Dissenting Opinions

We're Actually in a Haunted House

Episode Summary

In episode 2 of Deep Dive into Critical Race Theory, Will and Khiara discuss structural racism, capitalism and land use/zoning laws, individual responsibility in eradicating racism, and how critical race theory became the hot topic phrase in the media today.

Episode Transcription

[Dissenting Opinions theme]

Will: Welcome to Season 2 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 a guest 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.

This is getting us into one big set of buzzwords that I'm starting to understand how they fit in, but maybe we can just spend more time on them, which are structural racism.

Khiara: Mm-hmm.

Will: I gather structural racism is an important idea in critical race theory. Is that right? [chuckles] 

Khiara: Yeah, I would say that structural racism is probably the biggest contribution that critical race theory has made. Yes.

Will: Okay. And structural racism is this idea that racism is not just a property of people, but a property of institutions, rules, other things?

Khiara: Systems. Yeah.

Will: Systems.

Khiara: [crosstalk] Yeah, all of those. Yeah.

Will: And this part's more counterintuitive, I take it, that it's not just about summing up the racism of the people in it. You wouldn't just say, “Look, most of the cops are racist. Therefore, the police are structurally racist.” It's different than that.

Khiara: Right. 

Will: Okay.

Khiara: Absolutely. I think that most of the cops [chuckles] and you were using as an example.

Will: Yeah.

Khiara: [crosstalk] I think it's important for me to say, I think most cops don't go into the line of work because they're like, “I want to brutalize people.” I think that most cops are great people and I think that they're stuck in terrible systems. But that's not your question. Structural racism isn't just you add up all the individual racism of the actors in an institution and lala, tada, there's structural racism there. I call it individualist racism, bigotry, or whatever versus structural or institutional racism.

If we dig deep into the literature, you'll see some people wanting to hold institutional racism apart from structural racism, some people want to say that those two concepts are distinct. I think a lot of times they're collapsed into one another, where institutional and structural racism are used as synonyms, as opposed to referencing different phenomena.

Will: And is systemic racism also a synonym or those--?

Khiara: I would think that people have just been throwing that in there too. 

Will: Okay. [laughs] 

Khiara: But yes. [laughs] 

Will: Okay. 

Khiara: I think when I wrote my primer in 2018, I don't think I was saying systemic racism. I don't think I use that term in 2018. But I think if there's a second edition, systemic racism has got to be in there, because that's the language. People are saying systemic racism these days. But let me just be clear about critical race theories relationship, or interest in structural racism or institutional racism. The civil rights laws that were passed and the Civil Rights Act of 1964, Voting Rights Act of 1965, less so. But we had all of these great gains subsequent to the civil rights movement, and they were designed to get rid, we think, of racial stratification. They were designed to get rid of racism. But how are we defining racism? What are we getting rid of essentially? Traditional civil rights discourse, it's like, well, racism is bigotry. Racism is this irrational actor who denies opportunities to people simply because they're people of color. And so, that's what the civil rights laws are designed to do. They're designed to sniff out bigots and make sure they don't have jobs, make sure that they don't act on their bigotry, make sure that they are not relying on bigoted thoughts while at work type of thing. Critical race theorists were like, “What if racism is more complicated than just the bigot?” 

I'll go back to my example of the school district and the way that we fund public schools like, “What if the reason why that kids of color are not able to acquire all of these traditional indicia of merit like high LSAT scores or high LSAT scores, or extracurricular activities, or have a second and third language, or travel during their summers, what if the reason that kids of color aren't able to do that is not because there's a bigot that's like, “I'm going to deny you a high LSAT score,” but rather because they've been educated in these schools that just don't have adequate materials, and they have crumbling physical plans, and their teachers don't have advanced degrees unlike the teachers in the suburbs? What if the reason why that's true about these schools that kids of color go to is not because of a bigot again, but rather, because we have decided we want to fund public schools through property taxes? The property in the neighborhoods where the kids of color live, it's just not as valuable as the property in the suburbs. And so, that means that the schools that the kids of color have to go to just have less money, and hence they have a crumbling infrastructure, physical plan, and they have teachers that don't have advanced degrees, and so on, and so forth. What if that is what racism is? 

Then, our antidiscrimination laws or these civil rights laws, they're not going to fix the problem. They're too focused on running bigots out of town. They're not looking at these big processes. So, that is structural racism.

Will: Okay.

Khiara: Yeah.

