The fight is on in the United States over a series of illiberal practices coming out of the Critical Social Justice (CSJ) movement. On one side of this fight are activists, who claim to be seeking justice and equity for members of groups that have historically been oppressed and marginalised: by equity they generally mean equality of outcome between groups defined by race, sex, etc, rather than equality of opportunity. CSJ activists operate from a set of interrelated premises about what oppression is, how it operates, and who is responsible for it. They generally use a simple model of oppression that divides everyone into identity groups and positions some as oppressors and others as oppressed. Helen Pluckrose and James Lindsay trace the origins of these ideas in their recent book Cynical Theories, showing that CSJ activists started out in academia and have now migrated into the world at large, including the fields of business, the press, politics and K-12 education.
The migration out of academia went largely unnoticed until last year, when CSJ activists who are focused on race were able to spread their ideas, broadly known as Critical Race Theory (CRT), extremely widely because of the events following the death of George Floyd. Some of the central tenets of CRT are that all whites are racists by virtue of their skin colour, that only whites are racist, that nothing will ever change this, and that any statistical differences in average group outcomes between blacks and whites can only be explained by white racism.
At first, mainstream America didn’t really notice or care. That soon changed. Because of the lockdowns, a lot of children had been taking their classes online from home, which enabled many parents to become aware that their children were being taught CRT-inspired dogma as if it were fact.
That’s when parents and others began to put pressure on lawmakers to get CRT dogma out of their children’s schools, particularly in the younger grades. The number of parents speaking out publicly has now spiked sharply (for examples, see here, here, here, here and here).
When American parents want to resist something that their children are being taught in government-run public schools, they contact their local and state elected officials. As a result, legislators in many states have introduced bills to ban the teaching of Critical Race Theory dogma as fact. Christopher Rufo has put together a tracker of all this legislation.
Although teaching CRT dogma in schools as if it were fact should not be allowed to continue, these anti-CRT bills may not be the best way to stop the practice. However, the two most common arguments against the bills are both flawed. The first is that for the government to limit what K-12 public school teachers can teach is a form of government censorship (see here and here). But, in fact, local government bodies are empowered to decide the K-12 curricula in public schools. As Greg Lukianoff et al. have written:
The curriculum in most public K-12 schools is democratically decided by a combination of state legislatures, local school boards, and individual schools. As such, they represent the will of the people, as expressed in local and state elections. The individual schools cannot exceed the scope granted them by their school boards, which themselves derive power and authority from the state.
Thus, it is well within the rights of state legislatures to control what is taught in public schools. Nor is it a violation of free speech to require teachers to teach the curriculum that has been set by their employer, even when that employer is the government.
The other argument is that the bills are an attempt to “silence a history of suffering … [and] to forbid education about racism,” as Timothy Snyder recently put it, describing a Florida board of education rule change. But when one looks at what the bills provide, it’s difficult to imagine how anyone can interpret them in good faith as forbidding teaching about racism. Tellingly, Snyder backs up his claim, not with a link to the text of the actual rule change, but with a link to another news report about what the rule change contains. The actual rule, now amended, reads in part:
Instruction on the required topics must be factual and objective, and may not suppress or distort significant historical events, such as the Holocaust, slavery, the Civil War and Reconstruction, the civil rights movement and the contributions of women, African American and Hispanic people to our country.
Another problem with this line of argument is that the content of the bills varies widely from state to state. For example, New Hampshire’s bill covers far more than K-12 schools; it prohibits the teaching of CRT concepts by or to any state employees or contractors employed by the state. Any objection to these bills that treats them collectively is going to work out poorly.
Some fear that banning the teaching of what many of these bills call “divisive concepts” will lead to state overreach and prevent teaching about race or slavery in general. In principle, that could happen if a bill left the meaning of “divisive concept” undefined. But Arkansas, for example, has passed a law that carefully delimits the idea:
(1) “Divisive concept” means the concept that:
(A) One race or sex is inherently superior to another race or sex;
(B) The state of Arkansas or the United States is fundamentally racist or sexist;
(C) An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
(D) An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
(E) An individual’s moral character is necessarily determined by his or her race or sex;
(F) An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
(G) Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex;
(H) Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race; or
(I) The term “divisive concept” includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
The bill goes on to carefully define race or sex stereotyping and race or sex scapegoating. Most of these points describe assertions that the vast majority of parents would not want taught to their young children as if they were facts.
