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iNTRODUCTION

H I s volume offers a representative, desire not merely to understand the vexed bond T though by no means exhaustive, compila­ between law and racial power but to change it. tion of the growing body of legal scholarship The essays gathered here thus share an ethical known as Critical Race Theory (CRT). As we commitment to human liberation-even if we conceive it, Critical Race Theory embraces a reject conventional notions of what such a con­ movement of left scholars, most of them schol­ ception means, and though we often disagree, ars of color, situated in law schools, whose work even among ourselves, over its specific direction. challenges the ways in which race and racial This ethical aspiration finds its most obvious power are constructed and represented in concrete expression in the pursuit of engaged, American legal culture and, more generally, in even adversarial, scholarship. The writings in American society as a whole. In assembling and this collaboration may be read as contributions editing these essays, we have tried both to to what Edward Said has called "antithetical provide a sense of the intellectual genesis of this knowledge," the development of counter­ project and to map the main methodological accounts of social reality by subversive and sub­ directions that Critical Race Theory has taken altern elements of the reigning order. Critical since its inception. Toward these ends, the Race Theory-like the Critical Legal Studies essays in the first few parts are arranged roughly movement with which we are often allied-re­ in the chronological order of their publication. jects the prevailing orthodoxy that scholarship The remaining parts, however, are devoted to should be or could be "neutral" and "objective." the most important methodological strands of We believe that legal scholarship about race in Critical Race Theory today. We have chosen to America can never be written from a distance of present the substance of the original essays detachment or with an attitude ofobjectivity. To rather than small portions of a greater number the extent that racial power is exercised legally of works, in the interest of providing the reader and ideologically, legal scholarship about race is with texts that retain as much of their complex­ an important site for the construction of that ity, context, and nuance as possible. power, and thus is always a factor, if"only" ideo­ As these writings demonstrate, there is no logically, in the economy of racial power itself. canonical set of doctrines or methodologies to To use a phrase from the existentialist tradition, which we all subscribe. Although Critical Race there is "no exit"-no scholarly perch outside the scholarship differs in object, argument, accent, social dynamics of racial power from which and emphasis, it is nevertheless unified by two merely to observe and analyze. Scholarship-the common interests. The first is to understand formal production, identification, and organiza­ how a regime of white supremacy and its subor­ tion ofwhat will be called "knowledge"-is inev­ dination of people of color have been created itably political. Each of the texts in this volume and maintained in America, and, in particular, seeks in its own way not simply to explicate but to examine the relationship between that social also to intervene in the ideological contestation structure and professed ideals such as "the rule of race in America, and to create new, opposi­ of law" and "equal protection." The second is a tionist accounts of race. [xiv]

The aspect of our work which most markedly rested on the exclusion of virtually the entire distinguishes it from conventional liberal and domain of progressive thinking about race conservative legal scholarship about race and within colored communities. With its explicit inequality is a deep dissatisfaction with tradi­ embrace of race-consciousness, Critical Race tional civil rights discourse. As several of the Theory aims to reexamine the terms by which authors in this collection demonstrate, the race and racism have been negotiated in Ameri­ reigning contemporary American ideologies can consciousness, and to recover and revitalize about race were built in the sixties and seventies the radical tradition of race-consciousness around an implicit social compact. This com­ among Mrican-Americans and other peoples pact held that racial power and racial justice of color-a tradition that was discarded when would be understood in very particular ways. integration, assimilation and the ideal of color­ Racial justice was embraced in the American blindness became the official norms of racial mainstream in terms that excluded radical or enlightenment. fundamental challenges to status quo institu­ The image of a "traditional civil rights dis­ tional practices in American society by treating course" refers to the constellation of ideas about the exercise of racial power as rare and aberra­ racial power and social transformation that were tional rather than as systemic and ingrained. constructed partly by, and partly as a defense The construction of "racism" from what Alan against, the mass mobilization of social energy Freeman terms the "perpetrator perspective" re­ and popular imagination in the civil rights strictively conceived racism as an intentional, movements of the late fifties and sixties. To albeit irrational, deviation by a conscious those who participated in the civil rights move­ wrongdoer from otherwise neutral, rational, and ments firsthand-say, as part of the street and just ways of distributing jobs, power, prestige, body politics engaged in by Reverend Martin and wealth. The adoption of this perspective Luther King, Jr.'s cadres in town after town allowed a broad cultural mainstream both ex­ across the South-the fact that they were part plicitly to acknowledge the fact of racism and, of a deeply subversive movement of mass resis­ simultaneously, to insist on its irregular occur­ tance and social transformation was obvious. rence and limited signi1icance. As Freeman con­ Our opposition to traditional civil rights dis­ cludes, liberal race reform thus served to legiti­ course is neither a criticism of the civil rights mize the basic myths of American meritocracy. movement nor an attempt to diminish its sig­ In Gary Peller's depiction, this mainstream ni1icance. On the contrary, as Anthony Cook's civil rights discourse on "race relations" was radical reading of King's theology and social constructed in this way partly as a defense theory makes explicit, we draw much of our against the more radical ideologies of racial inspiration and sense of direction from that liberation presented by the Black Nationalist courageous, brilliantly conceived, spiritually in­ and Black Consciousness movements of the spired, and ultimately transformative mass ac­ sixties and early seventies, and their less visible tion. but intellectually subversive scholarly presenta­ Of course, colored people made important tions by people such as James Turner, now social gains through civil rights reform, as did a teacher in black studies at Cornell. In the American society generally: in fact, but for the construction of "racism" as the irrational and civil rights movements' victories against racial backward bias of believing that someone's race exclusion, this volume and the Critical Race is important, the American cultural mainstream Theory movement generally could not have neatly linked the black left to the white racist been taught at mainstream law schools. The right: according to this quickly coalesced con­ law's incorporation of what several authors here sensus, because race-consciousness character­ call "formal equality" (the prohibition against ized both white supremacists and black nation­ explicit racial exclusion, like "whites only" signs) alists, it followed that both were racists. The marks a decidedly progressive moment in U.S. resulting "center" of cultural common sense thus political and social history. However, the fact ••

[xv] that civil rights advocates met with some success identify such race-consciousness as racism itself. in the nation's courts and legislatures ought not Indeed, the problem here was not simply politi­ obscure the central role the American legal cal and strategic: the predominant legal repre­ order played in the deradicalization of racial sentation of racism as the mere recognition of liberation movements. Along with the suppr~ s­ race matched the "personal" views of many sion of explicit white racism (the widely cele­ liberals themselves, creating for them a contra­ brated aim of civil rights reform), the dominant diction in their hearts as well as their words. legal conception of racism as a discrete and Liberal antidiscrimination proponents pro­ identifiable act of "prejudice based on skin posed various ways to reconcile this contradic­ color" placed virtually the entire range of every­ tion: they characterized affirmative action as a day social practices in America-social practices merely "exceptional" remedy for past injustice, developed and maintained throughout the pe­ a temporary tool to be used only until equal riod of formal American apartheid-beyond the opportunity is achieved or a default mechanism scope of critical examination or legal remedia­ for reaching discrimination that could not be tion. proved directly. Separate but related liberal The affirmative action debate, which is dis­ defenses of affirmative action hold that its ben­ cussed in several essays in this volume, provides eficiaries have suffered from "deprived" a vivid example of what we mean. From its backgrounds that require limited special consid­ inception, mainstream legal thinking in the eration in the otherwise fully rational and unbi­ U.S. has been characterized by a curiously con­ ased competition for social goods, or that af­ stricted understanding of race and power. firmative action promotes social "diversity," a Within this cramped conception of racial domi­ value which in the liberal vision is independent nation, the evil of racism exists when-and only of, perhaps even at odds with, equality of oppor­ when-one can point to specific, discrete acts of tunity or meritocracy. racial discrimination, which is in turn narrowly The poverty of the liberal imagination is defined as decision-making based on the irratio­ belied by the very fact that liberal theories of nal and irrelevant attribute of race. Given this affirmative action are framed in such defensive essentially negative, indeed, dismissive view of terms, and so clearly shaped by the felt need to racial identity and its social meanings, it was justify this perceived departure from purport­ not surprising that mainstream legal thought edly objective findings of "merit" (or the lack came to embrace the ideal of "color-blindness" thereof). These apologetic strategies testify to as the dominant moral compass of social en­ the deeper ways civil rights reformism has lightenment about race. Mainstream legal argu­ helped to legitimize the very social practices­ ment regarding "race relations" typically de­ in employment offices and admissions depart­ fended its position by appropriating Dr. King's ments-that were originally targeted for reform. injunction that a person should be judged "by By constructing "discrimination" as a deviation the content of his character rather than the from otherwise legitimate selection processes, color of his skin" and wedding it to the regnant liberal race rhetoric affirms the underlying ide­ ideologies of equal opportunity and American ology of just desserts, even as it reluctantly meritocracy. Faced with this state of affairs, tolerates limited exceptions to meritocratic my­ liberal proponents of affirmative action in legal thology. Despite their disagreements about af­ and policy arenas-who had just successfully firmative action, liberals and conservatives who won the formal adoption of basic antidiscrimi­ embrace dominant civil rights discourse treat nation norms-soon found themselves in a the category of merit itself as neutral and imper­ completely defensive ideological posture. M­ sonal, outside of social power and unconnected firmative action requires the use of race as a to systems of racial privilege. Rather than en­ socially significant category of perception and gaging in a broad-scale inquiry into why jobs, representation, but the deepest elements of wealth, education, and power are distributed mainstream civil rights ideology had come to as they are, mainstream civil rights discourse [xvi] suggests that once the irrational biases of race­ in this volume spend professional time, the law's consciousness are eradicated, everyone will be "embrace" of civil rights in the Warren Court treated fairly, as equal competitors in a regime era is proclaimed as the very hallmark of justice of equal opportunity. under the rule of law. In our view, the "legisla­ What we find most amazing about this ideo­ tion" of the civil rights movement and its "inte­ logical structure in retrospect is how very little gration" into the mainstream commonsense as­ actual social change was imagined to be required sumptions in the late sixties and early seventies by "the civil rights revolution." One might have were premised on a tragically narrow and con­ expected a huge controversy over the dramatic servative picture of the goals of racial justice social transformation necessary to eradicate the and the domains of racial power. In the balance regime of American apartheid. By and large, of this introduction, we describe as matters both however, the very same whites who adminis­ of institutional politics and intellectual inquiry tered explicit policies of segregation and racial how we have come to these kinds of conclu­ domination kept their jobs as decision makers sions. in employment offices of companies, admissions offices of schools, lending offices of banks, and In his essay on the Angelo Herndon case, Ken­ so on. In institution after institution, progres­ dall Thomas describes and pursues a central sive reformers found themselves struggling over project of Critical Race scholarship: the use the implementation of integrationist policy with of critical historical method to show that the the former administrators of segregation who contemporary structure of civil rights rhetoric is soon regrouped as an old guard "concerned" not the natural or inevitable meaning of racial over the deterioration of "standards." justice but, instead, a collection of strategies and The continuity of institutional authority be­ discourses born of and deployed in particular tween the segregationist and civil rights regimes political, cultural, and institutional conflicts and is only part of the story. Even more dramatic, negotiations. Our goal here is similar. We hope the same criteria for defining "qualifications" to situate the strategies and discourses of Criti­ and "merit" used during the period of explicit cal Race Theory within the broader intellectual racial exclusion continued to be used, so long and social currents from which we write, as well as they were not directly "racial." Racism was as within the specific work place and institu­ identified only with the outright formal exclu­ tional positions where we are located and from sion of people of color; it was simply assumed which we struggle. that the whole rest of the culture, and the de The emergence of Critical Race Theory in facto segregation of schools, work places, and the eighties, we believe, marks an important neighborhoods, would remain the same. The point in the history of racial politics in the sheer taken-for-grantedness of this way of legal academy and, we hope, in the broader thinking would pose a formidable and practi­ conversation about race and racism in the nation cally insurmountable obstacle. Having rejected as a whole. As we experienced it, mostly as race-consciousness in toto, there was no con­ law students or beginning law professors, the ceptual basis from which to identify the cultural boundaries of "acceptable" race discourse had and ethnic character of mainstream American become suddenly narrowed, in the years from institutions; they were thus deemed to be ra­ the late sixties to the late seventies and early cially and culturally neutral. As a consequence, eighties, both in legal institutions and in Ameri­ the deeply transformative potential of the civil can culture more generally. In the law schools rights movement's interrogation of racial power we attended, there were definite liberal and was successfully aborted as a piece of main­ conservative camps of scholars and students. stream American ideology. While the debate in which these camps engaged Within the predominantly white law school were clearly important-for example, how the culture where most of the authors represented law should define and identify illegal racial [xvii] power--the reigning discourse seemed, at least such a "dilemma" or a "necessary evil" was to us, ideologically impoverished and techno­ one symptom of the ultimately conservative cratic. character of even "liberal" mainstream race dis­ In constitutional law, for example, it was course. More generally, though, liberals and well settled that government-sanctioned racial conservatives seemed to see the issues of race discrimination was prohibited, and that legally and law from within the same structure of enforced segregation constituted such discrimi­ analysis-namely, a policy that legal rationality nation. That victory was secured in Brown v. could identify and eradicate the biases of race­ Board of Education and its progeny. In the consciousness in social decision-making. Liber­ language of the Fourteenth Amendment, race is als and conservatives as a general matter differed a "suspect classification" which demands judicial over the degree to which racial bias was a fact strict scrutiny. "Race relations" thus represent of American life: liberals argued that bias was an exception to the general deference that main­ widespread where conservatives insisted it was stream constitutional theory accords democrati­ not; liberals supported a disparate effects test for cally elected institutions. Racial classifications identifying discrimination, where conservatives violate the equal protection clause unless they advocated a more restricted intent requirement; both serve a compelling governmental interest liberals wanted an expanded state action re­ and further, are no broader than necessary to quirement, whereas conservatives wanted a nar­ achieve that goal. Within the conceptual row one. The respective visions of the two boundaries of these legal doctrines, mainstream factions differed only in scope: they defined scholars debated whether discrimination should and constructed "racism" the same way, as the be defined only as intentional government ac­ opposite of color-blindness. tion . . . or whether the tort-like "de facto" test In any event, however compelling the liberal should be used when government actions had vision of achieving racial justice through legal predictable, racially skewed results . . . or reform overseen by a sympathetic judiciary may whether the racial categories implicit in affir­ have been in the sixties and early seventies, the mative action policy should be legally equivalent breakdown of the national consensus for the use to those used to burden people of color and of law as an instrument for racial redistribution therefore also be subject to strict scrutiny . . . rendered the vision far less capable of appearing and then whether remedying past social dis­ even merely pragmatic. By the late seventies, crimination was a sufficiently compelling and traditional civil rights lawyers found themselves determinate goal to survive strict scrutiny . . . fighting, and losing, rearguard attacks on the and so on. limited victories they had only just achieved in In all these debates we identified, of course, the prior decade, particularly with respect to with the liberals against the intent requirement affirmative action and legal requirements for established in Washington v. Davis, the affir­ the kinds of evidence required to prove illicit mative action limitations of Bakke (and later discrimination. An increasingly conservative ju­ Croson), the curtailment of the "state action" diciary made it clear that the age of ever ex­ doctrine resulting in the limitation of sites panding progressive law reform was over. where constitutional antidiscrimination norms At the same time that these events were would apply, and so on. Yet the whole discourse unfolding, a predominantly white left emerged seemed to assume away the fundamental prob­ on the law school scene in the late seventies, a lem of racial subordination whose examination development which played a central role in the was at the center of the work so many of us genesis of Critical Race Theory. Organized by had spent our college years pursuing in Mro­ a collection of neo-Marxist intellectuals, former American studies departments, community mo­ New Left activists, ex-counter-culturalists, and bilizations, student activism, and the like. other varieties of oppositionists in law schools, The fact that affirmative action was seen as the Conference on Critical Legal Studies estab- [xviii] lished itself as a network of openly leftist law characterized the entire post-war period in legal teachers, students, and practitioners committed education, with virtually no organized dissent. to exposing and challenging the ways American Its intellectual and ideological premises had law served to legitimize an oppressive social not been seriously challenged since the Legal order. Like the later experience of Critical Race Realist movement of the twenties and thirties­ writers vis-a-vis race scholarship, "crits" found a body of scholarship that mainstream scholars themselves frustrated with