Abstract
Excerpted From: Benjamin M. Gerzik, Reforging the Master's Tools: Critical Race Theory in the First-Year Curriculum, 76 SMU Law Review Forum 34 (May, 2023) (204 Footnotes) (Full Document)
The law is racist. Our country's founding document nakedly enshrined racism in its text, and even with all of the progress made since the founding, the law creates, perpetuates, and allows racism today. It does this while denying it. Legislatures across the country have banned critical race theory in one form or another, making it a distorted partisan talking point. Yet critical race theory is essential to understanding both the history of the law and the law as it is--two indispensable facets of any respectable legal education. As I will explain, critical race theory (and related critical pedagogy) is requisite for any competent legal education. This is the case.
Learning critical race theory is a matter of accuracy, not just advocacy. In acknowledging the necessity of a course on race and the law, Berkeley Law's Dean Erwin Chemerinsky states as much: “No law student can be prepared to practice law in any field without an understanding of the role of race in American law, both historically and today.” Many scholars, practitioners, and other commentators have made compelling arguments for the introduction of CRT and critical pedagogy generally, but these arguments frequently have normative grounds. Similarly compelling arguments for the growth of clinical education--especially as it relates to social justice--have been made over the years. These grounds are righteous and worth serious consideration but do not fall within the scope of this paper. “[C]linical education is only one part of the longer-term effort to train emerging social justice lawyers. The need for critical race theory to be included in students' doctrinal study alongside their experiential learning is mission-critical.” You simply cannot accurately learn the law without at least considering CRT in your education. My argument is positive, not normative. Professor Frances Lee Ansley articulates the importance of racial literacy in legal education beautifully:
Our canon is already an integrated one and should be consciously taught as such. American law students should not leave the law schools of the late twentieth century until they have received a thorough and explicit grounding in the role that race has played in the creation and transformation of central legal institutions. The power and burden of race, both past and present, should be seen as indispensable parts of minimal cultural and constitutional literacy for the legal practitioners and theoreticians we send forth into the bar and the world.
Yet law students did leave the law schools of the late twentieth century without that literacy; we must ensure law students of the twenty-first century do not face the same fate. Ansley's 1991 essay on race in the core curriculum notes a past objection based on “the assertion that texts of appropriate quality are lacking” and that “there are inadequate resources to implement such expansion.” I hope that examining this paper's appendices will show how nakedly wrong that first argument is today, not to mention its incorrectness in 1991. The scholarship surrounding critical race theory is voluminous and exceptional, and this is only becoming more and more true over the years. I hope that the cataloging of resources in this paper's appendices will both demonstrate that fact and assist professors, students, and organizers in implementing critical race theory in their respective curriculums.
The argument that resources--time, money, staffing, etc.--are too limited for the implementation of critical race theory also falls flat. It is undoubtedly true that law schools and professors must carefully allocate their limited time and resources to provide an optimal experience for their students. They may examine the problem as splitting focus between “the 'fundamentals,’ not on peripheral 'extras”D’ such as critical race theory. Again, critical race theory can hardly be characterized as a “peripheral extra.” Racism has roots in the Constitution itself, and its tendrils still creep throughout the law today. Race is more fundamental than many other aspects we learn about the law.
The function of stare decisis requires that we face race head-on in our education more so than other disciplines. Racist laws and rulings are precedent if not repealed or overturned, giving the law a unique need to directly address racism even where it may still be pressing in other fields. In many ways, the law is both the master's tool and the master's house. The powerful wield it as an oppressive tool for furthering their own interests, and it shelters them from the consequences of their oppression. Attempting to use a fundamentally unjust system to dismantle itself is futile by definition. However, we may still use CRT to understand the master's tools and the master's house as they actually are, not as they purport to be. Professor Khiara Bridges suggests we can approach legal institutions “with a mindset centered around reorganizing”; we can reorganize legal education to make it a tool that is “life affirming” rather than oppressive. The master's tools may never dismantle the master's house, but we can put them to work while we endeavor towards necessary reforms and abolition on larger scales. Learning critical race theory in the first year of law school will prepare students to do this work, facing the law head-on for what it actually is and arming them to reimagine what it can be.
B. What is CRT? a Brief History and the Moment We're In
1. What CRT is: Definitions and Recurring Themes
What is critical race theory? Professor Dorothy A. Brown synthesizes the essence of the movement in one simple and effective question: “[W]hat does race have to do with it?” It turns out, perhaps unsurprisingly, race has a great deal to do with it. “Race isn't just the elephant in the room ... it is the room.” Critical race theory is all about critically examining the function of race in the law, and, although it has recurring themes, it has no perfectly established central tenets to point to.
Even without perfectly defined central tenets, foundational scholar Richard Delgado does attempt to synthesize CRT's main themes with some specificity: it is a movement centered on “studying and transforming the relationship among race, racism, and power.” It pushes back against traditional conceptions of law and civil rights, instead asking foundational questions about the law, its reasoning, and its history. The movement first materialized in 1989 when foundational scholars such as Derrick Bell, Alan Freeman, and Richard Delgado convened with other academics for public and private workshops. Its ideological underpinnings come from the critical legal studies movement and radical feminism, two movements that insufficiently addressed race in their time despite their otherwise valiant undertakings. Delgado outlines five basic tenets of critical race theory with the caveat that they are not universally accepted or defined identically, given the movement's diverse offshoots: the ordinariness of racism; interest convergence (or material determinism); the “social construction” thesis; intersectionality and anti-essentialism; and the voice of color.
