Explaining Critical Race Theory: What It Is and What It Is Not

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By David Miguel Gray, Assistant Professor of Philosophy, Affiliate, Institute for Intelligent Systems, University of Memphis. First published on The Conversation

U.S. Rep. Jim Banks of Indiana sent a letter to fellow Republicans on June 24, 2021, stating: “As Republicans, we reject the racial essentialism that critical race theory teaches … that our institutions are racist and need to be destroyed from the ground up.”

Kimberlé Crenshaw, a law professor and central figure in the development of critical race theory, said in a recent interview that critical race theory “just says, let’s pay attention to what has happened in this country, and how what has happened in this country is continuing to create differential outcomes. … Critical Race Theory … is more patriotic than those who are opposed to it because … we believe in the promises of equality. And we know we can’t get there if we can’t confront and talk honestly about inequality.”

Rep. Banks’ account is demonstrably false and typical of many people publicly declaring their opposition to critical race theory. Crenshaw’s characterization, while true, does not detail its main features. So what is critical race theory and what brought it into existence?

The development of critical race theory by legal scholars such as Derrick Bell and Crenshaw was largely a response to the slow legal progress and setbacks faced by African Americans from the end of the Civil War, in 1865, through the end of the civil rights era, in 1968. To understand critical race theory, you need to first understand the history of African American rights in the U.S.

The History

After 304 years of enslavement, then-former slaves gained equal protection under the law with passage of the 14th Amendment in 1868. The 15th Amendment, in 1870, guaranteed voting rights for men regardless of race or “previous condition of servitude.”

Between 1866 and 1877 – the period historians call “Radical Reconstruction” – African Americans began businesses, became involved in local governance and law enforcement and were elected to Congress.

This early progress was subsequently diminished by state laws throughout the American South called “Black Codes,” which limited voting rights, property rights and compensation for work; made it illegal to be unemployed or not have documented proof of employment; and could subject prisoners to work without pay on behalf of the state. These legal rollbacks were worsened by the spread of “Jim Crow” laws throughout the country requiring segregation in almost all aspects of life.

Grassroots struggles for civil rights were constant in post-Civil War America. Some historians even refer to the period from the New Deal Era, which began in 1933, to the present as “The Long Civil Rights Movement.”

The period stretching from Brown v. Board of Education in 1954, which found school segregation to be unconstitutional, to the Fair Housing Act of 1968, which prohibited discrimination in housing, was especially productive.

The civil rights movement used practices such as civil disobedience, nonviolent protest, grassroots organizing and legal challenges to advance civil rights. The U.S.’s need to improve its image abroad during the Cold War importantly aided these advancements. The movement succeeded in banning explicit legal discrimination and segregation, promoted equal access to work and housing and extended federal protection of voting rights.

However, the movement that produced legal advances had no effect on the increasing racial wealth gap between Blacks and whites, while school and housing segregation persisted.

What critical race theory is

Critical race theory is a field of intellectual inquiry that demonstrates the legal codification of racism in America.

Through the study of law and U.S. history, it attempts to reveal how racial oppression shaped the legal fabric of the U.S. Critical race theory is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law.

There are a few beliefs commonly held by most critical race theorists.

First, race is not fundamentally or essentially a matter of biology, but rather a social construct. While physical features and geographic origin play a part in making up what we think of as race, societies will often make up the rest of what we think of as race. For instance, 19th- and early-20th-century scientists and politicians frequently described people of color as intellectually or morally inferior, and used those false descriptions to justify oppression and discrimination.

Second, these racial views have been codified into the nation’s foundational documents and legal system. For evidence of that, look no further than the “Three-Fifths Compromise” in the Constitution, whereby slaves, denied the right to vote, were nonetheless treated as part of the population for increasing congressional representation of slave-holding states.

Third, given the pervasiveness of racism in our legal system and institutions, racism is not aberrant, but a normal part of life.

Fourth, multiple elements, such as race and gender, can lead to kinds of compounded discrimination that lack the civil rights protections given to individual, protected categories. For example, Crenshaw has forcibly argued that there is a lack of legal protection for Black women as a category. The courts have treated Black women as Black, or women, but not both in discrimination cases – despite the fact that they may have experienced discrimination because they were both.

These beliefs are shared by scholars in a variety of fields who explore the role of racism in areas such as education, health care and history.

Finally, critical race theorists are interested not just in studying the law and systems of racism, but in changing them for the better.

What critical race theory is not

“Critical race theory” has become a catch-all phrase among legislators attempting to ban a wide array of teaching practices concerning race. State legislators in Arizona, Arkansas, Idaho, Missouri, North Carolina, Oklahoma, South Carolina, Texas and West Virginia have introduced legislation banning what they believe to be critical race theory from schools.

But what is being banned in education, and what many media outlets and legislators are calling “critical race theory,” is far from it. Here are sections from identical legislation in Oklahoma and Tennessee that propose to ban the teaching of these concepts. As a philosopher of race and racism, I can safely say that critical race theory does not assert the following:

(1) One race or sex is inherently superior to another race or sex;

(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;

(4) An individual’s moral character is determined by the individual’s race or sex;

(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.