the presuppositions ritually honored for the critique of the "formal­ of the conventional scholarly legal discourse: ism" of turn-of-the-century legal discourse but they opposed not only conservative legal work marginalized as having "gone too far" in its but also the dominant liberal varieties. Crits critique of the very possibility of a rule of law. contended that liberal and conservative legal Writing during the so-called liberty of contract scholarship operated in the narrow ideological period (characterized by the Supreme Court's channel within which law was understood as invalidation of labor reform legislation on the qualitatively different from politics. The faith grounds that it violated the "liberty" of workers of liberal lawyers in the gradual reform of and owners to contract with each other over American law through the victory of the supe­ terms of employment) the legal realists set out rior rationality of progressive ideas depended on to show that the purportedly neutral and objec­ a belief in the central ideological myth of the tive legal interpretation of the period was really law/politics distinction, namely, that legal insti­ based on politics, on what Oliver Wendell tutions employ a rational, apolitical, and neutral Holmes called the "hidden and often inarticu­ discourse with which to mediate the exercise of late judgments of social policy." social power. This, in essence, is the role of law The crits unearthed much of the Legal Real­ as understood by liberal political theory. Yet ist work that mainstream legal scholars had politics was embedded in the very doctrinal ignored for decades, and they found the intel­ categories with which law organized and repre­ lectual and theoretical basis for launching a full­ sented social reality. Thus the deeply political scale critique of the role of law in helping to character of law was obscured in one way by the rationalize an unjust social order. While the obsession of mainstream legal scholarship with Realist critique of American law's pretensions technical discussions about standing, jurisdic­ to neutrality and rationality was geared to ward tion and procedure; and the political character the right-wing libertarianism of an "Old Order" of judicial decision-making was denied in an­ of jurists, crits redirected it at the depoliticized other way through the reigning assumptions and technocratic assumptions oflegal education that legal decision-making was-or could be­ and scholarship in the seventies. Moreover, in determined by preexisting legal rules, standards, the sixties tradition from which many of them and policies, all of which were applied according had come, they extended the intellectual and to professional craft standards encapsulated in ideological conflict they engendered to the law the idea of "reasoned elaboration." Law was, in school culture to which it was linked. the conventional wisdom, distinguished from By the late seventies, Critical Legal Studies politics because politics was open-ended, sub­ existed in a swirl of formative energy, cultural jective, discretionary, and ideological, whereas insurgency, and organizing momentum: It had law was determinate, objective, bounded, and established itself as a politically, philosophically, neutral. and methodologically eclectic but intellectually This conception of law as rational, apolitical, sophisticated and ideologically left movement and technical operated as an institutional regu­ in legal academia, and its conferences had begun lative principle, defining what was legitimate to attract hundreds of progressive law teachers, and illegitimate to pursue in legal scholarship, students, and lawyers; even mainstream law and symbolically defining the professional, busi­ reviews were featuring critical work that reinter­ nesslike culture of day-to-day life in mainstream preted whole doctrinal areas of law from an law schools. This generally centrist legal culture explicitly ideological motivation. Moreover, in [xix] viewing law schools as work-places, and thus developing critique of law, racism, and social as organizing sites for political resistance, power. ~cLSers" actively recruited students and left­ In identifying the liberal civil rights tradition leaning law teachers from around the country and the Critical Legal Studies movement as to engage in the construction ofleft legal schol­ key factors in the emergence of Critical Race arship and law school transformation. CLS Theory, we do not mean to offer an oversimpli­ quickly became the organizing hub for a huge fied genealogy in which Critical Race Theory burst of left legal scholarly production and for appears as a simple hybrid of the two. We view various oppositional political challenges in law liberal civil rights scholarship and the work school institutional life. Several left scholars of of the critical legal theorists not so much as color identified with the movement, and, most rudimentary components of Critical Race The­ important for the eventual genesis of Critical ory, but as elements in the conditions of its Race Theory a few years later, CLS succeeded possibility. In short, we intend to evoke a partic­ in at least one aspect of its frontal assault on the ular atmosphere in which progressive scholars of depoliticized character of legal education. By color struggled to piece together an intellectual the late seventies, explicitly right-wing legal identity and a political practice that would take scholarship had developed its own critique of the form both of a left intervention into race the conventional assumptions, just as the na­ discourse and a race intervention into left dis­ tional mood turned to the right with the elec­ course. To better capture the dynamics of these tion of Ronald Reagan. The law school as an trajectories, we now turn to two key institu­ institution was, by then, an obvious site for tional events in the development of Critical ideological contestation as the apolitical preten­ Race Theory as a movement. The first is the sions of the "nonideological" center began to student protest, boycott, and organization of an disintegrate. alternative course on race and law at Harvard Critical Race Theory emerged in the inter­ Law School in 1981-an event that highlights stices of this political and institutional dynamic. the significance of Derrick Bell and the Critical Critical Race Theory thus represents an attempt Legal Studies movement to the ultimate devel­ to inhabit and expand the space between two opment of Critical Race Theory, and symbol­ very different intellectual and ideological forma­ izes Critical Race Theory's oppositional posture tions. Critical Race Theory sought to stage a vis-a-vis the liberal mainstream. The second is simultaneous encounter with the exhausted vi­ the 1987 Critical Legal Studies National Con­ sion of reformist civil rights scholarship, on the ference on silence and race, which marked the one hand, and the emergent critique ofleft legal genesis of an intellectually distinctive critical scholarship on the other. Critical Race Theory's account of race on terms set forth by race­ engagement with the discourse of civil rights conscious scholars of color, and the terms of reform stemmed directly from our lived experi­ contestation and coalition with CLS. ence as students and teachers in the nation's law schools. We both saw and suffered the concrete As Richard Delgado states in ~The Imperial consequences that followed from liberal legal Scholar," quite bluntly, the study of civil rights thinkers' failure to address the constrictive role and antidiscrimination law in the mainstream that racial ideology plays in the composition law schools in which we found ourselves in the and culture of American institutions, including eighties was dominated by a group consisting the American law school. Our engagement with almost entirely of white male constitutional law progressive-left legal academics stemmed from professors. Derrick Bell was one of the few our sense that their focus on legal ideology, legal exceptions; he went to Harvard after a distin­ scholarship and the politics of the American law guished record as a litigator in the civil rights school provided a language and a practice for movement, becoming one of only two Mrican­ viewing the institutions in which we studied American professors on the large Harvard fac­ and worked both as sites of and targets for our ulty. In his course and book Race, and Racism [xx] and American Law, Bell developed and taught enter the arena of American legal scholarship legal doctrine from a race-conscious viewpoint. instead of eschewing it and taking the path of Implicitly repudiating the reigning idea of the total separation. Similarly, just as Carlos and color-blindness of law, pedagogy, and scholar­ Smith refused to allow American nationalism ship, he used racial politics rather than the to subsume their racial identity, Bell insisted on formal structure oflegal doctrine as the organiz­ placing race at the center of his intellectual ing concept for scholarly study. inquiry rather than marginalizing it as a sub­ It is important to understand the centrality classification under the formal rubric of this or of Bell's coursebook and his opposition to the that legal doctrine. In a subtle way, Bell's posi­ traditional liberal approach to racism for the tion within the legal academy-an arena that eventual development of the Critical Race The­ defined itself within the conventional legal dis­ ory movement. A symbol of his influence is his course as neutral to race-was akin to putting inclusion as the first page of his book of a up his fist in the black power salute. photograph of Thomas Smith and John Carlos As his articles in the fust part of this volume accepting their Olympic trophies at the 1968 demonstrate, Bell provided some of the earliest Mexico City Summer Games. In the fore­ theoretical alternatives to the dominant civil ground are balding white men in suits, appar­ rights vision we have described. In the face of ently Olympic officials of some kind; rising the hegemony of racial integration as the ideal behind them are Smith and Carlos, standing on of reform in the seventies, he argued in "Serving the raised platforms in sleek warmup suits, at Two Masters," the essay that opens this collec­ the height of their competitive achievement. In tion, that the exclusive focus on the goal of one hand, the victorious athletes hold their gold school integration responded to the ideals of and silver medals; Smith and Carlos defiantly elite liberal public interest lawyers rather than hold their other hand over their heads in the to the actual interests of black communities and clinched fist of the Black Power salute. This children. In "The Interest-Convergence Di­ symbolic action, staged during the playing of lemma," Bell sketched a full-scale structural the National Anthem, spawned an enormous theory to account for the ebb and flow of controversy in the United