Dissenting Opinions

Critical Race Theory is a Verb

Episode Summary

Will is joined by UC Berkeley Law professor Khiara M. Bridges to kick off Season 2 of Deep Dive into Critical Race Theory. In the first episode, Will and Khiara discuss: what IS critical race theory? What makes it “critical”? What distinguishes it from other work on race? What unites it as a theory? Will and Khiara further discuss how optimistic or pessimistic we should be about eradicating racism.

Episode Transcription

[Dissenting Opinions theme music]

Will: Welcome to Season Two of Dissenting Opinions. A podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Baude, and you're listening to a special series; we're calling Deep Dive, where our guests and I will take a deep dive into a legal topic. This series will be me and Berkeley law professor, Khiara Bridges talking about Critical Race Theory. Without further ado, let's deep dive into Critical Race Theory. 

I'm really excited about this conversation. I've been looking forward to it for no exaggeration, for months, because this is something that I hear a lot about and I don't feel like I understand it and I want to understand it. I'm hoping that whether we agree with things or not, and I have no idea, maybe we will, but whether we do or not, I'm hoping that by the end of this, at least I'll understand what the controversies are about and what the issues are, and what the arguments are. So, thank you so much for coming on.

Khiara: Thanks for having me.

Will: So, can we just start with the most basic question, which I'm sure you get all the time, but I got to start where I am, which is, what is critical race theory, and why is it called critical race theory?

Khiara: [laughs] Great question, great place to start. So critical race theory is an advanced legal theory that examines the law’s role and reproducing race, racism, racial hierarchy and it's also interested in investigating how the law might be used to dismantle racism, racial hierarchy, and so forth. Why is it called critical race theory? A great question. I know that we're going to talk about this, ad nauseam perhaps a little later, but when the controversy over critical race theory started, when every single news outlet had to run a story on critical race theory, I was doing a lot of interviews at that time and I would start every interview answering that question, which is critical race theory is an advanced legal theory that examines the law’s role and reproducing racism and racial hierarchy. And I kept saying, “It's a legal theory, it's a legal theory, it's legal theory.” But legal or law is nowhere in the term critical race theory, which makes it easy, I mean, perhaps, it made it easier for folks to take the term and make it into something that it's not, to propose that critical race theory is just this caricature of what it actually is, that can't be taught to kindergarteners. 

It's called critical race theory, because it's a response to two formations of thoughts. One formation of thought was critical legal studies. I know, we'll probably get into this more in depth later, but the term critical race theory was introduced to set it off from critical legal studies. The critical and critical race theory indicated its position as a critique as being left of the left position. The race in critical race theory is to identify the subject, what will be a primary locus of focus. And then theory, the word "theory" in critical race theory is designed to gesture towards the possibility, that perhaps one day the thought that would comprise critical race theory would be able to offer a coherent account of what is investigates, which is the law’s role and reproducing racial hierarchy. So that's what critical race theory is, and that's why it's called critical race theory. 

Yes, it is a little odd, I would say that law is not in [Will chuckles] the term critical race theory. I think it would have made at least my summer of 2020 a lot different had it been called Critical Legal Studies of Race or Critical Legal Theories of Race or something like that, because it would have set it apart what people have claimed critical race theory is.

Will: I mean, call me cynical, I think if it were called something else, there might still have been other-- people would have had something else to latch on to. This actually already I'm learning. Is it right that critical race theory is the same thing as critical legal studies, as applied to race or critical legal studies of race, is that the way to think about it? That's oversimplifying but--

Khiara: No, I would say that for those who know what critical legal studies is, it is not a race focused critical legal studies. In all parts of academia, you'll have these intellectual formations and they take a name. They call themselves something. So critical legal studies was an intellectual formation that had a very particular way of thinking about law and injustice. Critical race theory responded to critical legal studies by rejecting some of critical legal studies kind of truths, and in taking different approaches, then what was taken with critical legal studies. I think it's an oversimplification to say that critical race theory is critical legal studies as applied to race. I would just say critical race theory is a critical approach to thinking about the law and race.

Will: Okay. Can you walk me through this? Critical legal studies thinks what? A critical race theory rejects that and replaces it with what?

