Critical Race Theory (CRT) in Law: Explained with Cases

Critical Race Theory (CRT) is a transformative academic framework that examines the intersection of race, racism, and power within legal systems. Emerging in the 1970s, CRT challenges traditional legal approaches by highlighting systemic racism and advocating for legal reforms to address racial inequities. This article provides an in-depth exploration of CRT’s origins, core principles, its application in landmark legal cases, and its role in promoting legal epistemic justice. Through detailed analysis and case studies, this guide aims to foster a comprehensive understanding of CRT’s impact on law and society.

Understanding Critical Race Theory in Law

Critical Race Theory, as articulated by Richard Delgado and Jean Stefancic in Critical Race Theory: An Introduction (2001), is an academic subfield of law that interrogates the role of race, racialization, and racism in legal systems and institutions. Unlike traditional civil rights approaches that focus on incremental progress and colorblind equality, CRT posits that racism is an ordinary, pervasive feature of society, embedded in its structures and institutions. It challenges foundational liberal principles such as neutrality, meritocracy, and equality under the law, arguing that these often perpetuate racial hierarchies by ignoring systemic inequities.

CRT’s interdisciplinary approach integrates insights from law, social sciences, humanities, and ethnic studies to analyze how race shapes legal outcomes. It seeks not only to understand societal organization along racial lines but also to transform it for greater equity. Jasmine Gonzales Rose, in her 2024 article Critical Race Theory as Legal Epistemic Justice, emphasizes CRT’s role in addressing “legal hermeneutical injustice,” where marginalized groups lack the legal frameworks to articulate their experiences of racism, thus hindering their ability to seek redress. By centering the voices of people of color, CRT empowers legal actors to challenge racial inequities and advocate for systemic change.

Core Principles of CRT

CRT is grounded in several foundational principles that shape its analysis of race and law, providing a robust framework for understanding systemic racism and advocating for reform:

1. Racism is Ordinary, Not Aberrational: As Delgado and Stefancic describe, racism is “normal science,” the usual way society operates, affecting the daily lives of people of color. This tenet challenges the notion that racism is rare or exceptional, emphasizing its systemic nature within laws, policies, and institutions. For example, racial disparities in criminal sentencing, housing policies, or employment practices are seen as routine outcomes of systemic racism, not isolated incidents. This perspective encourages legal scholars to examine how seemingly neutral laws perpetuate racial inequities.
2. Interest Convergence: Proposed by Derrick Bell in his 1980 article, this concept suggests that significant racial progress occurs primarily when it aligns with the interests of dominant groups. For instance, civil rights advancements may serve elite white interests, such as economic benefits or geopolitical strategies, rather than purely altruistic motives. This principle prompts a critical examination of the motivations behind legal reforms, revealing how progress for marginalized groups is often contingent on benefiting those in power.
3. Social Construction of Race: CRT asserts that race is not a biological fact but a socially constructed category created and manipulated to maintain power dynamics. Delgado and Stefancic note that society invents and retires racial categories based on shifting needs, such as labor market demands or political agendas. Historical examples include laws defining whiteness for citizenship or property ownership, which reinforced racial hierarchies. This tenet underscores the need to challenge legal frameworks that perpetuate these constructed racial categories.
4. Intersectionality: Coined by Kimberlé Crenshaw in 1991, intersectionality examines how race intersects with other identities like gender, class, and sexuality, creating unique forms of discrimination. This framework is critical for understanding the compounded experiences of, for instance, Black women, who face both racial and gender-based oppression. Intersectionality informs legal strategies that address these overlapping harms, ensuring that legal remedies account for the complexity of lived experiences.
5. Voice of Color: CRT emphasizes that people of color have unique perspectives on racism due to their lived experiences. The “voice of color” thesis, as described by Delgado and Stefancic, encourages legal storytelling to challenge dominant narratives and inform legal reforms. This principle validates the expertise of marginalized communities in shaping equitable laws, prioritizing their narratives in legal scholarship and advocacy.