What most of these bills go on to do is limit the presentation of educational materials that suggest that Americans do not live in a meritocracy, that foundational elements of U.S. laws are racist, and that racism is a perpetual struggle from which America has not escaped.

Americans are used to viewing their history through a triumphalist lens, where we overcome hardships, defeat our British oppressors and create a country where all are free with equal access to opportunities.

Obviously, not all of that is true.

Critical race theory provides techniques to analyze U.S. history and legal institutions by acknowledging that racial problems do not go away when we leave them unaddressed.

Resistance to Private Prison Industry Mounts Amid Debate Over Trump’s Immigration Detention Policies

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By Lauren-Brooke Eisen, Counsel for the Justice Program at The Brennan Center for Justice.First published on Common Dreams

The private prison industry is under renewed scrutiny, and things are not going well for it. Prison companies were already under fire, accused of putting profits above the well-being of incarcerated individuals and staff at the dozens of federal and state prisons and local jails they run around the country. Currently, about 8 percent of state and federal prisoners are held in privately operated facilities across 27 states and the federal system.

But these companies aren’t only in the business of housing people convicted of crimes. As of July, U.S. Immigration and Customs Enforcement (ICE) had almost 53,000 people in its custody, and private prison firms are responsible for detaining more than 70 percent of them. Now the industry is getting more attention because of President Trump’s immigration detention policies, such as separating children from their parents, and because of the terrible conditions in many detention facilities, many of which are run by the government and not private firms.

Ironically, because of the Trump administration’s focus on building a border wall and keeping immigrants out, a Republican administration thought to be a boon to the private prison sector has proved one of its biggest problems. As resistance to current immigration policies mount, here is a roundup of some of the high-profile actors targeting the industry.

Presidential election politics

At least 11 Democrats running for president want to eliminate private prisons. Sen. Kamala Harris of California recently tweeted, “One of my first acts of business as president will be to begin phasing out detention centers and private prisons.” Sen. Elizabeth Warren of Massachusetts issued a sweeping plan to eviscerate the industry by attempting to phase out federal contracts for private prisons and by reducing states’ reliance on the industry through cutting federal funding to states that contract with these companies. Other candidates have expressed support for immediately canceling all federal contracts with the industry and phasing out the government’s reliance on private prisons.

Banks

One surprising development in 2019 has been the banking industry’s withdrawal of financial support for two of the largest private prison firms, Geo Group and CoreCivic. These two firms restructured in 2013 to become Real Estate Investment Trusts (REITs), allowing them to benefit from a lower tax rate. But as I’ve written about in Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration, REIT status requires the companies to distribute a minimum of 90 percent of their profits to shareholders. This leaves them with little cash on hand to cover costs, which is why they rely on financial lenders to raise cash to operate.

So what happened?

The big banks started to distance themselves from a sector that received a lot of negative attention amidst an outcry over the Trump administration’s detention policies. It’s the latest example of big banks cutting ties with companies in response to activism, which we also saw when Bank of America and Citigroup announced they would limit business with gunmakers.

In January, Wells Fargo announced that it would roll back its relationship with the private prison industry. Two months later, JPMorgan Chase made headlines with its announcement that it would move away from financing private prison firms. The news came days after Rep. Alexandria Ocasio-Cortez (D-NY), who sits on the House Financial Services Committee, said that she wanted to hold banks “accountable” for their connections to companies that operate immigrant detention facilities.

JPMorgan Chase’s announcement was consequential because it was one of the first Wall Street banks to take a public stance on private prisons. As of March, the move was considered mostly symbolic, or at least until other lenders or investors in prison companies followed suit.

But that’s exactly what happened, and a domino effect ensued. In June, Bank of America announced that it would stop lending to the industry. A few weeks later, SunTrust became the fourth major bank to stop financing private prison firms. And on July 12, France's BNP Paribas became the first foreign bank to announce that it would no longer finance U.S. private prison firms.

Nevertheless, ties between banks and the private prison industry are not completely severed, as there are still outstanding loans to the companies (in the form of revolving credit that provides them with cashflow) that won’t be paid off for years.

State and federal legislation

Both federal and state policymakers have tried to rein in private prison industry this past year. In Congress, Sen. Ron Wyden (D-OR) re-introduced a bill in June that would stop private prisons from qualifying as REITs and receiving tax subsidies unavailable to other corporations. Sen. Elizabeth Warren, meanwhile, recently opened an investigation into the accreditation process for private detention facility operators.

Currently, only three states legislatively ban private firms from operating state prisons: Illinois, New York, and Iowa. Illinois passed its ban in 1990. This year, the state went one step further by enacting a law that prohibits state and local agencies from entering into an agreement for the detention of individuals in a facility owned, managed, or operated by a private firm. The new law makes it difficult for private firms to build an immigrant detention facility in the state. The reason is that while ICE can still contract with private firms to manage facilities, these contracts tend to rely on local governments to serve as an intermediary between ICE and the corporations, especially if firms want to build a new facility.

