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July 09, 2021

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Scott Fruehwald

I get what you are saying: CRT has been confused with other things like diversity training and antiracism. As several people said in the other thread, CRT scholars need to make clear to the public what CRT is and is not.

For my own clarity, let me ask these questions:

1. Do CRT scholars support diversity training?
2. Do CRT scholars believe that the IAT test should be administered to students and employees?
3. Do CRT scholars believe in microaggression theory?
4. Do CRT scholars believe in "white fragility?"

Thanks in advance.

Patrick S. O'Donnell

Scott, Do you assume the answer to your questions is either "yes" or "no," full stop? Why must or would there necessarily be consensus on these questions? As with many theories in the social and natural sciences, scholars, researchers, proponents, what have you, often take different positions. So, while there may be some general agreement as to what constitutes CRT, it is likely the case that different academics in this field do not agree on all the particulars, or the answers to questions like those you posed above. This is not religious dogma or theological doctrine, but theory, which of course means it's open to change or modification over time and with different groups of or individual researchers. Different researchers may have different interpretations as to what makes for "microagression" or "white fragility." What is more, they may vary in their perception of the relative salience or significance of these or other topics vis-à-vis aspects or facets of the theory. Considerations of these topics can also be affected by whether or not a theorist accords more or less importance to, say, to feminism, or intersectionality or to Marxist theories on this or that topic.

LawProf John Banzhaf

So, whether CRT is being taught in law schools and/or at the Air Force Academy, I think it's still fair to ask AGAIN - is it valid, and where is the proof?

If critical race theory is a theory which should be taught (or taught more widely) in law schools, it’s probably fair to ask to what extent this theory has been validated.

I don’t know the answer, so I simply raise the issue, and hope someone can provide an authoritative response.

At least in science, and generally in the STEM disciplines, theories are supposed to be tested, and the generally accepted test is the extent to which the theory is able to generate predictions which in fact come true.

Probably the best known example is that Einstein’s theories of relativity were not generally accepted and taught until the predictions which they made were observed.

As Oliver Wendell Holmes, Jr., suggested, “the law” is largely about making predictions: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Few would doubt that what is largely taught in law schools - Doctrinal Law, as in Torts, Contracts, Trusts & Estates, Administrative Law, etc. - is useful in helping to predict the outcome of relevant cases.

For example, law students who have studied Administrative Law will almost always do better, on the average, in predicting how courts will rule in cases involving administrative agencies than students who have not studied this branch of law, and the same is almost certainly true for Torts, Contracts, etc.

In addition, adding Legal Realism by taking into account many of the individual characteristics of judges and justices - e.g., age, gender, race, legal experience prior to assuming the bench, and, probably most importantly, prior legal decisions - and applying it in addition to Doctrinal Law, is something most experienced attorneys do because they know it improves the accuracy of their predictions.

So it probably is not unreasonable to ask whether students who have studied Critical Race Theory in law school are, on the average, any better at predicting the outcome of cases in certain defined areas than those students who have never studied this theory.

A law prof

Scott,
Your question assumes that CRT scholars share uniformly held beliefs on specific issues that don't necessarily cut one way. That would be like asking what all originalists believe about the interpretation of a particular constitutional provision or about what types of evidence that should be considered or not in making a decision. I would hope that no one would speak for all CRT scholars or all originalists as if they are monoliths.

Ediberto Roman

Thanks, Scott. I appreciate the questions re. what I believe CRT scholars support. Let me start by limiting my answer to what I believe--I do not believe I can speak for others--as with many scholarly, theoretical, or political movements, there are a variety of views by followers or practitioners. Thus, the following are my views of the subject as a proud CRT scholar, albeit a slightly traditional/conservatives one (i.e., I am a person of faith and reject communism and socialism as failed undertakings)

