The term “race” in critical race theory makes discriminatory ideology and practices visible where it is often treated as absent or a negligible issue. Even when confronted with empirical evidence to the contrary, many people have argued that racism is functionally not at play in various institutional and social contexts. When opponents of critical race theory idealize inattentiveness to race as a factor, this approach can obfuscate discriminatory racial projects.

U.S. law often masks racism through a discourse of absence or invisibility. “Our constitution is color blind” is undoubtedly the best-known idea in the [[Plessy v. Ferguson] (1896) decision after “separate but equal.” In Plessy, the Supreme Court upheld a Louisiana statute that had separate spaces and facilities for white and Black residents. This statement comes from Justice Harlan’s dissent in the ruling and his rhetorical deployment of color-blindness—as simultaneously aspirational and factual, normative and descriptive—is the way many people would continue to evoke the term in the future. In reality, the constitution is famously not colorblind. It counts enslaved people as “three fifths of all other persons”, distinguishing them from indentured servants. Slaveholders would solidify the institution into a caste system that marked people of African descent as slaves. Racial discrimination is both explicit and masked, and the seemingly progressive statement about colorblindness also masks racist ideology. Right before the claim affirming the importance of equality under the law, Harlan states that “the white race deems itself to be the dominant race in this country” and that it will continue to be so “for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” Harlan professes a belief in white supremacy even as he purports that “the law. . .takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land.” The dissonance between an explicit affirmation—even celebration—of racial hierarchies and statement of the alleged equality of the law is a prototypical example of how race and racism are embedded in liberal and allegedly neutral frameworks in U.S. law and other institutions.

As Neil Gotanda argues, the later embrace of this idea by jurists and others in the United States produces a problem, as “nonrecognition fosters the systematic denial of racial discrimination in the United States.” Since discrimination has been embedded in almost every aspect of U.S. culture from cradle to grave, by law and social practice, not recognizing race results in discrimination. Nonrecognition within and outside the law often takes the form of attributing disparate outcomes to anything but discrimination. For example, African American women have much higher maternal morbidity, and some people would suggest that this is only a result of the health choices of African Americans or lower economic status. Those factors are also impacted by discrimination, but even when researchers compare African American women and white women with similar health and class characteristics, African American have much worse outcomes.

People who affirm the self-evident nature of not taking race into account ignore what theorists like Gotanda have argued: attempts to divide private discrimination from public discrimination amount to magical thinking about how employment, housing, criminal justice, and education work. In other words, it is disingenuous to suggest that choices about what people do privately plays no role in public life. Addressing this issue does not entail infringing on their right to discriminate in their personal lives, but does suggest that a society that professes investment in equality must find ways of addressing how the constitutionally protected right to have racist thoughts does not give people the right to impact the rights of others. Not only is the idea of nonrecognition physically and psychologically suspect (people cognitively take note of difference), racial discrimination cannot simply be a way of thinking that goes away as someone moves from home to work. While it is important not to essentialize and believe that skin color or cultural background inevitably mean certain things, multiple studies have shown that colorblind and “color mute” approaches to raising white children can result in their possessing racist beliefs.

Nonrecognition of the difference race makes in law, treatment in healthcare, and pedagogy requires a willful resistance to empirical data about American Indians, African Americans, and different groups in the Latinx community. The various moments in which Asians and Asian Americans have experienced disparate treatment as immigrants, violence, and xenophobia, from the Chinese Exclusion Act through the COVID crisis, is well documented as well. When we know this history, it becomes clear that students must understand how race has functioned in the law and other institutions if they are to understand the country at all.

And yet, many state legislatures have passed laws to mandate that “slavery and racism” be understood as “deviations from, betrayals of, or failures to live up to the authentic founding principles of the United States”. Characterizing practices that last for centuries as “deviations” is an inaccurate way of categorizing this history. On the one hand, the prohibitions against critical race theory lack an understanding of a complex and specialized field of research, such as Kimberlé Williams Crenshaw’s very useful intervention into addressing how the law treats discrimination claims. Much of what legislators have found objectionable is not critical race theory at all, it is simply well-documented history. On the other hand, they are also objecting to an approach that teaches children to unlearn mythologies about the nation—or perhaps not learn them at all.

The romanticized version of the nation’s history rejects recognition of discrimination as foundational to its founding. As philosopher Charles Mills has argued, the United States is founded on a “racial contract.” Building on and responding to social contract theory (which includes thinkers such as Rousseau, Thomas Hobbes, and John Locke whose work influenced constitutional democracy in the United States), Mills details how the political and moral contract is a set of “formal and informal agreements” between a group of people who come to be classified as white categorizes another group of humans as “nonwhite” and inferior so that they “have inferior social status.”

A common response is that such differences in life outcomes can all be attributed to character and individual choice on the part of non-whites. For critical race theorists, such a claim ignores the evidence that race interacts with everyday aspects of life. Property—which is foundational to understandings of right in the U.S.—has been intertwined with race. Tribal Critical Race Theory helps us understand the role of the racialization of Native Americans in order to deny their sovereignty and violate treaties. African Americans not only were property, many towns and cities across the nations have been shaped by depriving them of property through racial pogroms, obstacles to benefitting from the GI Bill and racial covenants placing restrictions on Black property owning, sundown towns, and continued devaluation of Black property. Property is a good example of how even legal prohibitions against discrimination have not prevented its ongoing occurrence. Thus whiteness itself, as Cheryl I. Harris has argued, can function as property. When critical race theorists describe this, they do not attribute inherent maliciousness to white people. They call attention to how white people have benefitted. But as Mills notes, people can choose to be signatories to the racial contract or work to reject it. Counter to the widely disseminated claim that critical race theory teaches that white people are inherently racist, theorists explain that there is nothing natural about the racial hierarchies that have existed in U.S. culture. A long history of social, political, and legal decisions has shaped inequality. Another set of decisions can build a future without it.

As Roderick Ferguson explicates in his keyword essay on “Race,” “Today, as it has for at least three centuries, the study of race names the different permutations of morality that continue to shape social formations according to freedom’s relationship to unfreedom.” Reading and thinking about the role of race in structuring societies has been—from Thomas Jefferson’s designation of non-whites as inferior to efforts to demonstrate the value of people who are the global majority—a moral and ethical act. The question of which moral values will prevail is at the center of contemporary conflicts over CRT.

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