Critical Race Theory and the Law’s Inability to Change Hearts

by John Ellis

Why the Law?

In his letter “to the churches of Galatia” (Gal, 1:2), the Apostle Paul offers pastoral-and divinely inspired-counsel to “recovering Pharisees.”[1] Theologian and pastor Philip Ryken goes on to explain, “Most former Pharisees have a problem, however. It’s hard for them to leave their legalism behind. … This means that most former Pharisees-indeed, most Christians-are still in recovery. There is still something of the old legalist in us.”[2] Like the letter’s original recipients, we, too, need the reminder, in the words of Thomas Schreiner, “that the law is not the source of life.”[3]

Backing up into the Old Testament, we see that after giving God’s people the law[4], Moses implores the Israelites to “circumcise your hearts” (Deut. 10:16). Commentator J.G. McConville points out that Moses’ plea comes on the heels of the recounting of the golden calf debacle at the base of Mount Horeb.[5] Moses is arguing that God’s people are not truly God’s people based on external covenant signs. Even standing at the foot of the mountain where and while God was directly giving Moses His law, God’s covenant people revealed their rebelliousness. The law from the very hand of God wasn’t enough. Their hearts needed to be changed. As expressed by the prophet Ezekiel, “And [God] will give you a new heart, and a new spirit [God] will put within you. And [God] will remove the heart of stone from your flesh and give you a heart of flesh” (Ezekiel 36:26). Once again quoting Thomas Schreiner, “the law is not the source of life.”

This truth, of course, has raised many questions, misunderstandings, and debates throughout Christendom’s history. As Paul asks in Galatians 3:19, “Why then the law?”

Touching briefly on the soteriological, Calvin believed that the salvific role that the law plays is, “in order to make transgressions obvious, and in this way to compel men to acknowledge their guilt.”[6] Importantly for the objective of this article, though, Ryken adds, “Calvin called the law’s ability to reveal sin the ‘first use of the law.’ This is not the law’s only use, of course. … its second use is to restrain evil. There is also a ‘third use of the law.’ Paul will introduce this use in chapter 5 [of Galatians], where the law shows the Christian how to live for Christ.”[7]

Helping us see a fleshed-out explanation for the second use of the law, Calvin writes, “At least by fear of punishment to restrain certain men who are untouched by any care for what is just and right unless compelled by hearing the dire threats in the law. But they are restrained, not because their inner mind is stirred or affected, but because, being bridled, so to speak, they keep their hands from outward activity, and hold inside the depravity that otherwise they would wantonly have indulged.”[8] Contained in that quote, we again see the assertion expressed that the law does not give life; the law does not because it cannot change hearts. Yet, as Calvin rightly argues, even with its soteriological impotence acknowledged, the law has value.

Surprising many, the law’s paradoxical impotence and value (and transitioning to a more general definition of law) is something that the much maligned and slandered Critical Race Theory (CRT) recognizes.

Critical Race Theory and the Law

As Republican led state after Republican led state slams the door shut on CRT’s inclusion in public classrooms[9], the fury around CRT is growing exponentially. As a group, and alongside their white nationalist bedfellows, white evangelicals (Christian nationalists) have sharpened their pitchforks, lit their torches, and constructed crosses to burn on the rhetorical lawns of anything “tainted” by CRT. There are many cultural, sociological, and philosophical reasons for this growing angry mob, importantly including the sleight-of-hand used by men like Paul Gottfried[10] to deceive white evangelicals (and white conservatives in America, in general) into responding out of fear and anger to buzzwords that are barely understood by the talking heads spouting them, much less understood by their intended audience.

Lord willing, in the near future, I’m planning on writing more specifically about the deceit behind the anti-CRT movement. While at a coffee shop with a friend recently, we discussed this very thing. I warned that this furious and furiously growing anti-CRT movement is leading to a demonic place. I have several writing projects on my plate, including the longer look at white evangelicalism that I’ve been working on, and I’m not sure exactly when I’ll be able to delve into the intricate, intertwined histories of critical theory, CRT, and the self-serving deceit and manipulation of conservatives by prominent paleoconservatives.[11] For now, moving forward in this article, I believe that I can be an edifying alternate voice by briefly looking at CRT’s perspective on constitutional law and pointing out the favorable parallels with the Bible’s teaching on the law’s inability to change hearts while still acknowledging the temporal value of law.

