Explaining Critical Race Theory: What It Is and What It Is Not

By David Miguel Gray, Assistant Professor of Philosophy, Affiliate, Institute for Intelligent Systems, University of Memphis. First published on The Conversation

U.S. Rep. Jim Banks of Indiana sent a letter to fellow Republicans on June 24, 2021, stating: “As Republicans, we reject the racial essentialism that critical race theory teaches … that our institutions are racist and need to be destroyed from the ground up.”

Kimberlé Crenshaw, a law professor and central figure in the development of critical race theory, said in a recent interview that critical race theory “just says, let’s pay attention to what has happened in this country, and how what has happened in this country is continuing to create differential outcomes. … Critical Race Theory … is more patriotic than those who are opposed to it because … we believe in the promises of equality. And we know we can’t get there if we can’t confront and talk honestly about inequality.”

Rep. Banks’ account is demonstrably false and typical of many people publicly declaring their opposition to critical race theory. Crenshaw’s characterization, while true, does not detail its main features. So what is critical race theory and what brought it into existence?

The development of critical race theory by legal scholars such as Derrick Bell and Crenshaw was largely a response to the slow legal progress and setbacks faced by African Americans from the end of the Civil War, in 1865, through the end of the civil rights era, in 1968. To understand critical race theory, you need to first understand the history of African American rights in the U.S.

The History

After 304 years of enslavement, then-former slaves gained equal protection under the law with passage of the 14th Amendment in 1868. The 15th Amendment, in 1870, guaranteed voting rights for men regardless of race or “previous condition of servitude.”

Between 1866 and 1877 – the period historians call “Radical Reconstruction” – African Americans began businesses, became involved in local governance and law enforcement and were elected to Congress.

This early progress was subsequently diminished by state laws throughout the American South called “Black Codes,” which limited voting rights, property rights and compensation for work; made it illegal to be unemployed or not have documented proof of employment; and could subject prisoners to work without pay on behalf of the state. These legal rollbacks were worsened by the spread of “Jim Crow” laws throughout the country requiring segregation in almost all aspects of life.

Grassroots struggles for civil rights were constant in post-Civil War America. Some historians even refer to the period from the New Deal Era, which began in 1933, to the present as “The Long Civil Rights Movement.”

The period stretching from Brown v. Board of Education in 1954, which found school segregation to be unconstitutional, to the Fair Housing Act of 1968, which prohibited discrimination in housing, was especially productive.

The civil rights movement used practices such as civil disobedience, nonviolent protest, grassroots organizing and legal challenges to advance civil rights. The U.S.’s need to improve its image abroad during the Cold War importantly aided these advancements. The movement succeeded in banning explicit legal discrimination and segregation, promoted equal access to work and housing and extended federal protection of voting rights.

However, the movement that produced legal advances had no effect on the increasing racial wealth gap between Blacks and whites, while school and housing segregation persisted.

What critical race theory is

Critical race theory is a field of intellectual inquiry that demonstrates the legal codification of racism in America.

Through the study of law and U.S. history, it attempts to reveal how racial oppression shaped the legal fabric of the U.S. Critical race theory is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law.

There are a few beliefs commonly held by most critical race theorists.

First, race is not fundamentally or essentially a matter of biology, but rather a social construct. While physical features and geographic origin play a part in making up what we think of as race, societies will often make up the rest of what we think of as race. For instance, 19th- and early-20th-century scientists and politicians frequently described people of color as intellectually or morally inferior, and used those false descriptions to justify oppression and discrimination.

Second, these racial views have been codified into the nation’s foundational documents and legal system. For evidence of that, look no further than the “Three-Fifths Compromise” in the Constitution, whereby slaves, denied the right to vote, were nonetheless treated as part of the population for increasing congressional representation of slave-holding states.

Third, given the pervasiveness of racism in our legal system and institutions, racism is not aberrant, but a normal part of life.

Fourth, multiple elements, such as race and gender, can lead to kinds of compounded discrimination that lack the civil rights protections given to individual, protected categories. For example, Crenshaw has forcibly argued that there is a lack of legal protection for Black women as a category. The courts have treated Black women as Black, or women, but not both in discrimination cases – despite the fact that they may have experienced discrimination because they were both.

These beliefs are shared by scholars in a variety of fields who explore the role of racism in areas such as education, health care and history.

