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Excerpted From: Vivian E. Hamilton, Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory, 28 William and Mary Journal of Race, Gender, and Social Justice 61 (Fall, 2021) (243 Footnotes) (Full Document)


VivianHamiltonThe May 2020 murder of George Floyd by a police officer followed the killings of scores of unarmed Black people by U.S. law enforcement and focused the nation's attention on police violence against Black Americans. Floyd's murder also ignited the largest mass protest movement in the nation's history. Led by Black Lives Matter, a loosely organized but highly effective organization, activists brought about what has been referred to as a “racial reckoning.” Topics previously avoided by most, racism and racial injustice, became nearly ubiquitous subjects of conversation, and the nation's consciousness of issues of race began to shift. Companies and government agencies examined internal inequities and committed to reform. Corporations promised to re-examine their practices and pledged billions of dollars to advance racial justice and reform efforts. And legislators in more than a dozen states expanded race-inclusive education, adding courses in ethnic studies to their curricula or incorporating additional material about people of color into their learning standards.

Ongoing conversations about and growing consciousness of pervasive structural and unexamined individual racism, however, have generated resentment among many white people unaccustomed to (and uncomfortable with) addressing race. Many in the United States, including some who were initially sympathetic to the movement, have rejected the movement's claims and resisted calls for reform, offended by implications that they might benefit from unearned racial privileges and/or harbor racist sentiments.

Despite the continued existence of social disparities created by centuries of racial oppression, opponents of reform insist that the formal legal equality that displaced the explicit racism of the Jim Crow era has transformed the United States into a color-blind, equalopportunity society. Wielding this conception of color-blindness as a shield to fend off reform efforts, opponents of reform equate race consciousness in the service of advancing racial equity with race consciousness used to oppress. In other words, they claim that any race consciousness is itself racist.

Opponents of reform propagated a distorted conception of Critical Race Theory (CRT) as a catch-all for ideas with which they disagreed. Some of the claims--like the existence of systemic racism--were ones with which critical scholars of race would agree. Others--like the claim that “[a]n individual's moral character is determined by the individual's race or sex” manufactured in order to fan embers of racial resentment into flames of outrage and opposition. And the sometimes maladroit efforts of educators and diversity trainers were cherry-picked or misrepresented to provide evidence of indoctrination destructive of national unity.

Racial resentment and retrenchment became government policy in the fall of 2020, when then-President Trump issued an Executive Order that sought to prohibit antiracism and diversity trainings in federal workplaces and the armed forces. Republican-led state legislatures followed suit, taking aim at race-related education in public schools, colleges, and universities. By the spring and summer of 2021, state and federal lawmakers nationwide had introduced largely identical legislative and other policy measures aimed at prohibiting public schools and universities from educating students about race and racism in the United States. Indeed, more than half of all states had introduced some sort of restrictive measure as of August 2021.

This Article examines this retrenchment, comprising resistance and rhetorical--and legal--backlash to the racial justice movement. It demonstrates how insights from CRT--fairly understood--can, ironically, help illuminate the retrenchment, situating it within historical and ideological context.

CRT scholars have explored the “reform/retrenchment dialectic” that has characterized the halting nature of racial progress over U.S. history. The current retrenchment is consistent with the historical pattern they have identified. Critical scholars of race have also explored at length many of the impulses, beliefs, and political and legal ideologies that now ground and drive the retrenchment. This Article seeks to identify these and understand these.

Part I briefly describes the spring 2020 events that triggered the largest mass protest movement in U.S. history. Demonstrations drew attention to the systemic nature of racial injustice in policing, the carceral system, and across nearly every aspect of U.S. society. The expressions of grief and outrage that dominated the days following Floyd's murder were soon joined by concrete calls for policy reform.

Part II turns to the retrenchment--“a line of defence used to maintain a position”--underway by the fall. Propelled by individual resentment and undergirded by the rhetoric of color-blindness, the backlash has occurred across various contexts, including measures to constrict access to the ballot. This Article focuses on the campaign to squelch the teaching of race-related issues. State legislatures successfully wielded a specter of CRT bearing only a passing resemblance to the academic discipline as a divisive and dangerous threat to rush through legislation aimed at suppressing education about the racial history of the United States, and its legacy.

In addition to energizing support against reform (and with the hopes that voters would then be motivated to support conservative candidates for political office), these measures capitalize on the notion that a public that continues to be uneducated (or miseducated) about the nation's racial history and its legacy will continue to resist meaningful reform of the status quo.

The final part of the Article turns to CRT and how it might inform our understanding of the ongoing retrenchment. It describes CRT--its intellectual predecessors, its emergence as an intellectual movement, and its core claims. One of the core claims of CRT is that law is used to entrench racial inequality. State laws banning its teaching in K-12 and postsecondary education exemplify this claim, even while the irony is lost on the proponents of these measures.

This Part then considers the resistance to the racial justice movement (sometimes referred to as a campaign against CRT) through a CRT lens. It describes the U.S. legal and political history that Professor Devon Carbado has termed the “reform/retrenchment dialectic.” It examines claims of white innocence--from responsibility for existing racism, from the likelihood of having received material and psychic benefits by virtue of whiteness, and from harboring racist sentiments--that undergird resistance to the claims of the racial justice movement. It addresses the claim that systemic racism doesn't exist, clarifying the concept and providing examples. It explains how the political and legal rhetoric of formal equality and colorblindness have evolved. And finally, it explains the weaponizing of color-blindness to argue that all race consciousness is racism.

[. . .]

This Article has endeavored to provide historical and ideological context in which to situate the seemingly exceptional. It shows that reaction is not only unexceptional but was instead predictable. And while the reaction purports to prevent American workers and schoolchildren from being indoctrinated into the unhinged claims of a radical, divisive academic theory, it of course does no such thing. Instead, the retrenchment comprises more basic aims: to stop all talk to the racist aspects of U.S. history and its modern-day legacy.

Professor of Law, William & Mary Law School and Director, William & Mary Center for Racial & Social Justice.

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