Thinking Critically About Equality: Government Can Make Us Equal

47 Pages Posted: 3 Mar 2008

See all articles by Nancy Levit

Nancy Levit

University of Missouri at Kansas City - School of Law

Robert L. Hayman

Widener University Delaware Law School


As kids we called it having to use the old noodle: needing to think real hard about something that was real hard to think about. It was the kind of thinking that would cause your face to get all scrunched up, and if you didn't stop or if someone didn't stop you - it would eventually make your head hurt. The expression came from our families when we figured something out: that's using your old noodle, they'd tell us. The noodle we eventually understood to be our brains, which, we reckon, do look something like noodles, though we were quite unaware of that fact. At the time, using your noodle was just one of those things our folks would say, and we could make sense of in a practical sort of way.

There is no rule that only kids can use the old noodle: you don't have to stop when you grow up, even if you do call it something more distinguished, like problem solving or critical thinking. The authors of this article are grown-up law teachers, which means that, whatever they call it, they are pretty much professional noodle users. This brings us to our problem. Explaining his opposition to even the mildest form of affirmative action Supreme Court Justice Clarence Thomas offered the anti-egalitarian maxim for the new millennium: Government cannot make us equal. Some folks see something quite appealing in this pithy little quote. Its attraction, however is superficial. In fact, we are fairly certain that the proposition is quite wrong. Government can make us equal, and, under current circumstances, it should. But demonstrating the errors in the proposition is no easy matter. It will take, we think, some serious use of the old noodle.

Fortunately, on this score, we have had good role models: our folks, our families, our friends. And Rodrigo.

Professor Richard Delgado is one of the founders of Critical Race Theory. He offers a template for critical thinking in two senses - not just the radicalism associated with Critical Legal Studies (CLS) and Critical Race Theory (CRT) of questioning received wisdom, but more importantly, critical thinking in the most basic philosophical sense. He is concerned with the criteria by which we test notions of justice, fairness, and equality - in short, the criteria of knowledge and reasoning. In this article, we develop the idea of critical thinking as a concept of basic philosophy and race reform. By critical thinking, we mean both the criteria of good reasoning and propositions that, if widely understood, would make a large percentage of the populace revise its background beliefs and world views. To operationalize this concept of critical thinking, we apply it to test Justice Thomas's assertion that Government cannot make us equal.

Keywords: Equality, Equal, Critical thinking, Affirmative action, Critical Legal Studies, Critical Race Theory, Criteria of knowledge, Reasoning, Justice, Fairness, Equality, Neutral legal rules, Prejudice, Neutrality, Racism, Racial injustice, Formalism, Race Theory, Clarence Thomas

JEL Classification: D63, D74, D78, J15, J16, J18, K10, K40

Suggested Citation

Levit, Nancy and Hayman, Robert L., Thinking Critically About Equality: Government Can Make Us Equal. 4 Harvard Latino Law Review, Vol. 4, No. 1, pp. 67-113, 2000. Available at SSRN:

Nancy Levit (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

Robert L. Hayman

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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