Brown v. Board is one of the most important decisions of the 20th century, but it rests on deeply confused logic.
Critical Race Theory (CRT) seems to have morphed into something of a Rorschach inkblot test, with fears and aspirations being as much read into it as out of it. Even though CRT has many variants even among its proponents, CRT’s historical starting point as a distinctive academic movement, as well as its continuing motivation, derives from positing a relatively clear, parsimonious theory to explain a pressing intellectual and policy puzzle regarding the modern African American experience in the United States. The puzzle is this: Why do significant racial disparities continue in the United States? CRT posits a straightforward theory to explain the continuation of significant racial disparities in the United States: Racial disparities continue in the United States because, despite the Civil Rights policies and social programs of the 1960s, racism continues in the United States. To make the theory work, however, Critical Race Theorists had to broaden the concept of “racism.” That definitional move is where much of the contestation comes in.
As a theory posited to explain observed phenomena, CRT can be tested—and contested—to determine just how well it accounts for the phenomena it seeks to explain. The irony is that doubling down on practices and policies aimed at making colorblind decisions, that is, decisions without respect to race—and CRT rejects the possibility, let alone the efficacy of colorblind policies—remains the best means to solve continuing racial disparities that distress not only Critical Race Theorists, but most Americans on the Right as well as the Left.
What Prompted the Rise of Critical Race Theory in the 1980s
While drawing on other disciplines, Critical Race Theory arose as a distinct intellectual movement in American law schools in the mid-1980s. Growing out of a broader scholarly movement among self-described left-wing legal scholars called Critical Legal Studies, CRT arose distinctively to challenge the mainstream liberal consensus of the time on the adequacy of the Civil Rights policies and social programs of the 1960s as means to remedy racism in the United States.
While critical of the sufficiency of these policies and programs to remedy racism in the United States, most Critical Race Theorists recognize the important advances made by these policies in mandating formal conditions for equal opportunity in employment and other economic and social domains and in providing statutory and constitutional support for the construction of racial equality.
Despite the policies and programs of the 1960s, significant disparities continued between blacks and whites, and progress reducing these disparities seems to have plateaued by the 1980s. For example, the disparity between white students and African American students declined by about a third in reading from the early 1970s to the early 2000s, and by about 40 percent in mathematics. Nonetheless, sizeable achievement gaps remain. And while income disparity between whites and African Americans has declined by around 5 percent since the late 1960s, median income for African American families remains only slightly over 60 percent of median income for white families. Similarly, median net worth of African American families remains stagnant in the face of modestly increasing median net worth for white families over the same time period.
In response to this, Critical Race Theorists posited a parsimonious theory to account for the persistence of racial disparities in the United States, that racial disparities continue in the United States because racism continues in the United States. And the policies and programs of the 1960s, while perhaps a good start, were insufficient to root out the true depth of racism in the United States.
It is a clear, simple theory. And, if true, could certainly account for continuing racial disparities in the United States.
Broadening the Definition of Racism
But is it true? There is an equally straightforward response to CRT’s central theoretical claim. And then matters start to become less straightforward with the CRT rejoinder.
Against CRT’s central theoretical claim, many Americans of all races—but particularly white Americans—respond with something like this: “Since the 1960s, racist beliefs and attitudes among Americans have been banished to the small, dark corners of American society. So continuing racism cannot account for the persistence of racial disparities in the United States.”
The move Critical Race Theorists make in response to this is to argue that the definition of racism cannot be limited to personal racial animus. In a critical, and controversial, definitional move, Critical Race Theorists argue that “institutional structure” can perpetuate racism even when those structures are populated by people who hold no personal racial animus. Necessarily joined with this claim is that even otherwise racially neutral institutions and institutional rules can reproduce racial disparities. The critical, and controversial, rhetorical move then defines “racism” to include “racially disparate outcomes” even when personally held racist attitudes did not create or sustain the racially disparate outcomes.
Anthony Downs articulated what would become one of CRT’s most important argumentative moves in testimony before the U.S. Civil Rights Commission in 1970:
Perhaps the best definition of racism is an operational one. This means that it must be based upon the way people actually behave, rather than upon logical consistency or purely scientific ideas. Therefore, racism may be viewed as any attitude, action, or institutional structure which subordinates a person or group because of his or their color.
In essence, racially disparate outcomes are defined as “racism” irrespective of the existence of any individual making decisions based on racial animus.