First, as for diversity training, I am cautious about training that purports to be and has been labeled as CRT training. As far as I know they are not conducted by CRT experts or scholars. They are for-profit undertakings by non-CRT consultants. I believe these should reject any view that they speak for CRT or are practitioners of that scholarly undertaking--I suspect they do not make such claims and are merely labeled as being CRT trainers by others. I much would prefer if individuals like Roithmayr, Delgado, Crenshaw, and others like them would lead that cottage industry. I have seen videos and read some materials from such trainings, and of those, they largely seem to be addressing diversity and diversity awareness, at times citing Bell when addressing aspects of U.S. history. They thus are a bit of a mix of limited knowledge of CRT and other social science-related training. As such, as I wrote in my post above, I would prefer if such efforts would be viewed as what they are---diversity training and not CRT training.

As for the IAT test, I am read about it and am somewhat familiar with it, but would have to study it further to give you a definitive opinion--it is slightly out of my field---my focus is on U.S. territorial relations, Latina and Latino history in the U.S., and domestic and international immigration policy. I do consider myself a CRT scholar nonetheless, but there are aspects of it I could further my knowledge base--the IAT test is one such area.

As for microaggressions, again, I cannot speak for other CRT scholars (As I suggested previously, I do not believe there are monolithic views on this or other aspects of CRT), but I do believe microaggressions occur against people of color as well as against others (though likely not called microaggressions). As an aside, I do not believe we have met, and while I am very proud of being Puerto Rican and the amalgam of cultures and races that make up my people, I am light-skinned and often confused as Anglo. I thus have faced as many micro and other aggressions from minorities, as from Anglos. I thus at times straddle both worlds, so to speak.

To your question, psychologists use the term microaggressions to describe subtle forms of bias and discrimination experienced by members of marginalized groups. See Lilienfeld (2017). For me, microaggressions are a means to exercise subtle bias and privilege--i.e., from waiting exceedingly long to be seated at a restaurant to aggressive and rude service at that establishment--its affects can be taxing. So I have witnessed it when not viewed as a minority (as a bystander, for example), and at other times when viewed as one. So I would say I do believe in the theory and I suspect I do not believe it is as isolated or individualized as perhaps you might believe.

As for white fragility, I do not like the term because when using it, it is a non-starter. In other words, if I start my conversation by calling you a bigot, I know we are about to fight, figuratively of course. I know you and I had a heated and less-than-pleasant exchange recently, but that occurred after some fairly pointed exchanges and overstatements, perhaps by each of us. I did not enjoy it--frankly. I do not enjoy confrontation, but will not shy away from it if I feel I must engage. Moving away from that tangent, I believe the extent of opposition to CRT and diversity is an example of overreactions. Would I call that or other examples where it has been used in other writings as "white fragility," probably not. It's just not my cup of tea. In fact, I do not believe I have ever used the terms in any of my work. Similarly, I try to avoid the term White Supremacy in my writings for the same reasons. In truth, I believe those terms work better when preaching to the converted---that is not my scholarly focus or goal. Indeed, the reason I write here is to speak to the non-converted. I try to support my views with data---See my Those Damned Immigrants book, for instance. I also avoid the use of the narrative---was not good at it when I tried, and personally do not find it as persuasive as empirical data, historical overview, and case analysis. Though Delgado, Bell, Montoya, and Crenshaw are (and in Bell's case, was) exceptionally brilliant, and extremely effective using it.

I suspect you and I may differ on some, maybe all, points above, but that was my quick and hopefully non-confrontational way to address your questions.

Scitt Fruehwald

Thanks for your very clear answers on your thoughts.

I understand why you can't answer for CRT in general. But, that is the problem. As long as people associate traditional diversity training and the IAT with CRT, they will continue to criticize CRT.