In their brief yet helpful and easily accessible primer on CRT, Richard Delgado and Jean Stefancic contrasts CRT with traditional civil rights movements by explaining, “critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”[12] I share that quote with the understanding that, especially considering the enflamed tensions in which I’m writing, probably every one of those confessed tenets raises red flags for conservative readers. For the record, as a brief caveat, I do believe that the core tenets of CRT deserve thoughtful critique. In fact, at least the initial developers of CRT agree. Critical Race Theory is not a monolithic worldview, no matter how loudly your favorite conservative talking head insists otherwise. Recognizing the disparateness of CRT, Delgado and Stefancic strove to distill the movement into a series of core tenets that would find agreement (if not further definition and application) across the board within the broader discourse. It should be noted that I will not be touching on the strawmen extremes found on the fringes nor the strawmen constructed by the anti-CRT movement used in their demonization of Critical Race Theory.[13]

That caveat out of the way, in the future I plan to deconstruct each tenet and draw out the parallels to Biblical ethics and the Bible’s perspective on anthropology and culture in general. In this current article, as written above, I’m going to drill a little into the final tenet: CRT’s critique and rejection of classical liberalism’s belief in the neutrality of constitutional law which, frankly, a critique and rejection I find myself in almost total agreement with.

At its core, CRT is a set of legal theories that have been expanded into literary and sociological fields. And it’s a set of theories that at their best and most useful are absent soteriological and eschatological tones and language. This is an important point. Much of the evangelical criticism of CRT hinges on attacking it as a perceived alternative to the gospel of Jesus Christ. Obviously, I’ve never spoken to them about this, but I feel confident in claiming that Derrick Bell and Alan Freeman would both be flabbergasted at this specific criticism, especially considering that the evangelical critics are attributing worldview weight to their theories that the two men never intended and a weight that the two men never included in their theories. Strawmen can’t fight back, though, I guess; not to mention that fear is an important tool of manipulation.

CRT’s belief in the neutrality of constitutional law is best displayed in three essays: “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation” by Derrick A. Bell, Jr., “Brown v. Board of Education and the Interest Convergence Dilemma” by Derrick A. Bell, Jr., and “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” by Alan David Freeman.

In the mid-70s, the triumph of Brown v. Board of Education was as sacrosanct a symbol as any held up by the civil rights movement. SCOTUS’s decision in 1954 seemingly delivered a blow from which Jim Crow and institutionalized racism would not be able to recover. Mopping up was all that was left for the growing civil rights movement. Moving into the 70s, many white dominated municipalities and school boards continued to resist integration. The NAACP and their deep bench of committed, idealistic lawyers took on local case after local case, doing their best to ensure that Brown v. Board of Education was realized. “The problem, according to Bell, was that the lawyer’s commitment to integration often flew in the face of what was best for the African-American communities they legally represented, or what those communities themselves desired.”[14] First published in the Yale Law Review in 1976, Bell’s “Serving Two Masters” opens with a lengthy quote from a “Coalition of black community groups in Boston.” I’m posting that quote in full:

“In the name of equity, we … seek dramatic improvement in the quality of the education available to our children. Any steps to achieve desegregation must be reviewed in light of the black community’s interest in improved pupil performance as the primary characteristic of educational equity. We define educational equity as the absence of discriminatory pupil placement and improved performance for all children who have been the objects of discrimination. We think it neither necessary, nor proper to endure the dislocations of desegregation without reasonable assurances that our children will instructionally profit.”[15]

With this first essay (as well as the second), Bell is writing specifically to lawyers and law students. Asserting that, “neither the NAACP nor the court-fashioned remedies are sufficiently directed at the real evil of pre-Brown public schools,”[16] Bell asks lawyers to consider how the weight of ostensibly faceless organizations paying their wages often produces a conflict in whom they actually represent. Arguing that “racial balance” has become a symbol that fails to consider the nuances of desegregation as well as a failure to acknowledge courts’ decisions inability to affect change at the heart level of the school administrators, white teachers, and white parents who resented the forced desegregation, he urges lawyers to consider legal remedies that deal with the real concerns and issues at stake within the black communities they are tasked with serving. As Bell claims, “remedies that fail to attack all policies of racial subordination almost guarantee that the basic evil of segregated schools will survive and flourish, even in those systems where racially balanced schools can be achieved.”[17]