Will: Yeah. Playing off that step, okay, what if that's racism? What if we say, “All right, bigots were are bad or not the whole story"? And so, structural racism is also these kinds of systems that reproduce racial hierarchy or the like. Then what? I guess, is critical race theory then the task of figuring out, what is the equivalent of the 1964 Civil Rights Act to deal with this new problem [crosstalk]?

Khiara: Right, yeah.

Will: Nationalizing the schools that nobody's property taxes or maybe it's school choice. I have no idea. But is that the--? 

Khiara: Yes, right. The critical race theory intervention is to say we might be looking for boogeymen [chuckles] when we're actually going to haunt a house. That was a terrible metaphor. Yes. 

Will: [laughs] That’s amazing.

Khiara: [laughs] Then, it's like we're all lawyers, critical race theorists are lawyers, then we're like, “Okay, so, what's the answer?” You say, “Okay, nationalized schools.” There were a series of decisions in the 70s and 80s where the Supreme Court defanged Brown v. Board. And so, we have Milliken versus Bradley, where essentially, it legitimized white flight. We could say, perhaps, the answer is just having these unified school districts thinking about school districts holistically as opposed to a more discrete area. When we talk about integration, it's not just make sure that the schools in the hood are integrated with one another, but rather, let's also make sure that they're integrated with the schools in the suburbs. Yeah, once we identify what the problem is, then we are better situated to think about what the solution is. And again, critical race theorists have a wealth of different-- proposed different solutions to different problems we don't have an answer, this is the critical race theory answer, but most of the work involves identifying the problem.

Will: We've been using this example, which is great and is concrete. Is it too small? As you as you talk about it, I think, well, part of the problem is the school funding model. But part of the problem presumably are patterns of residential segregation, which are in turn the product of a bunch of land use policies, and municipal sizing policies, and sometimes physical, highways. So, that's implicated.

Khiara: That's implicated. Now, you're getting to see why some folks call it systemic racism, because throughout the entire system, we can talk about historically with redlining and how did redlining lead to contemporary patterns of segregation highways. Why is it that communities of color are trapped in these central areas? It becomes bigger and implicates range of different systems. I should also say it implicates a range of different choices that we've made. And so, critical race theory says, just as we've made certain choices, we can choose differently. That's why I'm optimistic, [chuckles] because-

Will: [laughs] 

Khiara: -we have this opportunity for change. Yeah, I just think that nothing is inherited and so, therefore, it's permanent. We inherit it and then we can decide whether to change it or not.

Will: Yeah, that's amazing. This is making you optimistic, because I guess, it's not just all these things, but then it's also capitalism, the structure of property law, the fact that of inheritance. It seems like it's everything. 

Khiara: Yeah.

Will: I guess, this is-- [crosstalk] Yeah.

Khiara: Yeah. You mentioned capitalism and that is just an opportunity for me to say that critical race theorists, like critical race theory as an entity doesn't call for the dismantlement of capitalism. In fact, critical legal studies--

Will: Yeah, why not? 


Khiara: Critical legal studies will more identify with Marxist and Neo-Marxist. As we've talked about critical race theory rejected critical legal studies, a lot of their moves and assumptions. I think that critical race theory and a lot of critical race theorists are interested in investigating the role of capitalism and racial inequality. But it's not a position to call for the overthrow of capitalism, because we'll never be free with capitalism. I happen to believe in regulated capitalism. I think we should try regulating it first and see what happens- 

Will: [laughs] 

Khiara: -before we just get rid of it altogether.

Will: Yeah. Thank you for that. Yeah. So, can we go back now to the superintendent in a way or could we-- [crosstalk] 

Khiara: Yeah, mm-hmm. 

Will: All right, so, we've got structural racism and it's everywhere, I mean not quite everywhere. Well, maybe there's everywhere. I don't know. Are there-- [crosstalk] 

Khiara: Could it be everywhere. [laughs] 

Will: Are there major institutions in American life that are not structurally racist will be, I guess, one question. But putting that aside, so, how does knowing about structural racism, how should it change the way you think about your own roles in individual? If I am the school superintendent, I see and have absorbed the critique about structural racism and the basic structure of our schools. What do I do with that? If I had the power, if I were even bigger than the school superintendent, I could reverse Milliken versus Bradley or adopt California Unified School District, okay, but I can't do that. So, do I just feel guilty? Do I-- [crosstalk]? 

Khiara: [laughs] Right. No, that's a great question. What do you do--? [crosstalk] 

Will: As a frame, how you think about your responsibility?

