Irami nails this point in ten minutes (he starts out saying two minutes, but realizes it is gonna be longer). To me, it is less about saying something that frankly sounds silly to me--"We are now going to do 'critical race theory'"--than it is about teaching history with multiple layers of information, and with a strong recognition that one must use context and factual analysis as tools to evaluate historical trends and events. In other words, no flabby thinking, and no simple answers--while, on the other hand, one may make historically sweeping judgments based upon a rigorous analysis. Here is my earlier commentary on "critical race theory."
Contrary to what Irami may or may not have intended, in his discussion of Brown v. Board of Education (1954) and how Bell rightly saw the important historical contexts that led to that decision, I can actually make an argument that Chief Justice Earl Warren was, at least in part, motivated by morality, and his own guilt atonement for his role as CA Attorney General in locking up Japanese-Americans in the early part of 1942 in WWII (One sees this in the great bio Jim Newton wrote of Warren; a great biography, I may add). It does not negate at all the arguments Derrick Bell made, and Irami summarizes, about the context in which the US Supreme Court ruled in Brown v. Board of Education in 1954. It is simply that there can be an internally motivated moral reasoning that led the justices to behave as they did in that moment.
More specifically, I can also argue about the moral effect of the decision, which I did to an old WASP lawyer who was mediating a case I had in San Luis Obispo, CA around 1996 or so. The mediator had been a new lawyer in the early 1950s, and had been a young associate at the law firm where John W. Davis was a leading partner. Davis had been a long-time right wing, pro-racist policy senator, and a failed Democratic Party presidential candidate in 1924. He was also a highly respected and seasoned trial lawyer who had argued over 50 cases to the US Supreme Court, and was arguing the Board of Ed's position in the then-Brown v. Bd of Ed. litigation. Davis was arguing the US Supreme Court must continue to defer to southern legislatures in enforcing segregation laws, and the court had no business interfering with state legislatures' decisions in that regard. The mediator said said he had an opportunity to speak personally with Davis during the litigation, and saw the original briefs for the school board as they were being prepared for submission. He said Davis told him the argument was ultimately one that demanded the US Supreme Court respected the limits of judiciary, and avoid burdening courts to have to oversee such broad policymaking, counting how many of each race were in each school's classes, and how to actually judge equality across equipment, buildings, books, and personnel. As we know, he added, the courts did get bogged down, and the use of the phrase "all deliberate speed" became a ready excuse for many bad judges, and some good ones, to delay justice--and we know, he also added, justice delayed can become justice denied. The outcome, too, by the 1990s, had been many schools eventually returned to heights of segregation by race--mostly because the courts did not have the courage to challenge racist housing patterns, for starters. The old mediator, and by then retired lawyer, said all of this, and with a sigh, said, Maybe old John Davis was right after all.
I smiled, and replied as follows, again paraphrasing after 35 years have now passed from that conversation: I said, I get the idea about judicial limitations--and agree with what was happening and been happening, as I just finished at the time Jonathan Kozol's Savage Inequalities, released a few years earlier in the decade, specifically 1991. However, I said part of the law's power is moral. Brown v. Bd of Ed, I said, is a decision which had a strong moral basis, which then gave emotionally based moral protection to those engaged in peaceful protests, something the protestors did not have before. Without Brown, the Southern State governments--and the Klan, local police, and local businesses--could no longer use the law as a moral judgment, i.e. phrasing what they did, including their illegal acts of violence, within a framework of upholding and maintaining "tradition." After Brown, these officials were suddenly on the moral defensive, and now had to deal with individuals having federal rights that gave moral authority to those rights. I then said, if you look at the early 20th Century, before Brown, there had been strong civil rights agitations and movements, but they were easily vanquished and repressed, often with violence that those committing the violence thought they were committing in the name of upholding traditional values, which, though the tradition was racist, nonetheless had a moral imprint based upon the law and community standards. After Brown, however, the civil rights movements were strengthened because Brown's import now required, or at least empowered, federal judges to overrule state laws that discriminated, and, most important, hold state officials accountable to ensure protection of individuals' federal rights, including a right to an equal--not separate and unequal--education, etc.
The old lawyer, when I finished that response, sat back, and smiled. He then said, and I can only paraphrase from so long ago, That is the greatest response to John Davis I have ever heard in all my years. He added he wished Davis could hear that himself, as he thought even Davis would be impressed with the response. He added, in his own experiences with Davis, he wondered if Davis was really racist, which, at that time, I was not in quite the position of personal knowledge of Davis to refute (However, subsequent reading would have allowed me to do that, too). He noted Davis died not long after the decision, and Wiki tells me it was in 1955, meaning less than a year later. I remain very touched by the good faith of the old lawyer in recognizing an argument he had not considered, and how he did not go to his ego to try and refute the point with glibness or clever cynicism, which are hallmarks of bad faith argument litigating. He recognized the moral basis for racial equality, the moral basis for integration and helping people directly who had been harmed through societal norms, and believed in the legal formalism that requires good faith attention to context, as opposed to the Chief Justice Roberts "I'm just an umpire calling balls and strikes." No, Chief Justice, not even the umps do that with any true precision, and such a statement belies so many levels of reality as to be ultimately in bad faith. Hence, CRT is necessary to test and expand understanding against a too often shallow formalism.
