August 2021 Bulletin Ref1

From Our President

 What to the Jew is Critical Race Theory?

In 1989, I had just graduated from college and started my law degree. As I grappled with my first-year classes, I also read around and outside of the regular curriculum. I was struggling to find ways to make sense of the disconnect I perceived between the procedural and formal principles I was learning in the classroom and the realities of inequality and injustice that persisted on the streets outside Vanderbilt Hall. Like-minded classmates and I looked for answers together. We had heard about the critical legal studies movement, which rejected the idea that the American story is one of triumphal progression toward liberal equality and freedom, but these critiques provided little in terms of any concrete way forward.

The years between 1989 and 1992, however, saw the publication of many of the foundational texts in critical race theory. This approach provided a new way to think about how legal institutions can reproduce inequality even when individuals in these institutions may have good intentions. Further, it provided ways of thinking about law and legal institutions both critically and as tools that could be used to build toward justice. Books and articles by Kimberlé Crenshaw, Derrick Bell, Patricia Williams, Mari Matsuda, Angela Harris and a host of other scholars left a profound mark, changing the ways we thought about justice, our commitment to the law, and ourselves and our identities.

While my encounters with critical race theory shaped my research career, which has focused on questions of identity and law, they also gave me insights into Jewish American history and experiences. The title of this effort, “What to the Jew is Critical Race Theory?” intentionally keys off Frederick Douglass’s famous interrogation of Independence Day, “What to the Slave is the Fourth of July?” reaching for the same spirit of generosity that animated his essay. How do critical race theory’s values and approaches help us to think through some of the dilemmas of the Jewish American experience? And how can critical race theory help Jews to navigate our relationships both with and sometimes as people of color?

While a full explanation of critical race theory would consume the entire bulletin, the writings of the early 1990s had some commonalities. They used personal narratives to illuminate structural inequalities and the dis junctures between law on the ground and law on the books. They emphasized that race, while a social construction rather than an incontrovertible biological fact, has concrete effects in the course of people’s lives. They question what is meant by progress, noting that too often rights advances can only gain support if powerful people or groups benefit as much or more than the subordinated groups that policies appear to target. And they emphasize the ways that race (and to a lesser extent other forms of identity) are deeply enmeshed with major moments of constitutional development and change. While Derrick Bell, Angela Harris, Kimberlé Crenshaw and Patricia Williams focused on the experiences and legal regulation of African Americans, other early proponents developed these insights and applied them with respect to other groups, like Mari Matsuda’s consideration of Asian Americans and Richard Delgado and Jean Stefancic’s applications for Latinas and Latinos (which would now apply more broadly to the Latinx community).

You might be thinking at this point that critical race theory has very little to say to American Jews. After all, we never experienced being forcibly held as slaves by law in the American colonies or the United States, nor was there a Jewish analogue to the broad, systematic democratic abuses of Jim Crow. We were not identified in federal law as racially unworthy of the prize of American citizenship, as were Africans at the founding, then the Chinese, and later all Asians. Our ancestral lands were not conquered by American military force and incorporated, nor did our home nations experience significant American political interventions that both destabilized them and made the United States an attractive refuge for immigration. Our primary struggle now is against the cultural scourge of anti-Semitism, and we understand ourselves as allies in the fight to end racialized injustice under law.

Critical race theory, however, asks us to listen actively to each other’s stories. It does not ask us to judge whose story is the most harrowing, but it does encourage us to trace through how and where our experiences as Americans may differ from dominant experiences. While Jews were not subject to a structural legal system that identified the community as a target, discriminatory practices were common in a multitude of private and public settings. Critical race theory encourages us to identify these historical practices and to be conscious of our own experiences of personal and institutional discrimination. It also prompts us to notice the care we have taken both to maintain and express our distinctive identities and to protect ourselves against assaults on our identities.

Critical race theory also encourages us to think about how Jewishness is constructed. The United States never had a racial equivalent of the Nuremburg Laws, rendering Jewishness a simple matter of blood quantum (which was the case with African Americans). Nevertheless, broader American culture and law have historically intersected with Jewish identity, framing it sometimes as a religion and sometimes with more of a racial or ethnic component. A fascinating book by Karen Brodkin, How Jews Became White Folks and What That Says about Race in America, provides strong evidence that Jews were viewed as not fully white until the post-World War II era. The role of race in immigration law and politics had a major influence on Jewish history and identity.

