Editor’s Note: The Oxford Law Faculty’s Equality and Diversity Lecture 2020 was delivered by Professor Kendall Thomas on 4 November 2020. This post, originally an introduction to Professor Thomas during the lecture, reflects on his contribution to critical race theory and critical theory as applied to sexuality and law. The introduction was made in Bamforth’s capacity as Associate Dean for Equality and Diversity at the Faculty of Law, Oxford.
Professor Kendall Thomas is Nash Professor of Law at Columbia University in New York, and one of the world’s leading specialists in critical race theory and critical theory as applied to sexuality and law. Educated at Yale, he has taught at Columbia since 1986, and has had a prominent role in practical human rights activism alongside his scholarly work. His lecture, concerning Critical Race Theory, is particularly pertinent at the end of Black History Month in a calendar year which has featured such an intense focus on the presence of racial injustice in the constitutional legal systems of northern and western countries.
I first encountered Professor Thomas’s work in my early days of writing about sexual orientation discrimination and law. His 1992 article ‘Beyond the Privacy Principle’ was highly distinctive in its character: a critical analysis both of the position upheld at the time by the US Supreme Court that criminal prohibition in state law of sex between men was constitutionally permissible, and also of the arguments rooted in the right to privacy associated with the Due Process Clause which were popular among liberals as a key basis for criticizing that position. The Supreme Court later accepted, in Lawrence v. Texas, that criminal prohibition was constitutionally impermissible, but ‘Beyond the Privacy Principle’ has retained its role as a crucial critique of the limitations of privacy arguments in challenging the social and political power of conservative ideology. The piece also poses the key question whether a strategy involving assessing the Supreme Court’s work exclusively or primarily on the Court’s own terms helps or hinders what Professor Thomas calls the “distinctively critical project of constitutional scholarship” – assuming, of course, that one shares this conception of constitutional law writing.
Professor Thomas’s most widely-cited Critical Race Theory contribution is the Introduction, co-authored with Professors Kimberle Crenshaw, Neil Gotanda and Gary Peller, to the co-edited volume Critical Race Theory: The Key Writings that Formed the Movement, published in 1996.
Thomas and his co-authors argued in the Introduction that different contributions to critical race scholarship differ in object, argument, accent and emphasis, but are unified by two common interests. The first is to understand how a regime of white supremacy and subordination of persons of colour has been created and maintained in the USA, and “in particular, to examine the relationship between that social structure and professed ideals such as ‘the rule of law’ and ‘equal protection’”, given that law has the capacity to produce racial power even from within a liberal discourse. The second common interest is seeking not merely to understand the bond between law and racial power but to change it, even if at a more specific level there are disagreements between individual scholars about the direction which racial liberation should assume.
On this view, critical race scholarship seeks to offer counter-accounts of social reality. It accepts that scholarship cannot and should not be neutral and objective, and that legal scholarship is an important site for the construction of power concerning race.
It also expresses dissatisfaction with traditional civil rights discourse, which is characterised as treating racism as rare and aberrational, rather than a systematic and ingrained phenomenon. As Thomas and his co-authors put it, social and official consensus in the United States has identified racism in the decades after the civil rights era: “only with the outright formal exclusion of people of color; it was simply assumed that the rest of the culture, and the de facto segregation of schools, work places, and neighbourhoods, would remain the same. The sheer taken-for-grantedness of this way of thinking would pose a formidable and practically insurmountable obstacle … [T]here was no conceptual basis from which to identify the cultural and ethnic character of mainstream American institutions; they were thus deemed to be racially and culturally neutral”.
Critical Race Theory, Thomas and his colleagues argued, can be used to highlight the colour-consciousness and politicised choices inherent throughout supposedly colour-blind case law. Against this background, they paid considerable attention, when writing their Introduction in the mid-1990s, to judicial treatment of affirmative action in the United States. Given the seemingly highly politicised nomination of Amy Coney Barrett to the Supreme Court in the past month, it is easy to contemplate how critical analysis might continue to be thought key today. With this in mind, we hugely look forward to Professor Thomas’s analysis of Critical Race Theory in the contemporary terrain.