‘Anti-critical race theory’ laws and the assault on pedagogy

Don’t be fooled. The current crusade against critical race theory has nothing to do with critical race theory itself.

 

As a law student in the mid-’90s, I had many opportunities to study critical race theory (CRT), which examines the ways in which racial biases have been baked into the American legal system and other public institutions. But after graduating from law school, and despite working on racial equity issues for much of the next two decades, I rarely heard mention of CRT. Then, last fall, CRT suddenly spilled into the political arena.

In September 2020, the Trump administration issued a memo to federal agencies directing them to identify and cancel any staff training programs that focus on CRT or “white privilege.” Weeks later, President Donald Trump issued an executive order that restricted the federal government and its contractors from conducting diversity training that examined systemic racism, white privilege, and other issues involving race and gender bias.

Although that executive order was revoked by President Joe Biden on his first day in office, the match had been lit: As of June 2021, 25 states have proposed legislation or executive actions banning or limiting the teaching of principles attributed to CRT in public schools. So far, those bills have been signed into law in five states (Idaho, Iowa, Oklahoma, Tennessee, and Texas), and four other states (Georgia, Florida, Montana, and Utah) have issued executive rules or memos with a similar purpose.

Understandably, many teachers and administrators worry that if they offer any school-sponsored training or curriculum that touches on race or gender, they’ll land in hot water. A host of questions has emerged: What do these laws actually prohibit? What instruction or training is still allowed? Will the laws be struck down in court? And what’s behind this anti-CRT push, anyway?

What’s in these “anti-CRT” bills?

The current “anti-CRT” laws and rules vary in scope and content, but two things are clear: First, they don’t actually have anything to do with CRT, and second, their language bears a close resemblance (at times almost identical) to that of Trump’s 2020 executive order.

Iowa’s legislation, HF 802, which was signed into law on June 8, 2021, is fairly typical of the bunch. HF 802 prohibits governmental entities (including public schools and universities) in Iowa from providing “mandatory staff training” that “teaches, advocates, encourages, promotes, or acts upon” “stereotyping,” “scapegoating,” or “prejudice toward others on the basis of demographic group membership or identity.”

The Iowa statute goes on to list specific examples of attitudes or concepts that it finds objectionable, including the notion that the United States or anyone in it is “fundamentally” or “systemically” or “inherently” racist or sexist (“whether consciously or unconsciously”); that an individual of a particular race or sex “bears responsibility for actions committed in the past by other members of the same race or sex”; that “meritocracy or a hard work ethic [is] racist or sexist”; or “that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual’s race or sex.” (Amazingly, the statute is not named The White Fragility Act of 2021.)

Unlike the Iowa legislation, which focuses mainly on prohibiting schools from providing staff training that draws upon CRT, Oklahoma’s law (HB 1775) prohibits educators from teaching their students any ideas ascribed to CRT. It also specifies that public college students cannot be required to “engage in any form of mandatory gender or sexual diversity training or counseling.” (So much for curbing sexual harassment or anti-LGBTQ+ violence.)

Tennessee’s law (SB 623) also prohibits educators from “promoting or advocating the violent overthrow of the United States government”; “promoting division between, or resentment of” people of different races or classes; or instructing that “the rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.” Reading this list, you’d think Tennessee’s educator workforce had been overtaken by anarchists.

But it is the Texas law (HB 3979) that best exemplifies the conundrum teachers now face. It begins with a robust list of civil rights topics that are appropriate (and even required) to teach, including the “history and importance of the civil rights movement” and “the history of white supremacy, including but not limited to the institution of slavery, the eugenics movement, and the Ku Klux Klan, and the ways in which it is morally wrong.” But it then goes on to prohibit a list of tenets that have been falsely ascribed to CRT. In short, social studies educators in Texas must toe an exceedingly fine line, making sure (1) to teach about historical racism and sexism, while (2) taking care not to say anything that might lead students to feel bad about historical racism and sexism.

Perhaps the most remarkable thing about these “anti-CRT” bills, however, is how little interest their authors have in trying to address real problems, such as how to grapple with our nation’s rich and complex civil rights history. Instead, the sponsors of these bills have made up a problem, just so they can demand it be fixed.