Ediberto Roman

They certainly will continue, but as academics, we need to appreciate the fact that because some call it CRT, it doesn't make it CRT. It is in my view the primary responsibility of CRT scholars to engage in this arena, though as Bell, King and even X late in life welcomed the efforts of allies, to address those differences. Some are doing it, but in many instances, those speaking about, defending, and even attacking it are far from experts on CRT. The lack of voices of CRT scholars in these debates has thus far defined the narrative, the attacks, and even the defenses---sad in my view. Certainly, Kim Crenshaw and Gary Peller deserve credit for their engagement, but others need to be heard. It is indeed an uphill battle when one thinks of the number of states with anti-CRT laws and/or regulations. I believe the number is now over a dozen--Perhaps the above is why I feel the obligation to engage what is and is not CRT, as well as to engage accurate immigration data and narratives, the history and caselaw pertaining to citizenship, the Insular Cases, etc.... Doesn't mean I will win any fights or persuade many, but I still have the obligation to be "Presente" with facts and data. Even detractors after the engagement will hopefully reflect, especially after emotions subside, and at least consider the strength and weaknesses of the respective positions.

Ediberto Roman

John, I believe those could and perhaps should be asked. I do not know if there are or will ever be able to find what you would like: definitive answers. However, other fairly recent scholarly movements including Law and economics, queer theory, and feminist studies, have had their impact in both the law and in society without in the eyes of the many, the definitive answer you seek here. So I am okay with detractors and questions. I just do not believe the detractors and questioners of other theories of the law: realism, positivism, natural law, law and economics, feminist theory, queer theory, etc... are as animated as we witness with the reactions to CRT. They also are not as engaged in terms of the efforts by politicians to end those studies. As the WoPo article I cited in the post mentions, shouldn't academic rigor include debates whether we meet our country's ethos of equality, freedom, and liberty as applied to outsiders. Much like feminist scholars and queer scholars impacted the way laws are viewed and used, CRT has posed similar questions. CRT however seems to be a threat. In the end, I guess my philosophical, theoretical, and political bent leads me to consider those questions, and even the criticisms. In the end, we may live and come from different places, in the broadest sense of the words, and those places and who we are may shape how we view the world and perhaps how the world views and treats us. Isn't that exactly what CRT and many other contemporary legal theoretical undertakings ask us to consider?

Scott Fruehwald

Concerning John's post and your reply,

Some things have (fairly)definitive answers and some don't. The IAT test and microaggressions theory have been scientifically tested, and they both have failed (at least, so far). History, on the other hand, is a matter of interpretation. No one can say whether a particular reading of history is right or wrong.

Patrick S. O'Donnell

History is not merely a matter of interpretation: it is constrained by facts and events, among other things. Of course how one interprets particular events, the atomic bombing of Hiroshima and Nagasaki, for example, may differ (what were the reasons for dropping the bombs? were they morally suspect or unsupportable? politically cogent, sound, or warranted? etc., etc.) but even then some interpretations will be supported by various kinds of evidence and other interpretations less so. In brief, it is not the case that anything goes when it comes to history: some readings are more right or correct than others, some readings are more wrong or mistaken than others, etc. No doubt the values and views one brings to the enterprise has some effect on how one reads historical events and facts, but even that does not rule out some measure of objectivity, some connection to what is or was (more or less true, arguable, etc.). Of course fiction can be, to some extent, a vehicle by which one learns some history or comes to a deeper, perhaps more morally nuanced appreciation of some historical event, but even in such cases it matters, as the late Herbert H. Simon said, that "we get it right." "If we are to learn our social science [or history] from novelists, then novelists have to get it right:"

"Perhaps some of you are familiar with Arthur Koestler’s Darkness at Noon. It is a novel that describes what happens to a particular person at the time of the Russian purge trials of the 1930s. Now suppose you wish to understand the history of the Western world between the two world wars, and the events that led up to our contemporary world. You will then certainly need to understand the purge trials. Are you more likely to gain such an understanding by reading Darkness at Noon, or by reading a history book that deals with the trials, or by searching out the published transcripts of the trial testimony in the library? I would vote for Koestler’s book as the best route, precisely because of the intense emotions it evokes in most readers."

