Critiquing Legal Frameworks: Critical Race Theory in Action

The concept known as critical race theory has become a lightning rod in school board meetings and statehouses. It has morphed from an obscure academic discussion point to a political rallying cry for the right.

Many educators support culturally relevant teaching and other strategies to affirm students’ ethnic and racial backgrounds. CRT is different, though. It also challenges traditional ideas about objective knowledge and Enlightenment rationalism.

Using Critical Race Theory to Examine Legal Frameworks

There’s been a lot of talk about critical race theory (CRT) in recent weeks, as debates at school board meetings and political races have become contentious. Some lawmakers have introduced laws and taken other steps to ban the concept in schools, arguing that it promotes divisive ideas and encourages students to think negatively about white people.

CRT is an academic framework that recognizes systemic racism—rather than individual bias or prejudice—is baked into U.S. law and policies, including criminal justice, education, housing, employment, and healthcare. It explains why issues like Black Americans’ higher mortality rate, outsized exposure to police violence and incarceration rates, denial of affordable housing, and racial disparities in research outcomes are not isolated problems.

So, what are the tenets of critical theory? One assumption of CRT is that implicit and purposeful prejudices among individuals are less likely to cause racism and differential racial outcomes than complex, dynamic, and frequently subtle social and institutional factors. According to CRT experts, the liberal notion that American law is “neutral” contributes significantly to the upkeep of a racially inequitable social structure where officially color-blind laws continue to have racially discriminatory effects. They also assert that white people’s interests are advanced at the expense of people of color by the social and legal construction of race.

In contrast to previous conceptions of the law as objective and apolitical, scholars who embrace CRT use legal theories and tools to elucidate contemporary racial phenomena and expand our vocabulary for discussing complex racial concepts. But, the framework also raises provocative questions about the role of social and political considerations in legal decision-making and various policy issues, from education to healthcare to law enforcement.

The Law of Neglect

Critical race theory (CRT) describes how a legacy of slavery, segregation, and discrimination continues to shape modern-day legal systems, laws, and policies. It challenges the idea that racism is just an individual act of bigotry and instead argues that the law is a powerful instrument for sustaining racial inequality and perpetuating injustices.

CRT has long been a subject of debate among academics and lawyers, but its influence outside universities is now starting to be felt. For example, Republican-led state legislatures have been pushing for bills to ban teachers from discussing certain concepts in the classroom, including racism, white privilege, implicit bias, and systemic racism.

These laws target teachings on identifying and combating inequities by shifting a discourse’s starting point from the dominant group’s perspective to that of marginalized communities. These laws would undermine researchers’ ability to address inequalities and provide a cover for those who believe that racism is a “fact” or is simply a result of individual prejudice. By banning discussions of these topics, lawmakers are ignoring the truth. This is a dangerous precedent and a disservice to our country’s most vulnerable children.

The Law of Discrimination

Discrimination is against the law, and it includes denying people equal pay or access to jobs because of their race, color, religion, sex, national origin, sexual orientation, or age. It can also be discrimination to deny someone access to medical or psychological care because of their race or gender identity.

Legal scholars have studied critical race theory for decades. It is a subset of postmodernist thought, which questions the ideas of objective knowledge and individual merit that are central to Enlightenment rationalism and liberalism, tenets that conservatives tend to support.

The law prohibits employers from discriminating based on race or color, national origin or ancestry, sex, gender identity or expression, language, religion or political opinion, age, or disability. This is known as the Law of Non-discrimination, an essential element of equality law. When employers violate the Law of Non-discrimination, they may be liable for violating federal and state civil rights laws. The Equal Employment Opportunity Commission enforces the Law of Non-discrimination. Its goal is to prevent unlawful discrimination by ensuring everyone receives equal opportunities in hiring, firing, and providing employee benefits.

The Law of Exclusion

In the legal field, critical race theory (CRT) is an approach scholars use to examine how laws and policies impact individuals. It also provides a framework to analyze and challenge structures of oppression. CRT seeks to highlight how privilege, discrimination, and oppression intersect with identities like racial identity and sexual orientation.

CRT is often misunderstood, but it has emerged as an essential legal framework and continues to expand into other fields of scholarship. It has been a tool for researchers to examine the historical and sociopolitical roots of disparities in public health, analyze how disciplinary conventions may limit progress toward equity, and investigate links between White racial identity and inequity.

However, the political debate over CRT has become a lightning rod for controversy in recent months, with several states introducing or passing legislation to ban anti-racism training in schools and other institutions. In many cases, the pushback against CRT is based on misconceptions about what it is and concerns that the curriculum divides students along ideological lines. As a result, the issue could continue to play a role in the November 2022 elections.

The Law of Inclusion

Inclusion is the principle of recognizing and valuing all American citizens’ communities, identities, races, ethnicities, backgrounds, cultures, abilities, and beliefs. It includes eliminating existent factors that discriminate against individuals, such as age, birth, color, descent, disability, family or career status, gender, language, national origin or citizenship, race, religion, sex, socio-economic disadvantage, statelessness, and other groups.

It requires legal scholars to be aware of their work’s implications and of their scholarship’s impact on marginalized groups. By centering marginalized groups in their research and practice, critical race theorists can bring rich perspectives to the table that enhance scholarly analysis and advance knowledge on issues of inequality.

This approach makes it difficult for critics to frame the discussion of racism as irrational, biased, or unwarranted. It also exposes the limitations of traditional views of racism as individual acts that are difficult to control. Scholars can better understand and challenge societal norms and structures by examining how the law constructs race and perpetuates racial inequality. This is essential in reducing the racially disparate conditions that remain even after a series of landmark civil rights laws were passed.