The Trouble with Banning Critical Race Theory

The Republican Party has decided to make critical race theory its current bugaboo, and academic freedom is likely to suffer for it.

Until recently, critical race theory was practically unknown beyond the confines of academia. But now, particularly in the United States, it has advanced far beyond its origins in legal scholarship and penetrated disciplines ranging from the humanities to the sciences, as well as gaining traction in wider society. The literature is sprawling and diverse, but broadly speaking critical race theory argues that race is a socially constructed category, that racism is common, that racial hierarchies are routine features of contemporary life, and that the experience of racism is best understood by members of oppressed groups.

In the aftermath of the killing of George Floyd and the subsequent political activism of 2020, critical race theory informed the arguments of activists and intellectuals, and the uninitiated were frequently urged to read up on it.

Unsurprisingly, critics who did the reading did not always like what they saw. Moreover, critical race theory swiftly became a political buzzword that could mobilize opposition to as well as support for black activists. Over the past few months, references to critical race theory have exploded in Republican Party social media posts and in conservative media.

Perhaps inevitably, conservative activists and Republican politicians soon turned their attention to schools. Republican lawmakers across the United States have introduced bills seeking to curb the teaching of critical race theory. Some have already made their way into law. Some of the bills are focused on public primary and secondary schools, where the government already sets the curriculum and determines educational standards. Others also take aim at universities, which have traditionally enjoyed far greater autonomy.

There are plenty of reasons to be sceptical of critical race theory, and the excesses that conservatives frequently identify with it. There is an ideological battle being fought over the future of liberal democracy and capitalism, and both vulgar and sophisticated forms of critical race theory are part of that battle. At the same time, ordinary citizens are getting a dose of what race peddlers and diversity, equity and inclusion grifters are selling and are looking for ways to push back. Entrepreneurial politicians and activists will take advantage of their grievances.

Unfortunately, universities have become an easy target for American conservatives. Conservatives have often complained about the left-wing tilt of academia and been critical of universities, but in recent years they have shifted to thinking that universities are actively harmful to society. Unsurprisingly, such attitudes tend to translate into public policy. Republicans have become increasingly bold in interfering with university governance and attacking university endowments.

The recent spate of state legislative measures has already had consequences for American public universities, which rely on government funding and are subject to more extensive state regulation. A community college in Oklahoma, where such a bill has already been passed, has cancelled a regularly scheduled class on racial inequality. In Idaho, a university suspended diversity classes when state legislators threatened its budget. In Kansas, legislative inquiries drove university administrators to begin compiling a catalogue of every course that touches on critical race theory.

One can be highly sceptical of most work in critical race theory (as I am) and still think that this sort of legislative micromanagement is a bad idea. The growing panic over critical race theory is leading politicians down a dangerous path that will undermine the quality of American higher education and the truth-seeking mission of American universities.

Watering Down University Education

There is a closely related debate over the role of critical race theory in K-12 education. Local school boards and state legislatures have expansive authority over public schools in the United States, and arguably public officials should take an interest in how race is portrayed and discussed with schoolchildren, to ensure that public schools are providing an integrating civic education.

Many of the bills being debated focus on primary and secondary education, but some encompass university education as well. But there is a world of difference between kindergarten civics and what universities do. University professors expect students to be able to grapple with ideas with which they disagree, including difficult, unpopular, offensive, immoral and even antidemocratic and illiberal ideas. The readings assigned in my own classes include work by socialists, anarchists and white supremacists. I am not hoping that students embrace such ideas, but I do expect students to understand them.

Conservatives often complain that universities attempt to exclude conservative ideas. The only sound basis for such complaints is that universities should nurture a diverse intellectual environment in which a wide range of serious ideas can be heard and debated. Attempting to keep out ideas simply because we disagree with them is antithetical to the purpose of higher education. There are no principled grounds for insisting that conservative scholar Charles Murray be allowed to address a student audience unimpeded while simultaneously demanding that university professors not put critical race scholar Kimberlé Crenshaw on their syllabi.

Throwing the Baby Out with the Bathwater

Critical race theory literature varies from the genuinely insightful and important to obscurantist mundanity and wrongheadedness, but the literature has gained traction in academic circles precisely because some of the work has real merit. Those who simply want to dismiss critical race theory in its entirety as hokum are indulging in wishful thinking.

Perhaps much of the material that these state laws would suppress is of low value. But most of those pressing for such laws have little familiarity with the critical race theory literature, let alone a nuanced understanding of the relative merits of particular contributions. The political discussion is less informed by engagement with serious scholarly works than by rumours of what is happening in corporate diversity training workshops and what popularisers and propagandists like Robin DiAngelo and Howard Ross offer to mass market consumers. When professors and universities cancel entire classes dealing with the subject of race so as to avoid raising the ire of politicians, the educational mission of the university is potentially damaged. There is no reason to think that politicians can evaluate what work merits discussion on a college campus.