Finally, critical race theorists are interested not just in studying the law and systems of racism, but in changing them for the better.

What critical race theory is not

“Critical race theory” has become a catch-all phrase among legislators attempting to ban a wide array of teaching practices concerning race. State legislators in Arizona, Arkansas, Idaho, Missouri, North Carolina, Oklahoma, South Carolina, Texas and West Virginia have introduced legislation banning what they believe to be critical race theory from schools.

But what is being banned in education, and what many media outlets and legislators are calling “critical race theory,” is far from it. Here are sections from identical legislation in Oklahoma and Tennessee that propose to ban the teaching of these concepts. As a philosopher of race and racism, I can safely say that critical race theory does not assert the following:

(1) One race or sex is inherently superior to another race or sex;

(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;

(4) An individual’s moral character is determined by the individual’s race or sex;

(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.

What most of these bills go on to do is limit the presentation of educational materials that suggest that Americans do not live in a meritocracy, that foundational elements of U.S. laws are racist, and that racism is a perpetual struggle from which America has not escaped.

Americans are used to viewing their history through a triumphalist lens, where we overcome hardships, defeat our British oppressors and create a country where all are free with equal access to opportunities.

Obviously, not all of that is true.

Critical race theory provides techniques to analyze U.S. history and legal institutions by acknowledging that racial problems do not go away when we leave them unaddressed.

Louisiana Votes to Keep Slavery | Exploiting Black Labor after the Abolition of Slavery

Update: On Election Day, Tuesday November 8, 2022, Louisiana voters chose to keep language in the state constitution that permits slavery and involuntary servitude as punishment for crime.

Four other states Alabama, Oregon, Tennessee and Vermont voted to adjust the language in their state constitutions that could curtail the use of prison labor.

The 13th amendment to the U.S. Constitution, ratified by Congress on Dec. 6, 1865, states:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

_____ Previously _____

AOC shares our earlier article dedicated to the rise of prison labor after slaves were freed across America.

Published December 5, 2020

By Kathy Roberts Forde, Chair, Associate Professor, Journalism Department, University of Massachusetts Amherst; Bryan Bowman, Undergraduate journalism major, University of Massachusetts Amherst. First published on The Conversation.

The U.S. criminal justice system is driven by racial disparity.

The Obama administration pursued a plan to reform it. An entire news organization, The Marshall Project, was launched in late 2014 to cover it. Organizations like Black Lives Matter and The Sentencing Project are dedicated to unmaking a system that unjustly targets people of color.

But how did we get this system in the first place? Our ongoing historical research project investigates the relationship between the press and convict labor. While that story is still unfolding, we have learned what few Americans, especially white Americans, know: the dark history that produced our current criminal justice system.

If anything is to change – if we are ever to “end this racial nightmare, and achieve our country,” as James Baldwin put it – we must confront this system and the blighted history that created it.

During Reconstruction, the 12 years following the end of the Civil War and the abolition of slavery, former slaves made meaningful political, social and economic gains. Black men voted and even held public office across the South. Biracial experiments in governance flowered. Black literacy surged, surpassing those of whites in some cities. Black schools, churches and social institutions thrived.

As the prominent historian Eric Foner writes in his masterwork on Reconstruction, “Black participation in Southern public life after 1867 was the most radical development of the Reconstruction years, a massive experiment in interracial democracy without precedent in the history of this or any other country that abolished slavery in the nineteenth century.”

But this moment was short-lived.

As W.E.B. Du Bois wrote, the “slave went free; stood a brief moment in the sun; then moved back again toward slavery.”

History is made by human actors and the choices they make.

According to Douglas Blackmon, author of “Slavery by Another Name,” the choices made by Southern white supremacists after abolition, and the rest of the country’s accommodation, “explain more about the current state of American life, black and white, than the antebellum slavery that preceded.”

Designed to reverse black advances, Redemption was an organized effort by white merchants, planters, businessmen and politicians that followed Reconstruction. “Redeemers” employed vicious racial violence and state legislation as tools to prevent black citizenship and equality promised under the 14th and 15th amendments.

By the early 1900s, nearly every southern state had barred black citizens not only from voting but also from serving in public office, on juries and in the administration of the justice system.

The South’s new racial caste system was not merely political and social. It was thoroughly economic. Slavery had made the South’s agriculture-based economy the most powerful force in the global cotton market, but the Civil War devastated this economy.

