Critical Race Theory

Civil rights are meant for the protection the interests of the people. Discrimination of people with out established procedures is immoral. Several international conventions such as International convention on civil and political rights (ICCPR) & International convention on the elimination of all forms of racial discrimination 1966 (NCERD) has framed guidelines to the nations on wiping out discrimination in any form. Among the discriminations racial discrimination is brutal.

Several theories were also written on the racial discrimination and among them Critical Race Theory is a prominent one. With the election of Barack Obama there has been slightly change in the American society.  Critical Race Theory has a lot of significance in the critically understanding the racially divided societies such as American societies.

Critical Race Theory:

Critical Race Theory took its origin in mid-1970 where legal professionals were more worried about the slow rate of improvement of the changes in the laws despite of many civil right victories through civil right movements. It is the learning to look critically at race relations is a key part of critical race theory.

“Examining everyday interactions, and finding the racial component in them, can help move forward the cause of racial equality, perhaps more than a sometimes simplistic “color blind” approach.[1]” Critical Race theory scholars argue that the law is neither benign nor is it color blind. Critical Race Theory offers a hope in understanding the probabilities of more equitable world.

Key elements of Critical Race Theory are:

Racism is regarded as a ‘permanent fixture’ of society. Critical Race Theory expresses skepticism towards liberal notions of neutrality or color-blindness as an approach to challenging race issues. Critical Race Theory places strong emphasis to add necessary contextual contours to the seeming ‘objectivity’ of positivist perspectives. Critical Race Theory argues that US-based civil rights laws continue to serve the interests of Whites.[2] Critical Race Theory and law:

Critical Race Theory emerged as part of critical legal studies that argues for the rights and interests of the power and is a guiding line force behind legal judgments. Critical race theory is the branch of critical legal studies concerned with issues of racism, racial subordination and discrimination. It focuses on opposing the continuation of all forms of subordination, nature of race and judicial considerations.

Derrick Bell approach:

Derrick Bell is the founding father of the critical race theory. The three major arguments regarding the racial patterns in American law are constitutional contradiction, the interest convergence principle, and the price of racial remedies.

Freeman approach:

The concept of “racial discrimination” may be approached form the perspective of either its victim or its perpetrator. Racial discrimination describes those conditions of actual social existence as a member of a perpetual class from victim perspective. Violation under antidiscrimination law is hopelessly embedded in the perpetrator perspective.

According to him Brown case was a straight forward declaration that segregation was unlawful because the facts of the issue were instances of majoritarain oppression of black people, a mechanism for maintaining blacks as a perpetual underclass. Alan Freeman showed how the Supreme Court used antidiscrimination doctrine to legitimize racial discrimination and confine redress to the acts of a few outright bigots[3].

Crenshaw by giving the difference between conservative and liberal discourse on race-related law and policy identifies two distinct properties in ant-discriminative law that are expansive properties and restrictive properties.

Delgado argues against the approaches given by the people of color and said voice of a particular contributor must be understood in terms of that individual’s own narrative.

Racial profiling

Stopping, questioning & searching of the citizens by the police disproportionately based on their race, ethnicity in order to catch common criminal is called racial profiling. As of now racial profiling is meant only for the Muslim men of Middle Eastern countries after 9/11. Initially there was strong apposition on the racial profiling but after 9/11 the trend as slowly down now.

Concluding point on racial profiling- The concept of racial profiling is mainly to shed some light on the underlying issues by examining racial profiling in the context of other police practices that take race or ethnicity into account. Several cases were also decide on racial profiling saying race may not be included in a profile that is used as a basis for individualized suspension under the fourth amendment.

There is a close violation of equal protection clause of the fourteenth amendment and to the commitment of racial profiling by the police. Courts say that under fourth amendment race may be considered in a profile as one of the factor among several. One of the prominent cases of racial profiling is Wen Ho Lee.

