Critical Race Theory: What It Is, What It Isn’t, and What Lawyers Can Do to Clarify Misinformation and Move the Debate Forward

By Sheila S. Boston, President, New York City Bar Association

Critical race theory is all over the news these days. Politicians are talking about it, school boards are debating it, and conservative news outlets are lambasting it. And, as lawyers, you may find that people are turning to you with questions about it.

What Is Critical Race Theory?

Critical race theory, or CRT, is an academic concept that race is a product of culture and society rather than a biological characteristic, and that racism is not just a matter of individual bias or prejudice, but also something embedded in legal systems and policies. CRT emerged out of a framework for legal analysis in the late 1970s and early 1980s created by legal scholars Derrick Bell, Kimberlé Crenshaw, and Richard Delgado, among others. It examines racism and racial disparities that have persisted in America despite civil rights reforms and other efforts to undo inequalities in the legal doctrines, political institutions, and economic structures that make up the social fabric of our nation.[1]

Yet, even for legal scholars, CRT eludes a singular definition and usage. Professor Crenshaw has said that CRT is more a verb than a noun: “It is a way of seeing, attending to, accounting for, tracing and analyzing the ways that race is produced… the ways that racial inequality is facilitated, and the ways that our history has created these inequalities that now can be almost effortlessly reproduced unless we attend to the existence of these inequalities.”[2] Professor Mari Matsuda puts it a little differently: “For me,” she said, “critical race theory is a method that takes the lived experience of racism seriously, using history and social reality to explain how racism operates in American law and culture, toward the end of eliminating the harmful effects of racism and bringing about a just and healthy world for all.”[3]

One helpful example for CRT is redlining: when in the 1930s, government officials drew lines around areas deemed financial risks based explicitly on the racial composition of those areas. As a result, banks subsequently refused to offer mortgages to Black people in those areas—making it difficult or impossible for Black families to own homes, establish roots in a neighborhood, or invest in their schools and communities. A CRT analysis examines the underlying racist nature of a law or policy (such as redlining), even where the laws or policies are facially neutral (or colorblind).

And even when such policies are eventually changed or rectified, their negative effects often persist into future generations. For example, practices that prevented Black people from owning homes or investing in their businesses and communities also stymied educational attainment and occupational opportunities, as well as the ability to build wealth to pass on to future generations. “Consider that right now the net wealth of a typical Black family in America is around one-tenth that of a white family.”[4] And according to a 2018 analysis of U.S. incomes and wealth published by the Federal Reserve Bank of Minneapolis, “[t]he historical data also reveal that no progress has been made in reducing income and wealth inequalities between black and white households over the past 70 years.”[5] Indeed, according to census data, at the end of 2020, only 44% of Black families owned their homes as compared with 75% of white families.[6] And according to a 2013 study using data on families gathered over a 25 year period, “whites were five times more likely to inherit than African-Americans… [and] [a]mong those receiving an inheritance, whites received about ten times more wealth than African-Americans.”[7]

Another example for CRT is the facially neutral but racially disparate impact of the criminal justice system, both in terms of the kinds of offenses that are codified in our penal laws and how they are enforced in the community. Whether it’s crack versus powder cocaine sentencing disparities, heightened policing of predominantly Black neighborhoods, higher incidences of police involvement in school disciplinary proceedings involving Black students, higher numbers of law enforcement stops involving Black drivers, or criminalizing theft of services (e.g., turnstile jumping) but not traffic tickets—while the laws technically apply to all, the types of conduct criminalized under our legal system and the manner in which the laws are enforced perpetuates inequalities in a way that we need to keep working to understand.

Why Is Critical Race Theory Drawing So Much Attention?

In the wake of the killings of multiple innocent Black people around the United States, the resurgence of the Black Lives Matter movement, and heightened race consciousness across the country, critical race theory has moved from the realm of legal academia into common political discourse. CRT has become a touchstone of political divisiveness, a central issue at school board meetings and in gubernatorial elections, and has inspired new waves of book banning.

What are some of the ways this is happening?

