From white supremacy to race-conscious discrimination
There has been much debate over what does and what does not constitute “critical race theory.” The term has been used to describe everything from the foundational legal theory texts by Kimberlé Crenshaw and Richard Delgado, to the popular “anti-racist” works of Ibram X. Kendi and Robin DiAngelo. Others have erroneously used the term to describe even the most objective and factual descriptions of America’s racial history. The imprecision of the term has led some commentators, like Thomas Chatterton Williams, to advocate for its retirement. In recent op-eds, Ross Douthat and John McWhorter have attempted to get beyond the semantic debate and focus on how the framework, regardless of its label, has emerged from the academy and started to influence public schooling among other institutions. This is a welcome development in the discourse. The semantic treadmill will keep going; any new label will be resisted by the ideology’s proponents, and over-applied by its opponents. But because critical race theory, or CRT, is the current most widely used shorthand, that is the term I will use.
Critical race theory is best understood as a means to an end. What is that end? The elimination of disparities between racial groups. The foundational assumption of critical race theory is that all racial group disparities are de facto evidence of racism. This is why ostensibly race-neutral institutions like the criminal justice system or even the SAT are considered “racist” by critical race theory proponents.
Contrast this understanding of racism to the “traditional” conception of racism, which understood the term to describe individuals, organizations, and institutions treating people differently on account of their race. In the American context this usually entailed white people mistreating black people with the tacit approval of the law. Being aware of this distinction is key to understanding critical race theory and the deep division between subscribers and opponents of the framework.
I am a black American. I do not have substantial roots from a foreign country. The nation-states that currently administer West Africa did not exist as such when my ancestors were taken and brought to what would become the United States of America. I am deeply aware of the ways in which white people as individuals, through organizations, and through the government, oppressed black people. I have no qualms saying that the United States was, for much of its history, a white supremacist state.
It is undeniable that the United States was rife with “traditional” racism for most of its existence. What the renewed focus on racism has accomplished is revealing just how pervasive this traditional racism was. While most Americans were familiar with slavery and the racial oppression of the Ku Klux Klan, Ta-Nehisi Coates turned our attention to the deep-rooted racism within organizations ranging from private neighborhood associations to the federal government, and its social ramifications. Various writers and publications followed suit, uncovering primary documents long lost to public memory and exposing the past ubiquity of traditional racism. In civil rights law jurisprudence, the traditional racism to which I have been referring is known as “disparate treatment.”
Post-1960s America has seen a divide in how we collectively conceive of racism. The Civil Rights Movement of the 1960s saw the passage of landmark federal legislation, including the Voting Rights Act of 1965, the Fair Housing Act of 1968, and the Civil Rights Act of 1964. These groundbreaking laws had the effect of making discrimination illegal in various areas of life nationwide. While these laws could not directly change hearts and minds, they provided the legal conditions for racial integration and black representation and achievement that substantially softened racist attitudes in the proceeding decades, perhaps best represented by the increase in support for black-white interracial marriage. The decline in traditional racism, facilitated by federal civil rights legislation, removed the legal barriers that had previously held black Americans back, allowing them to reach the highest levels of business, media, academia and government. In my view, the great triumph of this legislation was that it allowed black Americans to live and strive as individuals by providing them with substantial legal recourse if they were not treated equally under the law.
However, despite the successes black Americans have achieved in the years since the Civil Rights Movement, disparities between racial groups persist. But civil rights laws, in addition to providing protections against traditional racism or “disparate treatment,” also recognize “disparate impact,” which is roughly what people mean when they say “systemic racism.” Disparate impact refers to facially neutral policy or criteria resulting in one group being underrepresented, usually in the context of employment. In the legal context, there does not need to be any evidence of discriminatory motive to bring a successful disparate impact lawsuit.
So, the fundamental question becomes whether disparate impact constitutes “racism.” This is where the conceptual divide occurs. CRT’s opponents, including myself, think that underrepresentation resulting from objective criteria is unfortunate, but not “racist.” CRT advocates, on the other hand, hold that disparate impact constitutes a form of racism. As such, in their view, racism can exist without there being any racist individuals in positions of influence.
American civil rights law is colorblind. Title VII of the Civil Rights Act of 1964 reads in relevant part, “It shall be an unlawful employment practice for an employer to…limit, segregate or classify his employees in anyway which would deprive or tend to deprive any individual [emphasis added] of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s [emphasis added] race, color, religion, sex or national origin.” Congress, at the time of drafting, believed that the best way to address the disparate treatment that was pervasive in American society was to effectively outlaw discrimination against individuals on account of their protected characteristics, including race. This colorblind framework allows even white people to bring civil rights suits if they believe they’ve been racially discriminated against. While such a framework has proven very effective in removing obstacles and allowing black individuals to rise through the ranks, it has been far less effective in closing the disparities between black people and white people as groups.
As a result, critical race theorists, who subscribe to the notion that disparities are inherently unacceptable, attack the notion of colorblindness. Colorblindness, even as an aspiration, is viewed as naïve, counterproductive, or even as a Trojan horse for white supremacy. In their view, current colorblind civil rights laws are insufficient to remedy past injustices and eliminate current disparities. As such, for the critical race theorists and their proponents, achieving the ends of closing racial disparities requires the adoption of race-conscious legislation; it requires civil rights that inhere in groups not individuals. This is why critical race theory and its popular manifestations must be understood for what they are: a deliberate and organized effort to implement race-conscious “civil rights” legislation.