Racial profiling in law enforcement –

Criminal investigative laws & immigration laws were using race as a single of potential unlawful conduct or status affecting African Americans, Latinas/os and other racial groups. Innocent people were punished and humiliated whose skin color is used as a proxy for criminal conduct. Among the many discriminatory aspects of the criminal justice system racial profiling is one of them. Race-based law enforcement is part of a larger series of institutions and cultural practices that regulate racial minorities to a caste-like, second-class citizenship.

By looking at several cases such as fullilove v Klutznick, minnick v califronia department of corrections, city of Richmond v J.A. Croson, metro broadcasting v FCC and Edmonson v Leesville concrete Co. prominent jurist has come up with five themes:

The public-private distinction. Non-recognition of race. racial categories Formal-race and un-connectedness. Racial social change. To give an account of clarification of the term ‘race’ the Supreme Court has given four distinct ideas i.e, status-race, formal-race, historical-race and cultural-race.

Culture-race uses ‘Black’ to refer to African-American culture community and consciousness. What is desired is race-blind society rather than color-blind society.

The critical race theory and laws in the USA today: Hispanics are denied the health insurance despite having highest rate of asthma and a high rate or AIDS. Other aspect is medical schools have cut down the minority enrollment of about 19 percent[4]. Critical Race Theory helps to demonstrate how racism is used to enact laws which deny Hispanics health care access. Critical Race Theory (CRT) helps in supporting the legal-structural response to hate speech.

The central plank on the issue is free speech V freedom from discrimination. Critical Race Theory guides in giving a distinct approach to the conflict between free speech and equal treatment compared to other democracies[5].

Applications of Critical Race Theory:

Critical Race Theory was applied in many instances where socialized and institutionalized oppression of racial minorities has been litigated in courts. It was applied to draft hate crime/speech legislation, feminist legal theory and tortuous actions for racial insults. In Hate speech case (R.A.V. v. City of St. Paul) the act of cross burning was protected by the first amendment. Several subdivisions has come up with in the critical race theory based on the culture such as Latino critical race studies, Asian American critical race studies, American Indian critical race studies & critical race realism. Critical Race Theory was cited only once Locur v. Giulani, 269 F. Supp. 2d 368, S.D. N.Y. (2003) case.

Transformation and legitimating in antidiscrimination law:

Neoconservatives and Critical legal scholars have suggested that the civil rights reforms have been unsuccessful means of achieving racial equality in America. Antidiscrimination law has largely succeeded in eliminating the symbolic manifestations of racial oppression, but has allowed the perpetuation of material subordination of blacks.

Critical legal scholars present race consciousness as a central ideological and political pillar upholding existing social conditions.  CLS prescriptive made it clear that legal reform was a viable pragmatic strategy for Blacks confronted with the threat of unbridled racism on one hand and co-option on the other.

Benefits of Critical Race Theory:

Important feature of the critical race theory is its application to the existing conditions in the world. Several benefits were come up with the critical race theory. Some the areas were immigration laws, criminal investigation laws, political sphere, judiciary, education e.t.c. It helped to the address the question concerning assimilation, acculturation, generational conflict, social mobility, the racial profiling, anti-immigration sentiment, the increased militarization of the US-Mexico border, and the high number of immigrant deaths on the border.

Critical race theory helps educators in understanding the class room dynamics, tracking students & testing. It also helps the people in the political sphere to understand voting discrepancies, race-based campaigning and other issues.

1. Why criminal justice system in U.S results in the 70% of colored prisoners?

2. Interest convergence, would seem an appropriate avenue for exploring a number of criminal justice issues, including the war on drugs.

The role of discretion in the criminal justice system and the way thousands of discretionary acts may add up to racial unfairness need to be traced in detail, as does our structure of punishment which includes rehabilitation for people like us, whoever we are but retribution for all the rest[6].

Criticism:

The Critical Race Theory has diverted from the conception of law as system of rules and teaching. Now it is full of indeterminacy and veiled, clashing interests.  The social construction of race and the related idea of differential racialization, holds that race and races are products of social thought.

