“Critical race theory,” as the phrase is being used in contemporary parlance, has no fixed or agreed upon meaning. That makes it very difficult to analyze or discuss, and it accounts for the chaotic nature of the discussion.

More than 40 years ago, law professor Derek Bell, along with Richard Delgado, Maria Matsuda, Patricia Williams and others, developed an approach to the study of law as it bears on matters of race that came to be known as “critical race theory.”

It drew on an approach to law generally that had emerged a few years earlier known as “critical legal studies.” It also drew, very loosely, on a different and yet older school of thought about the analysis of social life known as “critical theory,” which was associated with the so-called “Frankfurt School” revisionist Marxists of the 1920s-1970s — Max Horkheimer, Theodor Adorno, György Lukács, Herbert Marcuse and others.

Additional influencers included continental European “post-modernist” social critics and literary theorists whose work began gaining prominence in the U.S. in the mid-1970s.

The basic idea was to show that racism — and inequalities produced by racism or associated with it — were obscured by conventional, formalistic legal analysis and “liberal” ideology that purported, at least, to prescind from racial or other identitarian forms of categorization.

In its stronger versions, critical race theory was explicitly hostile not only to “legal formalism” and “liberalism,” but also to capitalism, rationalism and the idea of intellectual or analytical objectivity (and, correspondingly, to the belief in objective truth).

Critical race theory had a certain impact in the worlds of legal education and scholarship, but by no means became dominant. It competed with other intellectual movements, such as the “economic analysis of law” pioneered by libertarian or libertarian-leaning legal scholars such as Richard Posner, Frank Easterbrook and Richard Epstein.

Critical race theory was clearly a left-wing movement; economic analysis was generally regarded as a right-wing movement. Of course, most legal scholars belonged to neither of these schools, but were traditional “formalists” and “liberals” who, whatever their politics, did legal scholarship more or less as it had traditionally been done, and taught their courses in that same manner.

What is being taught in many schools today is not critical race theory, if by “critical race theory” one means the writings of Bell, Delgado, Matsuda, Williams and others who developed this approach to law.

In fact, students are not given a formal “theory” of anything at all. But they are encouraged to view the world in a certain way — they are being taught to be identitarians — that is, to treat racial or gender identities as central to who they, themselves, and other people are. And this teaching is often justified in the name of “anti-racism.”

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The world is divided up into two categories or classes: persecutors and persecuted, oppressors and victims. You are one or the other depending on your “identity.” If you are a “white, heterosexual, cisgender” person, and especially if you are one of those who is also male, then you enjoy “privilege” that makes you, wittingly or unwittingly, at least something of an oppressor — or, at a minimum, a beneficiary of oppression. If you are BIPOC (Black, indigenous, person of color) or LGBTQA+, then you are in the victim class. Everything is racialized or (more broadly) “identitized.”

In this way, students are taught to think of themselves as privileged or victimized. The privileged are infected by “whiteness,” which it is their duty to recognize in themselves and in society and to ameliorate. They must adopt — and express (for “silence is violence”) —certain moral and political views. They must confess that they have wrongly benefited from “white privilege” and they must adjust their behavior accordingly. They must be an “ally” and, while not leading (for that would be taking advantage of their privilege), they must support “diversity, equity and inclusion.”

Supporting “equity” means rejecting merely formal equality, that is, treating people the same — equally — irrespective of race or ethnicity — which allegedly masks privilege and the racism and other forms of bigotry (e.g., “heteronormativity”) that created and sustains it. Demographic performance disparities arising in contexts of formal equality must be seen as the fruit of prejudice and injustice and, in the name of “equity,” not be allowed to stand. Concepts like “merit” must be abandoned — again, they allegedly mask privilege.

So let’s say that, based on test scores and grades, a class is admitted to a prestigious university that is 40% Asian, despite the fact that Asians are, let’s say, only 8% of the general population. What you have, despite formal equality, is a violation of equity. Asians are “overrepresented” while other racial categories may be “underrepresented.” 

Now you might ask: “How can it be a problem, since Asians are ‘non-white’ and therefore cannot benefit from ‘white privilege’?” The answer, in some circles, is strangely that Asians are “white-adjacent.”

Critics of critical race theory, and especially critics of what is being taught in the schools as “anti-racism,” regard it as being racist.

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Supporters regard it as the only authentic form of anti-racism, condemning “liberal” theories and approaches that propose formal equality (and “color-blindness” in public policy) as mere masks for institutional or structural (“systemic”) racism.

Conservatives and old school liberals contrast the core ideas of critical race theory with the teachings of the Rev. Martin Luther King who dreamed of, and worked for, the day when his children, and all children, would be judged “not by the color of their skin but by the content of their character.”

Advocates of critical race theory endorse the vision of Boston University professor Ibram X. Kendi, author of the bestselling “How to Be an Anti-Racist,” who says, “The only remedy to past negative racist discrimination that has produced inequity is present positive antiracist discrimination that produces equity. The only remedy to present negative racist discrimination toward inequity is future positive antiracist discrimination toward equity.”

Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University.

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