Founding Critical Race Theory

legal scholar and professor Kimberly Crenshaw. When she introduced the concept of intersectionality in the late nineteen eighties, Crenshaw was underlining the ways that race and gender discrimination converge. As a student, she saw how laws that address race and gender separately failed to deliver justice to those at the intersections. Just an attempt to help lawyers see things that they

apparently were having a hard time sin. Intersectionality found its way into the Oxford English Dictionary in twenty fifteen and became widely used in discussions about the Women's March and the Me Too movement. But intersectionality isn't the only phrase that Timberly Crenshaw has coined. Crenshaw is one of the handful of legal scholars who originated and developed critical race theory.

In Layman's terms, I would describe it as the study of how law consistently supports institutionalized forms of racial inequality. Like intersectionality, critical race theory was originally developed to unpack issues of identity and status in our justice system, and like intersectionality, critical race theory has become a household phrase. It's also become a cornerstone for a national attack on education.

It's used to shut down any additions to the curriculum taught in American public schools which would more accurately reflect our nation's history. I'm Anita Hill. This is getting even my podcast about equality and what it takes to get there. I'll be speaking with people who are improving our imperfect world, people who took risks and broke the rules. In this episode, I'm talking with Kimberly Crenshaw about critical race theory. Crenshaw and I have known each other since the nineteen eighties.

I think people need to know that. At the time and need to there was just a handful of black women law professors. We all either knew each other or new of each other. We could all get in a minivan if we had a lunch meeting. You know, we just need one table, right, Yes, Crenshaw and I both found that our formal education lack teaching about race, racism, and the law. For Crenshaw, that meant creating the theories

that we're missing writing them herself. You know, funny, you should say that my mic is sitting here on the Critical Race Theory Book as we speak. It's the foundation of everything, right, the critic It's called the Red Book now, the Critical Race Theory the key writings that formed the

movement effectively. If we want to understand, for example, why we still have housing segregation that in some ways is as significant ablight upon our society as it was fifty years ago, we have to look at how legally segregated neighborhoods were created and sustained. If we want to understand why schools remain racially separated, we have to understand the legacy of decisions that are perfectly legal that sustain racial separation. So the overall point is to understand that race and

racism are legally constituted concepts and processes. We like to think of Critical race theory not so much of a thing, but of a way of viewing a thing, a way of viewing what we think. Race is a way of understanding why it is utterly predictable who's most likely to be the CEO and who's most likely to be the person cleaning the CEO's office. Race is still a primary factor in determining access to the good things in life.

As long as race is a predictive factor, we would want to understand, well, how does it happen fifty years after Brown versus Board of Education, the Civil Rights Act of sixty four and sixty five? Why do we still have these problems? Critical race theory attempts to ask those questions and provide some answers from the vantage point of the law. We didn't know it was called critical race theory, but we started the thinking as a way of understanding why.

When we arrived at Harvard Law School, we saw ourselves as advancing the cause of racial justice through learning how to be good lawyers. And we got there and found that there really weren't many courses, many any courses that were dedicated to sharing the knowledge about how to do that.

Derek Bell's courses were no longer being taught. He left before we got there, So we engaged in a strategy of trying to ask politely the institution to teach us these courses, and the institution didn't think that they were as significant as we did. It was, in fact, Derek Bell, who was this towering figure in legal education, who had this famous class of Race in the Law that he taught at Harvard. But it was his absence that really drove you and the other students to organize. That's a

real irony. You would think that, Okay would be inspired by Derek Bell, and that's how things happen. But when you get to a place and you know something is missing, you know it's needed, and that it has been there before,

you all were inspired to do something about it. Yeah, we invited law professors of color from across the country to come and teach a chapter out of Derek Bell's book, Race, Racism, and American Law, and it came out of a concrete engagement with institutions that weren't prepared to deal with us. That cohort of students included Maria Matsuda. Some of the people that we invited included Chuck Lawrence, Richard Delgado the core group that eventually came together with about twenty other people,

