Excerpted From: Richard Delgado and Jean Stefancic, An Interest-convergence Explanation of the 2020-2022 Conservative Attack on Critical Race Theory: A Comment on Kyle Campbell's Legally Black: Material Constructions of Race in the Atlantic World, 22 Journal of Law in Society 287 (Spring, 2022) (74 Footnotes) (Full Document)


DelgadoStefancicCritical race theorists have often used interest convergence and other tools of “materialist” scholarship to explain events in the world of geopolitics including Brown v. Board of Education, breakthroughs in Latino/a legal rights, the 1964 Civil Rights Act, and even the election of Barack Obama. A leading casebook on civil rights law, Derrick Bell's Race, Racism, and American Law, offers an interest-convergence interpretation of the entire trajectory of U.S. civil rights beginning with colonial times and continuing until today.

Bell has passed, but his legacy lingers with many books and articles bearing his imprint, with a few detractors harshly critical. This, in turn, poses the question with which we will be concerned: Can Bell's trademark tool - interest convergence - help explain shifts in the fortunes of the very movement, Critical Race Theory (CRT), that he founded? Using a recent article by Kyle Campbell as our springboard, we assert that it can and does. Materialist analysis, like Bell's, is helpful not only for understanding events in the distant past, but it also helps explain ones taking place today.

In the final weeks of Donald Trump's presidency, Trump watched a program on Fox News in which an unheralded think-tank figure, Christopher Rufo, delivered a brief monologue castigating critical race theory. A few days later, in a lengthy diatribe at the National Archives Museum, Trump declaimed and expanded many of Rufo's criticisms and accused the movement of sowing social division and teaching students to hate America. A short time later, Trump promulgated an executive order that prohibited teaching or workplace trainings based on that approach and threatened to cut federal funding to institutions that violated the decree. Although the order was quickly struck down on constitutional grounds and revoked by President Joe Biden, many of his followers took up the hue and cry, confronting local school boards and pressuring state legislatures to enact anti-CRT bills patterned after Trump's initial measure.

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In his closing lines, Campbell concludes his review of the history of race's role in the story of three Atlantic societies by observing that

Wherever race, and thus racism, prevails, it does so because a dominant group ... decide[s] that its contemporary myths were insufficient to justify its oppression of another and set out to create new ones .... [T]he maltreatment of oppressed races will entrench itself in the law--and will continue as long as the material interests that incentivize that oppression continue .... The law is an expression of the political will of the ruling class; the only way to change the law is to change the class that rules.

If he is right--and we think he is--there will be a struggle between two groups. A collection of fierce, shrewd followers of a former occupant of the White House, on the one hand, and civil but dedicated teachers, college professors, and young people on the other will determine in great degree the direction of the United States in the years ahead.

John J. Sparkman Chair, University of Alabama School of Law.

Professor and Clement Research Affiliate, University of Alabama School of Law.