Khiara: Okay, critical legal studies thinks that law is indeterminate. It means that law can be logically coherent and lead to injustice, as it can lead to justice. That's what I mean, when I say indeterminate. And as a result of that indeterminacy, critical legal studies rejects the possibility of law. Critical legal studies made some claims that were law is part of our collective delusion, so let's get rid of it. Law is an ideology and people need to sort of be disabused of this idea that we have like rules that are organizing society. And critical race theory says, “Well, I think that's a bridge too far.” [laughs] 

For critical race theorists, I think it's not at all an exaggeration to say that they centered people of colors experiences with the law, and the law wasn't all bad to critical race theorists. The law hasn't been all bad to people of color. Sure, the law legitimated chattel slavery. Sure, the law led to the attempted genocide of native peoples. Sure, the law prohibited people from Asia, from immigrating or naturalizing in our country for decades. At the same time, when we think about the Civil Rights Movement, the law led to formal equality for, at least all people, people of color, the law has been utilized, it's been helpful for freedom struggles for people of color. So, critical race theorists weren't interested in just throwing the law away entirely or dismissing it as like an ideology. They recognize that it was useful, it takes lives but it also saves lives.

Will: Wow. All right, this is amazing. In a way, critical race theory is, I'm repeating what you said, just because I'm processing out loud. Critical race theory is not necessarily on board with the extreme-- I don't know, sometimes it feel like nihilism of the critical legal studies. At least as applied to law, not applied to the world- 

Khiara: Yes, I would agree. 

Will: -but [crosstalk] law of critical legal studies. I mean, which is a mixed picture for the reasons you said. Wow, okay, this is already-- when I was in the academic job market, an entry level candidate, I remember getting some question about like, what was my methodology? And having no idea what I'm supposed to say, [Khiara chuckles] because I don't have a PhD in anything. I remember saying law, and I remember these Harvard professors’ kind of giggling when I said that. 


I now realize the joke I was making. Many years too late. 


Better late than never.

Khiara: Yeah, we learned so much on the job market, including like how to answer those questions. 


Will: Well, we learn someday. Okay, so law is not nothing. Law can be really bad, obviously, has been really bad, can also be good. I think I get that. And now where do we go from there? So, law can be a tool for horrible, oppressive, racism, law can be a tool for eradicating racism. I assume critical race theory tells us, how to do it better and not do it worse. [Khiara laughs] What does it tell us from there? Or how to approach it? I'm assuming we're not going to get.

Khiara: Yeah. I'm not going to tell the answer today. I'm not going to give the answer on how we get rid. Racism, in large part because we don't know. 

Will: If you have it, I want to know. [laughs]

Khiara: [laughs] I will probably be outside with a placard, spreading the good news, if I had the answer. So actually, one thing that I want to say is that critical race theory is heterogenous, in the sense that it is a big tent for a lot of different thoughts, including methodologies, right? 

Will: Yeah.

Khiara: I have a PhD in anthropology, I use fieldwork, which is ethnography, that's the methodology of anthropology. In my investigations of race other people are sociologists, other people are historians, blah, blah. Big tent, lots of different methodologies, lots of disagreement as well within critical race. Like within people who self-identify as critical race theorists. There's a lot of disagreement. I would say the best analogy would be a law and economics conference. It's not you go to a law and economics conference, and everybody's nodding their heads along, like, “Yes, absolutely. I agree with you.” It's like a sermon. There's disagreement, there's contestation, same thing with critical race theorists. 

I say all of that that there's disagreement within critical race theory about what to do, even about the optimism that we should have. So, Derrick Bell, we call him The Intellectual Forefather of Critical Race Theories, because he was one of the first to challenge sort of traditional ways of thinking about racism and law. And he was incredibly pessimistic about the possibility that we could ever get rid of racism. He talked about the permanence of racism, he thought that, we should all struggle against racism, but not because we would ever overcome, but rather, because it was good for us, it was like a moral exercise for us to just struggle against this thing that would never go away. 

I self-identify as a critical race theorist. I think that's super pessimistic. [laughs] I like to believe that, I definitely think that the forms and the techniques and the mechanisms by which racial stratification is produced, I think that those change. I think that back in the 1950s, the forms that produce racial hierarchy were particular. Now, we're in 2020, they're different. If we were around in 2070, there'll be different still. But I don't think that warrants a pessimism about like, “Oh, we'll never be able to get rid of racism.” Instead, that just means that we always have to be flexible, we have to be agile. I mean, it's a huge commitment, but I do think that we can work towards a country where people's lives are not determined or over determined by their racial identity or a scription, I would call that the end of racism. I think that's possible. Maybe not within my lifetime, but it's possible. [chuckles] 

Will: I think it's possible within the next 200 years, I guess not in our lifetime. Unless something goes--crosstalk] 


Khiara: Unless you know something, I don't, Will.

