What the "CRT" Debate Obscures, pt. 3: Differing Understandings of Justice
Unlike traditional civil rights, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.
- Delgado & Stefanic, Critical Race Theory: An Introduction
Thomas Aquinas defined justice as giving to people what is owed to them. This is a good definition, I think, as far as it goes, but it is so general that it doesn't settle any of the debates that we have about justice in modern society.
Underlying the more obvious points of contention in our society, such as the CRT debate, are deeper questions like:
What is owed to other people?
Who is responsible for giving it to them?
Could other injustices be created in an attempt to rectify past injustices?
Today I read part of Lyndon Johnson's 1965 commencement address at Howard University. In it, he gives an answer to the first of these questions, and, given that he represents the federal government, implies an answer to the second. He doesn't address the third, but that is one of the key concerns that has emerged in the debate over civil rights since the 1960s.
We can see that in cases like Students for Fair Admissions v. President & Fellows of Harvard College where Asian-American students are suing Harvard because affirmative action polices that were intended to increase representation of African-Americans at Harvard have made it harder for them to get admitted, even if their academic performance and other abilities are equal.
The Supreme Court had originally said, in Regents of the University of California vs. Bakke, that "only one interest was compelling enough to justify consideration of race in college admissions: 'the educational benefits that flow from from an ethnically diverse student body,'" thus conceding that normally a race-neutral policy must be followed to avoid un-Constitutional discrimination.
Overall, American law since the Civil Rights era of the 1960s has attempted to treat people neutrally with regard to race, instead of treating one race favorably to others. The Supreme Court has defended this principle as the natural consequence of the Fourteenth and Fifteenth Amendments. They stated this clearly in Rice vs. Cayetano: "One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens."
However, CRT’s counter-argument to this ostensibly “neutral principle” is that people are not merely individuals with their own essential qualities. They are also members of groups - including racial categories that were constructed by law (and still are in some contexts, like the Census or how Native American tribes are treated by the government). Thus, individual are not fully free to do what they might wish based on their "unique personality" alone. In this way of thinking, we are all either constrained or privileged by both history and the current structure of society, and the idea of “merit” is a naive oversimplification. Furthermore, most who argue this way would say that the government has an obligation to "fulfill the fair expectations of man" by granting not simply "freedom but opportunity" to those who have been oppressed, as Lyndon Johnson said in his Howard University speech.
This seems reasonable especially when the government has been the perpetrator of the injustice - such as in the racially discriminatory housing policies of the New Deal and GI Bill. But, to return to the Harvard College lawsuit, in some cases granting legal advantage to one racial group, to try to rectify past injustice, may disadvantage another group. And, in a time when we as a nation are discussing hate crimes against Asian-Americans and America's history of bias against them, it's worth considering whether the apparent justice of affirmative action for African-Americans comes with the cost of doing injustice to another minority.
Harvard's subjective and opaque admissions process, which was defended as a model for affirmative action, was in fact originally created to discriminate against Jewish students:
The approach subsequently taken by Harvard President A. Lawrence Lowell and his peers was to transform the admissions process from a simple objective test of academic merit into a complex and holistic consideration of all aspects of each individual applicant; the resulting opacity permitted the admission or rejection of any given applicant, allowing the ethnicity of the student body to be shaped as desired. As a consequence, university leaders could honestly deny the existence of any racial or religious quotas, while still managing to reduce Jewish enrollment to a much lower level, and thereafter hold it almost constant during the decades which followed. For example, the Jewish portion of Harvard’s entering class dropped from nearly 30 percent in 1925 to 15 percent the following year and remained roughly static until the period of the Second World War.
It's worth remembering that back in this time period, Jews were not considered to be "white." Anti-Semitism was much more widespread and overt than it is today. But if Jews are grouped together with other people who are generally considered white in "affinity groups" and described as people who are "part of systemic racism and oppression," as they have been just last year in Stanford's diversity training program, is anti-Semitism making a comeback under the guise of racial justice?
So, at least in some cases, attempts to do justice to one group of people, by giving to them what seems to be owed based on past injustice and current racial disparities, can lead to injustices to other groups. This does not mean that institutional racism is unreal, or even that it is incapable of being addressed today through legal means, but it does mean that people should be aware of unintended consequences.
The current CRT debate obscures this point for two reasons. First, most on the right misunderstand what academic CRT says, for one or more of the following reasons:
a) CRT is a diverse field and not all its practitioners agree on a definition, or even think it is appropriate for it to have a singular definition (since they view it as a mode of inquiry, not something static),
b) academic CRT is written in dense language that is easy for non-academics to misunderstand,
c) CRT as it has been popularized by writers like Ibram X. Kendi or, especially, generators of FB and Twitter memes, is not the same as academic CRT,
d) bad-faith critics of CRT like Christopher Rufo of the Manhattan Institute have tried to "[freeze] the brand" in order to advance their own policy goals (like stopping police reform), rather than actually engage with CRT’s defenders
Second, because of this confusion, the debate has focused on what CRT is and where it is being taught. Therefore, the deeper questions of what “justice” is are being ignored. Most people on the right and left are not explicitly stating, or even considering, their assumptions of what constitutes justice and therefore they are talking past each other. They are not focusing the debate on whether the government can remove all racial disparities, or, if it could, whether that would cause more problems that it would solve.
CRT critics are spending more time arguing about whether Ibram X. Kendi hates white people than about whether his key claim is true - that "racial inequity is evidence of racist policy" in all cases, and thus always requires a government response, rather than a cultural one. CRT critics are spending more time making easily-refutable comparisons between him and Karl Marx than they are pointing out the practical problems with his proposed "Department of Anti-racism responsible for preclearing all local, state and federal public policies to ensure they won’t yield racial inequity, monitor those policies, investigate private racist policies when racial inequity surfaces, and monitor public officials for expressions of racist ideas."
There are legitimate reasons to criticize both the dark vision that CRT posits for race relations in the US - that racial progress is driven only by "interest convergence" - and its opposite number, the idealistic notion that the systems that oppress people today could be overthrown and a new system established that would not have issues of its own. But so far most critics of CRT have mixed so many misunderstandings, deliberate or otherwise, into their critiques, that it's been easy to dismiss them.
Where the debate should focus, I believe, is this:
How much is it possible for the government rectify past injustice, rather than reforming current injustice (which is clearly its responsibility, at least insofar as it is perpetuated by the government)?
If the government aims to rectify past injustice, but does so in a way that favors one group over others (especially ones that may have suffered their own forms of injustice), is that actually perpetuating injustice?
When the government attempts to rectify past injustice, what unintended consequences could that have, even for the people whom it intends to help?
How one answers Questions #2 & 3 influences their views on whether reparations are just. The justice of affirmative action is affected by question #2.
All three of these questions are legitimate, and people who ask them shouldn't be dismissed simply as suffering from "white fragility" or "false consciousness". There's more than one way to be anti-racist, and people like Thomas Sowell shouldn’t be ignored simply because they don’t reach the same conclusions as CRT scholars.