Banning Teaching Critical Race Theory: Constitutional? Pure Racism?

 

  The Infamous August 2017 “Unite the Right” rally in Charlottesville, VA

First of all, what is “critical race theory” (CRT)? According to the encyclopedia Britannica: it is the  “intellectual and social movement and loosely organized framework of legal analysis based on the premise that race is not a natural, biologically grounded feature of physically distinct subgroups of human beings but a socially constructed (culturally invented) category that is used to oppress and exploit people of colour. Critical race theorists hold that racism is inherent in the law and legal institutions of the United States insofar as they function to create and maintain social, economic, and political inequalities between whites and nonwhites, especially African Americans. Critical race theorists are generally dedicated to applying their understanding of the institutional or structural nature of racism to the concrete (if distant) goal of eliminating all race-based and other unjust hierarchies…

“Critical race theory (CRT) was officially organized in 1989, at the first annual Workshop on Critical Race Theory, though its intellectual origins go back much farther, to the 1960s and ’70s. Its immediate precursor was the critical legal studies (CLS) movement, which dedicated itself to examining how the law and legal institutions serve the interests of the wealthy and powerful at the expense of the poor and marginalized.” 

Speaking at a conference held by the Faith and Freedom Coalition on June 18, former Vice President Mike Pence said that “critical race theory is racism.” Senator Ted Cruz, at the same gathering, compared the theory to the Ku Klux Klan saying the curriculum is “every bit as racist” as the white supremacist hate group. “Critical race theory,” the senator said, “says every white person is a racist.” Not exactly. Politicians positing a ban on teaching what they perceive is CRT rely on an underlying notion that the voting and civil rights judicial cases and statutes of the 1950s and 60s purged this country and its legal system of racial oppression, particularly of African Americans. Yet it is dramatically illogical to assume that courts and legislatures can instantly purge negative racial considerations from vast societal segments with a mere ruling or a statute. Racism is still very much with us.

Some have linked how CLS is the basis for promoting Marxism, a political theory based on the assumption that rich classes oppress impoverished classes. But CRT does not teach students how to be Marxists or that Marxism is the solution. To those almost uniformly white legislators from red states who oppose allowing the teaching of CRT in our public classrooms and clearly believe that our younger generation should be sheltered from learning about continuing systematic and very provable racial injustice all around us (see the torch-bearing protestors pictured above), I suspect that it is indeed they who are the most obvious racists. This does not suggest that unfair reverse racism does not exist or that such factors should not also be discussed, but anyone who believes society offers African Americans a just and level playing field, the exact same system accorded the average white person, must be blind, illiterate or both. Or racist.

However, as July 1st Columbia (University) News points out and as illustrated by the above quotes, “Republican lawmakers in more than 20 states have introduced or passed legislation that would directly target the principles underlying critical race theory by banning schools from teaching about structural racism. These efforts to demonize critical race theory are gaining traction more than a year into a national reckoning with racism, following the murders of George Floyd and Breonna Taylor, and the ensuing protests.” 

Writing an OpEd for the October 7th ABA Journal (American Bar Assn.), Engy Abdelkader, a council member of the ABA Section of Civil Rights and Social Justice and chairwoman of the section’s Rights of Immigrants Committee who also teaches at the Mitchell Hamline School of Law and Rutgers University, says: “The anti-CRT legislative movement targets discussion of racism and bias in the public school system while chilling free speech in violation of the First Amendment…

“Significantly, the attack against CRT does not occur in a vacuum; rather, it is part of a pattern of legislative reprisals following 2020’s historic racial justice movement and in the aftermath of its presidential election cycle. Indeed, the backlash against CRT is part of a broader GOP response to the political mobilization of communities of color.

“In response to the Black Lives Matters demonstrations after George Floyd’s murder by a Minneapolis police officer, Republican lawmakers introduced more than 80 anti-protest bills across the country. Targeting freedom of expression, some of these measures define a riot as constituting as few as three people and/or expand penalties from monetary fines to multiple-year prison sentences.

“Additionally, after historically marginalized communities delivered Democratic victories in November, lawmakers introduced more than 360 voter suppression bills in the first three months of this year, the vast majority by Republicans. Subsequently, in Brnovich v. Democratic National Committee, the U.S. Supreme Court’s conservative majority upheld a voter suppression measure in Arizona signaling likely hostility to similar challenges from other jurisdictions.” 

While the reconfigured right-wing Supreme Court just might support this CRT ban, the existing Court precedents seem to reject such a limitation. Abdelkader continues, addressing these constitutional issues: “While the courts have not yet considered the constitutionality of anti-CRT measures, a string of cases from the McCarthy era in the 1950s may prove instructive.

“During that time, lawmakers enacted Red Scare laws, including those designed to stifle the teaching of Marxism and Communism. Legal challenges to these measures led to the Supreme Court addressing whether the violated the First Amendment. A representative case is Yates v. United States (1957).

“In Yates, the high court drew a distinction between advocating for unlawful action and the academic discussion of such a doctrine in the abstract. Indeed, laws that bar academic discussion—even of concepts that a subset of the public deems provocative or controversial—will not survive constitutional scrutiny unless such instruction crosses over into advocacy of unlawful conduct.

“It is significant to note that this legal principle is implicit in other Supreme Court rulings. Consider, for instance, the religion clause cases… In the post-9/11 context, parents have posed legal challenges to classroom instruction about Islam and Muslims in public education. While an entirely distinct legal standard applies in those cases, particularly where allegations of establishment clause violations are involved, the same implicit rule has emerged. The courts consistently defend the academic discussion of such subjects even when viewed as unpopular by a subset of the general population. These courts have reasoned that the classroom is a ‘marketplace of ideas’ where a robust exchange should yield truth.” 

In short, the bona fide Supreme Court “bright line,” if they take up this issue, should be difference between converting people to a specific belief system requiring social violence as opposed to learning what such violent belief systems are and how they have been adopted by  various segments of society. Such CRT-teaching bans only make an already bad situation worse… waiving a racial superiority red flag against the pent-up rage from an increasingly and justifiably angry bull-minority who have faced unending racial inequities for centuries.

I’m Peter Dekom, and our younger generations do not need shelter from lessons of inequity, injustice… and most of all the truth.