Conclusion:

Critical race theory helped in the social construction. The logical conclusion with the election of the Barack Obama would mean rejecting the concept of race altogether. But the issues of racial profiling and other racial discriminatory acts have to be carefully monitored. With the election of American-African President Barack Obama should use the Critical Legal Studies to address the issues shown by the Critical Legal Theory in building social construction of the American society.

Reference:

1. Brendan McGuigan, Wise Geek, What is critical race theory, December, 4, 2008, <http://www.wisegeek.com/what-is-critical-race-theory.htm>

2. Ladson-Billings, G. (1998) Just what is Critical Race Theory and What’s it Doing in a Nice Field Like Education International Journal of Qualitative Studies in Education, Vol 11 No 1 p7-24  published in Ladson-Billings, G. and Gillborn, D. (Eds) (2004) The Routledge-Falmer Reader in Multicultural Education London:Routledge Falmer

3. Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A critical Review of Supreme Court Doctrine, 62 MINN.L. REV.1049 (1978).

4. Brian I. Byrd,Hispanics Suffer Loss of Health Care, New York Times, February 3, 1997, at A16.

5. Cortese, Anthony. "What Harm is Hate Speech? A Critical Race Theory Response" Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA, Aug 12, 2005 <Not Available>. 2008-10-23 <http://www.allacademic.com/meta/p18946_index.html>

6. Richard Delgodo and Jean Stefanic, 2005, The role of critical race theory in understanding race, crime and justice issues. <http://www.jjay.cuny.edu/centersinstitutes/racecrimejustice/publishedpaper.pdf >

http://www.temple.edu/tempress/chapters_1100/1169_ch1.pdf

http://science.jrank.org/pages/7605/Critical-Race-Theory.html

Richard Delgodo and Jean Stefanic, 2005, The role of critical race theory in understanding race, crime and justice issues. <http://www.jjay.cuny.edu/centersinstitutes/racecrimejustice/publishedpaper.pdf >

Over the past twenty years or so, Critical Race Theory has developed a radical reinterpretation of the dynamics of race and racism in the United States. Focusing attention chiefly on race and the law, critical race theorists have challenged some of the key foundations of US constitutionalism and jurisprudence, and gone beyond that to interrogate the legitimacy of the racial state and the effectiveness of democracy.https://lists.lsit.ucsb.edu/archives/lawso- students/2007-April/000792.html http://www.albanylawreview.org/archives/66/2/CriticalRaceTheoryinThreeActs-RacialProfilingAffirmativeActionandtheDiversityVisaLottery.pdf Romero, Victor C.,Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery. Albany Law Review, Vol. 66, 2002. Available at SSRN: http://ssrn.com/abstract=365820 or DOI:  10.2139/ssrn.365820 [1] Brendan McGuigan, Wise Geek, What is critical race theory, December, 4, 2008, <http://www.wisegeek.com/what-is-critical-race-theory.htm>

 [2] Ladson-Billings, G. (1998) Just what is Critical Race Theory and What’s it Doing in a Nice Field Like Education International Journal of Qualitative Studies in Education, Vol 11 No 1 p7-24  published in Ladson-Billings, G. and Gillborn, D. (Eds) (2004) The Routledge-Falmer Reader in Multicultural Education London:Routledge Falmer [3] Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A critical Review of Supreme Court Doctrine, 62 MINN.L. REV.1049 (1978). [4] Brian I. Byrd,Hispanics Suffer Loss of Health Care, New York Times, February 3, 1997, at A16.

 [5] Cortese, Anthony. "What Harm is Hate Speech? A Critical Race Theory Response" Paper presented at the annual meeting of the American Sociological Association, Marriott Hotel, Loews Philadelphia Hotel, Philadelphia, PA, Aug 12, 2005 <Not Available>. 2008-10-23 <http://www.allacademic.com/meta/p18946_index.html>

 [6] Richard Delgodo and Jean Stefanic, 2005, The role of critical race theory in understanding race, crime and justice issues. Retrieved from <http://www.jjay.cuny.edu/centersinstitutes/racecrimejustice/publishedpaper.pdf >