Of course, this constructionist approach resonates with the earlier CRT ethos of ‘uncovering how law was a constitutive element of race itself: in other words, how law constructed race’ (Crenshaw et al. 1995: xxv). Through this constructionist approach to the race and law, CRT was able to show how racialization was never an ‘even process’ but always a process that was itself embedded in power relations; from the definition of Black Americans as ‘property’ through the period of enslavement, through to legalization of the one-drop rule, and the legalized conversion of the Chinese from a nationality to a racial group in 1870 to justify the Chinese Exclusion Act of 1888.13
4. The importance of intersectionality. While CRT has been accused of race-centrism,14 intersectionality features as one of its foundational concepts. As Delgado and Stefancic (2000[1995]: 9) summarized in their CRT tenets: ‘No person has a single, easily stated, unitary identity […] everyone has potentially conflicting, overlapping identities, loyalties and allegiances.’ Indeed, one of the key pioneers of CRT – Kimberlé Crenshaw – was also a leading figure in developing intersectionality in the field of legal studies. This is not a coincidence. As Crenshaw (1989) argued, the legal system had no legislation to think about issues of gender and race as they are co-articulated. Take DeGraffenreid v. General Motors in 1976, where five Black women brought suit against General Motors, claiming that the business’ seniority system discriminated against Black women due to the fact that they did not hire any Black women prior to the 1964 civil rights legislation. The Court replied that ‘this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both’ (quoted in Crenshaw 1989: 142). Given that (white) women had previously been hired by General Motors prior to 1964, the case for sex discrimination was rejected. Upon recommending that the case therefore be considered through the lens of race discrimination, and the Black women’s response that this defeats ‘the purpose of their suit since theirs was not purely a race claim’, the Court simply replied:15
The legislative history surrounding Title VII does not indicate that the goal of the statute was to create a new classification of ‘black women’ who would have greater standing than, for example, a black male. The prospect of the creation of new classes of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora’s box.
As seen in this example, critical race emphasis on intersectionality, therefore, stressed not merely that inequalities are additive (for example, a Black woman being marginalized in terms of being a woman, and in terms of being Black) but rather that different inequalities are constituted and expressed through each other. It is safe to say, therefore, that while CRT has the word ‘race’ in it, as it emerged in critical legal studies, it was not simply about the study of racism as a something that could be studied as a singular, isolated ‘thing’; hence why intersectionality features as one of its defining concepts.
5. The ‘unique voice of color’. The final key tenet sits in an ‘uneasy tension with anti-essentialism’, to the extent that it holds ‘that because of their different histories and experiences with oppression, black, Indian, Asian, and Latino/a writers and thinkers may be able to communicate to their white counterparts matters that the whites are unlikely to know’ (Delgado and Stefancic 2001: 9).16 Through this notion of the ‘unique voice of color’, Delgado and Stefancic (2001: 9) demonstrate that a large part of the classical CRT methodology involved urging ‘black and brown writers to recount their experiences with racism and the legal system and to apply their own unique perspectives to assess law’s master narratives’. This last point is important. Encouraging legal scholars to recount their experiences connects with the Du Boisian tradition of autoethnography, and the belief that autobiography can be an effective mechanism for reflecting on large, social structural relations. This is exactly the point Crenshaw et al. (1995: xix) make when they claim that:
Critical Race Theory’s engagement with the discourse of civil rights reform stemmed directly from our lived experience as students and teachers in the nation’s law schools. We both saw and suffered the concrete consequences that followed from liberal legal thinkers’ failure to address the constrictive role that racial ideology plays in the composition and culture of American institutions, including American law school.
What was so groundbreaking about Delgado and Stefancic’s work was that it showed how the CRT work in critical legal studies had a clear conceptual foundation, and was not simply a movement of activist scholarship, but that these conceptual claims could also be taken up in other fields of inquiry beyond legal studies. It just so happened that it was particularly educational scholars in the US who first took to the task of engaging with this legal scholarship in a different field.
After Delgado and Stefancic’s scholarship in legal studies, CRT proliferated in US education studies throughout the 1990s and 2000s. The same year these books were published, Ladson-Billings and Tate (1995) wrote a paper entitled ‘Toward a critical race theory of education’, with Solórzano (1997) further opening the field two years later in the paper ‘Images and words that wound: Critical race theory, racial stereotyping, and teacher education’. By this period of the late 1990s, CRT was rapidly growing its own canon in education studies, leading to William Tate’s (1997) review piece ‘Critical race theory and education: History, theory, and implications’. Edited collections on different applicants of CRT in US educational research then became the norm, with a 1998 Special Issue on ‘Critical Race Theory in Education’ in the International Journal of Qualitative Studies in Education (Parker et al. 1998), Parker et al. (1999) co-editing Race Is … Race Isn’t: Critical Race Theory and Qualitative Studies in Education,17 Ladson-Billings (2003) editing Critical Race Theory Perspectives on the Social Studies: The Profession, Policies, and Curriculum, and Dixson and Rosseau (2006) co-editing Critical Race Theory: All God’s Children Got a Song.18
While this ‘new wave’ of CRT scholarship was based in educational studies, it was fundamentally shaped by the key tenets of CRT that Delgado and Stefancic formed from its application in legal studies. Take, for instance, Ladson-Billings’ use of CRT in education studies. In her canonical paper ‘Just what is critical race theory, and what’s it doing in a nice field like education?’ she directly applies each of Delgado and Stefancic’s five tenets of CRT to the field of education. Firstly, she draws on the ‘unique voice of color’ in her autobiographical reflections, claiming that this helps because ‘storytelling is a part of critical race theory’and that these stories can help ‘underscore an important point within the critical race theoretical paradigm, i.e. race [still] matters’ (Ladson-Billings 1999: 8). Secondly, she argues that racism is an ‘ordinary’ feature of the educational system which serves the purpose of maintaining the racial status quo. She demonstrates this by focusing on how, for instance, whites have been the primary beneficiaries of affirmative action in hiring within educational institutions, and how through biased curricula, teacher stigmatization, biased assessments, residential segregation and unequal school funding, Black folks face a significant deficit in the US education system. While many recast resulting educational inequalities through the lens of cultural racism – arguing that Black people do not care about education – Ladson-Billings (1999) thus stresses the need for counter storytelling: to unearth the structural inequalities in the education system to reject myths of Black inferiority. Indeed, given that even the CRT scholars in legal studies looked at issues like educational segregation, it is no wonder that there was such a synergy between legal and educational CRT scholarship at the turn of the twenty-first century.
What is theoretical about critical race theory?
Despite its emergence as a critical project speaking back against structural racism in two of the major US structures – both law and education – some within the academy were unsure whether the ‘T’ in critical race theory was really warranted. In other words, some doubted whether CRT was really a theory at all. Of course, some of this criticism was levelled by those who were opposed to the overall mission