The critical thinking Gradgrinds among us could do worse than listen to another Nobel Laureate in economics, Amartya Sen (1982): "Fiction is a general method of coming to grips with facts. There is nothing illegitimate in being helped by War and Peace to an understanding of the Napoleonic Wars in Russia, or by Grapes of Wrath to digesting aspects of the Depression." And what we are digesting, or what we are understanding, is not merely a matter of interpretation, as it must have some connection to, if you will, a "reality principle."

Patrick S. O'Donnell

As for claiming something has been scientifically tested, as such, tells us very little or next to nothing, depending on the kind of science (positivist? experimental?) and the sort of tests conducted, etc. etc. Much psychological testing is virtually worthless because of its artificial or laboratory settings which are too far removed from the real world. In brief, something like "microaggressions" are not readily amenable to the tests of experimental psychology, the cumulative history and results of which are remarkably meager, uninformative, and disappointing. We have to examine the arguments for same by different criteria, are they plausible? sound? persuasive? In other words, the warrants for their truth are not validated or confirmed in the laboratory or through questionnaires, etc.

Scott Fruehwald

Instead of talking about science in general, which is meaningless for the present discussion, look at the science behind IAT testing and microaggressions. Start with Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and Legal Education at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3557041 and Edward Cantu (Legal Scholar) & Lee Jussim (Social Psychologist), Microaggressions, Questionable Science, and Free Speech, SSRN. 2021. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3822628.

Patrick S. O'Donnell

I was not speaking about science in general or in the abstract, as I made explicit reference to the academic and experimental “science” of psychology, its reliance on experimentation, etc. As Jon Elster wrote about many of our emotions, “we can learn more from moralists, novelists, and playwrights than from the cumulative findings of scientific psychology [by this Elster is referring to academic, experimental psychology which is neo-positivist and behaviorist, as well as radically reductionist].” And I agree with Elster’s belief “that prescientific insights into the emotions are not simply superseded by modern psychology in the way that natural philosophy has been superseded by physics. Some men and women in the past have been superb students of human nature, with more wide-ranging personal experience, better powers of observation, and deeper intuitions than almost any psychologist I can think of.” If this is true with regard to much of our emotional experience, it would be all the more pertinent with regard to psychological research on “microagressions.”

Anonymous Bosch

Simpler questions:

Do CRT scholars generally believe that (1) the USA is a settler colony predicated upon the illegitimate usurpation of other peoples land and resources and/or (2) that (i) further diversification of the ethnic and religious composition of the settler colonial class and (ii) socializing/nationalizing property resources (and property rules structuring/governing those resources) amongst that settler class will somehow make the USA more legitimate?

If so, is CRT just a cheap veneer for identity-will-to-power and should First Nations/"Indian" peoples, and white folks, view its proponents as DOUBLE parasites (and as mortal enemies)?

Further, should First Nations/Indians treat CRT's invocations of their suffering at the hands of the Anglo-dominated settler class to be a form of illegitimate narrative appropriation, disingenuously employed to legitimate CRT scholars' continued presence upon their land and benefiting from the systems established by the white settler colonists? Should indigenous people deconstruct CRT's claims about equality and social justice as mere rationalizations and tools by which to disingenuously try to legitimize: the state; such scholars' citizenship/presence upon the land; and increased immigration?

(As a corollary, should First Nations/Indians deem Unreconstructed Marxists' - i.e., those who oppose CLS, CRT, intersectional Marxism, etc. - theoretical treatment of their identities (i.e., as ultimately just a function of false consciousness, as being "epiphenomenal", etc.) to be racist?

anon

AB

I get your point here about the "original sin" and I would think you would include the descendants of the all the colonizer nations, including England, France and Spain, in your critique, no?

The fact that the English prevailed in wars in "North America" would not seem to dilute, in my view, the legacy of atrocities committed by these other countries in this hemisphere. The US is living with the consequences of those "original sins" as well, especially with respect to the legacy of Spanish colonization in Central and South America?

Finally, the construct of "race" is so bogus. People from a country like the US trying to identify with only one "race" seems to me to be pitiful. It leads, among other things, to the spectacle of "white people" of European descent claiming to be "people of color" and pointing the finger at other "white people" as oppressors!