and we called ourselves critical race theorists. Basically, we were the kids who were watching the civil rights movement happened on television. We were the ones who were aware but not old enough to really become involved in the demands for voting and the demands for even what we were called. I mean, you and I grew up at a time where it wasn't even a good thing to be called

a black person, right. So, becoming a law student going into these institutions, after having watched the doors open and understanding the role that students had played not only in voting rights, not only snick, but the role that students had played in universities, to say, look, universities, you are not immune. You are not disconnected from what's happening in

the rest of the society. If we don't have the ability to learn what the true history was, what reconstruction was all about, how all of the advances from reconstruction were rolled back. If we're not learning that stuff, we're not learning the truth about America. So we went into Harvard Law School with the sense that we were entitled to learn this history. That's what desegregation was supposed to

be about, not just about bodies, but about knowledge. So in going there and thinking, okay, well, the person we were coming here to learn from, the courses we were hoping to take are not being offered. Surely you're going to do something about this, right, And the answer was

as instructive as the absence. The absence presented the moment to raise the question, and the answer to the question told us reams right, like, basically, there are no qualified people of color, at least people we think who are qualified to come here and teach. Well, that caused us to say, well, what counts this qualification, particularly in an institution and an entire field that into like yesterday largely was a place that was not welcoming to people of color.

So how do you become qualified when your people weren't really part of that institution? And we were coming so inspired by what had happened during the first fifteen years of the civil rights movement, we thought, of course it's going to continue, right, these are the new lunch counters. And we got there, Nita, just as the Supreme Court was beginning to push back and beginning to say, we're

at the end of the road. We've done all the reform that's necessary, So telling us why there wasn't more coming became the text that we were reading and critiquing,

and that critique became critical race theory. This was a conversation happening mostly inside law schools, and not even in all law schools at that Nope, but law school conversations were going on in the eighties and then ultimately though, this idea started to spread outside of the law school, and one of the factors was a book that you co author, that book, Critical Race Theory, the key writings.

But even in the nineties, Kimberley wasn't It's pretty fair to say that critical race theory was something that was really still thought about in the academy in law and even though it started to spread in other areas, it was still by the end of the nineties, it was still in academic. Yeah, people started reading it in political science, in sociology and American studies and cultural studies, and so that's where it existed until like last year, and then

it was discovered as the Unamerican anti American idea. I don't know if this is one of the reasons. But evidence of that is the extent to which it was challenging for people to think about race and racial power outside of the framework of an individually biased person. And the solution to that narrow conception of what racism is or could be was, well, let's not look at race,

let's all be colorblind. So there was sort of a bipartisan discomfort with some of the core ideas in critical race theory, which where race does not go away because you don't name it. Racism is not something that you can solve by being colorblind. My analogy has always been, we realize that we built our institutions with toxic material

like asbestos. We don't think the solution to brown lung disease is to not notice that this asbestos is there, not use the word or terminology asbestos, and to criticize those experts who can tell you where the asbestos is tucked away in our institutions. We would never do that with something that we really cared about. Yet we've done

that with race and racism. So it's only been, i would say, in the reckoning around Black Lives Matter, and in particular in twenty twenty during the uprisings around Brianna Taylor and George Floyd that people started uttering the phrases structural racism, and so I think that created both more of a demand for critical thinking about race and then quickly after that the backlash against critical thinking about race.

