Critical Race Theory
Critical race theory argues that as much as strides have been made in the attempt to affect race reform, such reform has been thwarted by the racism that continues to be manifested in the legal system and in the practice of law. Critical race theory had its origins in the 1970s, developed out of the concern that race reform was not being affected as quickly as leaders and advocates of the civil rights movement of the 1960s had expected.
Because it is based on the premise of racism in the legal system, critical race theory often emerges on issues such as the disparity between the incarceration rates of African American men and white men. For example, critical race theory would suggest that the legal system is more likely to incarcerate African American male offenders over white male offenders because members of the dominant American society are more fearful of the African American male than they are the white male. Critical theory has also been used to counter court decisions that are invariably made on cases for which race is a primary issue. Among these are cases dealing with hate speech designed to insult, intimidate or stigmatize specific racial groups.
In at least one prominent case that involved cross burning, the court ruled that freedom of speech, conveyed in the act of burning the cross, was protected independent of its content. The application of critical theory to this decision would see the court’s decision as the legal system’s refusal to identify the meaning of cross burning from a social, historical as well as racial context. If it had, it would have recognized the cross burning as a clear abuse of free speech to intimidate, oppress and potentially harm its intended victims.