Khiara: Yeah. I don’t know. What do you mean? It's not even hypothetical like, “What do I do? [laughs] I'm benefiting from a whole bunch of things that are killing folks. What do I do? What’s this--?”

Will: Yeah, I'm asking you a personal question.

Khiara: Right. [laughs] Yeah. Well, I think I definitely believe that localities are in a position to act in a way that is unplumbed. If I was a superintendent, I would use my position to show the harms of the decisions that are being made by whatever locality it is that we're in. There's a certain value. One thing, me not even having a young child in school talking about the harms of our public schools and there's another, the positionality of a superintendent to be able to talk about the harms of our public school, especially when that guy, especially the superintendent of the district in the suburbs, the kids are benefiting from the system, to be able to still talk about how those kids in that district are being harmed, the kids that in the district are being harmed, how the world will not fall apart, if we actually attempt to achieve some, if not physical integration, but at least equalization of resources, I think that there's a power in attesting to the possibility of difference. The world literally will not fall apart if we attempt to equalize resources between the haves and have-nots. Let's give it a try. And so, I think the superintendent would be in a position, the best position perhaps to say, let's give it a try.

Will: Yeah, I wonder how long the superintendent would last.

Khiara: [laughs] 

Will: [laughs] 

Khiara: Well, you've talked about recent events. We've seen educators lose their jobs for taking positions that people have branded critical race theory.

Will: Yeah. So, what's up with that? [chuckles] 

Khiara: [laughs] 

Will: I guess both in the sense of why did critical race theory suddenly become a boogeyman, to reuse one of your phrases? Yeah, well, and what is wrong with that or what are people misunderstanding?

Khiara: Well, okay, critical race theory has been around depending on how old you are. It's been around a long time. Definitely, I identified the 1980s as this time when critical race theory coalesced as critical race theory. Even though Derrick Bell was writing in the 1970s, it wasn't an intellectual formation until the 1980s. So, it's been at least 40 years [laughs] that critical race theory has existed. And so, the question of in 2020, 2021, 2022, why are people talking about it now? I spent a lot of time thinking about that question. [laughs] The answer is-- I can just tell you about public invocations of critical race theory. The first public invocation of critical race theory by, I guess, an opponent in recent years was Christopher Ruffo. He's a conservative activist. He went on Fox News, Tucker Carlson Show, and he said that, “These executive agencies were training their employees in critical race theory. It caught the attention of the Trump administration, issued an executive order banning use of federal funds in teaching critical race theory.” Trump lost the election and then state legislators picked up the-- what's it called? The little--

Will: Yeah.

Khiara: Yeah, picked that up and kept on running. [laughs]

Will: Gavel. Baton, baton, it's a baton, I think.

Khiara: Yes, they picked up the baton and they kept running. Now, we're still talking about it, because legislators across the country-- legislators have passed laws purporting to ban critical race theory or certain thought that, I don't know, the laws are variously phrased. I think backing up to Christopher Ruffo, it is highly unlikely [laughs] that any executive agency has ever trained its employees in critical race theory, like the intellectual formation in law schools. Why would I say that? Well, because to be trained in critical race theory, you need to have a law degree, so that eliminates a lot of executive agencies out there. Then, why would it be relevant to a person's job at an executive agency to learn about Derrick Bell or intersectionality? I just am incredibly skeptical that any executive agency has ever spent or used federal funds to educate its employees on what I do. That being said-- [crosstalk] 

Will: I would think you would know.

Khiara: Hopefully, I might have gotten an email or two. It became fairly obvious as the controversy over critical race theory didn't gain steam that they weren't talking about Derrick Bell. They weren't talking about Kim Crenshaw. They weren't talking about me. [chuckles] They were talking about something I don't do, something that-- again, it's like a boogeyman. When they describe the critical race theory that they're worried about, they're like, “It's ideology that teaches that this country is inherently evil or racist, and that one race should feel bad and the other are oppressed or oppressor race.” That's just not at all an accurate description of what I do, of what critical race theory, as what critical race theory that is being taught in law schools. I think it's important to understand that these are intentional mischaracterizations of critical race theory. There's a tweet I hope that you upload it with these episodes of Christopher Ruffo himself saying that he was recodifying the term to make it mean any cultural insanity, he said, that Americans don't like. That's what critical race theory will refer to. These are intentional mischaracterizations of the 40-year-old legal theory.