Questions of legal ethics are mainly Bell’s concern with “Serving Two Masters.” After deconstructing several high-profile desegregation cases and legal precedents, Bell, who was a highly respected law professor, encourages lawyers and law students to consider that, “Effective representation of these parents and their children presents a still unmet challenge for all lawyers committed to civil rights.”[18] In other words, whom are they really representing? Bell argued that regardless of whoever signed the checks, the lawyers’ true clients in desegregation cases were the parents, children, and larger black communities. Furthermore, as he believed and argued, “Simply placing black children in ‘white’ schools will seldom suffice. Lawyers in school cases who fail to obtain judicial relief that reasonably promises to improve the education of black children serve poorly both their clients and their cause.”[19] In his essay “Brown V. Board of Education and the Interest Convergence Dilemma,” Bell expounds further on the ways that racial balance can be self-defeating owing to the lack of neutrality within the law.

Pointing out again that Brown V. Board failed to achieve true academic equity, Bell takes a deep-ish dive into the proposed legal principles serving as the legal foundation for SCOTUS’s decision in 1954. After looking at and rejecting the arguments of law professor Herber Wechsler, who, while he, “welcomed [Brown v. Board’s] result, he criticized its lack of a principled basis,”[20] Bell then concludes that the argument from Charles Black that the legal principle undergirding Brown v. Board is based in the equal protection clause is correct. According to that argument, “The conclusion, then, is that the equal protection clause clearly bars racial segregation because segregation harms blacks and benefits whites in ways too numerous and obvious to require citation.”[21] The problem, as Bell identified, is “Whites simply cannot envision the personal responsibility and the potential sacrifice inherent in Black’s conclusion that true equality for blacks will require the surrender of racism-granted privileges for whites.”[22]

Changing the law by overturning segregation fails/ed to enact the cultural changes necessary to achieve true academic equity/justice. Finding means to ostensibly exclude black parents from PTA boards, placing black students under the auspices of school administrators and teachers imbued with racial prejudice, existing in educational settings alongside white classmates who resented the presence of black students, Brown v. Board of Education failed to account for the sinfulness of humans, specifically white people, in this case. In the essay I’m going to look at next, Alan Freeman cogently argues that for laws (and societies) to achieve maximum justice, law (and society) needs to adopt a victim perspective instead of a perpetuator perspective. From the viewpoint of Christian ethics, Brown v. Board of Education is an example of how laws enacted from the perpetuator perspective are less able to aid in the desire to see Kingdom ethics related to justice and righteousness take root at the ground level of culture, but more on this in a few paragraphs.

Interestingly, and serving as a pedagogical transition to Alan Freeman’s essay, Bell saw a motive behind Brown v. Board of Education that included, “consideration of the decision’s value to whites, not simply those concerned about the immorality of racial inequality, but also those whites in policymaking positions able to see the economic and political advances at home and abroad that would follow the abandonment of segregation.”[23] This is where the ire of conservatives hits a boiling point. Herein lies the origin of CRT’s claim that racism is an innate part of the American experiment (and experience of people of color in America). If Bell’s accusation against Brown v. Board of Education holds water, arguments decrying the existence of systemic racism take a hit. Many anti-CRT arguments rest on the principle that constitutional law is neutral. By that, it’s assumed that if overt acts of racism have been legislated away -segregation, red-lining, Jim Crow, etc.- systemic racism cannot exist, ergo America is not innately racist. The heart of Bell’s argument contends that the very structures of this country are racist. The fact that he took on a landmark civil rights case and a point of pride for all “liberty loving,” “non-racist” Americans raises the stakes, for both sides.

In brief, Bell argued that as the Cold War heated up and the American way of life was increasingly and consciously pitted against the Soviet way of life, integration became an embarrassment for people in power in this country. As Delgado and Stefancic put it, “It would ill serve the U.S. interest if the world press continued to carry stories of lynchings, Klan violence, and racist sheriffs.”[24] Brown v. Board of Education didn’t stem from altruism nor the desire to increase America’s commitment to ethical racial justice. It was self-serving, as racism always is. And, as it turned out, and pointed out by Bell starting with “Serving Two Masters,” Brown v. Board of Education turned out to be a red herring regarding racial justice. It didn’t achieve educational equity because that was never its goal. Its goal was to erase some of the more embarrassing external heritages of America’s racist culture. The question remains, though, was Derrick Bell’s assessment of the motive(s) behind desegregation correct?