TO be sure, all over the world, humans use differences as an excuse to torture and exploit each other. This happens or has happened in nearly every society, and "race" is only one construct that is used.

Has it been used in the US to disadvantage some groups? Yes. But that does not legitimize the constant drumbeat of discussion about the inherent traits of "white people" any more than it justified continued stereotyping and discrimination against other groups.

The answer to hate is to stop hating, not just an effort to scratch and claw your way to top so that you can now dish it out in revenge.

Anonymous Bosch

The original colonizing populations are parasites. The people who moved to the USA precisely in to benefit from the great systems they - let's not kids ourselves, the Anglo-Saxons - created (i.e, to live in a better place than the shitholes they came from), but who now want to shit on such systems as being "systemically racist," are double parasites.

The only innocent parties are the descendants of African slavery present in America. Even so, in this generation, for the first time, that demographic might have the beginnings of the wealth, power, and freedom of mobility by which to leave. The question is whether they should, rather than perpetuate the settler colonial regime under the new guise of the multiculti rainbow. If First Nations people asked them to do so, would they?

A European perspective, moreover, makes perfect sense of the concept of a "White" race: it's a cheap trick by the Irish and Eastern Europeans to try to feel equal. The original settlers did not think of themselves in such terms. There's a reason why NINA signs were still to be seen in NYC right up to the 1910s... Whether it be in terms of Englishness, Britishness, "Nordic", then "Aryan", etc., whiteness is just about including more people into the in-group. (That's why it's so morally reprehensible: it's disgracefully inclusive).

Some time in the early 20th century the Italians and Jews became white too. I also harbor a pet view that, today, many Arabs, East Asians, Persians, Brahman Indians, and certain other "visible minority" groups in all Blue States, and in many Red State cities like Atlanta, NOLA, Houston, Dallas, etc. are actually white. They are treated as in-group, even if it's in their strategic interests to deny it's the case... So when the meat market hires a bunch of leftist (INC-prejudiced) Brahman-class Indian Ivy-league educated females as diversity hires, it's more than just a bit of a joke.

But, yeah, when you have the descendants of the Iberian colonists of Central and South America (and the islands) move to the Anglosphere for a better quality of/far better organized life (or 'cause their parents had to make a run for it, just as their cousins may have to do in the coming generation), and then scream bloody revolution, it is simply impossible to take seriously. Still, the same question may be asked of the Mayan and Aztec descendants who shout the same thing upon the land of the Sioux and the Cree: what the hell are you even doing there? (To be clear, I know EXACTLY why you chose to move there. The question is, how the hell do you expect me to wade through your hypocrisy?).

In terms of "the" answer, the reasons for hatred - especially ressentiment - are not going to disappear just because whitey wants everyone to be liberal and to get along, especially when demographic trends are not on her side and the others now have a real taste for blood and power.

anon

AB

Your thoughts are interesting, totally politically incorrect (which I like), but, when it comes to practical solutions, nobody could and nobody will ever adhere to your views.

The notions that humans are human is obvious. The pretexts that they use to exploit one another are so disgusting.

For example, the way you use the term "whitey" and claim that it is an "whitey" ploy to seek tolerance and unity. This is a disgusting iteration of that which I thought you oppose! How dare you? What give you the right to post racial or ethic slurs? And, your crazy rendition of who is "white" just proves the literal insanity of race baiters everywhere. Sorry, AB, but this rant sounds demented.

I suppose, you are in good company with the leftists on this site; in the end, though I doubt you wish to do this, you are supporting them in their quest to use racial and ethnic animus and resentments to destroy this society. (In order to "build back better" with guess who in charge? Or, in your view, is the goal to force all "whiteys" to abandon the Western Hemisphere?)

We can rest assured that NO ONE will follow your prescriptions. As such, pontificate away! It is always good to hear these views exposed.