After the break, we discussed the recent backlash against critical race theory, the power struggle over school curriculum and the role of education, and moving us toward a more equal society. You're listening to getting even I'm Anita Hill. I'm speaking with Kimberly Crenshaw, the legal scholar who coined the terms intersectionality and critical race theory. And we can't talk about

CRT without talking about education. Can you talk about how your early education got you to thinking about race, gender and the law. Well, you know, Anita, it's not even my early education. It's sitting at the dinner table. My mother was what we might call a race woman of

the twentieth century. She was born and raised in Kent, Ohio, and partly because her father was the town's physician, they weren't constrained by concerns that many other folks had to worry about that if they demanded their equal rights, they would lose jobs. The way that segregation was reinforced in the North was through economic punishment, and because they relied on the black community for their livelihood, they were freer

to demand certain rights. So my mom her first civil rights action was as a three year old, integrating the Waiting pool, and she talks about remembering what happened when they decided to drain the pool with her in it. Right said, she was splashing around and the water kept getting lower and lower until it was sucked down the drain, and her mom gathered her up, went to the neighborhood, got a whole bunch of other black kids, went and got swimming suits, and went right back and jumped back

into the pool that had been refilled. That was sort of where she came from. And at our dinner table we heard these stories. I was raised in the town that she grew up in. The history was built in the geography everywhere we went. That was the place that didn't want to serve us at the counter, That was the movie theater that didn't want to let us sit where we wanted to sit. So that was the conversation

at the dinner table. So a lot of my childhood was trying to navigate how to think about this thing that happens, this thing called racism. So going to school was a process of trying to figure out, well, why aren't we talking about this. You are one of the legal scholars who developed critical race theory beginning when you were in law school. I wanted to go to law school because I wanted to understand how to dismantle the

things that are just kind of built in. And my eyes were continuously open to the fact that this thing called racism is not just about people with a bad heart. It's not about people who don't like us because of our skin color. It's about deeply structured ways in which disadvantage functions. It's about the historical ways that those platforms of advantage and disadvantage can reproduce themselves without anybody intending

to do it. So law school was the place where I'd be able to develop the tools to do something about it. One could have figured that something like a concept like critical race theory, like a way of thinking about race, that there would be attacks. So why I'm asking this rhetorically, but I'm also asking it literally, Why didn't you see it coming? Well, you know I did see it coming. I actually see worse coming. And that's

really what worries me so much. I mean, race reform has in this country always been met with a backlash, and sometimes the backlash was more powerful and lasted longer than the reform did. So if you think about reconstruction, you know, how do we take people who had been enslaved and make them full fledged citizens? That lasted about a decade. The reaction to that, the retrenchment to that,

lasted over a half century. In the mid eighties to the nineties, the response to civil rights claim was you're asking for handouts. Remedies are reverse discrimination, preferential treatment. That was a backlash to the sixties, and it was a backlash that articulated itself in the same way that the backlash against reconstruction was articulated. So reform and retrenchment have been a dynamic deeply structured into American society. So that's a pattern that we've seen and I'm more or less

expected at. What worried me the most was when then President Trump issued an executive order against all training in the federal government to advance equal opportunity, framing that as discriminatory. Most people, I think we're thinking ay, it would go away if Biden got elected and he would rescind the order, which happened. What they didn't anticipate would be that this would become a multi state strategy. It would quickly go through state legislatures where there wasn't much pushback, and it

would quickly turn into brush fires in school boards. I think people didn't see that coming, and as a consequence, there wasn't a sense of what the response should be to the problem. Because what they're getting at is the fundamental idea that in order to to become a more perfect union, we have to address the ways in which we are and always have been imperfect well, and what it says is that it's ultimately going back to the day when you were in school trying to figure it

out yourself. Yeah. Yeah, that is what we're doing to children. And as you pointed out, when we were going into law school with a sense that we had a right to this more inclusive education, it was because it had been there. It was because there were elements of it in various places. And I think our opponents recognize that if you give them a taste of it, if you open up the door to any of this, it will become the fuel that will energize future generations to ask

for more of it, so shut it down completely. Their reaction shows how significant it is to be able to really grapple with uncover the ground upon which we stand, because if it was insignificant, they wouldn't be spending millions

of dollars trying to shut it down. Now, one of the responses I've heard is for students of color, and really any students or faculty teachers who are subjected to having their curriculum stifled or whitewashed, there is a recourse, and that is you go to predominantly black university or college where perhaps if it's not a state's fund at college, then you are able to teach whatever you want to learn, what you want to understand race and someone in a