These principles collectively provide a lens for analyzing how laws and legal systems perpetuate racial inequities and for proposing solutions to address them, making CRT a vital tool for legal reform.

Historical Context and Origins of CRT

CRT emerged in the mid-1970s as a response to the stalling of civil rights progress from the 1960s. Legal scholars like Derrick Bell, Alan Freeman, and Richard Delgado recognized that new theoretical approaches were needed to combat subtler, systemic forms of racism that persisted despite landmark legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These scholars observed that formal equality under the law did not eliminate racial disparities in areas like education, employment, and criminal justice.

The first CRT conference, held in 1989 in Madison, Wisconsin, formalized the movement, bringing together scholars, activists, and students to address these issues. As Delgado and Stefancic detail, CRT builds on critical legal studies, which introduced the concept of legal indeterminacy—the idea that legal outcomes depend on interpretation rather than fixed rules. It also incorporates insights from radical feminism, which highlighted power dynamics in social roles, and the philosophies of European thinkers like Antonio Gramsci, who analyzed cultural hegemony, and American radicals like W.E.B. Du Bois and Martin Luther King Jr., who addressed racial injustice. CRT’s interdisciplinary nature and activist dimension distinguish it from traditional legal scholarship, aiming to transform societal structures for greater equity.

CRT’s Role in Addressing Legal Epistemic Injustice

Jasmine Gonzales Rose’s 2024 article defines “legal epistemic injustice” as the absence of legal mechanisms to address the experiences of marginalized groups, placing them at a disadvantage in legal contexts. This concept encompasses two forms of epistemic injustice: hermeneutical injustice, where structural prejudices prevent marginalized communities from articulating their experiences due to gaps in collective interpretive resources, and testimonial injustice, where their credibility is unfairly dismissed due to prejudice.

CRT counters these injustices by:

• Providing Vocabulary and Frameworks: CRT introduces concepts like “structural racism,” “whiteness as property,” “racial palatability,” and “tokenism” to give legal actors tools to name and challenge systemic harms. For example, Cheryl Harris’s concept of “whiteness as property” (1993) explains how whiteness confers privileges akin to property rights, historically used to exclude non-whites from citizenship, land ownership, and other resources. This framework helps legal scholars and advocates articulate how laws perpetuate racial exclusion.
• Centering Marginalized Voices: The “voice of color” thesis prioritizes narratives from communities of color, fostering inclusive legal frameworks that validate their experiences. For instance, CRT encourages the use of storytelling in legal scholarship to highlight the lived realities of racialized groups, challenging dominant narratives that often ignore these perspectives.
• Advocating for Reform: By critiquing principles like colorblindness and white normativity, CRT pushes for laws that address systemic inequities. Gonzales Rose highlights how CRT’s focus on lived experiences informs legal prescriptions, such as new claims, defenses, or procedural reforms to level the legal playing field. This approach ensures that legal systems better reflect the realities of marginalized communities.

An example of CRT’s impact is the concept of “whiteness as property,” which illustrates how legal systems have historically protected whiteness as a valuable asset. In cases like Plessy v. Ferguson (1896), courts upheld racial segregation by defining whiteness in ways that excluded non-whites from equal protections, reinforcing racial hierarchies. CRT’s analysis of such cases informs modern challenges to policies that perpetuate racial exclusion, such as discriminatory zoning laws or voter suppression tactics.

Is Critical Race Theory Used in Courts?

While Critical Race Theory is primarily an academic and analytical framework, its principles and concepts have influenced legal arguments, judicial decisions, and legislative reforms in courts, though it is not typically cited explicitly as “CRT” in legal proceedings. Instead, CRT’s ideas are integrated into legal reasoning through its vocabulary, frameworks, and perspectives, shaping how attorneys, judges, and lawmakers address issues of race and systemic inequality. Below are ways CRT manifests in court settings, supported by examples from case law and legislation.