New York state law prohibits private prison firms from operating state correctional institutions. The state legislature passed the law in 2007, partly out of concern about training and wages offered to private guards, and about how privatization would function at times of “crisis.” This year, state legislators focused their attention on banks funding the industry by attempting to prohibit New York-chartered banks from investing in or providing financing to private prisons. The state Senate passed legislation, but it failed in the Assembly.

Looking ahead

Despite the proposals to curb our government’s reliance on private prisons, the banks running for the hills, and legislators passing laws to make it challenging for the industry to operate, its future appears to be a mixed bag.

Geo Group and CoreCivic can still use their revolving credit for the next four or five years to build more facilities. And if a Democrat takes the White House, it’s even possible that banks reverse their position once the furor over Trump’s immigration policies die down.

Either way, shrinking the size of both our prison and immigration detention populations is the most effective and humane way to ensure that fewer people remain behind bars in America. That can only be done by changing state and federal policy.

Laurene Powell Jobs Calls Hillary 'One of America's Greatest Modern Creations'

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At the time of his death in 2011, Steve Jobs had a net worth estimated to be $11 billion, wealth derived through the sale of iPhones, iPads, Macintosh computers and other innovative products.  His death in 2011 made his wife Laurene Powell Jobs the richest woman in Silicon Valley.  Today Forbes estimates the wealth of Laurene Jobs and family to be $18.5 billion. 

Unlike her genius college dropout husband, Laurene Jobs holds a BA from the University of Pennsylvania Wharton School and a Master of Business Administration degree from the Stanford Graduate school of Business. 

Jobs is a major contributor to the Hilliary Clinton 2016 presidential campaign.

Hillary Clinton: Realist and Idealist

Speaking about Hillary Clinton toTIME 100, Laurene Jobs said:

Hillary Clinton is not familiar. She is revolutionary. Not radical, but revolutionary: The distinction is crucial. She is one of America’s greatest modern creations.

Her decades in our public life must not blind us to the fact that she represents new realities and possibilities. Indeed, those same decades have conferred upon her what newness usually lacks: judgment, and even wisdom.

Women who advocate for other women are often pigeonholed and pushed to the margins. That hasn’t happened to Hillary, because when she’s standing up for the rights of women and girls, she is speaking not only of gender but also of justice and liberty.

As Hillary has always made clear, these values are universal, and fulfilling them is a practical and moral pursuit. She is a realist with a conscience and an idealist who is comfortable with the exercise of power.

This helps explain why she has been so effective, even in this golden age of polarization. Hillary knows how to draw opponents out of their fighting corners and forge solutions on common ground. She practices the politics of reconciliation and reason. Which, not coincidentally, is also the politics of progress.

It matters, of course, that Hillary is a woman. But what matters more is what kind of woman she is.

Ms Powell Jobs is the founder and chair of Emerson Collective and her low-key humility was shared in a 2013 NYTimes article: Steve Jobs’ Widow Steps Onto Philanthropic Stage.

Laurene Jobs & The Emerson Collective

College Track

The philanthropist founded College Track in 1997, with the goal of helping prepare low-income students for college through rigorous academic training and extracurricular activities. As of 2013, the program operating in locations including New Orleans and East Palo Alto as sent more than 1400 students to college with a 90 percent success rate. The group is part of Laurene’s larger initiative The Emerson Collective.

Marlene Castro is one young woman who knew the tall blonde woman as Laurene, meeting every few weeks in a “rough Silicon Valley neighborhood” as Castro prepared for college. Laurene listened to Castro’s stories about her difficult childhood, and they emailed often.

It was only when Castro read a news article at the University of California at Berkeley that she realized that her friend Laurene was the wife of Apple’s co-founder Steve Jobs.

“I just became 10 times more appreciative of her humility and how humble she was in working with us in East Palo Alto,” Ms Castro told the Times.

Laurene for Dreamers

Through her work for College Track, Laurene Powell Jobs became deeply involved in the challenges of being undocumented in America. The result is that this powerhouse woman has become a leader in pushing the Dream Act, first introduced in 2001. In December 2012, Powell Jobs enlisted the help of the Academy Award-winning documentary filmmaker Davis Guggenheim, asking him to make a short documentary about immigration. The two met through the making of Davis’ documentary ‘Waiting for Superman’, a film that examined the crisis in America’s public schools.

Powell Jobs needed a film to influence Congress in deliberations around an immigration bill.

With only three months and not a year and a half, the result was a 30-minute film ‘The Dream Is Now’ featured here. Unfortunately, activists were not successful , and the immigration bill failed in Congress in 2014. Note that aspects of the Dream Act are in effect under an Executive Order issued by President Obama.

The Dream Is Now

Organizing for Action presents the Dream Is Now, a 30 minute documentary by Davis Guggenheim. It's time to fix America's broken immigration system, to grow our economy and give undocumented youth and their families the chance to earn their citizenship.

Laurene Powell Jobs & Adrian Fenty

Both Laurene Jobs and Adrian Fenty are discreet concerning rumours that they are dating and have been photographed together on holiday. The couple first met in a venture capital presentation in Silicon Valley around the issue of school reform.

Fenty joined the board of College Track in 2012, and the couple was pictured together on a yacht and on shore in St. Barts in January of this year.