Critical Race Theory Is Making Both Parties Flip-Flop

Among the dozens of bills filed by Republicans to restrict how educators teach about race, perhaps none was more carefully written than the one in North Carolina. And therein lies the larger problem with such bills: The downside of even the most cautious efforts likely outweighs their benefits.

In numerous other states, legislators purporting to target critical race theory or “divisive concepts” have packaged sensible reforms—including prohibitions on requiring students to proclaim particular points of view—together with irresponsible clauses that are highly likely to discourage valuable instruction. Greg Lukianoff, the president of the Foundation for Individual Rights in Education, worries that many of these bills “are so vague that they arguably forbid teaching about slavery or racism at all.”

Yet even harsh critics of this kind of legislation grant that North Carolina’s effort is less vulnerable to censorious abuses than those of other states. For example, the Acadia University instructor Jeffrey A. Sachs surveyed more than 50 bills in 24 states that would add restrictions to what K–12 educators could tell students about race or sex. He concluded that legislators who wanted to ban teaching topics such as white privilege and the work of authors such as Robin DiAngelo and my colleague Ibram X. Kendi had “drafted bills so broad and clumsily written that entire historical eras and swathes of contemporary events would be barred from discussion.” The large majority of these bills “are repugnant to an open society,” Sachs declared––yet he noted that “North Carolina’s bill is the exception” and “would probably do little harm.”

That’s because House Bill 324 would not prohibit elementary- and secondary-school educators from merely discussing anything, including white privilege, DiAngelo’s White Fragility, or Kendi’s How to Be an Antiracist. Rather, it would prohibit them from “promoting” seven specific concepts:

Under the proposed law, schools are explicitly allowed to explain those seven concepts or to assign materials that incorporate them “for educational purposes in contexts that make clear the public school unit does not sponsor, approve, or endorse such concepts.” Educators are prohibited only from teaching any of the concepts “in a manner that could reasonably give rise to the appearance of official sponsorship, approval, or endorsement.” (Though the law’s text mentions race and sex in parallel, the debate about it has focused on how schools handle the former.)

Read: The GOP’s ‘critical race theory’ obsession

I sympathize with fears that some educators try to indoctrinate rather than educate public-school students about race and that some left-progressive perspectives about race veer into racial essentialism, discrimination, or crude racial stereotypes, like the notion that showing up on time or revering the written word is an attribute of “white culture.” Any teacher actively promoting the concepts targeted by the North Carolina bill should meet public resistance. For lawmakers or parents to object to curricula that promote ideological dogma about race is neither illiberal nor authoritarian, any more than objecting to Lost Cause mythology in public schools is illiberal or authoritarian.

Yet North Carolina’s relatively well-written bill illuminates a flaw in all such legislation: Any prohibition broad enough to exclude pernicious dogma risks prohibiting or chilling legitimate instruction, while any bill so narrow as to avoid a chilling effect is unlikely to effect significant change. The needle is extraordinarily difficult to thread.

The populist right is now using critical race theory—a term that originally referred to a distinct, decades-old form of scholarship about racism in American politics and law—to encompass everything conservatives dislike about leftist identity politics, while the progressive left now understands CRT to be mere common-sense truths about racism in America. The outrage entrepreneurs on either side of H.B. 324 therefore share a perverse incentive to portray it as a law that would ban critical race theory. The bill would prevent “discriminatory concepts, like Critical Race Theory, from being taught as fact or endorsed,” North Carolina’s Republican House speaker, Tim Moore, declared in a press release. Democratic Representative Kandie Smith likened the bill to a “book burning” and said, “A small group of enraged individuals are looking to ban an entire concept of thought because it makes them uncomfortable.”

But if the North Carolina bill passes, it won’t ban critical race theory. It will restrict teachers from promoting seven specific concepts that may overlap at times with CRT but are far from synonymous with it—and will do so mostly by banning the promotion of racial stereotypes in public schools. Indeed, the bill is best understood as an attempt to deploy the blunt tool of antidiscrimination law, an exercise that ought to confound many of its supporters and opponents alike.

Actors on both sides are taking positions that they reject in other circumstances. Prior to this year, observers of American politics could expect a bill targeting discrimination on the basis of race or sex (as at least six of the seven concepts named in the legislation do) to be disproportionately supported by Democrats invoking values such as diversity, inclusion, and the importance of combatting hate, and disproportionately opposed by Republicans citing concerns about restricting individual liberty and needlessly inviting costly, frivolous litigation. Instead, the Republicans pushing the bill say that “it simply prohibits schools from endorsing discriminatory concepts,” as Representative John Torbett, the lead sponsor, put it. Opponents of the North Carolina measure and similar bills in other states emphasize their potential chilling effect. Commenting on GOP proposals collectively, the ACLU declared, “Using these laws to prevent talk about racism is anathema to free speech—a right many conservative lawmakers claim to hold dear.”