1. Shaping Legal Arguments and Advocacy

CRT’s concepts, such as intersectionality and systemic racism, provide attorneys with tools to craft arguments that highlight the compounded effects of discrimination. For instance, in employment discrimination cases, attorneys may draw on CRT’s intersectionality framework to argue that plaintiffs face unique harms based on the intersection of race, gender, or other identities. This approach allows lawyers to present evidence of systemic patterns of discrimination, rather than relying solely on individual intent, which is often harder to prove.

In Meritor Savings Bank v. Vinson (1986), discussed below, attorneys used arguments informed by CRT’s intersectionality to emphasize how Black women face distinct forms of harassment combining racial and gender-based discrimination. While CRT was not explicitly named in the case, its principles helped frame the legal argument that sexual harassment constitutes sex discrimination, expanding protections under Title VII.

2. Influencing Judicial Reasoning

Judges, particularly those familiar with CRT scholarship, may incorporate its perspectives into their reasoning, especially in cases involving racial justice. For example, the “voice of color” thesis encourages judges to consider the lived experiences of marginalized groups when interpreting laws or evaluating evidence. This is evident in Commonwealth v. Local Union 542 (1974), where Judge Leon Higginbotham’s refusal to recuse himself from a racial discrimination case reflected CRT’s emphasis on the value of diverse perspectives in judicial decision-making.

While courts rarely cite CRT directly, judges may reference its concepts indirectly through terms like “systemic bias” or “disparate impact.” In cases involving racial disparities in criminal justice or education, CRT’s framework helps judges recognize patterns of structural racism, even if the theory itself is not named in opinions.

3. Informing Legislative Reforms Applied in Courts

CRT has significantly influenced legislation that courts apply, such as the California Racial Justice Act (2020). This statute, discussed below, allows defendants to challenge racial bias in criminal proceedings by presenting evidence of systemic disparities, aligning with CRT’s focus on structural racism. Courts applying this law use CRT-informed principles to evaluate claims of racial bias, considering statistical evidence and historical patterns rather than requiring proof of intentional discrimination.

4. Limitations and Challenges

CRT’s use in courts is not without challenges. The requirement in many legal contexts to prove intentional discrimination, as established in cases like McCleskey v. Kemp (1987), limits the direct application of CRT’s systemic focus. Additionally, the politicization of CRT, as discussed in the “Modern Debates” section, has led to resistance against its principles in some judicial and legislative arenas. Nevertheless, CRT’s influence persists through its integration into broader civil rights advocacy and legal scholarship, which informs courtroom strategies.

In summary, CRT is used in courts indirectly through its influence on legal arguments, judicial reasoning, and legislative frameworks. Its concepts provide critical tools for addressing systemic racism, even if the term “CRT” is rarely invoked explicitly in legal proceedings.

Landmark Legal Cases and Legislation Influenced by CRT

CRT’s principles have shaped legal arguments, court decisions, and legislative reforms, providing frameworks to address systemic racism and intersectional discrimination. Below are detailed examples of key cases and legislation influenced by CRT.

1. Meritor Savings Bank v. Vinson (1986)

In this landmark Supreme Court case, the Court recognized sexual harassment as a form of sex discrimination under Title VII of the Civil Rights Act of 1964, identifying two types: quid pro quo harassment (where job benefits are tied to sexual favors) and hostile workplace harassment (where a pervasive environment violates rights). Gonzales Rose notes that CRT scholars built on feminist legal theory, particularly Catharine MacKinnon’s work on sexual harassment, to highlight the intersectional discrimination faced by women of color. For example, Black women often experience harassment that combines racial and gender-based hostility, which traditional legal frameworks failed to address. This case demonstrates CRT’s role in creating legal mechanisms to recognize and redress intersectional harms, advancing legal epistemic justice by providing language and frameworks for previously unrecognized experiences.

