In 2020, the right “hijacked” Critical Race Theory (“CRT”) and its progeny. Opposition to CRT, an analytical approach to law and history, intensified largely because of then-President Donald Trump. Trump issued an executive order, shortly before his unsuccessful reelection bid, to challenge the fundamental principles of the theory. While the order did not explicitly name CRT, its objective was to counter what is described as “offensive and anti-American race and sex stereotyping and scapegoating.” The order cautioned against a “pernicious ideology” emanating from the margins of society and posing a threat to fundamental American institutions.

I first encountered CRT in Legal Methods at Columbia Law School (“CLS”). I was then introduced to Duncan Kennedy’s essay: Legal Education as Training for Hierarchy, where he deconstructs the complacent notion of the law’s neutrality. He discusses how law school suppresses genuine convictions, framing discussions as clashes between “pedagogical conservatism” and moderate “disintegrated liberalism.” To be clear, past and present generations of Black law students are confronted with a deliberate neutral baseline understanding of racial subordination. And how the insistence on neutrality in legal frameworks is purportedly intended to be impartial but ends up serving as a veneer that obfuscates the workings of racial power entitlements. He posits that legal education, notably in the first-year of law school, functions to indoctrinate students into adherents of a hierarchical worldview. The heavy emphasis on case law and precedent exemplifies this, as it instills in students a disposition to defer to authority and uphold entrenched baseline social orders. Indeed, the uninterrogated past remains embedded in law school courses and the doctrinal pedagogy professors prioritize.

Perhaps, most troublingly, my first-semester at CLS led me to the pits of what Kennedy coined the state of “false consciousness.” In large part, the first-year curriculum engenders this notion within students, leading them to perceive the law as impartial, rather than recognizing its role as a tool wielded to uphold the hegemony of the ruling elite. As it goes, students find themselves echoing the perspectives of their professors--during what feels like forced pseudoparticipation--who draw their material from legal cases primarily authored by white men. To that end, a deep-seated influence of historical biases within legal education exists where the voices of marginalized groups are silenced altogether. This skewed perception is reinforced by the intentional exclusion of critical legal theories, including CRT, feminist and disability theories.

The vast majority of theoretical approaches in law school do not interrogate the historical significance of whiteness as a benchmark for defining racial equality. Kennedy calls this “mystification.” The idea is that law school imparts a “mystifying” portrayal of the law, obscuring its fundamental nature as a mechanism of power and domination. Students are expected to memorize doctrinal rules that are often cloaked in white supremacy. By focusing on rote memorization, students are discouraged from critically examining the underlying principles and assumptions of the law, including its historical context and the ways in which it has been weaponized against certain groups.

While I cannot catalog all instances where courts (and professors) have ignored the race of the plaintiff, consider Johnson v. Jamaica Hospital, a case taught in tort law. Here, a Black woman pursued legal action against Jamaica Hospital for negligent infliction of emotional distress following the abduction of her infant daughter from the hospital. The court ruled in favor of the hospital, rendering that emotional and psychological damages could only be sought if the plaintiff was in the immediate zone of danger and that to hold otherwise would “[i]nvite [...] boundless liability for indirect emotional injury.” In discussions about the case, the plaintiff’s race is often overlooked, as are the complex interplays within the community and the hospital, which are described as impoverished and dilapidated.

Seemingly, but yet unsurprisingly, the opinion makes no mention of the plaintiff’s race or where the hospital is located. This is known as reading the case through a white normative baseline. In this pedagogical approach, professors frame doctrinal material involving minorities according to standards set by white counterparts, disregarding distinct racial realities. Here, however, I am not suggesting that students should—as Kemberle Crenshaw coins—give “minority testimony” (a form of subjectification). But rather the curriculum should recognize the perspectives and interests of minority students who are often unrecognized. Minority students are frequently urged to set aside their racial identities at the entrance to the law school. However, in practice, professors unexpectedly spotlight these identities in the classroom, either to serve as illustrative examples or to prompt performative engagements typically aimed at grounding policy discussions rather than doctrinal analysis.

As Crenshaw argues, rather than inquiring about the subjective experience of police harassment or the stigma associated with affirmative action, it may be more pertinent to examine how the lack of oversight on police discretion perpetuates mistreatment of racial minorities or to consider how prevailing notions of meritocracy favor traits valued by the dominant group. I believe first-year professors should uproot the normative baseline of legal frameworks and provide opportunities for the inclusion of minority perspectives, shedding light on the racial implications of the law. Dominant perspectives are often shielded by their perceived objectivity, while minority perspectives are unfairly characterized as subjective and biased. This proposed shift would reassess the perceived burdens of minority experiences, recognizing them as potential sources of knowledge that could enrich and inform legal pedagogy.

CRT did not solely emerge from a philosophical critique of prevailing paradigms of racial power; it originated from activists’ engagement with the practical outcomes of liberal reform. CRT can be viewed as a product of the post-Civil Rights Movement to examine the law through a critical lens motivated by an oppositional stance toward racial power and equity. The goal was to have institutions reexamine and revise their notions of race neutrality. In this context, law schools should reconsider and adjust their concepts of race neutrality. This approach would create space and context for marginalized groups to voice their perspectives and address sensitive topics that are often avoided.