To say that there is an ongoing debate over critical race theory (CRT) in the United States today is to miss the importance of what’s actually happening in courtrooms in Illinois, in classrooms in Wisconsin, in the gubernatorial race in Virginia, and across dozens of other states. In a public conversation between Kimberlé Crenshaw and Devon Carbado hosted by The New Press this August, these two leading scholars of CRT reflected that there is no debate about CRT taking place at all. Instead, at the center of the media fracas, legislative bills, school board showdowns, Trump-era memorandums, and nonprofits decrying CRT as a radical Marxist ideology, there is something much more tired: a fight to roll back any progress made towards invoking an antiracist sensibility in the last few decades, from diversity trainings to civic education to institutional diversity.

So what is critical race theory, if not a conservative activist’s perfect villain? The body of theory that makes up CRT traces its origins to Derrick Bell, a lawyer and the first tenured Black professor at Harvard Law School. Bell interrogated, among other things, the case for integration as argued by Brown v. Board of Education, affirmative action, and racial color blindness in United States courtrooms and law. Yet CRT only coalesced into a tangible body – of scholars and work – in the 80s, beginning with Kimberlé Crenshaw’s arrival to Harvard Law School and finding that not only had Bell left the school, but that the school was no longer teaching any of his work. Crenshaw, in the conversation hosted by The New Press, recalled that she and other students invited professors from around the country to teach chapters from Derrick Bell’s writing. “This was the new lunch counter for us,” she said. And thus CRT began.

In 1995, Crenshaw served as one of the editors for the seminal essay collection Critical Race Theory: The Key Writings That Formed the Movement. One particular line from the collection’s introduction sums up the goals of critical race theorists: “We began to think of our project as uncovering how law was a constitutive element of race itself: in other words, how law constructed race.”

What, substantially, does this mean? Devon Carbado, professor at UCLA School of Law takes the lived phenomenon of driving while black as an example. “A) You’re driving a car. B) You’re black. C) You’re going to be stopped. That’s a theory – there’s something about my embodiment that tells me when I get into a car, there’s a likelihood that I’m going to be stopped,” Carbado said. But this is no phenomenon at all. Instead, Carbado says, this phenomenon can be concretely traced to a case heard by the Supreme Court in 1996, Whren v. United States, in which the Supreme Court unanimously ruled that traffic stops could be used as a pretext to investigate some other crime, “for which the officer has no reason to think you did anything wrong.” Is that constitutional? Carbado asks – “Yes,” he answers, with suitable disbelief.

Critical race theory can illuminate even the particulars of our current moment. Laura E. Gómez, a professor of law at UCLA and author of Inventing Latinos, has used the framework of critical race theory to investigate the contradictions that have arisen from the COVID-19 pandemic. That Blacks and Latinos have seven times the death rate of whites of COVID-19 is no simple or natural phenomenon, Gómez notes in conversation with Porter Braswell, host of Harvard Business Review’s Race At Work podcast. As a result, Gómez argues provocatively, “we should be having race-based vaccination. We should just say outright, this is a disease that is affecting people based on their race. And therefore we need a solution that takes race into account.” Yet such a thing is impossible, Gómez states, quite directly because of Supreme Court rulings like Washington v. Davis, which limit the ways in which race can legally be taken into account.

Critical race theory provides analyses like these; analyses which uncover the forces that shape our racial lives in this country which are facilitated by law and not individual agency. It is not a topic in K-12 education, nor is it racial bias training. As Crenshaw notes about the so-called ongoing debate over critical race theory:

“It’s not about education at all. It’s about whether a story can be tolerated that makes it clear that there are advantages and disadvantages from the past that continue to be built into the system. This is an attack on even being able to say that there is structural inequality; to still say that the past shapes the immediate future. [Affirmative action] was the beginning. We should have anticipated that it would grow. It has, and now it’s the juggernaut that we’re facing.”

Derrick Bell’s legacy lives on through the Derrick Bell Lecture on Race in American Society, held annually at NYU’s Center on Race, Inequality and the Law. These lectures began as a way not only to give exposure to the critical race theory movement beyond the academy, but also to celebrate the life and work of Derrick Bell – the first lecture was held on his 65th birthday, as a gift from his wife, Janet Dewart Bell. An anthology of the Derrick Bell Lectures edited by Bell and Vincent M. Southerland, titled Race, Rights, and Redemption, has just been published in paperback and features essays by some of our country’s brightest progressive legal stars, including Michelle Alexander, Paul Butler, Jasmine Gonzales Rose, Ian Haney López, Sherrilyn Ifill, Emma Coleman Jordan, and others. Take a look at an excerpt from Angela Onwuachi-Willig’s essay “The Boundaries of Whiteness: From Till to Trayvon” on our Medium.

Finally, keep an eye out for Devon Carbado’s forthcoming book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, set to be published in spring 2022. In Unreasonable, Carbado looks at how Supreme Court interpretations of the Fourth Amendment have been used to protect police officers, not African Americans.

This post was written by Alena Zhang, a fall 2021 New Press intern.