Throughout American history, race has profoundly affected the lives of individuals, the growth of social institutions, the substance of culture, and the workings of our political economy. Not surprisingly, this impact has been substantially mediated through the law and legal institutions. To understand the deep interconnections between race and law, and particularly the ways in which race and law are mutually constitutive, is an extraordinary intellectual challenge. That is precisely the project of Critical Race Theory (CRT). This course will pursue this project by exploring emerging themes within CRT. Contrary to the traditional notion that racial subordination represents a deviation from the liberal legal ideal, this body of work recasts the role of law as historically central to and complicit in upholding racial hierarchy as well as hierarchies of gender, class, and sexual orientation, among other others. We will focus on the origins of the critique and the contrasts between CRT and liberal and conservative analytical frameworks on race and American law and society. We will also examine some of the questions and criticisms raised about CRT, from both inside and outside the genre, as well as the impact of the work on legal and political discourses. The point of departure for the course is an exploration of race itself—what exactly is race?—and the role law plays in constructing race and alternatingly ameliorating and perpetuating racism.
CRT refers to a surge of legal scholarship, starting in the late 1980s and blossoming in the 1990s, that challenged conventional anti-discrimination thinking. According to the conventional narrative (then and probably still dominant in legal thinking about racial discrimination), discrimination on the basis of race could be effectively alleviated by expanding constitutional or statutory rights and then allowing aggrieved parties to file claims seeking remedies from governmental or private wrongdoers. In contrast, CRT scholars view racism as institutional and as baked into both American law and society. They have sharply criticized doctrines such as the intent requirement (the idea that discrimination must be intentional in order to be actionable) as overly narrow and reformist rather than structural in nature, to provide just one example.
CRT as a course is part intellectual history (the story of the scholarly movement in the legal academy) and part deep exploration of the far-reaching implications of viewing race and racism in this light. We will consider criticisms of CRT, including conservative critiques, but mostly looking at challenges from within the field. We will put CRT into conversation with the most innovative social scientific formulations of racism and “race” as a concept, asking how they illuminate past and present challenges such as: reparations for past race-based injustice; social movements to combat racism; police violence against and incarceration of disproportionate numbers of people (especially men) of color; laws and policies toward migrants. The course will situate racism as operating through and in conjunction with inequality based on class, gender, national (national original and citizenship), and sexual orientation/expression.