How to build a new one?

Ironically, white leaders found a solution in the 13th Amendment, which ended slavery in the United States in 1865. By exploiting the provision allowing “slavery” and “involuntary servitude” to continue as “a punishment for crime,” they took advantage of a penal system predating the Civil War and used even during Reconstruction.

A new form of control

With the help of profiteering industrialists they found yet a new way to build wealth on the bound labor of black Americans: the convict lease system.

Here’s how it worked. Black men – and sometimes women and children – were arrested and convicted for crimes enumerated in the Black Codes, state laws criminalizing petty offenses and aimed at keeping freed people tied to their former owners’ plantations and farms. The most sinister crime was vagrancy – the “crime” of being unemployed – which brought a large fine that few blacks could afford to pay.

Black convicts were leased to private companies, typically industries profiteering from the region’s untapped natural resources. As many as 200,000 black Americans were forced into back-breaking labor in coal mines, turpentine factories and lumber camps. They lived in squalid conditions, chained, starved, beaten, flogged and sexually violated. They died by the thousands from injury, disease and torture.

For both the state and private corporations, the opportunities for profit were enormous. For the state, convict lease generated revenue and provided a powerful tool to subjugate African-Americans and intimidate them into behaving in accordance with the new social order. It also greatly reduced state expenses in housing and caring for convicts. For the corporations, convict lease provided droves of cheap, disposable laborers who could be worked to the extremes of human cruelty.

Every southern state leased convicts, and at least nine-tenths of all leased convicts were black. In reports of the period, the terms “convicts” and “negroes” are used interchangeably.

Of those black Americans caught in the convict lease system, a few were men like Henry Nisbet, who murdered nine other black men in Georgia. But the vast majority were like Green Cottenham, the central figure in Blackmon’s book, who was snatched into the system after being charged with vagrancy.

A principal difference between antebellum slavery and convict leasing was that, in the latter, the laborers were only the temporary property of their “masters.” On one hand, this meant that after their fines had been paid off, they would potentially be let free. On the other, it meant the companies leasing convicts often absolved themselves of concerns about workers’ longevity. Such convicts were viewed as disposable and frequently worked beyond human endurance.

The living conditions of leased convicts are documented in dozens of detailed, firsthand reports spanning decades and covering many states. In 1883, Blackmon writes, Alabama prison inspector Reginald Dawson described leased convicts in one mine being held on trivial charges, in “desperate,” “miserable” conditions, poorly fed, clothed, and “unnecessarily chained and shackled.” He described the “appalling number of deaths” and “appalling numbers of maimed and disabled men” held by various forced-labor entrepreneurs spanning the entire state.

Dawson’s reports had no perceptible impact on Alabama’s convict leasing system.

The exploitation of black convict labor by the penal system and industrialists was central to southern politics and economics of the era. It was a carefully crafted answer to black progress during Reconstruction – highly visible and widely known. The system benefited the national economy, too. The federal government passed up one opportunity after another to intervene.

Convict lease ended at different times across the early 20th century, only to be replaced in many states by another racialized and brutal method of convict labor: the chain gang.

Convict labor, debt peonage, lynching – and the white supremacist ideologies of Jim Crow that supported them all – produced a bleak social landscape across the South for African-Americans.

Black Americans developed multiple resistance strategies and gained major victories through the civil rights movement, including Brown v. Board of Education, the Civil Rights Act and the Voting Rights Act. Jim Crow fell, and America moved closer than ever to fulfilling its democratic promise of equality and opportunity for all.

But in the decades that followed, a “tough on crime” politics with racist undertones produced, among other things, harsh drug and mandatory minimum sentencing laws that were applied in racially disparate ways. The mass incarceration system exploded, with the rate of imprisonment quadrupling between the 1970s and today.

Michelle Alexander famously calls it “The New Jim Crow” in her book of the same name.

Today, the U.S. has the highest incarceration rate of any country in the world, with 2.2 million behind bars, even though crime has decreased significantly since the early 1990s. And while black Americans make up only 13 percent of the U.S. population, they make up 37 percent of the incarcerated population. Forty percent of police killings of unarmed people are black men, who make up merely 6 percent of the population, according to a 2015 Washington Post report.

It doesn’t have to be this way. We can choose otherwise.