States; patriots civil rights reform in America, according to the charged that Smith and Carlos embarrassed the political machinations of whites themselves. country and privileged their racial identity over In 1980, Bell left Harvard to become dean of their more important identity as Americans. the University of Oregon Law School and one To those of us who were then law students of the first Mrican-Americans to head a main­ and beginning law teachers, Bell's inclusion of stream American law school. Student activists, the Smith-Carlos photograph as a visual intro­ particularly students of color, demanded that duction to his law school casebook suggested a Harvard hire a teacher of color to replace him link between his work and the Black Power and to teach his courses in constitutional law movements that most of us "really" identified and minority issues. The liberal white Harvard with, whose political insights and aspirations administration responded to student protests, went far beyond what could be articulated in demonstrations, rallies and sit-ins-including a the reigning language of the legal profession takeover of the Dean's office-by asserting that and the legal studies we were pursuing. Al­ there were no qualified black scholars who mer­ though we could not then fully articulate the ited Harvard's interest. Harvard's response was nature and basis of this connection, we were structured around two points produced from able to recognize that Derrick Bell's position within liberal race discourse which Critical Race within legal study bore a family resemblance to Theory would ultimately contest. First, they the oppositional stance that Smith and Carlos asked why the students wouldn't prefer an ex­ had taken in Mexico City. Just as Carlos and cellent white professor over a mediocre black Smith participated on behalf of their nation in one-that is, at a conceptual level, they posited the Olympic competition, Bell had chosen to the particular liberal epistemology that associ- ••

[xxi] ated color-blindness with intellectual merit. American law through the prism of race. Second, the Harvard administration, skeptical Taught by scholars of color from other schools about the pedagogical value of a course devoted who were each asked to speak about topics to racial topics, asserted that no special course loosely organized to trace the chapters of Bell's was needed when "those issues" were already Race, Racism and American Law book, the covered in classes devoted to constitutional law course simultaneously provided the means to and employment discrimination thus, to our develop a framework to understand law and minds, failing to comprehend the significance racial power and to contest Harvard's deploy­ of Bell's projects. Instead, Jack Greenberg and ment of meritocratic mythology as an instance Julius Chambers, both important and distin­ of that very power. guished civil rights litigators, were hired to The Alternative Course was in many ways teach a three-week mini-course on civil rights the first institutionalized expression of Critical litigation. Race Theory. With the aid of outside funding It was in the midst of this kind of institu­ and sympathetic Harvard teachers (many of tional struggle, played out in one form or an­ them white crits who provided encouragement, other at mainstream law schools around the strategic advice, and independent study credit country, that many of us now writing in the to enable students to attend the classes) the Critical Race Theory genre began to elaborate course brought together a critical mass of schol­ what we took to be the limitations of traditional ars and students, and focused on the need to race analysis and argument. After all, in a con­ develop an alternative account of racial power text such as Harvard, administrators saw them­ and its relation to law and antidiscrimination selves as racially enlightened: they were liberals reform. Among the guest speakers were Charles who were against racial discrimination-indeed, Lawrence, Linda Greene, Neil Gotanda, and Harvard wanted to honor a heroic litigator of Richard Delgado, all of whom were already in the school desegregation era with a visiting law teaching. Mari Matsuda, then a graduate professorship. Clearly, the cool, technocratic law student, was a participant in the Alternative and business-like culture of mainstream law Course, and Kimberle Crenshaw one of its main schools was hostile at all points to raw "preju­ organizers. dice"-these were not institutions in which a The Alternative Course is a useful point to hardcore, "Bull Conner" type racist would re­ mark the genesis of Critical Race Theory for ceive a warm welcome. Although those of us many reasons. First, it was one of the earliest who were agitating for hiring teachers of color attempts to bring scholars of color together to knew we didn't accept the kinds of justifications address the law's treatment of race from a self­ the Harvard administrators offered, we also consciously critical perspective. There had been knew that we lacked an adequate critical vocab­ some race-conscious organizing in law schools ulary for articulating exactly what we found in the preceding years. For example, within the wrong in their arguments. It was out of this Association of American Law Schools, (AALS) intellectual void that the impetus for a new the professional association of law teachers, a conceptual approach to race and law was based. minority section had been established which Our critique of ideas like "color-blindness," Ralph Smith of the University of Pennsylvania "formal legal equality," and "integrationism" are and Denise Carty-Bennia of Northeastern Uni­ linked to their institutional manifestations as a versity used as a vehicle for intellectual develop­ rhetoric of power in the schools we attended ment. However, the AALS group neither pro­ and the work-places we now occupy. vided a basis for sustained dialogue, nor openly In the local Harvard confrontation, student identified itself within the profession as intellec­ organizers decided to boycott the mini-course tually oppositional and politically left-progres­ offered by the administration and organized sive. Recognizing these inherent institutional instead "The Alternative Course," a student-led limitations, legal academics of color created an continuation of Bell's course which focused on informal network of support for law students [xxii] and teachers of color, whose existence was enor­ as those presented by the Harvard administra­ mously important in developing a critical mass tion. of law teachers of color. These were efforts, We turn now to the Critical Legal Studies though, that carried no direct implications for conferences of the mid-eighties and the general scholarship and theory. engagement with the white left in and outside Second, the Alternative Course exemplified of the legal academy both of which were crucial another important feature of the Critical Race in the development of the Critical Race Theory Theory movement, namely, the view-shared project. If the Alternative Course symbolizes with the Critical Legal Studies movement­ the trajectory of Critical Race Theory as a that it is politically meaningful to contest the left intervention in conventional race discourse, terrain and terms of dominant legal discourse. then the Critical Legal Studies Conferences In one sense, the importance of mainstream during the mid-eighties can be equally useful law school discourse to Critical Race Theorists in situating Critical Race Theory as a race­ flows from the view that power is implicated conscious intervention on the left. in, say, the privileging of certain topics and At its inception in the late 7os, Critical Legal viewpoints as worthy of being curricular entries Studies (CLS) was basically a white and largely at mainstream law schools. The idea here, in male academic organization. By the mid-eight­ essence, is that knowledge and politics are inevi­ ies, there was a small cadre of scholars of color tably intertwined. As an influential site for in­ who frequented CLS conferences and summer doctrination and propagation, the ideology of camps. Most were generally conversant with law schools helps in turn to shape and give Critical Legal Theory and sympathetic to the substance to the broader legal and social ideolo­ progressive sensibilities of Critical Legal Studies gies about race and legitimacy. In another sense, as a whole. Unlike the law school mainstream, the focus on the law school and legal scholarship this cadre was far from deterred by CLS critique as a terrain worth contesting is based on a view of liberal legalism. While many in the legal of law schools in left terms as work-places in community were, to put it mildly, deeply dis­ which we find ourselves as part of a productive turbed by the CLS assault against such ideolog­ enterprise, the "production of knowledge." This ical mainstays as the rule of the law, to scholars perspective helps to explain an important differ­ of color who drew on a history of colored ence with earlier conceptions of race reform, communities' struggle against formal and insti­ which looked to law schools and other legal tutional racism, the crits' contention that law institutions as places to gather tools to deploy was neither apolitical, neutral, nor determinate in political struggles that occurred "out there" hardly seemed controversial. Indeed, we be­ in the South, the ghetto, or some other place lieved that this critical perspective formed the besides law schools or courtrooms themselves. basic building blocks of any serious attempt to Against this view, we take racial power to be at understand the relationship between law and stake across the social plane-not merely in the white supremacy. However, while the emerging places where people of color are concentrated "race crits" shared this starting position with but also in the institutions where their position CLS, significant differences between us became is normalized and given legitimation. The Al­ increasingly apparent during a series of confer­ ternative Course reflected-as well as helped to ences in the mid-eighties. create-the sense that it was meaningful to Our discussions during the conferences re­ build an oppositional community ofleft scholars vealed that while we shared with crits the belief of color within the mainstream legal academy. that legal consciousness functioned to legitimize Finally, the Alternative Course embodied one social power in the United States, race crits of the key markers of Critical Race Theory­ also understood that race and racism likewise the way in which our intellectual trajectories are functioned as central pillars of hegemonic rooted in a dissatisfaction with and opposition power. Because CLS scholars had not, by and to liberal mainstream discourses about race such large, developed and incorporated a critique of •• [xxiii] racial power into their analysis, their practices, law