Will: I don't. It's not as always asking whether we can maybe live forever-- [crosstalk] 

Khiara: I'm not sure I'm interested in that. Well, I think that the pessimists would say, “This world has never been without racism," so why should we-- fantastical, it's a fantasy to believe that we can create a world without racism. I think that's an incredible amount of hubris. I think we should be a little bit more like little humbler than that. I think that we don't know what's possible. I think, some of the ways of thinking that were ubiquitous, that were accepted at the dawn of the nation, perhaps we're not thinking that way anymore. I can't even gesture to, I can't even suggest a way of thinking that we don't think about anymore, because we don't think about it anymore. Perhaps, that’s possible with racism, perhaps it's possible with way that race now operates to make it so that some people live longer than others, some people are incarcerated and some are not, and so on and so forth.

Will: Yeah. This is also really striking. When I tried to teach critical race theory, which I'm not qualified to do, but have to do it in one of the seminars I teach. One of things we read is Derrick Bell, of course, and the interest-convergence thesis. Maybe the students, especially the ones who are most excited about it. They get to Derrick Bell and they're super depressed by it, the pessimism.


We thought at least we had Brown v. Board of Education to celebrate, but I'm here to tell you--

Khiara: Right. Let me-- [laughs] take the blinders off, kid. [laughs]

Will: Yeah. You can't even have Thurgood Marshall, I'm sorry. I guess I had naively assumed that pessimism was a critical part of-- that was the critical in critical race theory.

Khiara: No, I think that the critical in critical race theory is just to challenge the accepted wisdom. I think that's actually the critical and most critical theories is-- when I'm talking about critical theories, I'm talking about European philosophy, I'm talking about Foucault and all of those guys over there. I think that's what critical references. It means, I'm not going to accept what people sort of assume. I'm actually going to investigate that assumption. And I don't know what I'm going to discover when I investigate the assumption, but the critical is like a verb, it is like to investigate received assumptions. That's what the critical in critical race theory. And when I say "we," I'm talking about at the time of critical race theories emergence in law schools, that we're talking about 1970s, 1980s and we'd accepted a certain way of thinking about racism, and we had accepted a sort of way of thinking about the Civil Rights Laws that had been passed to address racism. We thought those laws were awesome. [laughs] We thought that racism was individual bad actors, and like those laws were designed to sniff out. Those individual bad actors and run them away. 

Then in the 1980s, we were facing the Reagan Revolution. We're like, "Oh my God. What's wrong with the civil rights laws? Why aren't they working?” And they're like, "Oh, it's Reagan. It's the people he's appointing to the courts, and it's the people who he's appointing to these executive agencies.” Critical race theory is like, “Okay, I understand what you guys are assuming, I'm going to challenge that. I don't think that the problem is Reagan necessarily, the problem might be like the civil rights laws themselves, the problem might be the way that we understand racism.” So that to me is what the critical and critical race theory is. It's not pessimism, I think that it's just this constant skepticism about received wisdom.

Will: Oh, wow. Okay, great. So now, what about change? So, I'm thinking, this all makes sense. This is really my learning curves, it's amazingly steep here. But this all make sense to me. Don't we now think different things than we thought in 1980's. I mean, I was not born in 1980, but I gather that the collective we. Is critical race theory about challenging whatever the received wisdom is now, so in a way, now we've a new set of assumptions about race, because some of these ideas are now mainstream, some of these ideas successfully taken? What's the now version? What do we now think? What do we now assume about race and what's [unintelligible [00:17:36] questioning?

Khiara: Yeah. I would say that critical race theory is a verb and it's constantly changing. If anyone is saying, critical race theory is just Derrick Bell or Mari Matsuda or Charles Lawrence. They're teaching critical race theory from the 80s and 90s. Critical race theory has evolved in light of change. Here's something like from my own scholarship that my gesture towards how critical race theory change. One of the biggest interventions from that critical race theory made into the conversation around race in the 80s and 90s was that everybody was interested in looking for bigots. We thought the problem was bigots and bigotry, we thought the problem was that people had these irrational thoughts about racial others, and they were denying them jobs, and they weren't letting them into their schools. The entire Civil Rights apparatus was kind of invested in smoking out bigots. 

Then critical race theory in the 1980s-90s said, "Well, maybe the problem isn't bigotry, maybe the problem is very institutions, maybe these neutral processes, facially race neutral processes, maybe those are the problem,” because they're actually reproducing exclusion and inclusion all with underneath this sort of veneer of legitimacy, because they're facially race neutral after all. And so, critical race theorists spend a lot of time sort of investigating institutional racism, structural racism trying to get us to move away from the search for bigots. 