To be sure, on a complex, emotionally charged topic such as examining racism in U.S. history, it’s easy to find a few schools that have implemented a poorly designed lesson or curriculum, or to identify a few rash comments made by an educator or trainer. But those isolated examples hardly suggest that a nefarious movement, somehow associated with CRT, has infiltrated the schools. In truth, there is no evidence that significant numbers of public school educators are involved in a concerted effort to “scapegoat” or “stereotype” anyone, much less to make children of any race “feel discomfort, guilt, anguish, or any other form of psychological distress.”

Moreover, many of the anti-CRT bills are laden with exceptions that reduce their overall impact to the point of nullification. For example, in the Iowa statute, while mandatory trainings that include verboten content are prohibited, voluntary ones aren’t; and even in the mandatory trainings, while trainers can’t affirmatively promote “stereotyping, scapegoating, or prejudice,” they can respond to questions related to these topics. And while K-12 curriculum related to “stereotyping” and “scapegoating” of people (i.e., white males) by their race or sex is prohibited, educators can still teach any topic otherwise prohibited in the legislation “as part of a larger course of academic instruction.” (The anti-CRT laws in Tennessee, Texas, and Oklahoma contain similar exceptions.)

If banning concepts attributed to CRT were so important, you’d think state policy makers would have tried harder to close all of these loopholes. Instead, the hollowness of these bills reveals a more craven purpose: to chill legitimate and protected speech, without actually outlawing it, by causing uncertainty about whether that speech is permissible.

The legality of anti-CRT proposals

At first blush, controlling the content of classroom instruction or school employee training would appear to be well within the purview of the government. After all, states have near-total control over curricular content, especially in K-12 schools (see Kim, 2021). Even so, the anti-CRT laws could face an uphill battle in court. For instance, in Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump (N.D. Cal. 2020), a federal court blocked the progenitor of these anti-CRT laws — Trump’s Executive Order 13950 — from taking effect because of the likelihood that it violated the U.S. Constitution.

Another case that may pose a problem for anti-CRT laws is Gonzalez v. Douglas (D. Ariz. 2017), which involved an Arizona bill that — in strikingly similar fashion to anti-CRT bills — prohibited Arizona public schools from adopting curricula that (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”

The Gonzalez court held that the Arizona statute violated the right of equal protection under the 14th Amendment because it was enacted and enforced with a discriminatory purpose, as evidenced by numerous anti-Mexican American statements by policy makers. The court also held that the state law violated the First Amendment right of Arizona students and parents to receive a diverse range of information and ideas (see the Supreme Court opinion in Island Trees Union Free Sch. Dist. No. 26 v. Pico, 1982).

It remains to be seen whether a legal challenge to anti-CRT laws relying on Gonzalez (and Pico) could overcome numerous other court cases establishing the state’s near-total discretion to control the public school curriculum. But if anti-CRT laws can be tied to political, partisan, or even racist goals — which seems quite possible given their origins — a court may one day prevent them from taking effect.

The larger impact of anti-CRT laws

The truth is that instruction about critical legal studies and related fields (including CRT, feminist legal studies, and queer theory) is more or less nonexistent in public education. Nonetheless, Down with critical race theory! has become the latest battle cry among Republican lawmakers, who’ve never hesitated to whip up hysteria against K-12 educators — Socialist teachers are indoctrinating their students! Sex educators are teaching kids to fornicate! Pro-witchcraft school librarians are enticing children to read Harry Potter! — in a bid to scare voters into joining their ranks.

The larger concern is that a significant percentage of our nation’s political leadership appears to approve of snuffing out schools’ efforts to encourage students to think critically about the history and impact of race, gender, and systemic inequality in the U.S. Shutting down this kind of inquiry is a refutation of the national reckoning on race and sex propelled forward by the Black Lives Matter and #MeToo movements. It’s also an attempt to undermine the development of knowledge, self-reflection, and thought — in other words, an assault on pedagogy itself.

Reference

Kim, R. (2021). How is your community depicted in the curriculum? Who decides? Phi Delta Kappan, 102 (5), 63-64.