What Critical Race Theory Is

Critical race theory is an academic legal concept that is more than 40 years old. The core idea is that no race is inherently inferior to another and that racism is not just the product of individual bias or prejudice, but also something embedded in legal systems and policies in the US.

Critical race theory originated in the 1970s as a result of the civil rights movement. The father of the movement was Harvard Law School professor Derrick Bell, who voiced frustration at the limited impact of landmark civil rights laws and U.S. Supreme Court rulings of the previous decade. Bell argued that if racial inequality persisted in a post-civil rights era, then the law was central to explaining that persistence.

Derrick Bell, Founder of CRTJohn Chapin

Legal scholars, such as Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, developed Bell’s ideas further. In a 1995 book, they curated the writings that formed the movement, and their theories began to be explored in law schools all over the country. Critical race theory became a framework for looking at how racism in the law could still exist even when the judiciary claimed to be “color-blind.”

In the words of legal scholar Angela Harris, “Critical race theory not only dares to treat race as central to the law and policy of the United States, it dares to look beyond the popular belief that getting rid of racism means simply getting rid of ignorance, or encouraging everyone to ‘get along.'”

What Critical Race Theory is Not

Critical race theory is not taught in the K-12 curriculum across the US and/or in workplace diversity training. Critical race theory is primarily taught in college, particularly in law school, as a theory for understanding how race and racism have impacted America’s legal and social systems. There is little to no evidence that critical race theory itself is being taught to K-12 public school students, though some ideas related to it, such as lingering consequences of slavery and Jim Crow laws, have been.

Critical race theory does not teach that all white people are inherently racist. The theory says that racism is an “ordinary” part of everyday life, so people — white or nonwhite — who don’t intend to be racist can nevertheless make choices that fuel racism. Critical race theorists say that there are no traits that are “inherent” to any race.

Critical race theory insists that race is socially constructed and maintained to enforce a specific hierarchy, but individuals are not bound to any specific behaviors or skills because of their race. People with common origins share certain physical traits, of course, such as skin color, physique, and hair texture. But these constitute only an extremely small portion of their genes, are dwarfed by that which we have in common, and have little or nothing to do with traits such as personality, intelligence, and moral behavior. So no, white people are not inherently racist, nor are they inherently smarter or better.

Critical race theory also is not supposed to teach people to hate America. One of the CRT founders, Kimberlé Crenshaw, says, “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 so we can become that country that we say we are. So critical race theory is not anti-patriotic. It’s more patriotic than those who are opposed to it because we believe in the 13th and the 14th and the 15th Amendment. 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.”

Critical race theory is also not a Marxist theory. No matter how many times Ted Cruz tweets that it is.

Karl Marx never offered fully developed critiques of law, let alone theories of jurisprudence or legal history. However, CRT is similar to critical legal studies, which claim that laws are used to maintain the status quo of society’s power structures. Critical legal studies is an offshoot of Critical Theory, which was a school of thought made up of German philosophers and social theorists in the Western European Marxist tradition known as the Frankfurt School. So while you could draw a line back to Marxism, it’s a pretty long walk.

Additionally, critical race theory doesn’t have any similarities to Marxism, or at least not any that would upset Ted Cruz. CRT does not advocate for communism, it doesn’t advocate for giving up property rights, and it doesn’t encourage a worker revolution to overthrow capitalism. It is a framework for looking at our legal system, and at its most radical, it advocates for the end of color-blindness in law and the institution of a more race-conscious judiciary.

Why are we arguing about it?

So what does a somewhat obscure legal theory have to do with current politics? Well, it started with the death of George Floyd at the hands of a police officer in 2020. Floyd’s death created a nationwide resurgence of the ideals of the civil rights era as Americans of all races and backgrounds began to educate themselves on issues of race and books about race relations selling out across the country.

This emphasis on learning about Black history and racial inequality spread to classrooms. Teachers began expanding their classroom libraries and including more Black history lessons in their curriculums. This outraged Trump Republicans who argued that learning about these dark parts of American history was designed to make people hate America.

The term “critical race theory” became part of the zeitgeist due to a Fox News interview and a Trump tweet. Christopher Rufo, director of the Center on Wealth and Poverty at the conservative Discovery Institute, argued on Fox News in early September 2020 that Trump should end “radical” diversity training programs in the federal government immediately. He claimed that the reason the programs are bad is that they used critical race theory.

Trump tweeted his opposition to the theory a few days later. By the end of September, former President Trump had issued a memo and an executive order ending racial sensitivity training in the federal government.

According to the memo, all agencies were asked to suspend “any training on ‘critical race theory’ or ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil.”

Suddenly, Trump has made critical race theory his bete noir, so his supporters started looking for a way to “defeat it.” Legislatures in 28 states used Trump’s executive order as a template to draw up their own “critical race theory bills.” These bills aim to outlaw the teaching of critical race theory specifically or to prohibit contentious talks about racism, discrimination, or privilege in general.

As of July 15, legislators in 26 states have introduced bills that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism, according to an Education Week analysis. 11 states have enacted these restrictions.

America’s teachers have decried the laws as “censorship” and the president of the nation’s second-largest teachers union vowed to take legal action to protect any member who “gets in trouble for teaching honest history.”

There are perhaps valid discussions to be had about how much race should be discussed in classrooms, but critical race theory is simply a distraction from that conversation.

Critical race theory has become a scapegoat for conservative punditsTwitter screenshot