This post is part of a symposium on non-reformist reforms. Read the rest of the posts here.
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According to the CRT Forward Tracking Project, since September 2020, at least 750 anti-Critical Race Theory (CRT) measures have been introduced by local school boards, state lawmakers, and the federal government. These attacks, which outlaw CRT along with a host of other social justice histories, texts, and frameworks, serve a dual purpose. On the one hand, these attacks are forward looking – a far-reaching attempt to galvanize a political base for the next election cycle, while deflecting their attention away from the real and immediate dangers facing schoolchildren today. On the other hand, the attacks on CRT and anti-racist education are reactionary – a key part of the overall strategy to limit the political concessions won by the largest demonstration of civil unrest in U.S. history.
Following the police murder of George Floyd and the summerlong uprisings of 2020, movement demands for police defunding, divestment, and reinvestment in robust social policy were met by lawmakers championing law and policy reforms that increased investment in police training and diversification. Mere months later, the Trump administration issued its now infamous Executive Order outlawing equity trainings and activities in the federal government, sparking a wave of attacks on CRT across the national landscape.
It would be a mistake to see these two developments as unrelated. Both liberal reforms that emphasized police training and diversification and anti-CRT legislation, resolutions, and policies sought to return America to a mythical past, where the contradictions between America’s public proclamation of equality and its enduring reality of race and class subordination would be resolved by reforming the otherwise noble systems of policing and public education. Both police reform and educational retrenchment sought to cast racial subordination as fundamentally incongruent with American policing and public education without addressing the myriad ways subordination has been constitutive of both systems. In a cruel irony, examining this dialectical relationship between reform and retrenchment has been a central contribution of the CRT tradition.
In this post, I wish to think with Amna Akbar’s valuable call for lawyers, legal scholars, and legal workers to orient ourselves to a horizon beyond legal reform. I argue that CRT offers a rich and established history to help us answer this call. By situating ourselves in this longer tradition of legal thought and action, we can approach the struggle for non-reformist reforms, not as a search for some self-evident formula, but as a practice that requires close and disciplined engagement with the social and economic conditions we seek to change.
Non-reformist Reforms in the CRT Canon
Fifty years after Brown v. Board of Education—the Supreme Court decision that many consider the single most important racial reform of the 20th century—Derrick Bell wrote that Brown was no more than one chapter in “a long-running racial melodrama,” a failed attempt to resolve the contradiction “between the freedom and justice for all that America proclaimed, and the subordination by race permitted by our highest law.” Even as Brown recognized severe racial injustices in educational opportunity, it did little to disrupt the material conditions that produced Black subordination, while at the same time the decision rendered the question of racial oppression in society more confusing and complex with its promise of equality under the law.
Bell’s examination of Brown challenged the conventional assumption that political demands for educational equality could be successfully subsumed beneath the myopic pursuit of formal desegregation. But he also pointed to a deeper and more perilous problem: the dangers inherent to legal reform itself. For Bell, desegregation was an unpredictable strategy for gaining quality education for Black schoolchildren precisely because the trajectory of any reform would be shaped by America’s prevailing economic and political order, an order characterized by the durability of American racism.
Bell’s early criticism of civil rights racial reform laid the intellectual foundation for Critical Race Theory’s emergence in legal scholarship during the 1980s. Since then, scholars working in this tradition ask how the law makes race a salient and meaningful category in American life, and the explicit purpose of this inquiry has been to challenge racial hierarchies. While CRT has not framed its debate about legal reformism using the term “non-reformist reforms,” the question of whether legal reforms help or hinder the transformation of social relations features prominently in the CRT canon.
Ruth Wilson Gilmore describes non-reformist reforms as “changes that, at the end of the day, unravel rather than widen the net of social control through criminalization.” Within Gilmore’s framework, there is room for broad political contest about which reforms loosen rather than strengthen the hold of the carceral state. This idea, that reforms contain a dual and sometimes competing nature, is present across CRT’s foundational theories. Indeed, CRT offers a theory of reform, “not as a slow, but always upwards pull that must, given the basic precepts of this country and the commitment of its people to equality and liberty, eventually end in the full enjoyment by [B]lacks of all rights and privileges of citizenship enjoyed by whites” but as evidence of a dialectic between continuity and transformation.
