Excerpted From: Athena D. Mutua, Reflections on Critical Race Theory in a Time of Backlash, 100 Denver Law Review 553 (Spring, 2023) (292 Footnotes) (Full Document)


AthenaDMutuaCritical race theory (CRT) has recently come under considerable political attack by a widespread, well-funded, and sophisticated campaign that seeks to both erase and block the transmission of fuller accounts and understandings of American history and the ongoing social practices that continue to perpetuate racial, gender, and economic injustice. The attack is so well-funded and widespread that CRT Forward, an organization that tracks state and local legislative efforts in this regard, reports that “over 500 laws, legislative bills, and resolutions” restricting state public school instruction on race were “introduced or passed in 49 of the 50 states.” And, they were introduced within the span of about eighteen months. The campaign, and the forces behind it, characterize and promote the idea that working to eliminate racial oppression and racism, or “‘antiracism’ is a form of ‘racism,’ and that concepts associated with racial justice are ‘divisive.”’ Many of the laws follow the language of the now-repealed executive order and agency explanations issued by former President Trump and his Administration, in which CRT was specifically named a target.

Fifteen or so years ago, the Denver Law Review published my article on CRT entitled The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship. Today, I would like to thank the Review for providing me an opportunity to briefly reflect on the article, my continued participation in the development and promotion of CRT, and to comment on the theory's insights and place in this moment of backlash.

In Part I, I contextualize this campaign by briefly sketching the forces behind the current backlash and larger antidemocratic movement, paying particular attention to the ways in which the conservative Supreme Court facilitates them. I suggest the campaign's demonizing of CRT served to divert, distract, and turn the conversation away from the demands for a racial reckoning triggered by George Floyd's murder, one that portended change. Backlash forces diverted attention from this potentiality by first building on distortions of CRT insights and then cultivating predictable white racial panic and resentment around the claim that CRT was being taught to white children in K-12 classrooms. In Part II, I turn to my original article, reviewing and updating it in today's terms of structural and systemic racism. It also explores the article's contribution to the development of ClassCrits, Inc., with its focus on law and economic inequality, and introduces the newly developing Critical (Legal) Collective. The latter is a formation meant to both promote critical theory and combat the CRT attack. Finally, in Part III, I briefly turn to the campaign itself, what I term the “Miseducation of America” campaign, arguing that it seeks to silence voices of those seeking justice; to render white supremacist views legitimate; to control, if necessary, destroy, the educational and other institutions that have begun to house such voices; and to remove the people representing these voices from participation in various institutions and other public spaces.

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This Article argues that the campaign to miseducate the American public was trigged in part by the 1619 Project, the police murder of George Floyd, and the multivalent democratic protests that followed. It seeks to silence and remove the more marginalized members of this multivalent majority from two important spaces where they have had some small margin of success: schools and the voting booth. The campaign in doing so also seeks to control these spaces, deepening colorblindness ideology in the process by suggesting that race-consciousness is illegitimate while asserting that white bigotry is simply another point of view deserving of respect.

The campaign, however, is part of a broader backlash supported by the majority on the Supreme Court and the forces that helped to place the current occupants on it. The Supreme Court supports and facilitates the backlash through its decisions in the areas of campaign finance, voting rights, a pregnant person's right to bodily integrity, and education. The campaign forces comprise a sophisticated right-wing movement and infrastructure that is economically exploitative, racist, and misogynist, promoting policies that reinforce structures of domination based on stigmatized and marginalized identity as well as economic vulnerability. It seeks to undermine democracy in an effort to reinstitute minority rule, where wealthy white men dominate and control the country, perhaps under a hapless autocrat. It is unsurprising, then, that these forces seek to suppress talking, teaching, learning, and reading about issues of race, gender (including women and LGBTQ+ issues), and class, the objects of the campaign. To make these types of CRT issues readily accessible, as the 1619 Project did with regard to slavery, might lead ordinary people to connect the dots and resist the many efforts and goals of backlash.

Athena D. Mutua is a Professor of Law and the Floyd H. & Hilda L. Hurst Faculty Scholar at the University at Buffalo School of Law (SUNY).