Then 2020-2021 happened, we had got a president who is like ran on a platform of open bigotry against racial others, like Muslims and Mexicans are supposed to be criminals and people who would march with Neo-Nazis in Charlottesville those were very fine people. Then we have the Kung flu and the Chinese virus, so we had a president who kind of was old school with the racism and it might have legitimized or given strength to people with old school thoughts. Again, Neo-Nazis, white supremacist, the Ku Klux Klan, like those people became more visible. Perhaps through the legitimacy that the Trump presidency gave to a certain way of thinking about race. 

Now, in 2022, were we right in 1990 to dismiss bigotry? When we said that bigotry is not doing the heavy lifting when it comes to racial hierarchy, is that still true in 2022? Probably. But I think we need to add some complexity too. There are theories about, again, what is doing the heavy lifting when it comes to racial inequality, I think that we might be missing something if we just dismissed old school bigotry. There might be a role for that in explaining sort of continued racial stratification.

Will: This is something else I've been confused about. Maybe the problem is we just don't have enough words. Maybe the problem is we're asking words like racism to cover just like too many things. But I got the idea of racism is not just old school bigotry and it's not something that you're exempt from, just because you don't think you have it, and you can be racist, because your part of a system that's reproducing racism and things like that, I got that. Then it seemed like one consequence of that, though, is that then it wasn't as clear how bad it was to be racist. The sense of like, being a bigot was really, really bad, you definitely don't want to be that.

Khiara: Yeah.

Will: You'd rather not be the other kind of racist too, but depending on where you were on pessimism, maybe that was inevitable if you were a person that was white person of privilege in a certain society. Then if you were told, you're going to be racist, no matter what, then it was sort of confusing if we still needed to have a word for the horrible bigotry that we want to expel from our social circles. 

Khiara: Yeah. Well, so I think I am with you a 1000% when you say that. The word racism is doing a lot of heavy lifting. It's just stirring towards old school racist. George Wallace said, "Segregation now and forever." But it's also gesturing towards processes, my best example is the way that we fund public schools. We fund it through property taxes and so that means that kids in the hood have less money for their schools than kids in the suburbs, because the property tax base is smaller in the hood. So, we're talking about racism in that. You said something and this is what gives me pause is that the actors implicated in those systems, whether we want racism to refer to them as well. Like the superintendent in a school district, in the suburbs, is that person racist because they're in charge of a system, that works to privilege the kids in the suburbs who are disproportionately white and harm the kids in the urban areas, who are disproportionately non-white? Is that guy racist, because he's implicated in that system? I wouldn't call them racist. I actually called very few people racist. [chuckles] 

My colleague Ian Haney López, he says that, "Racism is analytical and political choice." And I think that we have to be attuned to the possibility that it is like, unwise politically to tar everybody with the title of racist because we're implicated because we all are implicated in these systems. Does that make sense?

Will: It makes sense to me. I'm surprised by it. I guess maybe the problem is also there's a spectrum. So, what about an ordinary border patrol officer or narcotics cop who is sort of like, day-to-day life, but who doesn't-- I don’t imagine a person who doesn't feel what we'd normally call like, the psychological sensation of bigotry, but the day-to-day life is directly enforcing laws that have an unjust disparate impact on people of color. 

Khiara: Yeah. I think critical race theory would say, "Man, those laws are racist. That whole regime is racist." Yeah, but I'm not sure that critical race theory would say, “And therefore that border patrol officer's racist because he's sort of enacting it.” Again, that might be a limitation of the theory. Like there might be some sort of intellectual inconsistency and refusing to call an officer racist if they are actually enacting a policy that analytically is racist because it harms people of color, disproportionately, but, yeah, I'm not me, an individual critical race theorist. I just would not feel like it's necessary to call a person, an actor, racist, because they're sort of implicated in the system.

Will: Yeah. And this goes back to the thing you said originally. One advantage of not doing that is then you still have the words to more clearly express, President Donald Trump or whoever-- there will be a border patrol agent who is racist.

Khiara: There are racist cops, right? 

Will: Right. And you want to be able to-- [crosstalk] Yeah.

Khiara: You want to be able to say, “Hey, that's a racist cop.” As opposed to being like, “Everybody in the world is racist,” then because you start to lose the-- I don't know, I wouldn't say coherence, but you lose the power of the description.

Will: Yeah. Well, that's right. That's exactly right. 

[Dissenting Opinions theme music]

Will: Thanks, Khiara. For updates on future episodes, follow us on Twitter @UChicagoConLaw. Make sure to subscribe, rate and comment wherever you get your podcasts. Next episode, Khiara and I will talk about structural racism, capitalism and critical race theory in the news. 

Stay tuned for new episodes out every Monday and Thursday.


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