2. Brown v. Board of Education (1954)

This iconic Supreme Court case declared racial segregation in public schools unconstitutional, overturning the “separate but equal” doctrine established in Plessy v. Ferguson (1896). The decision was a milestone in the civil rights movement, affirming that segregation inherently violated equal protection under the Fourteenth Amendment. However, Derrick Bell’s interest convergence theory, as discussed by Delgado and Stefancic, suggests that the decision was partly driven by elite white interests, such as improving America’s international image during the Cold War to counter Soviet criticism of U.S. racism. CRT critiques the case’s implementation, noting that lower courts and administrative delays, such as “all deliberate speed” rulings, diluted its impact, allowing segregated schools to persist for decades. This analysis underscores CRT’s focus on systemic barriers to racial progress and the need for sustained reform efforts.

3. California Racial Justice Act (2020)

Enacted in 2020, the California Racial Justice Act (Cal. Penal Code § 745) prohibits racial bias in criminal charges, convictions, and sentences, allowing defendants to challenge outcomes without proving that bias directly altered the trial’s result. Gonzales Rose explains that the Act rejects the limitations set by McCleskey v. Kemp (1987), where the Supreme Court required proof of intentional discrimination to challenge racial disparities in sentencing. By adopting a CRT lens, the Act acknowledges the impact of systemic racism, allowing defendants to present broader evidence of racial bias, such as statistical disparities or implicit bias in legal proceedings. This legislation exemplifies CRT’s influence in creating legal tools to address structural inequities, aligning with its goal of promoting equitable legal systems.

4. Commonwealth v. Local Union 542 (1974)

In this case, Federal Judge Leon Higginbotham refused to disqualify himself from a racial discrimination case involving a labor union, arguing that his Black identity did not inherently bias his judgment. Cited by Delgado and Stefancic, this case reflects CRT’s “voice of color” thesis, which asserts that minority judges bring valuable perspectives to racial justice cases. Higginbotham’s stance challenged the myth of judicial neutrality, a core CRT critique, by highlighting how lived experiences of race can inform fair and insightful judicial decisions. This case underscores the importance of diversity in the judiciary and validates CRT’s emphasis on incorporating marginalized perspectives into legal processes.

Modern Debates and Their Implications

Since 2020, CRT has become a focal point of intense public and political debate, often marked by misrepresentation and controversy. These debates, as detailed by Gonzales Rose in her 2024 article, reflect broader societal tensions about addressing systemic racism and the role of race in public discourse.

1. Political and Legislative Backlash

Right-wing campaigns, led by figures like Christopher Rufo, have misrepresented CRT as a threat to education and society, labeling it as “woke,” divisive, or anti-American. In 2020, President Trump issued Executive Order 13,950, banning federal diversity training on “divisive concepts” like systemic racism. Although rescinded by the Biden administration, its language has influenced subsequent anti-CRT measures. As of March 2024, 465 anti-CRT bills have been introduced across 47 states, targeting K-12 and higher education curricula. At least 21 states and 145 local school districts have passed related censorship laws, affecting roughly half of U.S. public schoolchildren. These laws often vaguely define CRT, encompassing any discussion of race, racism, or diversity, equity, and inclusion (DEI), thereby stifling open dialogue.

2. Narrative Campaigns and Misrepresentation

Critics like Rufo have strategically reframed CRT to create moral panic, associating it with anti-Americanism or reverse racism. Rufo’s stated goal, as quoted by Gonzales Rose, is to “freeze” CRT’s brand and make it toxic in public perception. This narrative campaign distorts CRT’s academic focus on systemic racism, portraying it as an attack on individual merit or national unity. Such misrepresentations contribute to hermeneutical injustice by silencing knowledge about racism, preventing marginalized groups from articulating their experiences, and testimonial injustice by discrediting CRT scholars and advocates as biased or divisive.