Well, according to constitutional scholar and legal historian Mary Dudziak, Bell was, in fact, correct. Published in 2002, over two decades since Bell first took aim at Brown v. Board of Education and the belief in the neutrality of constitutional law, Dudziak’s book Cold War Rights: Race and the Image of American Democracy offers hard evidence behind Bell’s accusations. Dudziak’s research into the State and Justice Departments’ archives uncovered a lengthy internal conversation about how Jim Crow and segregation was an impediment to the fight against communism. It was that conversation that prompted the Justice Department to take up the cause of desegregation.[25] Truth be told, the Supreme Court’s decision reflected a self-serving realization that segregation was an existential threat to the American way of life as pertaining to its Cold War aims of casting the American Dream as a righteous combatant against Soviet collectivism; specifically, overt racist polices were viewed as a threat to the American way of life for whites. Even at its best, desegregation reflected a perpetrator perspective that did little to change the actual circumstances of victims.

The words perpetrator and victim are two boogeyman buzzwords in the lexicon of paleoconservative movement and its progeny now known as white nationalism (populist Trumpism) and Christian nationalism. I understand that their very inclusion in this article are triggers for those who seek to discredit my overall thesis and agenda. Those people I’ll probably never convince anyway. For other readers, even those who are skeptical, I want to begin this next section -a look at Alan Freeman’s essay “Legitimizing Racial Discrimination through Antidiscrimination Laws”- by making a personal observation: I found Freeman’s explication of perpetrator and victim perspectives and their impact on society, specifically the law, fascinating and immensely helpful. Doing an end run into the conversation, I want to highlight Griggs V. Duke Power Co. to start off.

Like Brown V. Board of Education, the Civil Rights Act of 1964 is considered another consequential landmark of the civil rights movement. The 1971 decision in Griggs V. Duke rested on SCOTUS’s interpretation of Title VII of the CRA of 1964. In summary, prior to the CRA of 1964, Duke Power’s plant in Dan River, NC, restricted blacks to the “labor department.” The rub was that the highest paid position in the labor department was paid less than the least paid position in the other departments from which blacks were excluded. With the passage of the CRA of 1964, Title VII prohibited discrimination on the basis of race, color, religion, sex, or national origin, meaning that Duke Power’s Dan River plant could not legally bar blacks from working in the other, higher paying departments. So, what did Duke Power do? They instituted competency tests for employment in the departments that blacks had previously been barred from working in. As Alan Freeman put it, “The case posed the problem of the ‘ostensibly neutral practice’ introduced as a substitute for blatant racial discrimination and achieving substantially the same results.”[26]  

In layman’s terms, Duke Power was able to claim neutrality because whites had to take the competency tests, too. It didn’t matter that blacks were far more likely (by design) to fail. After generations of systemic educational inequality and subsistence living, blacks were barred from opportunities based solely on conditions that were the direct effect of racist causes at the hands of the majority culture. As CRT points out, laws (and corporate policies) are not neutral. Thankfully, SCOTUS decided against Duke Power.

According to Freeman, SCOTUS’s decision against Duke Power is a unique instance of the American legal system adopting a victim perspective instead of the norm of the perpetrator perspective. Alan Freeman explains, “The perpetrator perspective presupposes a world composed of atomistic individuals whose actions are outside of and apart from the social fabric and without historical continuity. From this perspective, the law views racial discrimination not as a social phenomenon but merely as the misguided conduct of particular actors.”[27]