As Kimberle Crenshaw explains, no reform can be understood as an unalloyed victory in the struggle for racial equality. Nor can reforms be seen as a mere example of social movement capture by the forces of continuity and legalism. Rather, liberal legal reform signals the “ongoing ideological struggle in which the occasional winners harness the moral, coercive, consensual power of the law.” Within the CRT canon, reform is not cast as the horizon of collective action, but rather as a forced institutional response to a set of ideological challenges. Even when an institution must respond to a “radical challenge to the dominant order,” the resulting change will be shaped by the institution’s ability to nimbly reconstitute its existing set of relations in the face of that challenge. In the post-Civil Rights era, scholars working in the CRT tradition helped to identify the dual nature of reform by questioning the legal construction of racial equality, and by classifying colorblind ideology as a regressive racial doctrine.
This tension—that a colorblind constitution becomes a powerful instrument of the very racial subordination it purports to challenge—has catalyzed a range of CRT scholarship on the paradoxical nature of legal reform. According to Bell, this paradox exists, in part, because legal reforms are a product of a convergence of interests between dominant and non-dominant classes. Occasionally, racial justice can be counted among the interests deemed important by dominant classes, but the dominant group’s commitment to racial justice will not on its own propel change. The result is that widely divergent and even conflicting interests are momentarily carried forward by the same reform. Just as police reforms proffered by political elites following the 2020 uprisings attempted to ban police chokeholds and no-knock warrants, while at the same time ignoring explicit calls to defund policing, CRT teaches that reforms are often carried forward on a narrow common ground that does little to address the root causes that necessitated a change in the first instance.
Non-reformist Reforms as Praxis
So, what might this theory of reform—as fundamentally unpredictable, contested, and perilous, as, in Crenshaw’s words, “carrying both the moral force of the movement as well as the stability of the institutions and interests which the movement opposed”—demand from those who, to borrow Akbar’s words, seek to “build democratic power toward emancipatory horizons?” Mari Matsuda, writing of the legal trial of the abolitionist scholar Dr. Angela Davis, suggests that it demands a multiple consciousness, or the profoundly feminist skill demonstrated by the movement surrounding Dr. Davis’ trial: the capacity to use “a dualist approach to a repressive legal system.” Matsuda writes:
There are times to stand outside the courtroom door and say “this procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom.” There are times to stand inside the courtroom and say “this is a nation of laws, laws recognizing fundamental values of rights, quality and personhood.” Sometimes, as Angela Davis did, there is a need to make both speeches in one day.
Within the CRT tradition, the answer to the unpredictable and hazardous nature of legal reform is not a wholesale rejection of legalism, but rather a dualist approach that continuously reexamines the perils and limitations involved. Importantly, one cannot conduct this reexamination from a distance. After all, it was Bell who critiqued civil rights lawyers for carrying out their advocacy from law offices hundreds of miles away from the political and economic conditions of their clients. For Bell, it was their distance from the circumstances they sought to change that led them to single-mindedly pursue the reform of racial balance. His critique of the civil rights litigators echoes into the present through the words of Derecka Purnell, who argues that many participants in the protests of 2020 were not absorbed into a “political home” that could help them discern between the half-solutions offered by reform and the radical changes needed to eliminate the kinds of violence that drove them to protest in the first place.
Within the CRT tradition, guarding against the derailing potential of half-solutions necessitates a proximity to the conditions one wishes to change, such that one knows when to reach for a legal or non-legal intervention—or when to make both interventions in one day. It is this practice that protects movements from the perils of reformism. What CRT offers to contemporary debates about non-reformist reforms, therefore, is that to search for some self-evident, coherent quality that defines a reform as a non-reformist reform is, perhaps, beside the point. Non-reformist reforms are created through a practice of close engagement with political and economic conditions, where we exercise our multiple consciousness to steward changes toward something that looks to us like justice.