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Critical Race Theory

Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law

In the lead up to Volume 134, the Harvard Law Review republished five classic Critical Race Theory articles from our archives. This is the third piece in our series. The full version of this Article may be found by clicking on the PDF link below.

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America.  In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans.  The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities.  The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices and possibilities available to an oppressed group such as Blacks.  The Critics, she suggests, ignore the singular power of racism as a hegemonic force in American society.  Blacks have been created as a subordinated “other,” and formal reform has merely repackaged racism.  Antidiscrimination law, she argues, has largely succeeded in eliminating the symbolic manifestations of racial oppression, but has allowed the perpetuation of material subordination of Blacks.  Professor Crenshaw concludes by demonstrating the importance of exposing the racist nature of ostensibly neutral norms, and of devising strategies for change that include the pragmatic use of legal rights.