This role reversal is due to the confluence of many factors. For years, academic training programs and professional organizations for American educators have asserted that teachers have an ethical duty to advance progressive notions of social justice in the classroom, given the opportunity. More recently, an opportunity to advanced these notions arose: The rise of Black Lives Matter, the ideological shift of white liberals to the left of Black voters on issues of race, and the murder of George Floyd all contributed to greater support, especially in blue America, for radically transforming the way that public schools discuss race, for better and worse. Events such as the arrival of enslaved people in English colonies, Juneteenth, the Tulsa massacre, and unjust police killings have received due attention. And education about the workings of systemic racism—for instance, how redlining created racial disparities in inherited wealth—has grown more sophisticated.

These positive changes have triggered some backlash from reactionaries who simply object to any emphasis on the ugly side of U.S. history. But a broader backlash encompasses observers across the ideological spectrum who worry that, in the effort to right America’s very real racial wrongs, progressive educators are sometimes guilty of worrisome excesses, as when they stray into indoctrination or racial essentialism and reductionism––what the essayist Albert Murray called “a folklore of white supremacy and a fakelore of black pathology.” Alongside historical facts, some schools are relaying hotly contested narratives about race in America as if they’re established truths rather than the opinions of one ideological faction among many. The New York Times published the 1619 Project, which blended facts, such as the year enslaved Africans were brought to Virginia, with subjective interpretation, including the claim that 1619 was the year of America’s “true founding,” and partnered with the nonprofit Pulitzer Center to adapt even its most contested claims for school curricula. The Black Lives Matter at School movement succeeded in persuading a number of school districts across the country to devote a week to lessons that, at least in one district, include materials that tell kindergartners that “whiteness” is akin to signing a contract with the devil. DiAngelo’s signature book, now a fixture of professional-training sessions, maligns and stereotypes white people and condescends to Black people; Kendi’s best seller argues that “racial discrimination is not inherently racist … If discrimination is creating equity, then it is antiracist.”

Conor Friedersdorf: What happens when a slogan becomes the curriculum

So should public schools be banned by statute from promoting the concept that one race is inherently superior? Or that some people should feel psychological discomfort because of their race? I suspect that majorities of all racial groups regard at least the first six of the seven concepts targeted in North Carolina as profoundly wrongheaded. (The seventh, which includes the idea that the U.S. was created for the purposes of racial oppression, appears to refer to the 1619 Project. Though questionable as a historical matter, this proposition is not overtly discriminatory.)

Yet conservatives, of all people, should recognize compelling arguments for declining to pass a state law that interferes with the prerogatives of local control, which they’ve long valued, or that targets specific concepts, even extremely destructive or discriminatory ones. After all, commentators on the right have spent decades warning about potential and actual excesses of antidiscrimination statutes, and the many ways that they may conflict with other goods, such as First Amendment protections, academic freedom, freedom of religious conscience, freedom of expression, and more. Additionally, Republicans should worry that banning even something they abhor, such as the active promotion of White Fragility–style racial essentialism in North Carolina schools, could cause some educators to stop teaching valuable material that legislators did not intend to ban, because antidiscrimination laws tend to chill more speech than they formally prohibit.

Progressives, meanwhile, will be familiar with counterarguments in favor of aggressive, formal prohibitions on race and sex discrimination, having built bureaucracies in universities and other institutions to enforce such restrictions. In the 1993 essay collection Words That Wound—a seminal text of critical race theory—the professors Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw provide a multifaceted intellectual edifice for overriding academic freedom, free speech, and First Amendment concerns and using state power against words that degrade or humiliate in education.

In an ironic twist, proponents of the North Carolina legislation could argue for its passage by citing these critical race theorists, who argued in Words That Wound that less egregious forms of racism degenerate into more serious forms; that libels against entire racial groups are more damaging than slights aimed at individuals and are best treated as “outside the realm of protected discourse”; that racist messages trigger physiological injury and devastate self-esteem; that those who are denigrated for their race or gender benefit from laws that tell them they are not imagining the harm being done to them; that “the appropriate standard in determining whether language is persecutory, hateful, and degrading is the recipient’s community standard”; and that the classical liberal insistence on viewpoint neutrality when the state restricts speech entrenches abuses by people in power.

Summing up their case for narrowing the First Amendment and limiting freedom of speech, the authors of Words That Wound declare in a joint introduction that “this is at bottom a fight to gain equal access to the power of the intelligentsia to construct knowledge, social meaning, ideology, and definitions of who ‘we’ are.”

The same fight continues today, but with a noteworthy ideological flip.