The CRT move comes not only with respect to “institutional structure,” but with respect to identifying cause as well. That is, just what does it mean that an otherwise racially netural institution or rule subordinates a person or group “because” of color?” While many Americans are wont to take “racism” as primarily a personal moral failing, doing so, Critical Race Theorists argue, allows purely subjective personal reform to displace reduction of palpable economic and social disparities as the measure of success in achieving racial equality. As Crenshaw, Gotanda, Peller, and Thomas write in their editors’ introduction to Critical Race Theory: The Key Writings that Formed the Movement,
Racial justice was embraced in the American mainstream in terms that excluded radical or fundamental challenges to status quo institutional practices in American society by treating the exercise of racial power as rare and aberrational rather than as systemic and ingrained. The construction of “racism” from what Alan Freeman terms the “perpetrator perspective” restrictively conceived racism as an intentional, albeit irrational, deviation by a conscious wrongdoer from otherwise neutral, rational, and just ways of distributing jobs, power, prestige, and wealth. The adoption of this perspective allowed a broad cultural mainstream both explicitly to acknowledge the fact of racism and, simultaneously, to insist on its irregular occurrence and limited significance.
It is at this point that the arguments start moving past each other. While this claim is a central feature of CRT, most Americans take CRT assertions of “racism” as a moral indictment and respond with a defensive, “But I don’t hold racist beliefs or attitudes!”
This gets us back to the central feature motivating the rise of CRT in the 1980s, that is, the plateauing of progress toward racial equality far short of expectations. Crenshaw, Gotanda, Peller, and Thomas write:
Along with the suppression of explicit white racism (the widely celebrated aim of civil rights reform), the dominant legal conception of racism as a discrete and identifiable act of “prejudice based on skin color” placed virtually the entire range of everyday social practices in America-social practices developed and maintained throughout the period of formal American apartheid-beyond the scope of critical examination or legal remediation.
Racial Disparities are a Policy Issue even when Uncaused by Racism
The argument over whether the continuation of racial economic and social disparities demonstrates “racism,” however, deflects attention away from a critical point of agreement between most Americans and Critical Race Theorists. That is, one need not be a Critical Race Theorist to worry about the lingering effects of slavery, Jim Crow, real estate redlining, or even disparate treatment of black farmers by Department of Agriculture policies decades after the 1960s. As R. Shep Melnick wrote on these pages just a few weeks ago, “Half a century after the civil rights revolution of the 1960s, we continue to grapple with the long-term consequences of centuries of slavery, Jim Crow, and racial discrimination.” He further quoted Lyndon Johnson’s 1965 address at Howard University:
You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you place. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.
It is at this point that CRT takes a different direction. Many Americans look at continuing racial disparities and believe that the country still has to make good on the aspiration of colorblindness. As policies and decisions are increasingly colorblind, the thought goes, racial progress will continue. Critical race theorists, however, argue that colorblind policies are a dead end and serve only to reproduce existing racial disparities rather than solve them. This is one reason for the move from talking about “equality” to talking about “equity.”
Colorblind Policies and Practices Can Reduce Racial Disparities
Yet here Critical Race Theorists give short shrift to the continuing promise of a colorblind society—the traditional commitment to equal opportunity as a means of reducing racial disparities to the point of statistical noise. They reject policies, for example, that aim to remedy educational disparities by ensuring equal educational opportunities across schools irrespective of the race (or class) of children attending those schools. At the same time, there is no purchase in declaiming, say, university admissions requirements—at least those that map onto academic success at the university level—as “institutional racism” when admissions reflect the educational disparities that in fact exist today, if tragically. The solution, however, is to increase equal educational opportunity, not to jettison colorblind admissions requirements.
It is not, after all, as if the existence and persistence of racial disparities fail to be recognized as a pressing point of social concern when they are recognized only “racial disparities” and not “racism” per se.
Doubling down on colorblindness holds manifest promise even for what is taken to be the more difficult case of so-called “implicit bias.” “Implicit bias” results from making decisions based on perceived group characteristics rather than on individual characteristics alone. The difference between implicit bias and plain vanilla racism is that implicit bias can result when beliefs about group characteristics are in fact true.
Take, for example, the famous study in the American Economic Review reporting that job applicants with black-sounding names received fewer callbacks than job applicants with white-sounding names despite the submission of otherwise equal resumes. There is, in fact, some question whether the study picked up class bias rather than racial bias. Nonetheless, because of the overlap between race and socioeconomic status in the United States, the effect would have a racially disparate effect in any event.
Yet this outcome need not reflect racial animus among hiring managers. Even more importantly for the discussion here, color-blind policies—that is, making decisions about individuals without consideration of their race—would in fact eliminate the disparate effect reported.
For example, it is true that, on average, the reading and math skills of blacks as a group are lower than the reading and math skills of whites as a group. Hiring managers, like the rest of us, often use informational shortcuts in making decisions. If, say, the hiring manager has a constrained time period to review hundreds of applications and identify the best qualified individuals, then these time constraints can induce the person to use race as a proxy for educational qualifications. Note that, in doing so, the hiring manager’s decisional shortcut is based on an accurate perception of group averages, and on average results in identifying a better qualified finalist cohort than simply sampling from the entire set of applicants.