As a side yet related note, one of my critiques of white evangelicalism is the movements embrace of an Epicurean tinged individualism (charting a course through Enlightenment epistemologies via the Scottish Enlightenment’s folding in of Romanticism, leading to our beloved – by both sides – expressive individualism). The ideological results fly directly in the face of the Bible’s covenantal emphasis. To put it bluntly, Freeman’s critique runs directly parallel with one of my criticisms of white evangelicalism. Fleshing this out a bit, none of us live in a vacuum; there is no such thing as a victimless crime. The Bible clearly teaches, contra Cain, that we are our brother’s keeper. The Bible’s ontic emphasis is on relationship, especially covenantally speaking. Sin breaks relationships, first between human and God and then between human and human. Our sin bears down on the world around us leaving consequences in its wake. It’s beyond bizarre that those who pretend to hold a worldview that believes in original sin, the Fall, the Curse, and covenantal relationships (the headship of the first Adam versus the headship of the final Adam) recoils so violently at the mere suggestion that hundreds of years of blatant racial discrimination stopped bearing fruit because of few laws were enacted. Likewise, it’s beyond bizarre that white evangelicals who claim to hold to a Biblical worldview insist that they act solely as atomistic individuals. It’s not a mistake that the libertarian Ayn Rand society has as one of its rallying cries, “We are not our brother’s keeper.” Echoing Cain should cause Christians to rise in denunciation because the echoes of Cain are the Devil’s attacks on the gospel of Jesus Christ.

I do not know if Alan Freeman died repenting of his sins and placing his faith in Jesus or not. I do not know if he believed the gospel of Jesus Christ. I do know that his essay helpfully unpacks the perpetrator perspective versus the victim perspective within the discipline of legal theory in ways that resonate with Biblical anthropology and ethics (and ontology).

Diving back into that legal theory, he explains, “From the victim’s perspective, racial discrimination describes those conditions of actual social existence as a member of a perpetual underclass.”[28] Adding to that, Freeman goes on to write, “The perpetrator perspective sees racial discrimination not as conditions but as actions, or a series of actions, inflected on the victim by the perpetrator.”[29] Mirroring the stated position of most conservatives, the perpetrator perspective believes that racism is undone by simply providing a legal mechanism to stop the actions. Referencing Derrick Bell’s complaint about Brown V. Board of Education, though, laws do not change the heart, nor do they change the conditions that previous actions have created. And conditions have long ranging and long-lasting effects.  

In the margins of the essay, I wrote, “actions create conditions.” While prohibiting certain actions is definitely a desired legal outcome in many cases, that prohibition will not undo the conditions created by the sinful, racist actions. If society has allowed, and even encouraged, actions that have created conditions that are oppressive and unjust, justice demands that society do what’s necessary to change the conditions. As Freeman argued, this was positively seen to a degree in SCOTUS’s decision in Griggs V. Duke. The decision recognized that competency tests, while neutral and non-discriminatory on paper, were, in fact, a violation of the Civil Rights Act’s spirit. The conditions that ensured that black applicants failed the competency test were created by majority society and not by those suffering under its unjustness. It’s not the oppressed responsibility to “fix” the problems created by the perpetrators. From a Christian perspective, the Bible unequivocally puts forward an ethic calling for God’s people to serve and aid the oppressed by righting wrongs of injustice, even at cost to themselves. The Bible’s ethics are often situated from a victim’s perspective.

The impotency of the law as well as the ethic that seeks to change the condition of the oppressed expressed in the three essays that are considered to be among the bedrock (and founding) CRT documents are clear and succinct evidence of common grace working out within the discipline of legal theory. Instead of demonizing CRT, God’s people should give thanks when and where CRT aligns with Kingdom ethics. As an aid to this, it’s important to compartmentalize what CRT intends. Instead of giving CRT soteriological and eschatological weight that the authors never intended, it’s helpful to view the theories as proposed temporal solutions to temporal problems, which is exactly what Bell and Freeman intended. Just like it would be good and right to provide aid to an atheist fireman as he seeks to extinguish the fire ravaging our Muslim neighbor’s house, it’s good and right (and righteous) to listen to and engage in proposed solutions in the fight against the awful injustice of racism. It’s right and just to seek legal solutions to change the conditions of the oppressed. And that doesn’t require expectations that the law can’t bear. In fact, recognizing that the law cannot change hearts helps move us into Freeman’s victim perspective. Doing so doesn’t deny the gospel. Doing so reveals that the gospel is changing us in ways that reflect the selfless love of our King.

Soli Deo Gloria

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[1] Philip Graham Ryken, Galatians, Reformed Expository Commentary, ed. Richard D. Phillips and Philip Graham Ryken (Phillipsburg, NJ: P&R Publishing, 2005), 3.

[2] Ryken, Galatians, 4.

[3] Thomas R. Schreiner, The Law and Its Fulfillment: A Pauline Theology of Law (Grand Rapids, MI: Baker Books,1993), 61.