Jews’ status prior to this transformation was complicated in legal and cultural terms. The legal and cultural analysis that critical race theory prompts pushes us to look back in history. Most of us born as Jews in the United States trace our ancestry back to immigrants who arrived in the United States (and to a lesser extent, Canada) in the late 19th and early 20th centuries.  During the peak years of eastern European Jewish immigration, Congress was passing the first wave of national restrictive legislation concerning immigration, targeting Chinese immigrants on racial grounds. This legislative project, initiated in 1875 with a law that focused particularly on Chinese women suspected of immigrating for immoral purposes, ultimately expanded to include other undesirable immigrants.

Eastern European Jews fell into this category because of concerns about their religious practices and perceived refusal to assimilate, but increasingly because they were suspected of holding radical beliefs in light of Jewish involvement in labor unionist and socialist movements. Immigration officials, empowered by Congress and the courts to exercise their discretion freely, probed into the backgrounds and beliefs of prospective immigrants more rigorously. They held increasingly broad authority to deny entry to individuals who appeared to be potentially troublesome. The Immigration Act of 1924 (a quota act) then sought to solve this problem definitively by limiting immigration visas to 2% of the total number of people from each nationality living in the United States reported in the 1890 census. While the act cut off Asian immigration almost entirely, another goal was to make it far more difficult for Jews fleeing a rising tide of anti-Semitism abroad to find refuge under Lady Liberty’s torch. If you have Jewish ancestors, you may have a family story about the enterprising great-grandparents who left but also a story about more distant relatives who remained in what would ultimately become the Nazis’ killing fields. Congress’s early experiments with anti-Asian laws and their expansion shaped our experience. In no small part, these laws had an impact on who survived and who did not.

At the same time, some elite Jews, mostly Ashkenazim, used their training and talents to fight against Jim Crow. The NAACP, formed in 1909, counted among its early leaders Henry Moskowitz, Lillian Wald, Rabbis Emil Hirsh and Stephen Wise and brothers Joel and Arthur Spingarn. The editors of Jewish newspapers deplored the wave of anti-Black violence that swept the nation in the early 20th century and linked it to anti-Jewish violence in contemporary and historical terms. As Jewish papers reported in horror about the lynching of Sam Hose, Black newspapers deplored the lynching of Leo Frank. A new generation of activists for Black and Jewish rights recognized the power in struggling together and their agendas intertwined in social, cultural, and legal spaces. The labor and identity-based consciousness expressed in Jewish publications and within concentrated Jewish communities helped to forge new understandings of what it meant to be a Jew. These understandings still resonate today in continued Jewish concern about rights, threats to ethnic and racial minorities and the need for the state to protect the vulnerable against private and public discrimination. Critical race theory prompts us to remember the history of these related struggles, but also to understand how the Jewish experience of discrimination under law and culture differed and set us on a divergent developmental path.

For the current moment, critical race theory has valuable insights for Jews, regardless of how we identify racially. It encourages focus on the rise and normalization of anti-Semitism in public discourse and its role as a tool of political mobilization. It asks us to note the ways that anti-Semitism operates to support and enhance white nationalism, reanimating long-discredited thinking about Jews in racial terms. It helps us to understand a little better what is at stake with increased support for expressions of Christianity in the public sphere and particular accommodations for Christian beliefs, especially when those beliefs may collide with our own. And yes, critical race theory asks us to examine our relationships with people of color, whether or not these people of color identify as Jews.

In March of 2021, Newsweek published an op-ed entitled “Asian Americans Emerging as a Strong Voice Against Critical Race Theory.” The op-ed drew a sharp rebuke from Mari Matsuda, one of the founders of the movement. She reminded her readers of the breadth of critical race theory’s attack on the racism inherent in American legal liberalism. As she explained, “racism against Asian Americans was part of the legacy of U.S. white supremacy.” So too did white supremacy develop in conversation with anti-Semitism, a

conversation that continues to this day. I endorse her advice as good advice for Jews. We should reject those who claim to support the Jewish community by attacking people of color. We should continue our own work against white supremacy, both because it betrays our fundamental values and harms our friends, but also because it is a direct threat to us. And we should keep our history and uncertain path toward the American dream in mind, refusing to erase the blessed memory of the struggles we’ve shared with other subordinated groups.


Julie Novkov

B'nai Sholom Albany NY