Critical race theory (CRT)—coined by legal scholars Kimberlé Crenshaw, Neil Gotanda, and Stephanie Phillips—is a framework of legal analysis that examines the intersection of race and the law. It does so in order to reveal and challenge practices of subordination facilitated and permitted by legal discourse and institutions. Though the approach emerged in the 1980s in the legal academy, it has since spread to other academic fields.
On March 25, Fordham Law’s Center on Race, Law and Justice hosted a discussion titled “Who’s Afraid of Race Theory?” with a panel of scholars explaining what CRT is, the controversy surrounding it, and the role CRT can play in combating inequality.
Archibald R. Murray Professor of Law Tanya K. Hernández—who moderated the lively discussion and later presented at the University of Paris Nanterre’s 2021 conference “Sous le feu de la critique” on April 1—said the current moment’s backlash against CRT inspired the Fordham Law event.
“It is often blamed for fomenting what critics call ‘cancel culture,'” Hernández said in reference to a recent New York Times op-ed entitled “The Campaign to Cancel Wokeness.” “And so, around America and even overseas, people who don’t like ‘cancel culture’ are on an ironic quest to cancel the promotion of critical race theory in public forums.”
Before leaving office this past January, former President Donald Trump ordered federal agencies to “begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’” which he described as “un-American propaganda.” That directive has since been overturned by President Joe Biden, but state politicians have introduced bills banning schools from teaching CRT—”with the perverse inversion of casting anti-racist activists as the racists whose own freedom of speech should be obliterated,” Hernández said.
“Who’s Afraid of Race Theory?” was presented in conjunction with the Leitner Center for International Law and Justice, Fordham Law School’s Asian Pacific American Law Students Association, Black Law Students Association, Latin American Law Students Association, and OUTLaws.
CRT’s Influences on the Panelists
U.C. Berkeley Law School Professor Khiara M. Bridges said had Columbia Law School not offered a CRT course, she would not have become a law professor. She explained she was doubting herself and her decision to attend law school until she enrolled in a CRT class.
“Professor Kendall Thomas taught me critical race theory, and all the lights came on for me. I realized that, not only do I love this class and Professor Thomas, but this is what I want to do for the rest of my life,” Bridges said. “I am confident that I would not have dreamed of legal academia if it wasn’t for critical race theory.”
“I think the legal academy and lawyers in the profession of law are improved by progressive thinkers, by radical thinkers, by disruptive thinkers,” Bridges continued. “We’re doing our students a disservice … if they’re not exposed to schools of thought.”
For Robert Chang, professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, CRT has been critical for him to understand his place and experiences in American society. He argued people are afraid of minorities, as well as afraid to better understand their histories, reasons for subordination, and strategies that can be used to bring about change.
“People in power are afraid of critical race theory,” Chang said, “because they think that critical race theory is going to lead to people understanding better their situation and saying, ‘This is not right.'”
Chang continued, “The ‘why?’ is because it’s going to possibly disrupt the comfortable power relations.”
Gerald Torres, professor of environmental justice and professor of law at Yale Law School, argued CRT is not radical but is disruptive.
“It is meant to be disruptive because it’s meant to do what any good scholarly intervention is supposed to do—which is to make you think about the things you think you know, and ask ‘What do you really know about them?” Torres said. “That’s what CRT does.”
CRT’s Past, Present, and Future
Adrien Wing, associate dean for international and comparative law programs and the Bessie Dutton Murray Professor at Iowa Law School, wrote the essay “Is There a Future for Critical Race Theory?” in 2019 through an international lens for the Journal of Legal Education. In her essay, she addressed the question of whether CRT might be a “dead, historic relic.”
“People were saying, ‘Oh, CRT it’s dead … all that is ancient history’ [in 2015],” Wing explained. “So, I felt then—and in talking with all of my colleagues, including Professor Chang and Professor Torres, who’ve been around since the so-called beginning of it—it was quite clear it was not dead.”
Wing also argued that CRT, which originally had its roots in law, has branched out into various academic disciplines and even outside of academia. She continued, saying CRT has different intersectionalities, such as LatCrit, AsianCrit, IndianCrit, DesiCrit, disabilityCrit, and critical race feminism, and global race theory.
Hernández noted that the Black Lives Matter movement has caused institutions to self-reflect, reinforce diversity and implicit bias training, and make public diversity, equity, and inclusion (DEI) statements. With that in mind, she posed the question to the panelists, “Are the DEI responses critical race theory responses or are they in opposition to critical race theory?”
Chang admitted seeing those DEI statements is a step in the right direction but also found them often to be “empty.”
“The words without action don’t do anything. The words without changing power relations don’t do anything,” he explained. “That’s the frustration—although they do present the opportunity to engage more critically and more meaningfully with those who actually make those statements.”
Chang used the recent State of Washington v. Blake case as an example, in which the state’s Supreme Court acknowledged the existence of structural racism—arguing its drug possession statute had been used in such a way to discriminate against young men of color, especially black men. With that example in mind, Chang said he and his colleagues try to push the courts to acknowledge existing racism in their systems and reverse the actions, through amicus briefs and direct litigation in courts.
Through the lens of the legal academy, India Thusi ’07, associate professor of law at Widener Law School, said deep self-reflection amongst individuals and institutions is greatly needed.
“People need to be honest about their own biases,” Thusi said before asking rhetorical questions.
“Are you passing on opportunities to speak about different issues to younger scholars, scholars of color when you’re not really the one with expertise in that? Are you creating spaces that support frank conversations about race? Are you learning how to have these conversations in your classes or in other spaces wherever you work, and then doing so?”