The ordinariness of racism holds that race drives ordinary interactions, that it is “the usual way society does business.” Interest convergence, a term coined by Professor Derrick Bell, holds that racial progress happens when the interests of the oppressed converge with the interests of the oppressors. The social construction thesis defines race as a social construct--not a biological reality--that shifts over time according to power dynamics, although scholars disagree about its specific mechanics. Intersectionality, coined by Professor Kimberlé Crenshaw, requires the joint examination of different identities and how they come together to influence lived experiences and legal outcomes, including race, sex, class, and sexual orientation. Finally, the “voice of color” entails that people of color can frequently explain race and racism with a nuance White people cannot because of their personal experiences. In this paper, I directly address how interest convergence, intersectionality, and the voice of color may be taught in the first-year legal curriculum, but for the sake of economy, I do not address the ordinariness of racism or social construction thesis in much depth.
2. What CRT Isn't: Backlash and Moving Mountains Made of Molehills
Where Delgado provides some structured clarity as to what CRT means, right-wing movements have recently distorted it into a catch-all partisan talking point for any contentious idea involving race or related progressive policies. This strawman movement began with Trump's Executive Order 13950, ironically titled “Combating Race and Sex Stereotyping.” Its title indicates a broad theme in the racist anti-CRT movements across the country: they hold the country's racial progress aloft in one hand while they hold a silencing finger to the mouths of advocates with the other. Dr. King's famous dream that his “little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character” is a favorite quote among anti-CRT fanatics and has been quoted in anti-CRT handbooks as well as Trump's original executive order. These handbooks, of course, do not mention Dr. King's admonitions in the same speech to avoid taking “the tranquilizing drug of gradualism,” to “never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality,” or to never “be satisfied as long as the basic mobility is from a smaller ghetto to a larger one”--themes that ring too true today.
Legislators across the country have introduced and passed numerous anti-CRT bills in blatant disregard of Dr. King's warnings. So far, ten states have silenced educators and state agencies by fully passing these bills. Two of these laws specifically ban CRT by name, while the rest do so in more vague terms. Another battle has taken place in school board meetings across the country, where parents--and even people who do not have kids at the besieged public schools--have lashed out about teachers supposedly indoctrinating their students with CRT. The school board movement has received formalized support from some conservative advocacy groups, including Citizens for Renewing America and Turning Point USA. This paper does not address the free speech implications of the movement against this strawman version of “critical race theory,” but we stand in a unique historical position to slingshot the political will against CRT into meaningful change.
Dr. King announced that “1963 is not an end, but a beginning.” These legislators would see 1963 as the end of racial progress in the United States; their efforts to silence thousands of voices under the name of CRT is a vicious tool to that end. But each bill gagging discussions of racial equity under the name of CRT is a beginning, too. Counter-movements have emerged against this rightwing outlash. The AfricanAmerican Policy Forum (AAPF), headed by Kimberlé Crenshaw, launched the #TruthBeTold campaign to highlight the importance of CRT and track the nationwide outrage against it. The AAPF launched a Critical Race Theory Summer School in 2020--a five-day conference focused on critical race theory from all angles--that repeated in the summers of 2021 and 2022. Howard Law School's Thurgood Marshall Civil Rights Center established a CRT hotline in partnership with the AAPF, which educators, parents, and Diversity, Equity, and Inclusion (DEI) professionals can confidentially contact for both legal and practical assistance in dealing with the anti-CRT movement. And, of course, legal challenges have already arisen against the anti-CRT bills. Every drop of destructive vitriol against CRT provides an opportunity to form a constructive response, building infrastructure for actually expanding the conversation around race in meaningful ways.
While the battles continue nationwide about teaching CRT where it isn't taught, we should focus on where people actually learn CRT: law schools. CRT is frequently not offered until a law student's second or third year, and when it is, it often takes the form of a small seminar course. If students are lucky enough to have the course offered at their school and get into it, they are still learning the material too late; CRT is, by definition, foundational. To make the most of its teachings, law students need to learn CRT alongside their other foundational courses. I therefore turn my attention to how professors and law students can think about critical race theory in the doctrinal first-year curriculum.
[. . .]
The law is racist, but it--and we--need not be. We do need to be honest about its enduring, insidious history, even where its insidiousness is becoming less and less obvious. Teaching CRT throughout the first year of law school will ensure that we hone that honesty, opening up necessary discussions that are not always being had. Teaching CRT will arm law students with a fuller understanding of the law and its history, empowering them not only to be better advocates, but proper students of the law. It may too sharpen much-needed swords in the battle against dishonest legislators who attempt to silence other approaches to racial equity by scapegoating CRT.
Teaching CRT in our first-year legal curriculums is only a starting point. CRT itself grew out of a movement that insufficiently addressed race, however righteous its other focuses. The theory of intersectionality was born from the failings of the most progressive feminists and antiracists of the time to consider the full picture of discrimination. Even if the first-year curriculum does incorporate CRT, other critical legal pedagogy must follow.
For now, we must utilize this moment's ferocious political winds and demand CRT be taught where it is meant to be. While we may dream of the racism necessitating these studies one day becoming moot, legal education must face them eternally. Its reliance on stare decisis means that a proper legal education can never forget, discount, or purport the end of these issues, as it has frequently attempted to. What we can--and must do--is work against racism in the law in our practice and pedagogy. To do that we must fully address race in our education. It is critical.
J.D. Candidate, SMU Dedman School of Law, 2023; B.A. Philosophy, The University of Texas at Austin, 2020.