3. Impact on Education and Public Discourse

The backlash against CRT has significant implications for education and public discourse. Bans on CRT-related content limit educators’ ability to teach about historical and contemporary racism, hindering students’ understanding of systemic inequities. These restrictions also chill academic freedom, as teachers and professors face pressure to avoid race-related topics. In public discourse, the misrepresentation of CRT fuels polarization, making it harder to have constructive conversations about race and justice. CRT scholars argue that these attacks undermine efforts to address racial inequities, perpetuating ignorance about systemic racism.

4. CRT’s Resilience and Response

Despite these challenges, CRT remains resilient, with scholars and advocates emphasizing its commitment to truth-seeking and critical thinking. CRT’s focus on evidence-based analysis and marginalized voices counters fearmongering by providing rigorous frameworks for understanding systemic racism. Grassroots movements, informed by CRT, continue to advocate for racial justice, drawing on its concepts to push for policies like reparations and police reform. The ongoing relevance of CRT lies in its ability to empower communities to challenge inequities and foster a more equitable society.

These debates constitute hermeneutical injustice by silencing knowledge about racism, preventing marginalized groups from articulating their experiences. They also contribute to testimonial injustice by discrediting CRT scholars and advocates, dismissing their expertise as biased or divisive. Such efforts chill academic freedom, limit public discourse on race, and hinder progress toward racial equity by perpetuating ignorance about systemic racism.

CRT’s Broader Impact on Legal and Social Change

CRT’s influence extends beyond courtrooms, shaping social movements and policy reforms. Gonzales Rose highlights how CRT’s concepts, such as structural racism, intersectionality, and whiteness as property, have entered mainstream discourse, empowering people of color to label and validate their experiences. For example, the Black Lives Matter movement, galvanized by high-profile cases of police violence in 2020, drew on CRT terminology to advocate for systemic change, emphasizing issues like racial profiling and mass incarceration.

CRT also inspires progressive lawyering that combines litigation with community organizing. Initiatives like reparations programs, restorative justice policies, and community-based legal clinics reflect CRT’s commitment to addressing historical and contemporary racial inequities through practical, community-centered solutions. For instance, local governments in cities like Evanston, Illinois, have explored reparations for Black residents, informed by CRT’s analysis of historical wealth disparities rooted in policies like redlining.

Conclusion

Critical Race Theory in law is a vital framework for understanding and dismantling systemic racism. By interrogating the role of race in legal systems, CRT reveals how laws and policies perpetuate inequities and offers solutions through concepts like interest convergence, intersectionality, and whiteness as property. Landmark cases like Meritor Savings Bank v. Vinson and the California Racial Justice Act demonstrate CRT’s practical impact, while its emphasis on marginalized voices counters legal epistemic injustice. Despite attacks that misrepresent CRT as divisive, its commitment to truth-seeking and critical thinking makes it indispensable for achieving a more equitable legal system. By protecting and engaging with CRT, we ensure that minoritized communities can articulate their experiences and advocate for meaningful change, fostering a legal system that reflects justice for all.

References

1. Delgado, Richard, and Jean Stefancic. Critical Race Theory: An Introduction. New York University Press, 2001.
2. Gonzales Rose, Jasmine. “Critical Race Theory as Legal Epistemic Justice.” Boston University Law Review, vol. 104, no. 5, 2024, pp. 1295–1318.
3. Harris, Cheryl I. “Whiteness as Property.” Harvard Law Review, vol. 106, no. 8, 1993, pp. 1707–1791.
4. Crenshaw, Kimberlé. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review, vol. 43, no. 6, 1991, pp. 1241–1299.
5. Bell, Derrick A. “Brown v. Board of Education and the Interest-Convergence Dilemma.” Harvard Law Review, vol. 93, no. 3, 1980, pp. 518–533.
6. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).
7. Brown v. Board of Education, 347 U.S. 483 (1954).
8. Commonwealth v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974).
9. California Racial Justice Act, Cal. Penal Code § 745 (2020).
10. Bacon, Francis. The Works of Francis Bacon. Edited by James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, vol. 14, 1900, pp. 79, 95.