The Conservatism of Liberal Discourse on Race

• Pages: 39-59
• Author: Khiara M. Bridges

39

Chapter 2

THE CONSERVATISM OF LIBERAL

DISCOURSE ON RACE

As Chapter 1 discusses, Critical Race Theory considers itself to

be not only an intervention into critical discourse about law, but also

an intervention into liberal discourse about race. With respect to the

former, CRT sought to center the race question in the Critical Legal

Studies movement—a society of scholars who had taken a decidedly

critical stance towards the law and who were developing a theory

that they hoped would explain the law’s complicity in social injustice.

And with respect to the latter, CRT sought to identify the

weaknesses—indeed, the conservatism—in the way that liberals had

come to conceptualize and talk about race, racism, and racial justice.

Further, it endeavored to develop an alternative discourse that would

explain the persistence of racial inequality in an era of formal

equality, revitalize the way that lawyers and laypersons thought

about race and racism, and lead to more racially just outcomes if

operationalized in the law.

At the time of CRT’s emergence in the 1980s, many liberals

perceived the country to be in the midst of a retreat from the

commitment to racial justice that the Civil Rights Movement had

seemingly forced the nation to make. Then-President Ronald Reagan

had filled the federal judiciary with politically conservative judges

who handed down exceedingly narrow interpretations of the newly

minted civil rights laws, drastically limiting their reach and effect.

Moreover, he appointed as heads of the agencies charged with

implementing and enforcing civil rights laws individuals who were

hostile to racial justice reforms.

1

In this way, the political climate at

the time of CRT’s advent was one in which the limits of the civil rights

laws were becoming crystal clear. CRT endeavored to analyze the

origins of these limits. It concluded, quite controversially, that the

source of what it thought to be the inefficacy and inadequacy of civil

rights laws was not a conservative judiciary and executive branch;

instead, it argued, the source was liberal civil rights discourse itself.

CRT’s willingness to lay blame for the frustration of liberals’ racial

1

Indeed, in 1982, Reagan tapped Clarence Thomas to be the Chairman of the

Equal E mployment Opportunity Commission, which enforces Tit le VII of the Civil

Rights Acts of 1964 and other federal antidiscrimination laws. Thomas’s subsequent

tenure as a Supreme Co urt Justice, having revealed in great detail his extremely

conservative conception of racial justice and the role that law ought to play in

achieving it, illuminates the nature of the Reagan era reversal on racial justice reform.

40

THE CONSERVATISM OF LIBERAL

DISCOURSE ON RACE

Ch. 2

justice goals with liberals might be that which has earned CRT its

“radical” label.

2

While CRT certainly critiqued the impediments to substantive

racial equality that it believed conservative judges and politicians

had erected, it also critiqued the liberal understandings of race,

racism, and racial justice that were embodied in civil rights laws—

reformist and integration-oriented laws that liberals had fought for,

championed, and continued to defend. CRT argued that conservatism

was part and parcel of the way that liberals thought and talked about

racism and racial equality, and they claimed that this conservatism

explained why it was so easy for conservatives to co-opt the language

of civil rights to limit the scope of the civil rights laws. As Professor

Gary Peller describes it, conservatives had used “the very rhetoric of

tolerance, color-blindness, and equal opportunity that once

characterized progressive discourse to mark the limits of reform. But

it would be a mistake to think that today’s conservative discourse is

simply a bad faith distortion of a progressive worldview. Serious

limits to the integrationist vision existed from the beginning.”

3

The

balance of this chapter examines the limits that CRT saw in the

liberal vision of racial justice.

I. Defining Racism

Traditional civil rights discourse tends to define racism as

discrete, easily identifiable, invariably intentional, always irrational

acts perpetrated by bad actors. Let’s unpack this definition a bit.

If acts of racism are discrete, it means that they are cut off and

isolated from other acts, individuals, and institutions. If acts of

racism are easily identifiable, it means that recognizing the

mechanisms that disadvantage individuals and/or groups on account

of race is straightforward, unambiguous, and involves no great effort

(or theory). If acts of racism are intentional, it means that the actor

who engages in the racist behavior purposefully disadvantages an

individual because of their race; indeed, disadvantaging the

individual because of their race is the actor’s sole, or primary, reason

for engaging in the racist behavior. If acts of racism are irrational, it

means that it does not make sense for the racist person to do them.

So, for example, the racist storeowner acts irrationally when they

refuse to serve Asian patrons, as they are denying themselves the

money that those patrons would otherwise spend inside of their

establishment. Finally, if acts of racism are perpetrated by bad

actors, it means that when we are trying to figure out how to

2

See, e.g., Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82

CALIF. L. REV. 741, 747 (1994) (describing CRT as possessing a “radicalism”).

3

Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 762 (1990).