There's no way in the world that critical race-- We have these school districts banning critical race theory and state laws banning the teaching of critical race theory. There's just an impossibility for a kindergartener to learn, to be taught critical race theory, because a kindergartener would have to know a little something about the constitution.

Will: [laughs] 

Khiara: They have to know something about the 14th Amendment. Title VII, they have to have that under their belts. And so, what's true for kindergartener is also true for a 12th grader. Very few-- I took AP American government. Yeah, we didn't get to antidiscrimination laws in government. There's just no danger that critical race theory would be taught in K-12 schools. So, yeah, it's a moral panic. They've created a panic around a boogeyman that doesn't exist and now, everybody's really worried that the boogeyman is coming. [chuckles] 

Will: I've tried teaching the constitution to my four-and-a-half-year-old and we really have not made any progress yet, I guess. [laughs] 

Khiara: Are you still in Article 1? [laughs] 

Will: He does understand that his mother and I both teach at a law school.

Khiara: Okay.

Will: He’s aware of the fact there is a law school, that's where we go. 

Khiara: [laughs] 

Will: He asked us two days ago, whether at the law school, we also had lunchtime and snack time and outside time. He was very disappointed to learn we don't have snack time and outside time. 

Khiara: And I really feel that is the worst part of my job is that I don't have a designated outside time and lunchtime. [chuckles] 

Will: Yeah, [laughs] these are good points. It all makes sense. It's interesting, because again, though, there's this ambiguity about how to think about what critical race theory is. Are federal administrative agencies or any K-12 school teaching people the interest convergence thesis or whatever? I don't think so. 

Khiara: [laughs] 

Will: It really would be scandalous. 

Khiara: [laughs] 

Will: But in the other sense, are executive agencies trying to think critically about the sources of racism in the world and not necessarily accept the conventional wisdom? Maybe they should do that, right?

Khiara: Yeah.

Will: Wouldn't we want the EEOC to be, not the Derrick Bell critical race theory. Wouldn't we want them to be doing critical race theory in the sense of asking whether or not their current projects were adequate to the task, or whether or not there was a deeper problem that needed to be going after? Wouldn’t that be good?

Khiara: Yeah, I think so. I absolutely would think so. Am I skeptical that they are or have done that? Yes, absolutely. 

Will: [laughs] Fair enough. 

Khiara: [laughs] Yeah.

Will: Right. That's what's so, I guess, weird about the critique is it's unclear whether the right way to think about it is, “No, of course, nobody would teach critical race theory. Why would they do that?” Or well, in a sense, they should. We wish they were, but they're not.

Khiara: Yeah. Even though, I self-identify as a critical race theory, I understand that the critical race theory is one way of thinking about the world. I'm actually developing a course, where I co-teach with, hopefully, a couple of professors, where we analyze a case through different lenses. I'll come and do brown people or perhaps, from critical race theory lens, and then somebody else will come in do brown people, perhaps do feminist legal theory lens, and then somebody will come and do it Law & Econ. And it'll be awesome, because there are multiple ways of looking at the world and looking at the law. 

If critical race theory was being introduced to employees at executive agencies as one way of thinking about what they're doing, it seems, of course, we should let people to different ways of thinking about the law in the world. Isn't that awesome to get a lens that you might be unfamiliar with? So, yes, if critical race theory was part of menu of perspectives that people are being introduced to, I would have a hard time critiquing that. [chuckles]

Will: Yeah.

Khiara: I think that whenever anything is introduced as dogma, as this is the only way that you can view antidiscrimination laws, it's through this lens, which says that they're failures. [laughs] 

Will: Yeah.

Khiara: They're part of the problem. I think there's something wrong with a dogmatic approach, but again, one of a menu of different perspectives, that seems pretty hard to challenge in my view. [chuckles]

Will: Yeah, I guess this is another way [unintelligible 00:24:08]. It seems when Chris Ruffo or whoever describe critical race theory, they're describing it as a dogma. They're describing it as a dark codex of unamerican beliefs out there that are being handed around or something. The way you're describing it is more like a set of questions rather than a set of answers. 

Khiara: Absolutely.

Will: Asking the questions might lead us to answers, we might disagree with the answers. When you describe it, it sounds more like a theory or more like an intellectual project and that makes much more sense to me than this version.

Khiara: Thank you for describing it that way. It is a set of questions. When I give talks on critical race theory to whoever, I say that critical race theory is united by the questions that it asks about the law and those questions are like, “How does law reproduce racism? How has law legitimated racial hierarchy? And how can the lobby use to dismantle those?” Those are the questions. And of course, those questions have certain assumptions in them and that is that, well, one, there is a race problem. That's an assumption. 