different way then you will if you're going to a school where the material has been banned. You know, I thought about that, and it really does get to this larger question shit about choice as well as about the value of degrees, and that's part of the racism and

structural racism that we exist with. When you get a degree from Harvard or Yale or their University of Oklahoma, it comes with a whole network of people and resources that you're not likely to get in a smaller institution, and especially not likely to get in an institution with less funding, which is often the case for our historically BIA colleges and universities. Do we ask students to give up those benefits in order to learn about how to

end racism? Is it fair to those students? I mean, is there an equal protection argument to be made that something is lost when you are not provided with the information that is critical to understanding bias and oppression in this country. Well, one of the strategies that has been much discussed is to raise precisely that argument that Brown versus Board, and the entire legacy of that monumental case

was that democracy requires equitable educational opportunity. That's why the real injury that Linda Brown experience wasn't simply that race was taken into account in making the school assignment. That would mean that the white students were harmed in the same way that Linda Brown was harmed. And so the main argument there was that the message of racial subordination that is generated from segregation undermines our guarantee of democracy.

It doesn't end with just segregation. It includes the content of education. It includes saying that there's only one story that is the permissible official story of America, and it's a story that does not explore the consequences of enslavement and of all of the other racial dynamics that built

this country. So when you have an educational system that denies and deprives constituencies of the actual factual information that explains our history and explains how and why our society looks the way it does now, I would say that that compromises the very values that Brown versus Board of Education embodied. So I think there is an argument to be made. I think it has a deeper grounding in

what the fourteenth Amendment was all about. We cannot have an equal citizen and when we're not willing to tell the full story of when our society embraced inequality and what the echoes of that embrace continue to be. So my hope is that there will be more affirmative efforts to fight back against this repression. The fourteenth Amendment does embody a value, and these laws undermine that value. That's what we need to be able to teach our young people.

That's what we need to be able to say to ourselves and to our elected officials, and that's what we should hold them accountable to. That value that was fought and died for, that value that was resuscitated in mid twentieth century, and that value that has to rise again if we're to save this country. And this is where a need of I feel that our generation has got to make up for the losses. So for me, for at least the rest of my life, it's like, well, we've got to fight back because we have got to

pass on something to the next generation. It's got to be better than what they're getting if these laws are effective. So, you know, the performance that we are seeing by all of these critics, the hyperbole, the hysteria around telling the truth about the constitution, telling the truth about slavery, telling the truth about the Civil War and the laws cause and segregation. The response that we ought to collectively have is to read all this stuff right, all this stuff,

learn all this stuff, and act accordingly. Kimberly Crenshaw's work has helped move us to a more equitable world. Her ideas have enriched the learning experiences of countless students. Education is currency and stifling education has real costs. We all lose. If we limit critical thinking about inequalities, we will pass problems of racism on to our children. Quinshaw's words are an urgent call to action, because learning the truth is how we can equip the next generation with the tools

they need to reach equality. In the next episode, I'm talking with Cherylyn Eiffel. We spoke on her last day as president of the NAACP Legal Defense and Educational Fund, the country's leading civil rights law organization. Oh, if you're not daunted, you know something is very wrong with you and you're probably not right for this job. So yes, it is daunting, and I think it should be. Getting Even is a production of Pushkin Industries, and it's written

and hosted by me Anita Hill. Is produced by Mola Board and Brittany Brown. Our editor is Sarah Kramer, our engineer is Amanda kay Wang, and our showrunner is Sasha Matthias. Luis Gara composed original music for the show. Our executive producers are Mia Lobel and Letal Malad. Our Director of Development is Justine Lane. At Pushkin, Thanks to Heather Fane, Carly Migliori, Jason Gambrel, Julia Barton, John Schnarz, and Jacob Weisberg. You can find me on Twitter at Anita Hill and

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