Using a Meat Cleaver Rather than a Scalpel

The political right has often decided that some vaguely defined set of ivory tower pseudo-intellectuals is leading the younger generation astray. Whether the bogeyman is Marxism, postmodernism, multiculturalism, cultural Marxism or critical race theory, the feared phenomenon often bears no relationship to its academic namesake. These political labels work best if they are ill-defined and protean, and appeal to popular worries—they do not necessarily accurately describe an influential school of thought. The political game might have started as a response to something that actually exists on a university campus, but it often winds up decrying something very different.

If we attempt to use such political slogans as the basis for excising works from the university curriculum, we will simply make a mess of things. For example, if the legislature were to direct that no Marxism is to be taught, risk averse college administrators might simply cancel any lecture or seminar that touches on class, economic materialism, the stages of capitalism or social justice.

The legal language being deployed to root out critical race theory is imprecise at best. The Oklahoma statute, for example, prohibits teachers at public institutions from making “part of a course” the “concept” that one race is inherently superior to another, that an individual “by virtue of his or her race” bears responsibility for actions in the past, that individuals should feel “discomfort” or “guilt” on account of their race, or that “traits such as a hard work ethic” were “created by members of a particular race to oppress members of another race.” A North Carolina bill would prohibit the inclusion of concepts such as that individuals should feel discomfort by virtue of their race in a context that might give the appearance of approval. The Republican attorney general of Montana has declared unconstitutional and illegal the use of “materials that one race is inherently superior or inferior to another,” or that indicate that “members of a particular race … pose specific dangers to other individuals” or that individuals should “feel discomfort” on account of their race.

The language of these measures borrows heavily from Donald Trump’s executive order of September 2020 seeking to bar “anti-American race and sex stereotyping and scapegoating” from the federal government and entities receiving federal grants. Some universities cancelled programming, including public lectures, to avoid losing federal funding. Implementation of the order was soon blocked by a federal judge as encroaching on the free speech rights of federal contractors and grant recipients, and the order itself was later revoked by President Biden.

It might be possible to construe these legislative measures very narrowly. They could be limited to prohibiting mandatory participation in the kind of self-flagellating confessional diversity “training” that has become all too common at workplaces across the country. They could be restricted to barring compelled political speech under the guise of anti-racism pledges or preventing governmental institutions from endorsing racial hierarchies and sending the message that some Americans are second-class citizens. If university professors are indoctrinating rather than teaching, such misbehaviour can be addressed regardless of the content of the indoctrination. If universities are disadvantaging students on the basis of their race, that can be remedied through existing civil rights laws.

But the state laws have not been carefully written. University administrators will not be willing to gamble their institutional budgets on the possibility that such laws will be read narrowly rather than broadly. Syllabi will be censored. Classes will be cancelled. Public speakers will be disinvited. It is hard to escape the suspicion that such chilling effects are precisely what is intended.

The campus left has long contended that the mere presence of a speaker with disagreeable ideas on a college campus is tantamount to an institutional endorsement of those ideas and that a student’s discomfort at ideas expressed on campus undermines that student’s equal educational opportunity. It was only a matter of time until the political right leveraged those arguments for their own ends. The university is either a haven for free intellectual inquiry and for expressing controversial and difficult ideas or it is a safe space in which students are to be protected from ideas that they might find discomforting. Republican lawmakers may be hypocrites for embracing the safe space model when it comes to critical race theory, but universities have been giving away the high ground on this issue.

Who Decides?

Ultimately someone must decide which ideas are worth discussing on a college campus. At the heart of the principle of academic freedom is the claim that scholars themselves, experts in the specific material, should make such decisions. It is they who craft syllabi, prepare lectures, guide discussions, evaluate student work, decide which research merits publication and hire faculty. They might not always make the right decisions. But the preservation and advancement of human knowledge is best accomplished if these academic decisions are made by academics.

It is always tempting for politicians to second-guess those decisions. It is the public that pays for state universities (and alumni and donors who pay for private universities). Although professors claim that free intellectual inquiry ultimately benefits society, the contributions from a specific intellectual activity are not always obvious. When academics annoy powerful interests or deride community values, political leaders often want to rein them in.

It does not help when academia itself becomes politically and ideologically partisan. Universities that foreswear any interest in nurturing a diverse intellectual environment should not be surprised when they lose credibility with the public. Professors who see themselves as political activists will be treated as such by their political foes. Universities that tolerate the deplatforming of conservative ideas will find conservatives all too eager to deplatform them.

Academic freedom works when it is a truly universal principle, rooted in the scholarly value of open intellectual inquiry. Universities undercut that principle when they fail to live up to their own ideals, but politicians shred those ideals when they seek to dictate what concepts can be taught on campuses. Politicians might not always like the ideas that emerge from universities, but the fearless pursuit of the truth will not always result in pleasing ideas.

A good university should be a place where “divisive concepts” are freely discussed. If the ideas that emerge are wrongheaded, then we make progress by critically examining and rebutting them—not by attempting to suppress them. Lawmakers’ misguided efforts to exclude disfavoured ideas from campus stifle intellectual freedom.