Will: Yeah.

Khiara: Two, another assumption is that the law has a role in that race problem. There are certain assumptions embedded in those questions, but their questions-- You can challenge the assumptions. We welcome challenging our assumptions, because when things are challenged from a good faith point of view, then it makes the theory better. But yeah, they're questions that we ask and then folks come up with different answers to it. And so, yeah, I think it's a purposeful caricature to propose that critical race theory is just like this dogma that students, anybody from K-12, college or law school, can be indoctrinated in.

Will: Yeah. Historically, what's the relationship between critical race theory and activism? I have this sense of it being historically burst onto the scene at Harvard in part in the wake of student protests. The past few years, no law school has been exempt, different rounds of law students that have race-related protests. Is there a set connection coincidental, is that what gives people the impression that it's, I don't know, a theory connected to activism?

Khiara: Yeah, no, I think it's absolutely right that we know, when people tell origin stories of critical race theory, a lot of times, the origin story goes to Harvard and the student protests at Harvard Law and Derrick Bell. I think, I'm going to mess up the history, but Derrick Bell left Harvard, because Harvard refused to tenure a black woman, and he left. He had been teaching a course, I think it was called race and American law or something like that. So, when he left, nobody was going to teach the course. The students were like, “Okay, how about Harvard administration, you guys find a person of color who knows this stuff, who’s lived this stuff to teach it?” The Harvard instead was like, “Well, no, we have some really great civil rights attorneys that we can bring in who’s worked here." They all were white. Students were like, “We really want to learn this stuff from a person of color.” Harvard was like, “Mm, but there's no qualified person to teach this,” and the students are like, “How about we do this on our own?” And so, they made-- I forgot the label that they use for this course. But they self-taught themselves and they brought in outside speakers to teach different classes. 

Kim Crenshaw was one who came up with the term 'critical race theory'. We definitely identify her as a foreparent of critical race theory. She was involved in the Harvard protests, and she would say that those protests generated the energy that would eventually coalesce into critical race theory as an intellectual formation. There's a definite relationship between protests and critical race theory. I would say that for many, many decades, critical race theory was just like this thing that some law professors did. A lot of law faculty had critical race theory professors on their faculty. So, there was a quietism. It wasn't so implicated in protests for, I would say decades after the initial emergence of critical race theory. But in recent years, we've seen protests again at law schools with law students demanding critical race theory courses that they be taught, or there's a certificate you can get, or you hire a person who does critical race theory. So, that kind of relationship between critical race theory and activism in protests continues.

Will: Yeah. All right, so, the story of the Harvard protests makes me realize I have a really dumb question, but I have to ask it. Do you have to be a person of color to self-identify as a critical race theorist?

Khiara: Absolutely not. [laughs] Yeah, no. Again, critical race theory, heterogenous group of folks who identify as-- many of them are white people. A lot of disagreement, a lot of contestation within critical race theory. I understand where the students at Harvard were coming from when they said, “We want to learn this from a person of color.” I don't think that people of color a necessary prerequisite. You have to be a person of color in order to be good at this thing. I would be happy to learn critical race theory from who's ever good enough to teach it, white or nonwhite. But I definitely understand the position that the Harvard students were taking, and I understand the umbrage that they felt when the administration essentially responded, there's no person of color in the world that's good enough to teach civil rights laws.

Will: Yeah, well, and I also get the point that current civil rights lawyers, who are prestigious enough to be associated with Harvard, would be exactly the wrong people to teach that-- to ask the kind of questions they want to ask about what's wrong with that-- [crosstalk] 

Khiara: Right, because [crosstalk] especially in the 1980s, these were the folks who had championed those very laws that critical race theory would come to critique. So, yeah, they would have an investment [chuckles] in defending the laws that the critical race theory as a movement would ultimately come to critique.

Will: Yeah. Okay, wow. This makes a lot of sense to me. 


Will: Thanks, Khiara. For updates and future episodes, follow us on Twitter @uchicagoconlaw. Make sure to subscribe, rate, and comment wherever you get your podcasts. This Deep Dive into Critical Race Theory was recorded in one big session. So, if the conversation jumps quickly, that's why. Stay tuned for new episodes out every Monday and Thursday.


[Transcript provided by SpeechDocs Podcast Transcription]