What Is Critical Race Theory?
Racial-justice activists at Harvard Law School (HLS) won one of the largest public battles over the school’s legacy this month, when the administration agreed to abandon the existing HLS shield. The shield was modeled after the crest of the slaveholding Royall family, whose fortune endowed Harvard’s first law professorship; the shield’s removal was the first of a list of demands issued in December by student group Reclaim Harvard Law School. But HLS has not, so far, acted on the group’s larger, more controversial demands—among them, creating a program in critical race theory, a legal-studies movement with origins at Harvard in the 1970s.
On Monday night, Reclaim HLS hosted a critical race theory teach-in by Khiara Bridges, an associate law professor at Boston University, modeled on how she teaches first-year criminal law. “We’re not pretending that we’re disconnected from the real world,” Bridges said as she opened her presentation, alluding to one of the motivating goals of critical race theory: to link activism with academics. The event took place in the student lounge of Wasserstein Hall, which members of Reclaim HLS have occupied for the last month to create opportunities for learning and discussion, and to bring visibility to their demands.
Bridges didn’t teach her class like a typical 1L criminal-law course. Using an example from case law, involving a Native American couple charged with negligent homicide of their baby, she asked her audience how race and level of education should bear on the outcome of the case. Should the impoverished couple, neither of whom had a high-school education, have known that the baby’s swollen tooth could create an infection and result in death? What if they didn’t have money to go to the doctor, or they had a reasonable fear, as Native Americans did at the time, that the state would take their baby away if they sought medical care? What are the costs and benefits of considering a defendant’s race and class? What does it mean to create a “reasonable person” standard in the law? Who defines “reasonable,” and what kinds of people might be excluded as a result?
Bridges’s presentation ended where it began, linking legal theory to its social ramifications. “When one is constrained by the absence of privilege, it makes actions that might be breaches of criminal norms less morally culpable,” she said. “If we punished according to moral culpability, we would be punishing poor folks, folks without racial privilege, less than other folks. But that’s not what the criminal justice system looks like. It in fact looks like we’re punishing folks without privilege the hardest.”
Critical race theory grew out of what its originators viewed as the failures of the civil-rights movement to dismantle white supremacy. Theorists use the framework to move beyond equality before the law, focusing instead on how the law itself is shaped by racist interests and assumptions. “Unlike traditional civil rights, which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law,” write legal scholars Richard Delgado and Jean Stefancic in Critical Race Theory: An Introduction. Critical race theorists stress microaggressions—“small acts of racism,” Delgado and Stefancic argue, that occur outside legal or political systems, but that nonetheless inform public life and structure white supremacy. In this sense, the academic movement is a close relative of radical feminism, which had linked private actions to the perpetuation of patriarchy.
Critical race theorists have produced much of the language and ideology that’s important to understanding activist culture today. One of the field’s central assumptions—that personal narratives from people of color should be central to academic study of oppression—is also pervasive among racial-justice activists, informing students’ view of how decisions affecting Harvard should be made, and whose voices should be elevated in debates about racism. Theorists believe that race should be treated as a social construct rather than a biological fact—an idea drawn from sociologists in the mid twentieth century.
Former HLS professor Derrick Bell, an early critical race theorist and one of the movement’s most important contributors, participated in protests targeting the school’s failure to appoint critical race theorists in the 1980s, and ultimately left Harvard over another hiring disagreement. Bell theorized that the legal system advances the interests of black Americans only when doing so also benefits the white majority—the “interest convergence” principle. The Supreme Court ruled against racial segregation in Brown v. Board, he famously argued, not for the benefit of blacks, but because school desegregation enhanced America’s image abroad. Interest convergence is today applied to legal analyses even outside critical race frameworks, and might help explain why, for example, school segregation hasn’t declined since Brown.
Bridges will be a visiting professor at HLS next year, teaching courses on critical race theory, reproductive justice, and criminal law. Her appointment appears to satisfy one of Reclaim HLS’s demands: that the school add a visiting professor in critical race theory by this fall. HLS officials declined to comment on when the appointment was made relative to the group’s demands. The school currently offers courses on critical race theory (taught this year by Biele professor of law Kenneth Mack and Boskey professor of law Lani Guinier) and on other topics in race and the law, though no faculty members call the field a primary research interest. Members of Reclaim HLS stress that the relationships among race, class, and the law should be taught not just in elective classes, but in the required common curriculum as well.
“The way criminal law is taught traditionally is rule-focused, so we’re only focusing on what the rules are and applying those rules to various fact patterns,” Bridges said in an interview. “It’s much more comfortable for most people, including law professors, to teach the rules as if they’re divorced from social context. It’s easier for me, even, to avoid the race subject, but I wouldn’t be doing my job as a professor to teach criminal law as if the world is unaffected by what I’m teaching.”
If the demands of Reclaim HLS are met, approaches like Bridges’s would be required study for all law students before they graduate. Whatever the outcome of that debate, her arrival next year signals Harvard’s renewed attention to race and the law, and reflects the influence of students’ broadened interest in racial justice.