[4] There is scholarly debate about the extent and definition(s) of the word “law” and its conjugates throughout the entire Canon. Differences, nuances, and competing emphasis can be found in John Calvin, Tom Schreiner, E.P. Sanders, Karl Barth, etc., but the nature and possible conclusions of that debate is well outside the scope of this article’s objective.

[5] J.G. McConville, Deuteronomy, Apollos Old Testament Commentary, ed. David W. Baker and Gordon J. Wenham (Downers Grove, IL: IVP Academic, 2002), 200.

[6] John Calvin, The Epistles of Paul the Apostle to the Galatians, Ephesians, Philippians and Colossians, Calvin’s New Testament Commentaries, trans. T.H.L. Parker, ed. David W. and Thomas F. Torrance (Grand Rapids, MI: Eerdmans, 1996), 61.

[7] Ryken, Galatians, 132-133.

[8] John Calvin, Institutes of the Christian Religion 1, The Library of Christian Classics Volume XX, trans. Ford Lewis Battles, ed. John T. McNeill (Louisville, KY: Westminster John Knox Press, 1960), 358.

[9] Florida, where I currently live, is the latest as of the writing of this article.

[10] For those interested, tug a little on the thread that connects Herbert Marcuse with Gottfried.

[11] I’m sure that Rod Dreher would recoil in horror and anger at any connection with his name to Paul Gottfried and the paleoconservative movement. However, and as a brief appetizer for my future entrée of an article, in his recent book Live Not By Lies, Dreher warns that America is drifting towards totalitarianism. Dreher rightfully understands that CRT is a threat to modernism/classical liberalism (for the record, I believe that modernism/classical liberalism is a millstone around the necks of white evangelicals). Calling it the “tyranny of wokeness” (p. 17), Dreher views an emphasis on social justice, intersectionality, and other ill-defined (if not outright un-defined) boogeyman buzzwords as forms of soft-totalitarianism leading to out-right tyranny. As evidence, he privileges the experiences and perspectives of Soviet dissidents who saw the horrors of totalitarianism at first hand. These privileged narratives are to be heard and weighed as great evidence. As I wrote in the margin of the Live Not By Lies, that’s ironic because the epistemic privileging of personal narratives is one of the core tenets of CRT.  Out of one side of their mouth, the anti-CRT movement adopts tenets of CRT when it suits their objectives while out of the other side of their mouth, they continue to condemn in no uncertain terms the very theories they are utilizing. They’re able to maintain this blatant hypocrisy because almost no one who believes that CRT is evil has actually taken the time to read CRT’s primary documents.

[12] Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York: New York University Press, 2012), 3.

[13] In part, this entire article is intended as a call to turn from strawmen and interact with robust and substantive takes on CRT.

[14] “Intellectual Precursors: Early Critique of Conventional Civil Rights Discourse” Critical Race Theory: The Key Writings That Formed the Movement, ed. Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas (New York: The New Press, 1995), 1.

[15] “Coalition of black community groups in Boston” quoted by Derrick A. Bell, Jr., Critical Race Theory: The Key Writings That Formed the Movement, 5.

[16] Bell, “Serving Two Masters” Critical Race Theory, 10.

[17] Bell, “Serving Two Masters” Critical Race Theory, 10.

[18] Bell, “Serving Two Masters” Critical Race Theory, 18.

[19] Bell, “Serving Two Masters” Critical Race Theory, 18.

[20] Bell, “Brown V. Board of Education And The Interest Convergence Dilemma” Critical Race Theory, 20.

[21] Bell, “Brown V. Board of Education” Critical Race Theory, 21.

[22] Bell, “Brown V. Board of Education” Critical Race Theory, 22.

[23] Bell, “Brown V. Board of Education” Critical Race Theory, 22.

[24] Delgado and Stefancic, Critical Race Theory, 23.

[25] Mary Dudziak, Cold War Rights: Race and the Image of American Democracy (Princeton, NJ: Princeton University Press, 2002).

[26] Alan David Freeman, “Legitimatizing Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” Critical Race Theory: The Key Writings That Formed the Movement, 37.

[27] Freeman, “Legitimatizing Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” Critical Race Theory, 30.

[28] Freeman, “Legitimatizing Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” Critical Race Theory, 29.

[29] Freeman, “Legitimatizing Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” Critical Race Theory, 29.