But there is a cost to drawing on group averages, even when accurate. The cost of making decisions based on group averages—even accurate group averages—is that the most qualified individuals of the group with the lower average are systematically ignored. As a result, when race is used as a proxy for education, even when accurately perceived on average, the result is hiring more whites over blacks despite the existence of better qualified blacks and despite the fact that the hiring manager does not personally hold any racist attitudes. Indeed, the hiring manager implicitly selecting on this criterion could even be black.
This point merits emphasis. The hiring manager’s informational shortcut on average results in racially disparate outcomes. This despite the absence of racial animus. Yet because the hiring manager is drawing on group averages rather than focusing on the individual, and because the hiring manager is using race as a proxy for educational achievement rather than implementing a truly colorblind decision rule, the hiring manager’s informational shortcut results in overlooking some of the best qualified individual applicants in the group that averages lower educational achievement (that is, highly qualified applicants who have “black names”).
This points to the solution: policies and practices that focus on race neutral, individual attributes would have the effect of reducing racial disparities. The solution to implicit bias is to develop colorblind hiring practices that avoid the temptation to use the crutch of racial stereotypes, even when those stereotypes are accurate. (Even when a stereotype is accurate, decisions based on group averages result in overlooking the many candidates with competitive qualifications.) There are in fact simple strategies to solve “implicit bias,” from strategies to racially anonymize applications to simply being aware of the perverse implication of informational shortcuts (that they can result in missing the most qualified applicant). Because of their idiosyncratic nature, however, solutions would need to come in the form of company-level training and policy rather than from government mandate.
The point, again, is that the solution comes from greater consideration of individual applicants as individuals rather than as group members.
The implications of the colorblind solution to implicit bias do not end with the individuals hired, however. It leads to reducing racial disparities overall, and reducing the reproduction of those disparities over time.
Consider. Blacks regularly report the feeling that they need to work harder than whites to qualify for the same opportunities. This report is consistent with the existence of implicit bias as described above: When judged on the basis of group averages, even implicitly, it is harder for high-performing members of the group with lower average qualifications to come to the positive attention of decision makers. From this we understand how implicit bias can reproduce disparate racial outcomes into the future. If the marginal expected return on a given amount of effort is less for blacks than for whites for the same level of ability, then, on the assumption that blacks respond to incentives exactly the same way as whites, the implication is that, with implicit bias, blacks will of course invest less effort in human capital than whites with the same level of ability. This is a rational response to the lower expected returns that result from implicit bias. But less investment in human capital results in lower wages, lower household financial accumulation over a lifetime, and a less prosperous future. This constraint affects both the individual and other members of the individual’s household, such as children.
Colorblind practices, however, sever this negative feedback loop. In doing so, they provide greater incentives than exist today to invest in one’s own human capital (and one’s children, etc.). Contrary to Critical Race Theory’s attack on colorblindness, however, the solution to the disparity created by implicit bias is greater focus and consideration of individual merit, not less. It follows naturally on the trajectory of the 1960s Civil Rights achievements rather than dismissing or minimizing them.
It does not minimize the significance of racially disparate outcomes to identify them as “racially disparate outcomes” rather than as “racism.” Yet when racially disparate outcomes result from the application of decision rules that do not reference race or racial markers, then racially disparate outcomes result from causes other than race itself. When this occurs the racially disparate outcome—which is real—is still nonetheless not properly called “racism.” It is confusing, if not counterproductive, to do so. When racially disparate outcomes result from various socioeconomic variables that are not unique to African Americans, even when they exist disproportionately among African Americans and so result in racially disparate outcomes, then the solution derives from focusing on the socioeconomic issues themselves rather than on race. In addressing the actual causes, however, the racially disparate outcomes will nonetheless shrink, which is the mutually desired outcome.
Critical Race Theory was birthed in response to frustrations that all Americans can feel at the plateauing of progress on reducing economic and social disparities between the races in America. CRT, however, focuses on the wrong variable in hypothesizing, first, a desire among white Americans to perpetuate “a regime of white supremacy and its subordination of people of color,” and, secondly, in hypothesizing that doubling down on individually-focused policies and programs cannot continue significant progress on reducing racial economic and social disparities. It is indeed important that schools not teach false, one-sided narratives about racism in America’s history. Yet in this as in other things, actions speak louder than words. The best answer to Critical Race Theory is renewed progress in America in achieving a colorblind society and thereby reducing economic and social disparities between the races.