schools and society at large. Since "we" were politics and theories regarding race tended to joined as allies rather than adversaries within be unsatisfying and sometimes indistinguishable the law school arena, crits troubled by our from those of the dominant institutions they workshop no doubt believed that critical energ­ were otherwise contesting. As race moved from ies would be best directed at tearing down the margins to the center of discourse within institutional practices at our workplace rather Critical Legal Studies-or, as some would say, than bringing these disruptive interventions Critical Legal Studies took the race turn­ "home." But feminists had already problema­ institutional and theoretical disjunctures be­ tized the conceptualization of "home" that tween critical legal studies and the emerging seemed to ground this view, revealing such scholarship on race eventually manifested them­ spaces to be a site of hierarchy and power as selves as central themes within Critical Race well. Moreover, as the race crits experienced it, Theory. despite some points of convergence, some of One of the most significant institutional the racial dynamics of CLS as an institution manifestations of CLS's underdeveloped cri­ were not entirely distinct from the law school tique of racial power occurred during the 1986 cultures "we" had set out to transform. CLS conference. The 1986 conference, orga­ Another point of conflict and difference be­ nized by a group of women who worked in tween white crits and scholars of color revolved feminist legal theory, marked the zenith of around the widely debated critique of rights. the feminist turn within CLS. Having placed According to other scholars of color at the 1987 feminism and its critique of patriarchy squarely conference, another dimension of the failure of within the discourse of and about CLS, the CLS to reflect the lived experience of people of "fem-crit" conference organizers asked scholars color could be glimpsed in the CLS critique of of color to facilitate several concurrently held rights. Crits tended to view the idea of legal discussions about race. Drawing on a central "rights" as one of the ways that law helps to CLS tenet that power is not, ultimately, "out legitimize the social world by representing it as there," but in the very institutions and relation­ rationally mediated by the rule of law. Crits ships that shape our lives, the handful of schol­ also saw legal rights-like those against racial ars of color attending this conference designed discrimination-as indeterminate and capable the workshop to uncover and discuss various of contradictory meanings, and as embodying dimensions of racial power as manifested within an alienated way of thinking about social rela­ Critical Legal Studies. Though the practice of tions. uncovering and contesting power within law Crits of color agreed to varying degrees with school institutions was a standard feature of some dimensions of the critique-for instance, CLS politics, the attempt to situate this practice that rights discourse was indeterminate. Yet we within CLS as a "white" institution drew a sharply differed with critics over the normative surprisingly defensive response. The pitched implications of this observation. To the emerg­ and heated exchange that erupted in response ing race crits, rights discourse held a social and to our query, "what is it about the whiteness of transformative value in the context of racial CLS that discourages participation by people of subordination that transcended the narrower color?" revealed that CLS's hip, cutting edge question of whether reliance on rights could irreverence toward establishment practices alone bring about any determinate results. Race could easily disintegrate into handwringing hys­ crits realized that the very notion of a subordi­ teria when brought back "home." Of course, not nate people exercising rights was an important all crits were resistant to this dialogue and it is dimension of Black empowerment during the only fair to point out that those who did find civil rights movement, significant not simply the query to be unnecessarily adversarial proba­ because of the occasional legal victories that bly held a good faith belief that CLS marked a were garnered, but because of the transforma­ sphere of activity completely distinct from both tive dimension of Mrican-Americans re-imag- [xxiv] ining themselves as full, rights-bearing citizens sought to distinguish themselves from these within the American political imagination. We "instrumentalist" accounts on the grounds that wanted to acknowledge the centrality of rights they embodied a constricted view of the range discourse even as we recognized that the use of and sites of the production of social power, and rights language was not without risks. The de­ hence of politics. By defining class in terms of bate that ensued in light of this different orien­ one's position in the material production pro­ tation engendered an important CRT theme: cess, and viewing law and all other "superstruc­ the absolute centrality of history and context in tural" phenomena as merely reflections of inter­ any attempt to theorize the relationship be­ ests rooted in social class identification, vulgar tween race and legal discourse. Marxism, crits argued, ignored the ways that A third ideological difference emerged in a law and other merely "superstructural" arenas series of critiques of early attempts by scholars helped to constitute the very interests that law of color to articulate how law reflects and pro­ was supposed merely to reflect. Crits such as duces racial power. Most of these critiques were Freeman, Duncan Kennedy, and Karl Klare articulated at the next 1987 CLS conference, (to name a few) developed non-instrumentalist "The Sounds of Silence," sponsored by Los accounts of law and its relationship to power Angeles area law schools. Although the terms that focused on legal discourse as a crucial of the debate were not fully clear, and at the site for the production of ideology and the time, there were few key words or concepts on perpetuation of social power. First, Critical Le­ which our analysis could then focus, we have gal theorists developed a genealogical account come to articulate the central criticism by crits of the relationship between law and social inter­ to be that of "racialism". By racialism, we refer ests. Noting the degree, for example, to which to theoretical accounts of racial power that ex­ political struggles in the U.S. are conducted in plain legal and political decisions which are the language and logic of the law, crits argued adverse to people of color as mere reflections of that social interests, and the weight they are underlying white interest. To phrase this critical accorded, do not exist in advance of or outside model in more contemporary terms, we might the law, but depend on legal institutions and say that racialism is to power what essentialism ideology for both their content and form. Sec­ is to identity-a narrow, and frequently unsatis­ ond, the crits provided a detailed inventory of fying theory in which complex phenomena are the ideological practices by which the legal reduced to and presented as a simple reflection order actively seeks to persuade those who are of some underlying "facts." Specifically, the subject to it that the law's uneven distribution "sin" of racialism is that it presumes that racial of social power is nonetheless "just." Third, in interests or racial identity exists somewhere out­ their account of legal consciousness, critical side of or prior to law and is merely reflected in legal theorists demonstrated the precise me­ subsequent legal decisions adverse to nonwhites. chanisms by which legal institutions and ideol­ Such an approach struck crits as far too ogy obscure and thus legitimize their produc­ instrumental to be a useful account of race tive, constitutive social role. The crits argued and power. During the eighties, crits had been that the law does not passively adjudicate debating the issue of"instrumentalist" and "irra­ questions of social power; rather, the law is an tionalist" accounts of law; most agreed with the active instance of the very power politics it problematic character of what came to be called purports to avoid and stand above. In brief, "vulgar Marxism." Briefly stated, in traditional the crits revealed in often dizzying detail the Marxist analysis, law appears as merely an in­ cunning complexity of legal texts which tradi­ strument of class interests that are rooted out­ tional Marxists simply dismissed as "capitalist side of law in some "concrete social reality." In ideology." sum, law is merely an "ideological reflection" One consequence of this particular intellec­ of some class interest rooted elsewhere. Many tual genealogy is that in their engagement with critics-echoing the late sixties New Left- orthodox and scientistic forms of Marxist •• [xxv] thought on the left, CLS scholars had already interests and relations that cruder instrumental­ developed a critique of the kinds of instrumen­ ist accounts of law thought it merely regulated talist analyses that were presented in the lan­ and ratified. For our purposes, the chief theoret­ guage of race. To critics of racialism, prevailing ical advantage of this anatomy of the constitu­ theorizations of race and law seemed to reprl­ tive dimensions of law was that it made it sent law as an instrumental reflection of racial possible to argue that the legal system is not interests in much the same way that vulgar simply or mainly a biased referee of social and Marxists saw the legal arena as reflecting class political conflict whose origins and effects occur interests. Just as the white left had learned, elsewhere. On this account, the law is shown to by the eighties, that a one-dimensional class be thoroughly involved in constructing the rules account was too simplistic for legal analysis, of the game, in selecting the eligible players, they interpreted racialist accounts as analogous and in choosing the field on which the game to class reductionism. must be played. To be sure, some of the foundational essays Drawing on these premises, we began to of CRT could be vulnerable to such a critique, think of our project as uncovering how law was particularly when read apart from the context a constitutive element of race itself: in other and conditions of their production. Yet, when words, how law constructed race. Racial power, read as interventions against a liberal legalist in our view, was not simply-or even primar­ tradition that viewed law as an apolitical media­ ily-a product of biased decision-making on tor of racial conflict, it becomes clear that by the part of judges, but instead, the sum total of articulating a structural relationship between the pervasive ways in which law shapes and is law and white supremacy, these essays dislodged shaped by ""race relations" across the social