Excerpted From: Thomas W. Simon, Does Black Legal Theory Matter? Critical Race Theory and a Revived Radicalism, 18 Southern Journal of Policy and Justice 137 (May, 2024) (343 Footnotes) (Full Document Requested)


ThomasWSimonCritical Race Theory (CRT) has come under attack for allegedly teaching anti-Americanism, racial hatred, and any variety of undesirable social critiques. Those attacks are misguided. For example, many commentators have pointed out that CRT resides primarily in American law schools and has little connection with primary or secondary education. However, this Article does not focus on the current CRT controversy. Rather it provides readers with a clear, comprehensive understanding of CRT. Before discussants takes a stance on CRT, they need to understand its history and basic tenants. So, this Article provides readers with a clear, comprehensive understanding of CRT.

However, this Article does more than set the record straight. It uses the current public uproar over CRT as an opportunity to transform CRT into a powerful, radical legal theory. CRT, even if properly understood, needs some serious reworking. By tracing its history and scrutinizing its claims, this Article aims to guide, push, and transform CRT. Three key concepts anchor the critique and proposal: class, poverty, and inequality. CRT, like much of legal theory, has ignored these three basic concepts, much to its detriment. This Article traces CRT's history (B); examines its theory (C) and methods (D); uncovers the forces of liberalism and identity politics (E) that undermine it; and shows, finally, how a focus on class, poverty, and inequality can transforms claims about intersectionality (F) into a powerful antiracist anti-capitalist theory (G).

Section B begins with alternative histories of the civil rights movement to place CRT in the most appropriate context. Liberalism frames this history as a series of incremental political and legal reforms. An alternative version brings to light the often-forgotten economic issues that informed the civil rights movement. Section C examines CRT's theoretical contribution. Accounts of CRT typically highlight the late founder of CRT Derrick Bell's interest convergence thesis. For Bell, any progress for blacks only comes on the heels of enhancing the interests of whites. This Article poses an even more jaded account in the form of an interest divergence thesis. That analysis finds that progress on racial issues forms part of a divide and conquer strategy whereby civil rights reforms come not so much as a benefit to whites but at the expense of poor whites.

CRT's unusual methodologies--storytelling, counternarratives, and chronicles--occupy Section D. CRTs deserve credit for championing the use of narrative. However, CRT still comes up short in the realm of theory making. Filling that gap marks one of the goals of this analysis.

Section E examines two of many ways that liberalism diverts CRT. First, liberalism places a high value on rights, particularly political rights such as the right to free speech. The liberal framing of contentious debates over hate speech all but guarantees a losing battle for CRT. Similarly, liberalism keeps CRT in a hopelessly defensive posture defending, debating, and trying to improve affirmative action. CRT can learn from these past misguided efforts. These lessons prove particularly salient given the seemingly devastating blows to affirmative action delivered most recently by the United States Supreme Court.

These liberal ploys steer CRT away from more important concerns centered around class, poverty, and inequality. This Article exposes the liberal game of coaxing progressives into thinking that something terribly important is at stake in hate speech and affirmative action debates. In actuality, these interminable debates leave issues of white wealth and power largely untouched. CRT inattention to economics proves especially troublesome with respect to universities, those bastions of elite protectionism, which portend to defend against hate speech and to promote affirmative action.

Section E further catalogues the many ways that CRTs, through the countless permutations and combinations of groups, have created serious problems of their own. As shown below one identity problem leads to another, sometimes more intractable, problem. For example, to free themselves from the throes of the black/white identity binary, CRTs directed the debate to a new, more progressive level by highlighting white privilege. Unfortunately, by emphasizing whiteness, CRTs largely bypassed issues of white wealth and power. Instead, CRTs, looking more at the other side of the binary, namely, blackness, travelled further down the identity road to colorism, whereby light-skin has proven advantageous over dark-skin. To put CRT back on the path this Article proposes less attention to these positive facets of group identity and greater attention to negative group identity and to group harm,

Section F moves CRT in a more positive direction but only after offering a pointed critique of intersectionality. The story here repeats the stages catalogued in previous sections, wherein an initially insightful analysis leads to insurmountable problems. Indeed, theorists and jurists had overlooked how the intersection of race and gender creates a new identity (for example, black female), different from each of its component parts (black and female). Yet, that insight, once again, gets dampened by the failure to push the analysis one step further. That step is not to add one more group called class to the array. Rather, it is to fully integrate into the analysis economic factors that underlie the notions of class, poverty, and inequality. Applying those concepts to criminal justice issues leads directly to advocating more radical measures such as prison abolition.

Yet, this Article does not stop with a radical approach to criminal justice. Section G argues for CRTs to fully confront capitalism. Only by adopting an antiracist and anticapitalist position will Critical Race Theory really matter. If CRT gets lured into battling the recent false accusations lodged against it, it will remain ineffective. These times call for more radicalism, not more liberal retreats.

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This Article concludes by putting CRT in the context of current politics. The Occupy Movement (2011) and Black Lives Matter (2012) started around the same time. Some argue that the Occupy Movement, while lasting only a few months during the occupation of Zuccotti Park in New York City, has had a more lasting impact at the local and national level through making inroads into the Democratic Party. Black Lives Matter has recently had an incredible resurgence. However, rather than chronicling these movements, they can best serve as symbols of a perennial problem in the history of social movements in American history. One of these forces places a premium on systemic inequality; the other, on structural racism. For some brief moments, the two movements converge, but, most often, they operate on separate tracks.

Every protest movement comes complete with a sense of urgency, imploring others to recognize the uniqueness of the moment. However, present readers of this need no convincing about the severity of the current crises. The combination of the two-tracks--economic and racial--constitute what we call an injustice imperative.

CRT finds itself relatively well-positioned to carry out this dual-pronged attack. It has a history to build on and a critical mass to radicalize. Its position within the legal academy gives it a necessary legitimacy. The law and legal theory need not be peripheral to social justice change. Rather, they can and should be at the forefront.

This Article has traced the origin, rise, and revival of CRT. Its origins prove telling but not determinative. It grew out of a period in legal history dominated by liberal reformism. In trying to negotiate with liberalism, it became trapped by liberalism. It allowed liberalism to dictate its issues and concerns. CRT has waged an impossible battle against hate speech. It also went down the hopeless path of trying to reinterpret affirmative action in a progressive way.

CRTs have had their share of progress with its innovative narrative method and interest convergence thesis, by making identity central, and by pushing intersectionality. The narrative method does give some voice to those at the bottom who must be heard, but CRT needs a much deeper voice. It needs a theory that centers on political economy. The interest convergence thesis provides a more realistic view of legal change, but interest divergent helps account for the disastrous divide between poor whites and poor blacks. Identity, particularly in the form of antiracism, has and should occupy a central place in CRT but not to the exclusion of a focus on inequality. Intersectionality has rightfully highlighted the critical overlap between race and gender, but it should also include class.

CRT needs to reach back to a more radical past to adopt more radical stances such as prison abolition. But most importantly, the world desperately needs a radicalized CRT that unhesitatingly voices its opposition to capitalism. That would truly be a legal theory that matters.

Professor, Johns Hopkins University.