Anonymous Bosch

anon,

I'm unsure what you mean. Which prescriptions have I offered? My aim was merely to point out just a couple of ways in which CLS and its mutant child CRT are disingenuous, hypocritical bunk. Not the stuff presented in American media today for whatever propagandistic purposes, but the scholarship of Unger, Kennedy, Horwitz etc., followed by that of Crenshaw, Delgado, etc. They are literally parasites on a system they despise and wish to transmogrify.

I don't owe anyone any solutions either. You could glean two from what I said, but one of them you'll find horrifying. "García says she teaches critical race theory as an 'academic framework' to analyze the fact that the founding and its documents harbored a 'duality' between ideals of equality and realities of inequality and slavery." There are at least two ways you can go the Founders' rhetoric.

One path is to treat is as such: as mere propaganda to advance the cause of separating from the British Crown. In other words, it's a "white" settler colony and everything said was just window dressing. In turn, CLS' and CRT's claims about better legitimizing the state and advancing REAL "social justice" and REAL equality amongst the settler colonial population are equally complete bullshit and so ought to be treated as such. You think the racist white settler colony and its structurally biased rules are unfair so you're going to radically transform them - with skills you don't actually have and knowledge you don't possess - rather than fucking off from other people's land??? Therein lies the path of, not just 70 million Trump voters, but all working and middle class whites, becoming scores of millions of Anders Breiviks. This is not an impossible development. It would entail that every Democrat better have an exit strategy from the USA if they want their children to actually grow up. It is a "solution."

The other path is to appreciate that the Framer's ideals of LIBERTY and some modicum of equality weren't merely sincere, and didn't just form the basis for establishing institutions in which they could be made manifest, but also the same aspirational norms shared their fiercest critics today (even if the disagreed about the applications of those norms). Theirs were historically contingent, path-dependent norms generated by ANGLO PROTESTANT culture. (No Irish papists would have, or could have, made America. Islam, too, would never have created a state wherein there are free and equal Hindus, Sikhs, Buddhists, etc., let alone ones who can serve as lawyers, judges, and politicians harboring REAL power therein). Norms that had no reality in most of the shitholes from which most Americans' ancestors hail from - unto this very day. But then you could make the case that it's those self-same norms that the Founders' fiercest critics are employing today - albeit with strong disagreements about their applications, and which those critics CAN apply only because of the systems created by the Framers and the Anglo Protestant founders.

If you go that route, though, then it'd be a terrible mistake to tear down the statutes of Washington, Jefferson, etc., because it's only because of their values that brown, black, and yellow immigrants were PERMITTED to move to the USA anyway and to benefit from the far more sophisticated (Anglo-constructed) economic, commercial, and social norms that STILL make the USA such an attractive place to live relative to 95% of the planet. The Founders are the tie that bind that rationalizes your presence on the ground, let alone the the basis for keeping or reforming any of your laws. Pull that away and you'll turn to tribalism pretty quick. As I said before, CRT REQUIRES whitey to remain a legal liberal and to tolerate what its proponents want done to the country.

But, again, I owe you no solutions. The 20th century was America's. It's looking less likely by the day that the 21rst will be hers too. The demographic, economic, and political future of the world may very well be in the hands of those who hate both whitey AND multiculturalism. If so, you can take both your legal liberalism and CRT "theories" and shove them up your asses for all the good it will do you.


Scott Fruehwald

Here is a Complaint filed by a public school teacher against a school board. https://345h6j74bj93ldnop2phvizr-wpengine.netdna-ssl.com/wp-content/uploads/sites/12/2021/06/202106029-Deemar-v.-D65-Complaint.pdf It calls their practices critical race theory, but they seem to me to be antiracism. Brian Leiter said the same thing. https://leiterreports.typepad.com/blog/ "(As an aside: while very little of the insane materials and training described in the complaint have anything to do with Critical Race Theory [CRT] as it evolved in Amercian law schools in the 1980s and 1990s, the connection to the hucksters Robin DiAngelo and Ibram Kendi is clearer. I'll say a bit more about CRT next week.)"

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