One example: at a school board meeting this past fall in Nevada, a member of the community who had no children of his own in the school and who had attended three school board meetings in eight days, said, “I’m concerned about kids being taught theories, ideologies that are going to divide them and set them apart from each other…. I’m concerned about our freedom.”[8] Another meeting attendee, also with no children of his own in the schools, said, “The only purpose [of CRT] is the division and destruction of the United States. That is the purpose.”[9]

And in last November’s gubernatorial race in Virginia, Republican Glenn Youngkin ran against Democrat Terry McAuliffe on a promise to ban the teaching of critical race theory in the public schools.[10]

The fervor over CRT has extended to the books available to children through their school libraries and curricula. Parents in Missouri, Virginia, Texas, Florida, and other states have reportedly complained to their school boards about books they deem inappropriate. For example, one parent in DuBois, Pennsylvania, expressed her dismay that “The Hate U Give,” a novel by Angie Thomas that depicts the story of a Black teenager whose friend is killed by police, was available at a middle school library.[11] The parent noted that, while the book appears on the 2020 Most Challenged Books List (i.e., the “banned books list”) from the American Library Association, it also appears on a list of books “approved” by an organization called “Social Justice Books.” “The goal of this organization is to compile a list of approved books that educators should use to help promote ‘social justice’ in the classroom,” the parent said. “In case you haven’t decoded yet … we’re talking about books that promote and encourage critical race theory.”[12]

And following widespread protests after the murder of George Floyd and ensuing conversations about racism in America, then-President Donald Trump issued a memo warning against critical race theory as “divisive,” and followed up with an executive order barring federal agencies from using federal funds toward workplace diversity trainings that include instruction on such “divisive concepts.”[13]

How is the term “Critical Race Theory” being misused?

The recent distortion of CRT into a catch-phrase for liberal indoctrination and the assigning of blame for historical racism can be traced to the conservative activist Christopher F. Rufo.[14] Rufo was looking for a term to describe the progressive racial ideas that conservatives were pushing back against and found it in critical race theory, which he saw as “the perfect villain.”[15] Beyond dated terms like “political correctness” and  more limited terms like “cancel culture” and “woke,” the term “critical race theory” is more evocative: in Rufo’s words, “[i]ts connotations are all negative to most middle-class Americans, including racial minorities, who see the world as ‘creative’ rather than ‘critical,’ ‘individual’ rather than ‘racial,’ ‘practical’ rather than ‘theoretical.’ Strung together, the phrase ‘critical race theory’ connotes hostile, academic, divisive, race-obsessed, poisonous, elitist, anti-American.”[16] And so it has quickly become a political weapon and a shorthand for politically conservative resistance to progressive racial ideas.[17]

In a school context, this manifests as resistance to the teaching of anti-racism, racial identity, and race consciousness in schools.[18] Opponents of CRT in schools say CRT promotes the singular idea that “the United States is an inherently racist or evil country.”[19] Republican lawmakers in a number of states, including Texas, Oklahoma, Tennessee, Idaho, Iowa, New Hampshire, South Carolina, and Arizona adopted this belief to restrict teaching of race in schools.[20] And schools implementing explicitly anti-racist approaches have been faced with lawsuits alleging violations of the Constitution and statutes such as Title VI of the Civil Rights Act of 1964.[21]

However, this recent characterization of CRT is grossly oversimplified. Studying our nation’s history and legacy of racism and whether and how aspects of that history may persist in our current legal and social structures is not the same as saying the United States is “evil” or teaching white schoolchildren that they should feel guilty for the actions of their forebearers. And the misuse of CRT as a reason to take education about race out of the schools is an alarming development. If the goal is to protect children, what better protection is there than to educate them with facts about our history and the role that race has played, and continues to play, in our society and the greater world, to give them the language to express their views and share ideas, and to give them the freedom that comes with knowledge and understanding?