The right, watching some educators abandon race neutrality, stigmatize whiteness, and embrace historiography that portrays the introduction of slavery as America’s true founding, is now invoking nondiscrimination law, a tool it has often criticized, to challenge a left-identitarian intelligentsia’s power to foreground racial difference and group identity in defining who “we” are. The North Carolina bill’s very title, “Ensuring Dignity & Nondiscrimination / Schools,” adopts the premise that protecting students’ dignity requires limiting their educators’ classroom speech. In a tweet reminiscent of Words That Wound, Speaker Moore warned of “hateful ideas that are attacking our kids.”

For its part, the left, which has traditionally pilloried skeptics of antidiscrimination laws, is opposing one such law in North Carolina, awakened to how that tool can limit speech, truth-telling, and knowledge-making. Echoing free-speech advocates who believe that people need no protection from views with which they disagree, one Democratic lawmaker, Representative Ashton Clemmons, declared, “Fundamental to education is discomfort. If you stay in your comfort zone, you are not growing. You are not learning. You fundamentally have to feel discomfort to learn something new.”

In short, proponents of the North Carolina bill have adopted critical race theorists’ call for explicitly limiting discriminatory speech in education, while bill opponents have rejected it.

Small tweaks to the North Carolina bill, such as eliminating the one prohibited concept that doesn’t constitute discrimination or stereotyping, could make it less prone to chilling effects or overweening prohibitions. But the bill’s opponents vastly exaggerate its potential harm when they claim, as did North Carolina’s ACLU chapter, that “rather than help young people get the most out of their education to help them grow into informed and engaged citizens, some lawmakers want to practice censorship and impose an alternate version of American history—one that erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, and LGBTQ+ individuals.” If passed, this bill will result in no such erasure.

Anne Applebaum: Democracies don’t try to make everyone agree

“This is an act to ensure discrimination, fanaticism, bigotry,” State Representative James Gailliard, a Democrat from Nash County, said of the bill. Nothing in the bill’s text can justify those histrionics. As Republican legislators in many states transgress too far into censoriousness, some Democrats are talking as if any step to contest preferred progressive curriculum on race is verboten––as if no legitimate disagreements exist about how best to educate and acculturate young people. If a significant number of North Carolina educators are promoting discrimination on the basis of race or sex, whether in the guise of white supremacy or anti-racist activism, state legislators are within their rights and responsibilities to pass a bill tailored to stop it. The question is: Are the ostensible abuses that this bill would prohibit actually common?

The conservative blogger A. P. Dillon has documented a teacher-training event in Wake County, North Carolina—set up by an employee of the Wake County Public School System’s Office of Equity Affairs and attended by scores of public-school teachers—where handouts at a “Whiteness in Ed Spaces” session listed supposed “norms of whiteness,” including “fear,” “I know best,” and “punish,” and urged educators to adopt “applied critical race theory” to challenge “the centrality of whiteness” in schools. But I’ve been unable to find significant evidence of North Carolina teachers engaging in classroom conduct that would violate the law.

Although I agree in principle with forbidding public-school teachers from promoting racism or sexism, and support existing nondiscrimination laws that do so, I doubt that many North Carolina teachers would ever be caught violating H.B. 324 by promoting one of its prohibited concepts—precisely because the bill’s language is so narrow, and merely teaching the concepts is permitted. And insofar as any educator is found to promote discriminatory stereotypes, pressuring principals and school boards to stop such activity could be effective without a state law.

Proponents of H.B. 324 argue that it would empower parents and make it easier for them to take their complaints to state courts, rather than federal ones. Still, the bill provides no specific remedy for violations. And other remedies are already available to students and their families. Specifically, the First Amendment protects against the state’s compelling people to affirm ideas with which they disagree. Title VI of the Civil Rights Act of 1964 already prohibits discrimination on the basis of race, color, or national origin “in any program or activity that receives Federal funds.” And North Carolina’s state constitution already declares, “No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.” Truly discriminatory teaching, in other words, is already illegal.

Meanwhile, lawmakers and members of the public who want to ban the 1619 Project or White Fragility from schools outright, rather than trusting that flawed historiography or identitarian “racecraft” will be rejected if the strongest arguments on all sides are aired, should understand that H.B. 324 won’t, in fact, keep those materials out of public-school classrooms. A North Carolina teacher could even assign Critical Race Theory: An Introduction without violating the law.

The closer one looks at the particulars, the more it seems as though the North Carolina bill’s advocates would be securing a symbolic political victory rather than a policy victory with any significant classroom consequences. That makes justifying the potential chilling effects of any antidiscrimination bill harder—especially in an environment where some credulous, uninformed teachers who listen to the hype from either side might mistakenly conclude that a whole ill-defined academic subfield is banned. The activists pushing these laws ought to study the history of the academic movement they tout as their enemy: As an early generation of critical race theorists discovered in the early 1990s, when they worked to promote speech codes in higher education, policy makers will inevitably struggle to write a bill that constrains discriminatory teaching narrowly enough to avoid undue censorship and broadly enough to achieve their goals. Should this bill become law, like those bygone speech codes, the victory may prove as Pyrrhic.