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Behind the absurd attacks on ‘Critical Race Theory’

Stephen Menendian, assistant director, Othering & Belonging Institute at UC Berkeley | July 14, 2021

In mid-April, I noticed something strange was happening. Across mainstream media, but especially conservative/ right-wing media, there was a spate of articles and op-eds attacking the notion of “equity.” The reason I found that strange is that “equity” is a mundane, ordinary concept, like “inclusion” or “diversity,” but more technical. “Equity” had already found broad purchase in the “DEI” space and racial justice advocacy for years, if not decades. It emerged into mainstream discourse, to the best of my knowledge, out of state-level school funding lawsuits to force states to provide additional funding for lower-income and disadvantaged school districts.

The reason for the reframing in terms of “equity” was twofold: first, many social justice reformers working in education finance, hoping to reduce educational disparities, recognized a fundamental limit to the utility of “equality” in that context. Perfectly equal treatment, such as rigidly equal per-pupil spending for education, set against a backdrop of massive wealth and tax base disparities between districts, would barely help to foster true equality of educational opportunity. Fighting for “equal funding” seemed silly when some districts were overfilled with students who had much greater needs.

“Equity” was a simple and accessible frame, in layperson terms, that could make the case for greater state-level investments in poorer school districts, even though the legal claim was more generally framed in terms of “adequacy” theory, that state constitutions required states to provide funding not on an “equal” basis, but on a basis sufficient to provide an “adequate” education. In the late 1980s and 1990s, this proved to be a winning strategy, producing a series of victories in state courts even after the Supreme Court slammed the door, in a notorious decision in the 1970s, to federal claims based on simply equalizing funding between school districts under the Constitution’s equal protection clause.

But the principles underlying this strategy were generalizable: Simply treating people exactly the same (formal equality) when people are situated much differently in society is ridiculous. For example, we provide special accommodations for people with disabilities or for religious observance or pregnant women for good reasons. There are times when “formal” equality of treatment undermines the goal, spirit and purpose of equal protection laws.

A society governed by common sense and a commitment to egalitarian values requires that, on occasion, differently situated people be treated differently. A progressive income tax (which pretty much all modern societies have) is also based on this idea: that people who earn far more should pay not just a relatively greater share at the same rate, but actually a higher rate. But unlike the income tax (which was adopted in 1913 by Constitutional Amendment), this idea of treating people differently out of fairness when they are situated differently is not a relatively recent innovation. In fact, this concept goes back to the fountainhead of Western civilization, to Aristotle, who drew a distinction between “arithmetic” and “geometric” equality. Roughly speaking, the distinction is the difference between “equality” and “equity.”

Which brings me back to the strange surge in op-eds and diatribes railing against “equity.” “Equity” was hardly new to policymaking, although the emphasis that the Biden administration put on it was somewhat novel. It struck me that that the new administration’s focus on equity could not possibly explain the surge in anti-equity opinion pieces.

As I am not conspiracy minded (I’ve read too many psychology studies for that), I assumed that conservative thinkers and writers had simply struck upon a theme or argument that they felt could tarnish the sheen of the new administration and stunt policies they opposed. While I still feel that way, the timing and striking similarities does create the appearance of being orchestrated.

But nearly as fast as the flurry occurred, it subsided. By May, a new boogeyman had been found, and a softer target: “Critical Race Theory” (CRT). This is where things get really strange, but where the motives of the critics become transparent.

First, a little background on CRT (as best I understand it). CRT is not really a “theory” in the same sense as the “theory of relativity,” a scientific theory that is amenable to traditional empirical testing and falsifiability. Rather, CRT is more a loose set of principles, ideas and viewpoints that have been developed by a diverse group of legal scholars, including Derrick Bell, Charles Lawrence, and other scholars, writing principally in the 1970s, 1980s, and 1990s.

These scholars developed a niche within a niche: the latter being the niche of “critical legal theory” or “critical legal studies.” Within this niche, legal scholars analyzed the ways in which core legal concepts – such as the “reasonable person” taught in Tort law or doctrines of causality taught in criminal justice law, and which were routinely employed in courts across the land, thwarted the law’s ability to achieve equal justice. These concepts were superficially “neutral” but masked systemic biases. This is why the niche was called “critical” legal theory; it critiqued prevailing jurisprudence.

CRT took this analysis a step further, unmasking the ways that mainstream legal paradigm’s sustained racial inequality, because it was overly focused on individual prejudice and bigotry rather than the operation of systems (like the criminal justice system) and interaction of institutions and policy (like municipal taxes and school funding). In this way, CRT scholarship has produced important insights that had been obscured by mainstream legal scholarship, and has been important to helping us develop better policy remedies and legal reforms to address racial inequality in the United States.

Which brings us to the new flurry of anti-CRT op-eds, angry parents, and statehouse bills aiming to ban or curb CRT. To begin with, these efforts are largely misplaced. The bills resemble, more or less, the content of one of Trump’s more noxious (and patently unconstitutional) Executive Orders, entitled entitled “Executive Order on Combating Race and Sex Stereotyping” (E.O. 13950, 85 FR 60683),” issued late last year, and appear to have little to do with CRT as such.

Similarly, the right-wing histrionics that CRT is being taught in primary and secondary schools strikes me as silly. As I just explained, the body of scholarship that is “CRT” is written for and aimed at graduate level audiences, such as those in law school or practicing lawyers, academics, and policymakers, not high school or even undergraduate students.