an entrenched pattern of viewing racial out­ plane. Laws produced racial power not simply comes as merely the random consequences of through narrowing the scope of, say, of anti­ aracial legal processes. These early essays thus discrimination remedies, nor through racially­ constituted a critical first step in identifying biased decision-making, but instead, through the operation of racial power within discursive myriad legal rules, many of them having noth­ traditions that had been widely accepted as ing to do with rules against discrimination, neutral and apolitical. By legitimizing the use that continued to reproduce the structures and of race as a theoretical fulcrum and focus in practices of racial domination. In short, we legal scholarship, so-called racialist accounts of accepted the crit emphasis on how law produces racism and the law grounded the subsequent and is the product of social power and we cross­ development of Critical Race Theory in much cut this theme with an effort to understand this the same way that Marxism's introduction of dynamic in the context of race and racism. With class structure and struggle into classical politi­ such an analysis in hand, critical race theory cal economy grounded subsequent critiques of allows us to better understand how racial power social hierarchy and power. can be produced even from within a liberal At the same time, the critique of racialism discourse that is relatively autonomous from did help clarify what was "critical" about our organized vectors of racial power. race project. As we noted earlier, their dissatis­ If the foregoing critique clarified at least one faction with the narrow instrumentalist view of dimension of our project that grew from a law had moved CLS scholars to elaborate a shared theoretical investment with CLS, it also theory of the constitutive form of legal ideology. revealed subtle, but crucial theoretical diver­ The crits challenged the understanding of social gences between CLS and CRT. Despite the and political interests that instrumentalist por­ sophistication of the crits' understanding of how trayals of law had viewed as simply given. The law constituted social interests and legal iden­ crits' more dynamic and dialectical model re­ tity, they were, for the most part, unable to vealed the constitutive force of law, the ways transpose these insights into an analysis of racial legal institutions constructed the very social power and law. Our point here is not that the [xxvi]

crits committed the typical Marxist error of "real" in the sense that there is a material subsuming race under class. Rather, our dissat­ dimension and weight to the experience of be­ isfaction with CLS stemmed from its failure to ing "raced" in American society, a materiality come to terms with the particularity of race, and that in significant ways has been produced and with the specifically racial character of "social sustained by law. Thus, we understood our interests" in the racialized state. For some, their project as an effort to construct a race-conscious lack of critical thinking about race was a reflec­ and at the same time anti-essentialist account tion of intellectual interest. With respect to of the processes by which law participates in other crits, however, our divergence produced a "race-ing" American society. much sharper conflict. While we were straining Perhaps prophetically, the conference was to strengthen our understanding of racial power, also occasioned by a prototype of an assault it appeared to us that some crits were deploying launched against critical race theory from a racialist critiques from a position on race that position firmly situated within the very para­ was close if not identical to the liberalism we digm we sought to criticize. The highlight of were otherwise joined in opposing. To be sure, the 1987 conference was a plenary in which these crits positioned themselves in a discourse numerous scholars of color articulated how in­ far removed from liberalism-a certain post­ stitutional practices and intellectual paradigms modern critique of identity. Yet the upshot of functioned to silence insurgent voices of people their position seemed to be the same: an abiding of color. Responding to the critique, another skepticism, if not outright disdain, toward any scholar of color shared with the audience his theoretical or political project organized around impression that the absence of much of minor­ the concept of race. Where classical liberalism ity scholarship was attributable to its poor qual­ argued that race was irrelevant to public policy, ity, and to the lack of productivity of minority these crits argued that race simply didn't exist. scholars. Scholars of color were urged to stop The position is one that we have come to call complaining and simply to write. Of course, "vulgar anti-essentialism." By this we seek to the discussion that followed was animated. But capture the claims made by some critical theo­ more important than what was said was what rists that since racial categories are not "real" or was assumed-namely, that the arena of aca­ "natural" but instead socially constructed, it is demic discourse was functionally open to any theoretical and politically absurd to center race scholar of merit who sought to enter it. Yet the as a category of analysis or as a basis for political very point that the speakers were trying to reveal action. This suggested to us that underlying at (perhaps too subdy, in retrospect) was that the least some of the critiques from the left was not notions of merit that were so glibly employed simply a question about the way we represented to determine access and status within the intel­ racial power, but instead, a more fundamental lectual arena were themselves repositories of attack on the very possibility of our project. In racial power. This exchange, and the subsequent short, this position constituted an attack on incarnation of this conflict in the pages of the "color-consciousness" which differed from the Harvard Law Review-provides one of the conservative assault only in its rhetorical poli­ clearest points of demarcation between critical tics. and liberal race discourses. Many of us did, of course, accept the more The 1986 and 1987 CLS conferences thus complicated notions of power and identity im­ marked significant points of alignment and de­ plicated by both the anti-instrumentalist and parture, and should be considered the final step anti-essentialist positions. Yet in our view, nei­ in the preliminary development of CRT as a ther was inconsistent with the project of map­ distinctively progressive critique of legal dis­ ping the domain oflaw and racial power. It was course on race. As a political and intellectual obvious to many of us that although race was, matter, the upshot of this engagement with to use the term, socially constructed (the idea of CLS can best be characterized as "coalition." biological race is "false"), race was nonetheless We see CLS and CRT as aligned-in radical [xxvii] left opposition to mainstream legal discourse. event was the founding of the Critical Race But CRT is also different from CLS-our focus Theory workshop. Principally organized by on race means that we have addressed quite Kimberle Crenshaw, Neil Gotanda, and Ste­ different concerns, with distinct methodologies phanie Phillips, the workshop drew together and traditions that we honor. " thirty five law scholars who responded to a call to synthesize a theory that, while grounded in We have argued that the institutional and ideo­ critical theory, was responsive to the realities of logical antecedents of CRT can be usefully racial politics in America. Indeed, the organiz­ grounded in two historical sites: the Harvard ers coined the term "Critical Race Theory" to boycott, and the CLS conferences of the mid­ make it clear that our work locates itself in eighties. These roughly parallel the duality of intersection of critical theory and race, racism CRT as both a progressive intervention in race and the law. To be sure, while we have empha­ discourse and a race intervention on the left. sized throughout the liberal and critical poles Yet, while we have identified these moments against which Critical Race Theory developed, and will trace the trajectory of these themes into in experience, such dialectical relations produce the writings that appear in this volume, it would less of a sharp break, and more of a creative and be remiss for us to leave the impression that contestatory engagement with both traditions. CRT subsequently developed as a disembodied, This is true not only of the content of Critical abstracted, and autonomous intellectual forma­ Race Theory, but is true as well of the work­ tion. In the first place, we believe that this shop's participants. Indeed, both liberal race image of scholarship is simply false-intellec­ theorists and critical legal theorists have been tual work is always situated, reflective to varying deeply engaged in critical race discourse. For degrees of the cultural, historical, and institu­ example, among the range of scholars who were tional conditions of its production. Second and attracted to the workshop and who contributed most importantly, this view of scholarship ob­ to the development of Critical Race Theory scures the shared difficulties that insurgent were scholars who had written squarely within scholars must negotiate and the importance of the liberal paradigm. The workshop itself was developing collective strategies to write about underwritten by a grant provided by David racial power from within the institutions central Trubek, a founding member of the Critical to its reproduction. A thorough mapping of Legal Studies Conference and a law professor Critical Race Theory, then, must include a at the University of Wisconsin, Madison. Fi­ discussion of the role of community-building nally, as this volume attests, we consider the among the intellectuals who are associated with work of members of CLS conference to repre­ it, particularly in light of the challenging condi­ sent a crucial contribution to the Critical Race tions under which insurgent scholarship is pro­ Theory literature. duced. During the mid-eighties, many of us met in In the opening pages of this introduction, we smaller groups, before and after larger law argued that Critical Race Theory does not sim­ school conferences and conventions, first at the ply seek to understand the complex condominia fringes of and then as a caucus within Critical of law, racial ideology, and political power. Legal Studies meetings, and so on. Shared ex­ We believe that our work can provide a useful periences at the margins of liberal institutional theoretical vocabulary for the practice of pro­ policies and critical legal studies provided some gressive racial politics in contemporary basis for a collective identity. Yet the process of America. The need for an oppositional vision recognizing ourselves as a