Kimberle Williams Crenshaw

Race, Reform, and Retrenchment: Transformation and Legitimation in

Antidiscrimination Law
Prepared by Joshua Lee

I. Summary and Criticism of the Neoconservative interpretation of anti-discrimination

law
a. Neo-conservative argument:
i. Law and Politics are distinct
ii.By characterizing civil rights position as political, it is illegitimate
b. The Two Rhetorical Visions of Anti-Discrimination Law
i. Expansive view – equality as a result
1. Primary objective of anti-discrimination law is the eradication of the
substantive conditions of Black subordination
ii.Restrictive vision – equality is a process
1. Primary objective of antidiscrimination law is to prevent future
wrongdoing
2. Wrongdoing is seen as actions against individuals
3. Ex. Thomas Sowell: Argues that color blind policies represent only
legitimate and effective means of ensuring an equitable society
c. Author’s Critique of “Color Blindness”
i. Makes no sense in a society where identifiable groups had actually been
treated different
ii.Cultural disadvantages are a result of historic discriminations
iii.Not everyone has been given an equal start
iv.All arguments about what the law is are premised upon what the law
should be given a particular world view.
II. Criticism of CLS attack on civil rights
a. The CLS attack
i. Law is a series of ideological constructs that operate to support existing
social arrangements by convincing people that things are fair
ii.Legal reform cannot restructure society
iii.By engaging in legal reform within the current system, the civil rights
movement is consenting to racial domination
b. Author’s Criticism of the attack
i. CLS’ explanation shows a misunderstanding of racial domination:
domination by consent is not what is really going on, coercion is
ii.Coercion and engagement in legal reform
1. Blacks are coerced into living in a world maintained and created by
others
2. Liberal legal ideology isn’t the problem: racism is
iii.Liberal legal ideology is receptive to some concerns of Blacks
iv.Attacking liberal legal ideology may have the consequences of
disempowering racially oppressed.
III. Modern Race Consciousness
a. Insufficiency of Facial Neutrality
i. Neutrality in laws does not cure the ill of white race consciousness that still
affects blacks
ii.White supremacy has become the ‘white norm’
1. Submerged in popular consciousness
2. Continues in the unspoken form of the “positive social norm”
iii.Racial domination is now being advanced through reference to cultural
inferiority rather than racial.
b. Sense of cultural superiority is at least as important as legal racial consciousness