That said, regardless of how careful the drafters of these bills try to be, there are bound to be unintended ambiguities that can leave room for government overreach and unnecessary litigation. For example, the definition of a “divisive concept” in part (G) of the Arkansas law is open to misinterpretation. The bill apparently means to prohibit telling children explicitly that they should “feel discomfort, guilt, anguish, or any other form of psychological distress on account of [their] race or sex.” For example, it means to prohibit teachers from telling children that they should feel guilty for being white. And yet it would be easy to misread this awkwardly written section as prohibiting teachers from making students feel guilty for being white; and that would be unfair, because it could be used to hold teachers responsible if, for example, a white student who read about America’s history of slavery during a history lesson happened to react by feeling guilty.
North Carolina’s bill is more narrowly drawn than some other states’ bills, in that it allows teachers to provide “materials that incorporate [CRT] concepts for educational purposes in contexts that make clear the public school unit does not sponsor, approve, or endorse such concepts or works.” Other laws are more illiberal on their face. Pennsylvania’s bill, for example, would make it illegal even to read material espousing CRT dogma for the purpose of learning about and possibly critiquing it (something North Carolina’s bill is careful to allow). Even more troublingly, it would forbid any public educational institution in the state from hosting or providing a venue for any speaker who supports such views. This provision is not only clearly unconstitutional: it would make the topic undebatable in Pennsylvania’s universities. It would go far beyond protecting children from indoctrination—and threaten the intellectual crucible of the university system.
In my opinion, the state of Montana provides a model for how to address the issue. Montana’s attorney general has stated that CRT and related “programming discriminates on the basis of race, color, or national origin in violation of the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, Article II, Section 4 of the Montana Constitution, and the Montana Human Rights Act.” That’s all that needs to be done. No new laws or policies are needed. And new laws would be likely to have bad unintended consequences. They are likely to be unclearly worded, or to extend government power beyond what is constitutionally permissible. The opponents of CRT claim that CRT dogma is racist, and they’re correct. But because that is true, the Civil Rights Act of 1964 already makes it illegal.
CRT proponents sometimes claim that CRT is merely continuing the work of the civil rights activists of the 60s, but their writings make clear that they see CRT ideas as separate and different from the ideas of the civil rights movement, and that CRT explicitly rejects the liberal values on which the civil rights movement was founded, such as legal neutrality and equality theory. (This is one reason why many of them use the word equity rather than equality).
Some opponents of the bills have pointed out that what is being taught in K-12 schools is not Critical Race Theory itself. That is correct: CRT proper is a set of intellectual ideas that arose out of Critical Legal Theory in the 70s, and that material, as it is taught in universities—particularly in law schools—would go well over the heads of children. But to make this argument is to engage in a kind of shell game: the dogma about race that is being taught in schools and that parents are complaining about is based on the ideas of CRT, as CRT proponents have themselves often acknowledged.
CRT proponents will tell you themselves that CRT is not just a theory to be discussed among academics, but a form of activism. For example, in Critical Race Theory: An Introduction, Richard Delgado and Jean Stefancic write:
The critical race theory (CRT) movement is a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power. The movement considers many of the same issues that conventional civil rights and ethnic studies discourses take up, but places them in a broader perspective that includes economics, history, context, group- and self-interest, and even feelings and the unconscious. Unlike traditional civil rights, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.
As to whether CRT is being taught in schools, in a 2009 interview, Delgado said, “Seeing critical race theory take off in education has been a source of great satisfaction for the two of us. Critical race theory is in some ways livelier in education right now than it is in law, where it is a mature movement that has settled down by comparison.” Some examples of CRT (or CRT-based activism) being pushed and taught in schools can be found here, here, here, here, here, here, here and here.
Indeed, one need only search for “critical race theory education” to find a number of titles that have been published over the last ten years or so describing why it’s important to bring CRT to K-12 education and explaining how to do it. The Post Millennial has recently published an in-depth piece on this topic. So, it is clearly not just some obscure legal theory in academia, and it is clearly being pushed on students in schools. The activists claiming that this isn’t happening, or that the curricula are just teaching about slavery or racism are, in my opinion, simply being disingenuous.
The bills, laws and other democratic efforts to rid schools (and other government institutions) of CRT activism are understandable, given the ideas that activist teachers are pushing on children as early as kindergarten. However, these new rules and laws could have unintended consequences. They could lead to punishing good-faith efforts of teachers to teach difficult topics like slavery, civil rights and race. Even without punishment, many teachers and schools are likely to self-censor to avoid running afoul of the new regulations. The laws are also likely to stifle the free expression of ideas in public colleges and universities.
Teaching CRT dogma in schools as if it were fact should not be allowed to continue. But federal and state anti-discrimination laws, such as the Civil Rights Act of 1964, already provide the tools needed to remove racist activism from government institutions. The best way to fight the problem is to use the laws that are already in place.