CRT scholarship presumes that readers are familiar with legal concepts that are taught over weeks in law school courses (and all accredited law schools require an undergraduate degree). Unless those frameworks can be clearly explicated to secondary school students or undergraduate students, teaching CRT first would be like teaching advanced calculus to students who haven’t taken algebra first. Or, more precisely, it would be like teaching the Theory of Relativity and/or Quantum Physics to students who are unfamiliar with Classical Mechanics (Newtonian physics). It is not that it would be “inappropriate” so much as it would be incomprehensible: a student couldn’t understand what CRT is trying to explain without being grounded in the legal theories that it is critiquing. If students don’t understand the prevailing legal frameworks, then CRT isn’t going to make much sense.

The details in the attacks on “CRT” reveal that most of the critics have very little idea (and don’t really care to understand) what they are even aiming at. Rather than attacking CRT, some of the key phrases in the proposed statehouse bills are rather ideas or claims made in much more recent and mainstream writing or advocacy, such as things Robin DiAngelo has suggested or Tema Okun has circulated. If Robin DiAngelo and Tema Okun are CRT scholars, then I’m an astrophysicist.

The critics of CRT have taken an obscure term describing a niche area of scholarship and are deliberately trying to redefine what it is and rebrand what it represents. As a now-deleted Twitter post by one of the more vocal CRT critics explained: “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.” In other words, they are literally redefining the word to mean something it does not. They are deliberately positioning CRT as a stand-in or symbol for a much larger and broader body of thought, most of which is only tangentially related to CRT scholarship.

Their efforts to redefine CRT won’t work in the academy, not because the academy is leftist, but because anyone who routinely checks sources as part of their job can pull a Derrick Bell journal article can quickly discern what CRT is and what it isn’t. But it may work in the broader public discourse, where symbology is more important than reality.

I regret having to say this, but racial justice advocates and progressives are not entirely blameless here. Anyone who has seriously studied the history of social movements or racial justice advocacy should be well schooled in the lessons of racial backlash. At the heart of every effort to foster greater equity and inclusion in any society is a challenge to traditional hierarchies. This creates a tremendous tension and anxiety in the social order, which is easily manipulated as both a source of opposition to further efforts to promote equity and a source of resentment that can be stoked and manipulated by reactionary politicians. This is why there is invariably a backlash to progress.

Critically, the backlash occurs even if there is broad support for the moral or ethical imperative of equality. This is because the mechanism of backlash is different than the effort to promote inclusion. People can be rallied to a moral cause, but the same people can be riled up by a demagogue. This is how you can get Obama-to-Trump voters. The backlash is made possible through the perceived loss of status, respect and esteem and fear of falling that is a natural and predicable byproduct of upending traditional hierarchies, but is triggered by crafty and opportunistic politicians like Donald Trump or George Wallace, who prey on fears and stoke anxieties.

One of the key challenges for all equity movements which enjoy even a modicum of success is to anticipate and mitigate this backlash. Unfortunately, and I will now take aim at my own side, racial justice advocates have not done a great job in the last few years of strategizing around this, let alone minimizing the ammunition for the other side. While all movements have extreme or more radical elements (and no one can or should police all elements of an advocacy movement), the more sober sectors of recent racial justice advocacy could have done a much better job at this. Many key ideas in critical treatises, for example, have been under-developed or ambiguously presented, and therefore been too easily straw manned. Other ideas have been only briefly sketched, but have subsequently become right-wing talking points.

One such idea that has been repeatedly attacked was a proposal Ibram X. Kendi sketched in brief and accompanied by an equally brief video for Politico for a “Department of Anti-racism (DOA)” which would be tasked with “preclearing all local, state and federal public policies to ensure they won’t yield racial inequity.” Kendi went onto say that this Department would also “investigate private racist policies when racial inequity surfaces, and monitor public officials for expressions of racist ideas.” Further, that it “would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and idea.” This proposal has received special opprobrium among conservative circles, as when blogger and pundit Andrew Sullivan described it as “totalitarian.” Many other pundits have latched onto this proposal as a ripe target for critique.

While I think Sullivan and his ilk have been exceptionally ungenerous and unfairly parsimonious in their reading of Kendi’s proposals and ideas, I do think that an idea as large and important as the one Kendi has floated could have been presented in a different way, elaborating on how the department would work in practice and by explaining how his idea is not such a radical departure in American law as has been caricatured. The Voting Rights Act of 1965, for example, had (until the Supreme Court gutted it) a pre-clearance function that required courts or administrators to review changes to voting procedures and practices in many states before they went into effect (Kendi mentions this in the video, but not the write-up). Similarly, environmental law requires an evaluation of potential effects in relation to sensitive waterways and species before local and state policies go into effect. It is not requiring too much to ask that policymakers and government officials assess the possible impacts of their decisions before proceeding. Given the history of race in our country, this additional burden on policymakers is well justified. Instead, Kendi’s cursory sketch and didactic, categorical writing style make it too easy for right-wing provocateurs to strawman him.

These attacks are frustrating, because they are generally baseless in fact, but nonetheless prove to be rhetorically and symbolically potent. The lesson to draw is that to have a better understanding of the rules of engagement, and the consequences for our collective hopes and aspirations, any successful effort in society to promote inclusion and advance equity is going to be attacked by reactionary elements of that society. There will always be a bogeyman to position and project fears and anxieties onto. Yesterday’s bogeyman was “equity,” today’s is CRT, and tomorrow it will be something different altogether. That can’t be stopped or prevented. It can only be mitigated by being smart, careful and strategic.