What Can We, As Lawyers, Do? A Call to Action

CRT was originally intended as a way to examine systems that perpetuate race-based disparities in order to identify and diminish barriers and increase equity and fairness for all. However, it is now being turned on its head: opponents of CRT claim that such examination is, in itself, “divisive,” “scapegoating,” and a threat to American values[22]—indeed, a threat to democracy itself.

Yet, the very fact that CRT has been distorted into a weapon to obstruct teaching children about the history, reality, and lived experience of race, to prevent employers from conducting workplace diversity trainings about implicit bias, and to instill fear and foment division against the specter of anti-white or anti-American indoctrination is precisely why a CRT approach remains necessary for understanding the racial impacts of our societal structures. In the words of Professor Crenshaw: “You cannot fix a problem you cannot name. You cannot address a history that you’re unwilling to learn.”[23]

So, what can we, as lawyers, do?

First: we can educate ourselves. As champions and practitioners of the law, it behooves us to understand, and be able to articulate to others, what CRT is and how it can help explain why racial disparities persist despite our best intentions to redress them. To that end, the City Bar is hosting a panel discussion next week (apropos of Black History Month) featuring experts – including legal scholars, academics and educators – who can help us get a better understanding of critical race theory and its implication in the current discourse.  The program is titled: “Critical Race Theory: Finding Hope in the Midst of Misinformation” and will take place virtually on Thursday, February 24th, at 6:00 p.m. ET.  I strongly urge you to register at the City Bar website and attend!

And for those of you who learn better through self-study or just want to learn more, I highly recommend the following materials:

• Invisible Child: Poverty, Survival and Hope in an American City by Andrea Elliott
• The Warmth of Other Suns: The Epic Story of America’s Great Migration by Isabel Wilkerson
• The Color of Law: A Forgotten History of How Our Government Segregated America by Richard Rothstein
• “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” by Kimberlé Crenshaw (Harvard Law Review, vol. 101, no. 7, 1988, 1331-87, https://harvardlawreview.org/wp-content/uploads/2020/09/Crenshaw-Race-Reform-and-Retrenchment-pdf.pdf)
• “The Imperial Scholar: Reflections on a Review of Civil Rights Literature” by Richard Delgado (University of Pennsylvania Law Review, vol. 132, no. 3, 1984, 561–78, https://doi.org/10.2307/3311882)
• “Racial Realism” by Derrick Bell (Connecticut Law Review, vol. 24, no. 2, 1992, 363-380, https://www.law.nyu.edu/sites/default/files/Racial%20Realism.pdf)

Second: we can communicate. It is our responsibility and, indeed, our privilege as lawyers to use our strengths and talents as communicators to correct misinformation and promote the ideals of equity and fairness in our social, political, economic, educational and legal institutions. It will take a collective effort to ensure that critical race theory is not misused as a vehicle for further societal division, and that education about race and the roots of inequality remains in schools, universities, workplaces, and every institution where people learn, work, and try to better understand themselves and the world around them. If you believe, as I do, that stifling knowledge about our history—including the long and difficult history of race relations in this country (and, indeed, around the world)—is harmful, and that children and adults alike benefit from a greater and more inclusive understanding of our complex and multi-faceted society, then I urge you to do what you can to promote this kind of inclusive education in our schools and workplaces. Use your skills as a lawyer to talk, write, communicate, and persuade.

Third: get involved. Talk to your school principals and local school boards. Join the school board where your children or neighbors go to school. Write to school boards of schools where teaching about race has become controversial. Write op-eds on the importance of education on the history and persistence of race in culture and society. Reach out to legislators about the importance of protecting and promoting diversity, equity, and inclusion in schools and workplaces.

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There is no time like the present and no time to lose: I urge you as members of the legal profession and stewards of law and justice to reject the divisive misuse of critical race theory, to promote education about race and inclusivity in schools and workplaces, to continue to examine racial disparities in society and reasons why they persist, and to embrace the possibilities of a world where we all recognize and respect differences, acknowledge past and present harms, and strive for a more just and equitable society.

For this article, I am grateful for the contribution of Samantha L. Brener and Zahreen Ghaznavi, members of the Education & the Law Committee.