group with a distinct of racial justice becomes particularly acute in intellectual project was gradual. Our ad hoc light of the Supreme Court's radical movement meetings prior to and during various confer­ toward a jurisprudence which not only accepts ences provided an occasional opportunity to but affirms the current racial regime. discuss our views; however, the key formative As this volume goes to press, the U.S. Su- [xxviii] preme Court has issued a series of decisions race as well as conservative VlSlons of equal which effectively repeal the ideological "settle­ citizenship. ment" struck during the civil rights era. In We believe that core concepts from Critical Adarand Constructors v. Pena, the Supreme Race Theory can be productively used to expose Court extended its 1989 decision in City of the irreducibly political character of the current Richmond v. JA. Croson to categorically require Court's general hostility toward policies which strict judicial scrutiny whenever government, at would take race into account in redressing his­ any level, considers race in its decisionmaking toric and contemporary patterns of racial dis­ process. In the last few years, the Supreme crimination. We might, for example, draw on Court had all but foreclosed the adoption of Critical Race Theory's deconstruction of color­ race-conscious responses to racial inequity by blindness to show that the current Supreme state and local governments. In a cramped con­ Court's expressed hostility toward race-con­ ception of the scope of national power under sciousness must be deemed a form of race­ the Fourteenth Amendment, the Adarand consciousness in and of itself. As Neil Gotanda Court has pressed further and formally forbid­ has cogently argued, one cannot heed the newly den even the federal government from taking installed constitutional rule that forbids race­ race explicitly into account in addressing soci­ conscious approaches to racial discrimination etal-wide discrimination. In Missouri v. jenkins, without always first taking race into account. the Supreme Court held that racially-concen­ Similarly, Critical Race Theory helps us under­ trated public schools could no longer be deemed stand how race-consciousness implicitly informs presumptively unconstitutional, even in the the current Court's paradoxical insistence that presence of a history of formal segregation. As the norm of color-blindness requires a voting to any continuing racial segregation in these rights regime which effectively deprives racial schools, the jenkins opinion concluded that the minorities of political advantages that are ac­ courts could not address the problem of racial corded to other organized social interests. concentration if it could plausibly be said that a Critical Race Theory indicates how and why public school district was making a "good faith" the contemporary "jurisprudence of color-blind­ effort to achieve desegregation "to the extent ness" is not only the expression of a particular practicable". The court has thus effectively color-consciousness, but the product of a deeply mandated the withdrawal of the federal judi­ politicized choice. The current Court would ciary from continued involvement in the effort have us believe that these decisions are the to achieve racial desegregation in the nation's product of an ineluctable legal logic. Critical public schools. Finally, in Miller v. johnson, the Race Theory tells us rather that the Court's Supreme Court retreated from its longstanding rulings with respect to race may more plausibly enforcement of the historic Voting Rights Act, be deemed a result of a tactical political choice erecting rigid new barriers to the federal gov­ among competing doctrinal possibilities, any ernment's effort to increase the participation one of which could have been legally defensible. and representation of racial minorities in the The appeal to color-blindness can thus be said political process. to serve as part of an ideological strategy by Reading these decisions, one cannot help which the current Court obscures its active role but notice the degree to which they deploy in sustaining hierarchies of racial power. We traditional liberal racial principles. The current believe that Critical Race Theory offers a valu­ Court has effectively conscripted liberal theories able conceptual compass for mapping the doc­ of race and racism to wage a conservative attack trinal mystifications which the current Court on governmental efforts to address the persis­ has developed to camouflage its conservative tence of societal-wide racial discrimination. agenda. This harsh reality confirms the need for a criti­ The preceding discussion has focused on the cal theory of racial power and an image of racial possible uses to which Critical Race Theory justice which reject classical liberal visions of might be put in understanding and intervening .. [xxix] in the politics of racial jurisprudence. However, address contradictions between American ideals since discussions about race and rights in the and historical realities. Like the Harvard Law U.S. have always overrun the narrow institu­ School administration's response to the demand tional confines of the law, we want to conclude for a course focused on race and the law, the this introduction to Critical Race· Theory by" liberal position reflects an abiding uncertainty suggesting some of the implications our work about the value of such projects, and a lingering, as legal scholars holds for broader national con­ wistful sense that if we could just agree to versations about racial politics. In our history of abandon race-consciousness, racism and racial the development of Critical Race Theory, we power would somehow recede from the Ameri­ have highlighted the ways in which our work is can political imagination. a record of our engagement with what we saw Critical Race Theory is instructive here in as limitations of liberal, leftist and racialist ac­ that it uncovers the ongoing dynamics of ra­ counts of racial power in law. The similar limi­ cialized power, and its embeddedness in prac­ tations of recent liberal defenses of affirmative tices and values which have been shorn of any action, left-liberal discourses on globalization, explicit, formal manifestations of racism. Criti­ and racialist responses to post-civil rights re­ cal Race Theory thus provides a basis for under­ trenchment suggest that Critical Race Theory standing affirmative action as something other may provide new and much needed ways to than "racial preference" (a notion whose implicit think about (and challenge) the contemporary premise is that affirmative action represents a politics of racial domination. deviation from an otherwise non-racial neutral­ We turn first to the vexed question of liberal ity). Critical Race Theory understands that, discourse in the current national disputations claims to the contrary notwithstanding, distri­ regarding affirmative action. Earlier in this in­ butions of power and resources which were troduction we noted how the liberal defense of racially determined before the advent of affir­ affirmative action has been stymied from its mative action would continue to be so if affir­ inception by a decidedly ambivalent attitude mative action is abandoned. Our critiques of toward the matters of race and racial power. To racial power reveal how certain conceptions of be sure, liberals are generally willing to concede merit function not as a neutral basis for distrib­ that racism continues to be an ""obvious and uting resources and opportunity, but rather as a boring fact" of American life (as the liberal repository of hidden, race-specific preferences pundit Michael Kinsley rather remarkably put for those who have the power to determine the it in a recent article). What liberal proponents meaning and consequences of"merit." We have of affirmative action seem unwilling to do is to shown that the putatively neutral baseline from move toward a direct critique of the hidden which affirmative action is said to represent a racial dimensions of the meritocratic mythology deviation is in fact a mechanism for perpetuat­ that their conservative opponents have so deftly ing the distribution of rights, privileges, and used to control the terms of the current debate. opportunity established under a regime of un­ This ambivalence toward race-consciousness contested white supremacy. Critical Race The­ is best understood as a symptom of liberalism's ory recognizes accordingly that a return to that continued investment in meritocratic ideology so-called neutral baseline would mean a return and its unacknowledged resistance to reaching to an unjust system of racial power. Finally, any deep understanding of the myriad ways Critical Race Theory fully comprehends that racism continues to limit the realization of goals the aim of affirmative action is to create enough such as equal opportunity. This liberal ambiva­ exceptions to white privilege to make the my­ lence is particularly manifested in today's de­ thology of equal opportunity seem at least plau­ bates, particularly about affirmative action. But sible. In fact, a defense of affirmative action it is also reflected in the lukewarm liberal de­ premised upon CRT rather than liberal ambiva­ fense of the Great Society programs of the lence would neither apologize for affirmative 196os and other policies which were adopted to action nor assume it to be a fully adequate [xxx]

