Excerpted From: Shiv Narayan Persaud, Towards an Understanding of Critical Race Theory: Dispelling False Claims and Misrepresentations, 18 University of Massachusetts Law Review 79 (Winter, 2023) (158 ) (Full Document)


NoPhotoMaleThe recent catapulting of Critical Race Theory (CRT) into the forefront of national discourse and debate has stirred a wideranging set of erroneous claims, distortions, and modes of resistance. Motivated by political self-interest and in search of prominence, some politicians hasten to condemn CRT as Marxism, fostering their distorted views and claims in the mobilization of supporters into resistance groups that unwittingly--or consciously--militate against an understanding of CRT and its impact on understanding social relations and societal inequality.

Formulated by legal scholars seeking to address and resolve the underpinnings of racism in law and public policy, CRT, once confined within the hallways and classrooms of academe--particularly colleges of law-- has emerged as a controversial political issue without clear policy significance. While it remains distorted and misrepresented, CRT seems to serve as a catalyst for politicians and purveyors of social-political indifference seeking to gain or retain power and control through divisiveness. Consequently, CRT has emerged as an instrument for propagandizing the public, generating fear that CRT's instructional approach will proliferate in schools' educational curricula and thereby warp or disrupt the thoughts and minds of predominantly White students.

Although CRT may appear to share some parallels with Marx's dialectical method as it relates to the production and reproduction of relations of domination, this Article aims to demonstrate that CRT is not Marxism. In contrast to Marx's ideas, proponents of CRT have grounded their arguments on societal relations of racial and gender inequality and the production-reproduction of social injustice through law. As Crenshaw et al. explain:

Critical Race scholarship ... is ... unified by two common interests. The first is to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America, and, in particular, to examine the relationship between that social structure and professed ideals such as “the rule of law” and “equal protection.” The second is a desire not merely to understand the vexed bond between law and racial power but to change it.

Unlike Marx, CRT scholars do not focus attention and analysis on class dynamics--class formation, class exploitation, class consciousness, and class conflict. Instead, CRT scholars place analytical emphasis on race and the consequences of racism in American society. In explaining this emphasis, Crenshaw et al. write:

With its explicit embrace of race-consciousness, Critical Race Theory aims to reexamine the terms by which race and racism have been negotiated in American consciousness, and to recover and revitalize the radical tradition of race-consciousness among African-Americans and other peoples of color--a tradition that was discarded when integration, assimilation and the ideal of colorblindness became the official norms of racial enlightenment.

As this Article aims to clarify, Marx focused his analysis on class domination--not race or gender--as the primary source of inequality and injustice in society. Hence, the Marxist label is an intentional distortion made in an attempt to generate fear in listeners and create a misrepresentation CRT, so as to stifle discussion and debate on the subject.

Furthermore, this Article elucidates the claim that CRT is grounded in the actualities of American society from which race emerged, grew, and was sanctioned legally, thereby becoming a crucial instrument of social control in the process of producing and reproducing indifference, inequality, and population segmentation. In addition, this Article addresses CRT as a paradigm shift, a distinctive analytical academic approach to understanding the impact of race and racism that fosters the acquisition of cultural competency in legal education and practice in an ever-expanding multicultural America.

[. . .]

Many legal scholars agree that CRT contributes to our understanding of how the complex intersections of race, ethnicity, gender, and the law reproduce social inequality in society. Critics of CRT, however, claim that racial policies, practices, and patterns of discrimination are social constructions of America's historical past and not symptomatic of today's socio-structural realities. But, when the relations of racial differentiation and inequality are reproductively inculcated in the nation's psyche through de jure and de facto policies and regular partisan political propagandizing, why then should such discriminative relations of domination be relegated into the backwaters of history? CRT scholars contend that such relegation would conceal the discriminative policies and practices that served to reproduce white relations of domination and inequality--many of which are already codified and legally enforced.

Our society is one in which the cultural assimilation “melting pot” has literally run out of gas and become relegated to some archaic intellectual past. This has given way to a multicultural society with distinct ethnic and co-ethnic enclaves, an abundance of social-cultural variations, and various gradations of skin color. In a democracy such as ours, will there be a day when we will all be perceived as equal under a system of color-blind justice for all? Even the clairvoyant cannot visualize the true answer without having “profound insights” of cultural competence. Perhaps the answer lies when Lady Liberty can cry with silent lips, “I lift my lamp beside the golden door[, for hate has now been vanquished from these shores!]”

Shiv Narayan Persaud is an Associate Professor of Law at Florida Agricultural and Mechanical University College of Law.