Abstract

Excerpted From: Diane Kemker, Using a “Moves to Innocence” Approach to Dissect and Debunk the Claim That Critical Race Theory Is Antisemitic, 27 Lewis & Clark Law Review 1145 (2024) (187 Footnotes) (Full Document)

Critical Race Theory (CRT) is accused of many sins in today's political environment. Among the most troubling of these is the charge that it is antisemitic. This idea has become almost an article of faith in some circles. Too often, this charge is casually tossed about, as if it were self-evidently true, despite the near-total lack of evidence. Critical Race Theory is also a central tool of my own legal and theoretical analysis, so a great deal is at stake if it is defective in this way; and if it is not, it ought not to be denigrated and even defamed, particularly by those who do not understand it, and particularly by those who, like me, are descended from Ashkenazic Jewish immigrants to the United States.

Like “racist,” “antisemitic” is not just a description; it is an insult. A slur, even. And for that reason, among others, it ought not to be used loosely or inaccurately. A second reason to take this charge seriously is that accusing Critical Race Theory of being antisemitic delegitimizes and discredits it, intentionally or otherwise. This allegation therefore advances the aims of all who oppose CRT for any reason, including white supremacists who are often openly both racist and antisemitic themselves. The ideology of white Christian nationalism threatens both Jews and Black people, and fighting it effectively is urgent. CRT can help, and the sooner this is well-understood, by Jews and others who care about fighting racism and antisemitism, the better.

Critical Race Theory does not need me to defend it from the charge of antisemitism; it has numerous eminent scholarly exponents, although one goal of this Article is to make clear that there are Jewish legal scholars working on antiracism and antisemitism who do not share this negative view of CRT. Yet, if Critical Race Theory is not antisemitic, and this can be shown relatively straightforwardly, the fact that thoughtful people make this accusation, apparently in good faith, calls for an explanation. The primary goal of this Article is to offer such an explanation, or the beginnings of one, by applying a novel version of the “moves to innocence” model pioneered by Eve Tuck and K. Wayne Yang in the context of indigenous decolonization theory.

There is legitimate frustration in some quarters that Critical Race Theory either overlooks Jews entirely, or wrongly treats Jews as white people simpliciter. But there is also a strain of less justified and mostly unspoken offense at being unfairly perceived as no different from other white Americans, politically, historically, or otherwise. The allegation that Critical Race Theory (or Black Lives Matter, or Ethnic Studies, or Diversity, Equity, and Inclusion (DEI) initiatives) is antisemitic can be understood as the latest, most aggressive, iteration of ongoing attempts to render American Jews blameless for racial inequality and structural anti-Black racism in America. It foregrounds the Jewish experience of discrimination and exclusion and deemphasizes Jewish benefit from white supremacy and white privilege and erases from view patterns of Jewish complicity with anti-Black racism or incidents of Jewish anti-Black racism, and the various ways in which generations of Jewish immigrants and their descendants benefited from the relative Jewish proximity to whiteness in America. These moves are then fitted together into a coherent narrative of the American Jewish experience in which any support or advocacy by Jews for Black civil rights appears as a form of supererogatory political virtue--not recompense for unearned benefit or a demand of justice, but a gift freely given and thus a demonstration of the moral superiority of Jews to their white Christian fellow citizens.

In an America where law and policy have most frequently reflected dominant white Christian majority interests, Critical Race Theory offers powerful tools for understanding our circumstances, including the situation and history of American Jews, and the ways that the social positions and interests of American Blacks and Jews, real and perceived, have intersected, sometimes aligning, sometimes diverging, and sometimes conflicting. It is not simply that CRT is “not antisemitic.” It is that CRT contains the most useful intellectual tools currently available for coming to a proper understanding of both racism and antisemitism because it offers the richest and most promising account of the operations of white Christian nationalism and white supremacy. By rebutting the allegation that CRT is antisemitic and exposing and dismantling the “moves to innocence” that seek to deny Jewish complicity and benefit from white supremacy, this Article aims to rehabilitate CRT to more effectively combat the antisemitism, anti-Black racism, and white Christian supremacy that threaten us all.

[. . .]

Ironically, Jews who feel vaguely insulted by the CRT account of white supremacy and critique of dominant civil rights discourse and ways of thinking are getting something right. An account of racism in America in which mostly white-passing Jews are sometimes victims, never perpetrators, and at worst the unwitting or even unwilling beneficiaries of white supremacy, is an account at which CRT takes aim. Jews have enjoyed access and success in many of the major institutions of American life from which Black people (and other people of color) have been excluded, historically and down to the present day. A critique of structural or systemic racism implies (when it does not explicitly state) that Jews enjoy race-based advantages and unfair, unearned privilege, which does not sit well with many Jews' self-conception and family stories of immigrant struggle and perseverance. It is not easy or pleasant for many American Jews to integrate into their story of escape from European antisemitism that part of what made the United States a reasonably hospitable place for them was that they were not Black--a form of prejudice the often penniless Yiddish-speaking Jews of New York City certainly did not create, but from which they did, in fact, benefit.

For many Jews of Ashkenazic European descent, America has largely been “the golden land” of safety, prosperity, and freedom, of opportunity and belonging. The liberal consensus about race and racism to which CRT responds is one in which Jews have a significant political and cultural investment; one which has, by and large, served Jews well. It is unsurprising that an attack on the foundations of the legal regime which created more opportunity for Jews in the United States than at any other time or place in history; and which has allowed Jewish communities to enjoy peace, prosperity, and well-being far surpassing the dreams of our immigrant ancestors, has had a hard time finding a sympathetic ear. Yet, however difficult it may be for many, the time has come to integrate into our understanding an awareness that the American dream for Jews came with a tacit, often unstated condition: that the United States could be all of the things it has been to Jews--because we were (or were seen as) white.

Visiting Professor of Law, DePaul University College of Law (Spring 2023) and Southern University Law Center; LL.M. (taxation), summa cum laude, University of San Francisco School of Law; J.D., UCLA School of Law; A.B., Harvard College.