Staying Focused on the Problem with Critical Race Theory

We hear a lot about these horrible conservatives—especially those deplorable MAGA types—complaining about critical race theory in our schools. Audiences are told, as if they didn’t know, that CRT is not history, etc., and therefore the complaints aren’t legitimate. Most conservatives know CRT is not about history. They’re not stupid. They can see that it’s ideology. Most conservatives don’t have a problem teaching American history—slavery, Jim Crow, all the rest of it. They have a problem with CRT. There is nothing wrong with criticizing CRT. (It’s not like criticizing Islam or gender ideology.) And they’re right to have a problem with CRT. Put into practice, CRT rationalizes unjust practices and produces unfair outcomes. Conservatives—and heterodox, i.e., actual liberals—are objecting to that and to public school curriculum based on CRT that trains children to think in terms of racial animosity and resentment.

The Supreme Court appears ready to ban or significantly modify the regime of affirmative action

The primary problem with CRT, and this is one reason we have to talk about it, concerns the colonization of law, policy, and social interaction by CRT ideas (see Critical Race Theory: A New Racism; What Critical Race Theory Is and Isn’t. Spoiler Alert: It’s Racist and Not Marxist; Crenshaw Confesses: Critical Race Theory is About Racial Reckoning; Awakening to the Problem of the Awokening: Unreasonableness and Quasi-religious Standards)—the colonization not only of government, but of corporations and religious institutions, as well. The very serious problem of the teaching of racial animosity and resentment to children, which is really what parents are complaining about, I will put to one side for now (see The Ethic of Transparency in Public Education—and the Problem of Indoctrination; Whose Spaces Are These Anyway? Political Advocacy in Public Schools; Banning CRT in Public Instruction). Today I want to focus in why CRT makes for bad law and policy.  I have discussed this before (Equity and Social Justice: Rationalizing Unjust Enrichment; Committing the Crime it Condemns; The Fight Against Compelled Speech; The Bureaucratic Tyranny of DEI; The Rules of Inclusion Represent the Totalitarian Desire to Punish Heretics and Infidels), but just in case you are new to my blog or have missed my other posts on this topic, I want to explain my objection again. It never hurts to make the same argument.

The core idea of CRT, that abstract demographic categories are real things (they’re not—they’re abstractions), and, following from that, that concrete individuals identified as members of groups are personifications of those categories, is in diametric opposition to the principles of equality before the law and equal treatment, which (rightly, as in correctly) presume not groups but individuals are the proper subject of justice. Liberties and rights are first and foremost properties of individuals, not abstract groups, most of which are socially constructed. The idea that groups have human rights has become a widespread idea. We see in the various “human rights” campaigns that advocate for this or that identity group to enjoy some privilege in society. But human rights inhere in individuals and, by their very definition, belong to each human independent of group membership apart from actual and substantial genetic differences. A German is entitled to no privileges based on his ethnicity. A Muslim is entitled to no privileges based on his faith. Only women can make a claim to unique rights, rights that are few but crucial, because women are substantially biologically different from men.

This is not a political judgment. In its treatment of concrete individuals as automatically representative of everyone who shares an identity, in its reification of race specifically, CRT is false on rational and scientific grounds—to wit, CRT commits the fallacy of misplaced concreteness, which is the error of confusing an abstraction for the concrete—that is, an idea for a thing (this is why I argue that CRT is a form of neo-Hegelianism, not neo-Marxism as conservatives and CRT advocates both claim). I will use myself as an example of the problem. I am a white man. While sex is an objective reality that differentiates males and females from each other (albeit my sex tells you very little beyond what unique rights I don’t have), my being white, a social construct, tells you nothing about me other than I am identified by a constellation of phenotypic traits. The claim that these phenotypic traits are predictive of group-level differences of behavioral proclivities, cognitive ability, or moral aptitude is not supported in the evidence—at least in a causal sense (there are cultural reasons for the differences attributed to race, which is a biological construct).

The point is that all individuals identified as members of a racial group cannot be judged—or we must say that it is wrong to do so—in terms of that identification before the law or in the operation of organizations that operate on the principle of public accommodations. To treat individuals differently on the basis of race is racist, and branding discriminatory law, policy, or action “anti-racism” does not make it less racist. Any policy that advantages or disadvantages any individual on the basis of his skin color is a racist policy—yes, affirmative action is a racist policy because it is based on the false notion that individuals are personifications of abstract racial categories and therefore enjoy benefits on that basis (i.e., privileges). In contrast, colorblindness is a just policy because it obligates those who hold an individual’s fate in their hands to treat that person as an individual and not on the basis of their presumed or announced racial identity. This is why CRT and the antiracist reject the standard of colorblindness—even branding it “racist” using the tortured logic that eliminating race-based policy advantages whites as a group, which is irrelevant in the case of race from the standpoint of rational jurisprudence (again, this is only relevant with respect to sex, a category that is being erased in law and policy across the West, replaced with the construct of “gender identity”).

Despite standing in opposition to rational jurisprudence, CRT ideas are playing a major role in changing the character of our legal system and our institutions, taking our society away from one that defends the liberties and rights of individuals, and pushing us towards a system that discriminates against individuals on the basis of race. As noted above, we are already doing this with affirmative action. With the concept of equity, we are seeing policies rolled out in health care (The Problem of Critical Race Theory in Epidemiology: An Illustration). And reparations for acts committed by people long deceased are a very really possibility (A specter is haunting America—the specter of reparations; Reparations and Blood Guilt; For the Good of Your Soul: Tribal Stigma and the God of Reparations). Many of these ideas and trends, e.g., affirmative action, precede the formal articulation of CRT in the 1990s. Indeed, in many ways, CRT is a contrived intellectual system that strives to rationalize those changes that are proving to be profoundly detrimental to individual liberty and human rights.

The Supreme Court has announced that on October 31 of this year, it will hear two cases concerning race-based affirmative action at Harvard and the University of North Carolina. Race-based affirmative action allows colleges to consider a student’s race when deciding which students should be admitted. This practice has benefitted black applicants while disadvantaging whites and East Asian applicants. Lower courts have ruled in favor of Harvard and the University of North Carolina on the grounds that the programs advance what judges see as a compelling interest in promoting diversity, a major political-ideological project of elites across American institutions. Remember that the original purpose of affirmative action as a program of reparations was canceled in the 1978 Bakke decision, which held that using race as a exclusive basis for admission (the quota system) violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. But there is no rational reason why any given individual’s life chances should be determined by an elite political-ideological project that works by compromising the principle of equal treatment. What’s the difference between reparations and diversity? Nothing. The rhetoric of diversity is newspeak concealing the goal of reparations. Critical race theory is designed to rationalize an elite project of racial discrimination.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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