political response to the persistence of white vulnerable economic position is the product of supremacy. Rather, Critical Race Theory sup­ past, but not current, dynamics of racial power. ports affirmative action as a limited approach The particularities of race and its persistent which has achieved a meaningful, if modest presence as an explicit rationalization of struc­ measure of racial justice. tural stratification in the current economy seem A second discussion to which we believe hardly to warrant discussion. One would think Critical Race Theory might bring a useful per­ that the racial composition of the communities spective is liberal and left debate in the U.S. which have been chosen to bear the sharp edge over the proliferation of economic, political, of economic dislocation is altogether irrelevant. social relations across national borders which However, even a cursory review of current na­ has come to be known as globalization. Like tional discourses about public education, unem­ Critical Legal Studies in the mid-rg8os, the ployment, education, immigration and welfare left-liberal approach to globalization has yet to reform (to take a few examples) demonstrates generate an adequate account of the connections the degree to which questions of race and racial between racial power and political economy in ideology stand at the very center of today's the New World Order. Instead, generalized debates. These developments defY explanation references to the "North" and "South" figure in terms of liberal accounts of poverty and social as a metaphorical substitute for serious and equality, on the one hand, or leftist formulations · sustained attention to the racial and ethnic about the historical class relations between labor character of the massive distributive transforma­ and capital, on the other. tions that globalization has set in motion. Ab­ A CRT-grounded response to these develop­ stract allusions to "rich" and "poor" nations ments would intersect contemporary critical dis­ simply fail to yield an adequate vocabulary for courses concerning the domestic social transfor­ analyzing the precise processes that produce mations wrought by globalization and critical globalized racial stratification. As the Nigerian theories of race and power to better understand scholar Claude Ake has argued, globalization the "racial economy" of this transition. This enacts a "hierarchization of the world" and the CRT-informed investigation of the "South in "crystallizing of a domination". While that the North" would examine the way a certain domination may be essentially constituted by brand of racial politics has been mobilized to economic power, it is essentially legitimized by buffer the massive upward distribution of re­ racial power or, to use Ake's term, by ideologies sources and opportunity within the United of "political ethnicity." Critical Race Theory States, or explore the way racial ideologies have would thus focus on the degree to which the been used to justifY relatively open border poli­ effects of globalization in the (so-called) Third cies toward our Northern neighbors, even as we World demand analysis as an instance of what close off our borders to those from the South. Arjun Makhijani calls "economic apartheid." Just as Critical Race Theory introduced racial This general indifference to questions of ra­ ideology as a necessary component of hegemony cial ideology and power also informs liberal and in the wake of the Critical Legal Studies em­ left efforts to explain the political significance phasis on legal consciousness, so too must con­ of global economic processes within the U.S. temporary social theory fully incorporate no­ For the most part, liberal and left analysis of tions of racial power as a way of understanding this question has focused on the impact of (and contesting) changing economic relations. globalization on U.S. class structure and poli­ A third and final aspect of contemporary tics. To the extent these debates do consider the politics on which Critical Race Theory might role of race in the age of globalization, they do be brought to bear is the struggle within com­ so only in the context of conversations about munities of color over the future direction of the "cultural pathologies" of the "underclass" (in anti-racist politics. The difficulties critical race liberal circles), or (on the left) in terms of scholars faced in attempting to push the analysis a "class" of subordinated racial groups whose of law and racial politics beyond the narrow [xxxi] boundaries of racialism may all be seen at work social power and struggle lies in the tendency to in contemporary political debates among people "essentialize" the racial communities with which of color. The emergence of powerful voices it represents the social world. In black racialist of racialism is particularly evident within the circles, the felt necessity to articulate a stable Mrican American community, in which con­ vision of group identity and interest has under­ temporary racial crisis is frequently represented written a "representational politics" in which as a reflection of unmediated white power. Al­ the experience of one segment ofblackAmerica though the message of racialist politics speaks is taken to be representative of black experience to a broad range of disaffected Mrican-Ameri­ tout court. As a result, black racialism yields a cans, it is also the source of debilitating contra­ flat, fixed image of racial identity, experience dictions within black political life. Indeed, as a and interest, which fails to capture the complex, mode of political analysis and action, racialism constantly changing realities of racial domina­ has ironically facilitated ideological attacks on tion in the contemporary U.S. black America that are now simplistically repre­ The concrete implications of this crude es­ sented as coming from "out there"-that is, sentialism became painfully apparent in the sub­ from outside the Mrican-American commun­ ordinating gender politics to which black racial­ ity. ist support for the Thomas nomination gave To take one example, racialists rightly iden­ rise. As Kimberle Crenshaw has argued, the tifY the right-wing decisions of the current black racialist account proffers a vision of racism Supreme Court as part of the panoply of assaults which portrays racial power primarily through directed against black Americans. What they all its impact on Mrican-American males. Because too often fail to note is that this same racialist it is unwilling or unable to apprehend the ways politics helped secure the radical right's crucial in which racial identities are lived within and fifth vote on the Supreme Court, in the person through gendered identities, racial essentialism of Clarence Thomas. At the time of his nomi­ renders the particular experiences of black fe­ nation, Thomas had left little doubt about his males invisible. Black racialist politics thus ef­ political commitments. Despite a clearly mani­ fectively denies the struggle against racialized fested ideological agenda from which one could gender oppression a place on its anti-racist fully predict his role in consolidating the con­ agenda. A final recent example will suffice to servative wing of the Supreme Court, Thomas show how black America continues to be held was nonetheless able to garner crucial support hostage to racialism's essentialist politics. Al­ across the spectrum of Mrican-American politi­ though much of the rhetoric supporting a pro­ cal formations. Narrow notions of racial solidar­ posed "Million Man March" is grounded in the ity led Mrican-Americans to rally behind a need for a black American response to Supreme figure who, though black, had been and would Court decisions, the March's proponents not continue to be an eager participant in the evis­ only fail to problematize the racialist politics ceration of the post-civil rights coalition. that installed Clarence Thomas, but effectively Another dimension of the racialism that led reproduce those politics by promoting gender black Americans to support the Thomas nomi­ exclusivity, with its concomitant subordination nation was deeply gendered in its determina­ of the irreducibly gendered dimensions of black tion. The erroneous view that racial interests women's racial oppression. would be advanced by the appointment of any Because there is no currently viable alterna­ African-American to the Supreme Court was com­ tive to an ambivalent liberal vision of race, on pounded -by a misguided racialist belief that the one hand, and an inadequate vision of questions of gender power were irrelevant (if racialism, on the other, many progressive voices not antagonistic) to the interests of the "larger" in the black community tend to gravitate toward black American community. During our earlier the racialist view. For all its faults, racialism at discussion of racialism, we argued that one of least acknowledges the persistence of racism the chief problems with the racialist account of (albeit in an essentialist and exclusionary way). [xxxii]

Without a counter vision of race that does not decry laws forbidding racial discrimination on fall into the nebulous world of liberal ambiva­ the grounds that they are economically ineffi­ lence and apology, the dangers of racialist poli­ cient and morally indefensible. And in a delib­ tics for communities of color will continue to erate distortion of the 1954 Brown decision, go unheeded, even in light of the deep contra­ Supreme Court Justice Clarence Thomas has dictions that such politics produces. cynically described the Brown court's histori­ cally-based claim that racial segregation was Historians of American racial politics may "inherently" unequal as itself an example of rightly remember the final years of the twenti­ white racism. The power of new racial common eth century as the "Age of Repudiation." All sense may be seen, too, in the felt necessity of the evidence suggests that the 1990s mark the Democratic President Bill Clinton to qualify rejection of the always fragile civil rights con­ his already compromised defense of affirmative sensus and the renunciation of by federal, state action with a nee-liberal nod toward the "angry and city authorities (indeed, of the American white males" who, against all the evidence, have people themselves) that government not only positioned themselves as the chief "victims" of can but must play an active role in identifying contemporary racial politics. and eradicating racial injustice. The ideological The task of Critical Race Theory is to remind offensive against civil rights reform (not to its readers how deeply issues of racial ideology mention deeper social change) has consolidated and power continue to matter in American life. what we have called a new common sense re­ Qyestioning regnant visions of racial meaning garding race and racism in the United States. and racial power, critical race theorists seek to Although the new racial common sense defies fashion a set of tools for thinking about race both reason and contemporary reality, this fact that avoids the traps of racial thinking. Critical has not deterred makers of public policy and Race Theory understands that racial power is public opinion in the post-reform era from produced by and experienced within numerous using it to justify their indifference or outright vectors of social life. Critical Race Theory rec­ hostility toward those who continue to struggle ognizes, too, that political interventions which for racial justice and multicultural democracy in overlook the multiple ways in which people of the United States. In the 198os, the architects color are situated (and resituated) as communi­ of the new racial common sense provided an ties, subcommunities, and individuals will do ideological foundation for dismantling many of little to promote effective resistance to, and the key reforms and programs adopted during counter-mobilization against, today's newly em­ the civil rights period. In the 1990s, the apolo­ powered right. It is our hope that the writings gists for racial reaction have deepened and ex­ collected here will prove to be a useful critical tended their attack to include the very principle compass for negotiating the treacherous terrain of racial antidiscrimination. Emboldened by the of American racial politics in the coming cen­ successes of the 198os, right-wing legal academ­ tury. ics such as Richard A. Epstein now openly