As stated, the fundamental assumption of critical race theory is that disparities between racial groups are in themselves evidence of racism. This assumption is faulty because it fails to allow or account for the numerous reasons other than racism that racial groups might have different outcomes. At the population level, these plausible reasons include age, geography, and, of course, culture. Many analysts of group differences are trapped in the false binary that these differences must result from either racism or genetic differences. However, Thomas Sowell and others have made compelling arguments about why this simply is not true. This is not to say that past disparate treatment has had no effect on current disparate outcomes, but it certainly cannot be the only cause for these disparities. Accordingly, a policy that begins from the faulty assumption that disparities equal racism is bound to fail as a bulwark against what actual racism still exists today.
The insistence that disparities equal racism, along with a successful push for race-conscious civil rights legislation, would almost inevitably result in racial quotas. Without such quotas, it is impossible to legislate into existence the conditions needed to ensure equal outcomes. The French historian Fernand Braudel wrote, “In no society have all regions and all parts of the population developed equally.” Achieving equal outcomes across groups would not only entail the development of equal capabilities, but it would also require that all groups have identical preferences of how they choose to use those capabilities. Sowell quipped that this doesn’t even happen among siblings raised in the same household, no less large racial groups that developed in vastly different historical and cultural circumstances. Again, this is not to say that racism has had no impact on outcome disparities, only that legislation has limited means of redressing these disparities.
Why are quotas bad? Supreme Court Justice Sandra Day O’Connor defined quotas in Grutter v. Bollinger: “A quota is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups. Quotas impose a fixed number or percentage which must be attained or which cannot be exceeded, and insulate the individual from comparison with all other candidates for the available seats.” The standard of representation sought by critical race theorists and their proponents is often national demographic proportionality. When they claim that a group is “underrepresented,” they mean in relation to their proportion of the national population. For example, the United States is roughly 13 percent black. Let’s say a school has less than 13 percent black people, black people would be considered “underrepresented” at that school. This reasoning is so pernicious because it necessarily implies a group can be “over-represented.” It’s clear to see how this can lead to all manner of vile thinking. Jewish people, for example, make up about 14 percent of American physicians while comprising only about 2 percent of the general population. A standard based on national demographic proportionality would therefore consider Jews to be “over-represented” in medicine. In and of itself this is fine. But if the assumption is that under-representation is necessarily indicative of discrimination, over-representation might be assumed to indicate that some are “gaming the system.” It is easy to see where this path leads.
Another reason why quotas are detrimental is because they necessarily place a ceiling on high performing groups. For example, some Asian-Americans currently claim that they have been unjustly impacted by the Affirmative Action policies at highly competitive universities. Imagine if a quota system based on national demographics were put in place. Asians make up about 6 percent of the United States’ population, and yet a 6 percent cap on Asians in university admissions would be a crushing ceiling, especially considering their disproportionately high levels of academic performance. It was these kinds of racially informed constraints on individuals that the Civil Rights Act of 1964 sought to avoid.
Many proponents of race-conscious policies claim that these policies are unquestionably pro-black. But even for black Americans there are serious drawbacks to race-conscious civil rights law and quotas in particular. For one, race-conscious policies would only be superficial solutions; they would create the appearance of success for black Americans without addressing substantive failures in education and elements of our culture. This leads to a second point, namely, that interracial conflict and anti-black sentiment would likely increase if individual black people were artificially placed into competitive positions for which they were unprepared or unqualified. Such circumstances would likely produce a socio-political backlash that might very well be a net negative for our society, and ultimately for black Americans as well.
Additionally, an explicit quota system poses a serious risk of worsening intraracial conflict as well. Racial categories are fluid and groups can be endlessly subdivided. It is not difficult to imagine a scenario wherein the “black” racial group is further subdivided to Black Americans (or ADOS if you prefer), Caribbean-Americans, Nigerian-Americans, et cetera, and the attendant conflict over how representation would be allocated among these groups. I believe race-conscious benefit allocation and quotas necessarily incentivize these kinds of conflicts.
I am an optimist. I believe that, in time, with certain cultural and policy adjustments, black people can begin to overachieve in academia and business. (We already overachieve in athletics and music, after all.) In my view, our concern as black people should not necessarily be with closing all disparities between ourselves and other racial groups, but rather with ensuring that we become ever safer, healthier and wealthier—a process that may eventually close these gaps on their own. Relative success or failure should not be determined on that metric. We know that individual black people can reach the very top of their chosen professions. To the degree that persistent gaps are due to ongoing racism, the key for closing them is to create conditions that allow each black person to maximize their individual potential. This necessitates creating stable, loving homes and safe communities, which will in turn allow for productive educational environments. This will require sound policies that recognize the reality of incentives. But more importantly, it will require certain cultural changes that cannot be imposed from the outside.
It is my hope that the current conception of racial justice activism evolves into an activism that is less concerned with the ways in which white people have held us back, and more concerned with what history has shown we have the capability of doing for ourselves.
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Chad, you are a winner. Best of luck as you move forward in your legal career. We need more young Americans like you and especially more law students who can think for themselves
A remarkable article. I've been looking for such a neutral and precise description of these concepts for a long time. Here is hoping it spreads around!