were interested in how this entanglement – or articulation – was playing out in the current moment of the post-civil rights era. Of particular interest to these thinkers was a desire to show how ‘civil rights reformism has helped to legitimize the very social practices – in employment offices and admissions departments – that were originally targeted for reform’ (Crenshaw et al. 1995: xv).
This critique of civil rights legislation actually facilitating further racial inequality is demonstrated in Derrick Bell’s scholarship.4 Take, for instance, Bell’s criticism of legal reform post-Brown v. Board of Education – the 1954 case which made it unconstitutional to segregate public schools by race. As Bell points out, the legacy of this case meant that US courts were much more concerned with questions of statistical, demographic desegregation (for instance, having schools that roughly represent the racial demographics of their district) rather than questions of actual educational quality which was accessible to Black students. This is important because in a context of civil rights legislation, many whites feared the integration of Black folks into their public institutions, and consequently took flight from their urban areas to create white enclaves.5 This meant that while educational segregation was de jure unconstitutional, it was de facto still very much the norm. Indeed, the US legal system was shaped so that such de facto segregation could not be understood as a form of discrimination; schools could only be accused of segregation if plaintiffs could prove that such segregation was itself the result of ‘discriminatory actions intentionally and invidiously conducted or organised by school officials’ (Bell 1995b: 24) – a criterion that was both equivocal and deliberately near-impossible to attain.
Part of the issue of this period, from the CRT position, therefore, was that the legal system only understood ‘racial discrimination’ through a ‘perpetrator perspective’ that does more harm than it does good.6 Through this perspective, ‘the law views racial discrimination not as a social phenomenon but merely as the misguided conduct of particular actors’7 – in other words, racism becomes an issue of bad actors rather than an issue of social (including legal) structure(s). This legal perspective on racism meant that there were many contradictory instances where anti-discrimination laws were invoked in courts to legitimize racial discrimination. An early case where this figured was Milliken v. Bradley (1974), where the Supreme Court refused a remedy for racial segregation in Detroit (where the whites had fled to the suburbs, leaving Black people concentrated in urban areas, de facto segregated both residentially and educationally in poorer social and educational spaces).8 Despite the district court proposing a scheme that would integrate across the urban and suburban schools, in order to battle educational segregation, the Supreme Court directly invoked the anti-discrimination law that ‘an inter-district remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race’, but that they found no evidence of either of these violations.9
It was in this context, therefore, that CRT scholars argued that Black people were ‘worse off in terms of legal theory’ in the post-civil rights era ‘than they were under the former “separate but equal” doctrine’.10 Indeed, the veracity of this argument can be demonstrated through raising some questions: if civil rights legislation was supposed to realize racial equality, how could the very same laws be used by whites to claim anti-white discrimination in university admissions?11 If the legal system was supposed to bring material racial equality, how come the primary beneficiaries of the resulting affirmative action have been white women?12 These questions seem to point us towards the CRT position that, despite the pretence of being race-neutral, the US legal system is in fact deeply articulated in racialized processes.
From a movement to a theory?
Through its critiques of legal reform, CRT became recognized as a growing academic paradigm in the US – by critics and advocates alike. However, both critics and advocates of CRT failed to really spell out the ‘T’ in CRT – that is, they failed to really think about what made critical race theory theoretical. While critics saw this as a problem for CRT, advocates saw this absence of discussion as a deliberate strategy; upon reflection, Crenshaw (2011: 1261), for instance, claimed that:
CRT is not so much an intellectual unit filled with stuff – theories, themes, practices and the like […] In the same way that Kendall Thomas reasoned that race was better thought of as a verb rather than a noun, I want to suggest that shifting the frame of CRT toward a dynamic rather than static reference would be a productive means by which we can link CRT’s past to the contemporary moment.
In thinking of CRT as a verb rather than a noun, Crenshaw thus proposed we think of it as a practice, or methodology, for thinking about racism rather than as a theoretical framework per se. However, this did not mean that others in the CRT canon did not try to lay out some conceptual foundations of the CRT framework – and indeed, as we will see, scholars particularly in educational studies found these early attempts at making a CRT framework very fruitful for their analyses.
It was perhaps in Richard Delgado and Jean Stefancic’s two books Critical Race Theory: The Cutting Edge (2000[1995]) and Critical Race Theory: An Introduction (2001) that we see some of the early attempts to specify the key tenets of CRT in a way that still remains popular several decades later. While both Delgado and Stefancic were legal scholars firmly rooted in the ‘first wave’ of legally informed CRT scholarship, their tenets of CRT were – in theory – applicable well outside of the study of the legal system itself. These tenets were as follows.
1. Racism is ordinary, not aberrational. Central to CRT – as iterated by Delgado and Stefancic – is the idea that racism happens because of social arrangements, not in spite of them. This requires moving beyond the limited view of racism as an act of individual bigotry, and instead envisaging racism as a structural power relation. Such an argument, as Delgado and Stefancic show, had obvious connotations in the field of legal studies from which CRT emerged. As noted formerly, it meant that CRT scholars encouraged the US courts, judges and whole legal apparatus to go beyond an understanding of racial discrimination as something that had to be an intentional action by an actor, and instead to embrace an understanding of discrimination that also took into consideration the wider structural effects of racialization: whether that be the role of historical segregation on current relations, the use of officially ‘race-neutral’ criteria for certain jobs (e.g. a certain level of qualification, or score on a means test) which ends up disadvantaging Black Americans, race-neutral hiring or admissions policies which treat all racialized applicants as equal despite their differing locations in social hierarchies, and so on.
2. Racism serves important purposes. Once we conceive of racism as being ordinary, rather than being a ‘glitch’ in the system, we can gain an understanding of how it does not ‘just happen’ but serves specific purposes. Again, this was a point made in the context of legal studies that is simultaneously applicable outside the legal field. Early CRT scholars pointed out how racism functioned in the legal system not as an aberration, but as a means of both rationalizing and reproducing racial inequality. This can be seen in the aforementioned cases of anti-discrimination legislation being invoked to justify racial discrimination, just as much as it can be seen in the enforcement of constitutional colour blindness (for instance, in California’s Proposition 209 in 1996, which prohibited state governmental institutions from considering race in public employment, public contracting and public education), or in clauses in the US Constitution, such as in the 13th amendment, which prohibits slavery and involuntary servitude except as a punishment for a crime of which one has been convicted – all of which may appear to be race-neutral but are in fact deeply entrenched in producing racial inequality.
3. Race and races are products of social thought and relations. Here, we see CRT committing to a constructionist conception of race whereby ‘races’ are ‘not objective, inherent or fixed, they correspond to no biological
