaningful, and creative. Both critical race theory writing and spirituals use unusual forms and have a similar essence: “to communicate understanding and reassurance to needy souls trapped in a hostile world” (910). Critics, however,

seek meaning by dissecting portions of this writing—the autobiographical quality of some work, and the allegorical, story-telling characteristic in others. But all such criticisms miss the point. Critical race theory cannot be understood by claiming that it is intended to make critical race studies writing more accessible and more effective in conveying arguments of discrimination and disadvantage to the majority. (910)

So if the majority does not understand its meaning or form, that is okay because it was not written for them. It was written by the oppressed for the oppressed. Further, if critical race theory’s reliance on human experience looks “seriously inadequate” compared to other forms of legal scholarship that is because it is being judged by those who are “steeped in theory and deathly afraid of experience” (910). Fourth, those reviewing the critiques should consider the source. And fifth,

As to a response, a sad smile of sympathy may suffice. For those who press harder for explanations, both Beethoven and Louie Armstrong are available for quotation. When questioned about the meaning of his late quartets, Beethoven dismissed the critics with a prediction: “it was not written for you, but for a later age.” And when asked for the meaning of jazz, Armstrong warned, “Man, if you don’t know, don’t mess with it.” (910)

Analyzing Bell’s Response

What can we say about Bell’s rejoinder? The first response may be accurate but does not directly address the accusations. The second response can apply to any criticism leveled anywhere so it is also not particularly helpful. The third response is thought-provoking. Bell is saying that critical race theorists do not trust the structure as it exists so they are not going to play by the same rules. That includes providing evidence in the traditional sense for their assertions. They are creating a new type of legal scholarship, analogous to spirituals. But in so doing, he admits that it may not be understood by outsiders. Thus, this leads to a problem: How can this new type of legal expression be effectively communicated to outsiders? No answer is given. The fourth response can also be applied to any criticism anywhere, but it does seem like a specific attack on Kennedy and those who are “steeped in theory and deathly afraid of experience.” That phrase is certainly an exaggeration and an ad hominem attack. Just because a person criticizes critical race theory does not mean they are “deathly afraid of experience.” The final response is a reiteration of an idea already mentioned: outsiders may not understand critical race theory and if they need an explanation none will be given. This is a disturbing statement because it closes the door to dialogue and the hope of mutual understanding.

What is Bell really saying? Here’s my paraphrase: “You are critical of what we are doing because you don’t understand it. But we don’t expect you to understand it. And we are not going to explain it to you.” It is striking, though, that, of all people, Kennedy did not understand it and in fact openly criticized it. Shouldn’t this theory have made sense to a black scholar in the same department at the same university?

How did things end between Bell and Kennedy? Kennedy says they spoke twice before Bell died. In one conversation, Bell asked Kennedy to teach his course at NYU Law School and Kennedy agreed.