Four people at the Foundation for Individual Rights in Education (FIRE) have written a personal take on the new laws designed to prevent the teaching of critical race theory (CRT) in campuses and secondary schools. Their views don’t constitute not an official FIRE position but rather raise some considerations about the spate of laws, put in place mostly by Republican states. What I like about FIRE is that they are nonsectarian, defending the civil liberties of students regardless of what ideology is involved. (That’s what the ACLU used to do.)
So in this case, though much of the motivation for these laws could stem from a Republican desire to prevent the teaching of the history of racism and the genocide of Native Americans, Lukianoff et al. argue that there are some genuine motivations for enacting these laws based on what’s happened in classrooms. On the whole, though, the authors come down with the view (a view I’ve expressed myself) that although these laws may be constitutional, they are also undesirable, and that there are other ways to prevent some of the invidious effects of how CRT has been taught in the classroom.
Click on the screenshot to read:
The authors call these bills “divisive concepts bills” (DCBs) rather than CRT bills, as Lukianoff et al. (referred to as “I” in the text) say that DCB better expresses what the bills promote. They make 13 points about the bills. These are not reasons to oppose to bills, but rather things to consider when thinking about whether DCBs should be opposed. I’ll list the points (FIRE’s quotes are indented) and give my own take in type that is flush left.
Note that most of the interest in these bills centers on their use in public secondary schools rather than public universities, which have greater latitude for teaching what the faculty wants.
1. There are dozens of these bills, with possibly hundreds of amendments. And they all differ, making it hard to formulate a blanket opinion. As FIRE says:
Indeed, there are so many that it has made discussion of the bills difficult, with some being clearly unconstitutional, while a few others essentially reiterate existing racial discrimination law and seek to ban the kind of compelled ideological speech that is already prohibited under the First Amendment.
2. Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture. According to the essay, this constitutes illegal “viewpoint discrimination”. But that applies in universities, and such discrimination is surely illegal. The crunch comes in secondary education (kindergarten through 12th grade), where the law is different.
3 Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture. Why FIRE thinks DCBs shouldn’t be passed to apply to secondary schools is largely because the parts of CRT that liberal parents object to involve compelled speech, such as attesting that you have white privilege and are racist—speech that is already illegal. Teaching about the history of racism in America, which is why Republicans largely want these bills, isn’t wrong, but is an important part of our history. It’s the compelled thought and speech bits that are illegal. But not all bills mandate that.
4. K-12 curricula are not suddenly political. They have always been political. The point is that curricula are decided in a “democratic manner”, which, I suppose means that the authors think that legislatures have the right to mandate curricula. Two quotes:
. . . what will become 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. There is a large distinction between the expansive role that higher education plays in our society and the restricted responsibilities incumbent upon an American elementary, middle, or high school. Higher education is a gigantic engine not merely for teaching but also for engaging in knowledge-expanding research. As such, it enjoys certain necessary privileges, such as academic freedom.
. . . Because K-12 attendance is compelled by the state and, at public schools, funded predominantly by local taxes, it is understandable that the substance of that teaching is subject to democratic oversight, through state legislatures and elected (or appointed by those who were elected) school boards. Legislators are expected to exercise oversight when citizens with children in the schools voice legitimate concerns about curricular matters.
5. Most of the divisive concepts bills aimed just at K-12 are probably constitutional, given that legislatures have a lot of power to decide curriculum. That doesn’t mean they are above criticism. Restricting teacher’s speech rights is much easier in secondary school than in colleges. Exceptions, as I’ve pointed out, include teaching ID or other forms of creationism, which are banned from public education by the First Amendment (creationism is considered a religious doctrine).
But, as FIRE points out, “legal” doesn’t mean “wise”, especially when the bills prohibit teaching things that make students “uncomfortable”. As the essay notes,
Rhode Island’s H6070 (tabled in committee) bans “race or sex scapegoating,” defined as, in part:
(ii) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex and similarly encompasses any claim that any particular race or sex is responsible for society’s ills.
This could be read as making basic statements of fact — for example, “In the United States, until 1865, the enslavement of black people by white people was widespread practice,” — unlawful if spoken by a teacher or administrator to a student.
This isn’t the only part likely to cause anxiety for well-intentioned teachers. Many of the bills prohibit “making part of any course” that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” It is not hard to imagine a student feeling uncomfortable by learning true facts about historical racism, presented reasonably, coming home distraught and telling their parents. Under these bills, parents may argue that the teacher has done something unlawful. This is always an issue when speech restrictions focus on concepts characterized by a subjective reaction like discomfort or guilt, without making absolutely clear that the regulation is targeting behavior intended to create that response in students. Indeed, my book with Jon Haidt, “The Coddling of the American Mind,” emphasized the dangers of focusing on impact over intent.
As Lukianoff et al. emphasize, these constitute “vague speech codes”, which could, and will, lead to both chilling of student speech and lawsuits.
6. Banning specific curricular materials like The 1619 Project in public K-12 schools, whether or not you agree with doing so, is within the power of the government in many states. I object to teaching the 1619 Project not on legal grounds, but on didactic grounds: it’s an ideological program that promulgates a view of history that is largely inaccurate. But banning its teaching is censorship. Its vetting should be done democratically, through legislatures, school boards, and schools themselves.
7. Misleading reporting has muddied the waters. One example are reports that the new Florida law mandates that students and professors must register their individual political affiliation. That simply wasn’t true: the bill mandates a “climate report” on “intellectual freedom and viewpoint diversity” in schools which could be useful in seeing how many students feel that they aren’t able to speak freely. FIRE did oppose that bill, but for other reasons
8. Proponents and critics of the divisive concepts bills are largely talking past each other on the issue. This is, I think, the most important of all the points. I’ll quote Lukianoff et al. here;
Proponents of the bills see them as banning sessions where preteens are made to apologize for their race privilege, or where biracial children have been told that one parent probably physically abused the other due to their oppressor status. They look at sections in the bills that ban teaching mandatory guilt, genetic essentialism, and racial superiority and wonder — and assume — that opponents of the bills must be proponents of teaching those concepts.
On the other hand, critics of these bills see bans on the 1619 Project, and vague clauses that arguably reach any discussion of slavery, and interpret them as a highly politicized mandate to teach a certain view of history intended to soften the horrors of slavery and minimize historical racism. They see those who support such laws as wanting children to learn a jingoistic and propagandized version of history. While some on each side are undoubtedly acting in bad faith, the majority are motivated by sincere and valid concerns, and both proponents and opponents are motivated to ignore the valid points of their opposition.
Each side’s distorted impression of the goals of the other side, and of what’s actually in the bills, has been an unfortunate side effect of the media coverage. Those listening to left-leaning outlets and pundits could be forgiven for thinking that the bills outright ban discussion of slavery. Those listening to right-leaning outlets and pundits could be forgiven for having no idea of the breadth and vagueness of a lot of the clauses in these bills, and the chilling effect they may create with teachers making good faith attempts to comply. The media coverage of these bills has been largely lacking in deep-dives into the actual text of the bills, instead relying on broad characterizations of their intent and the motivations behind those introducing them.
As one example, South Carolina’s bill prohibits schools from promoting things like the superiority of one race over another or that an individual bears responsibility “for actions committed in the past by other members of the same race or sex.” The authors point out that these things are already prohibited by laws on racial discrimination and harassment.
And yet the termites continue to dine, as in these examples of real things that happened in school, collected by Bonnie Snyder:
- A biracial high school student in Las Vegas was allegedly singled out in class for his appearance and called derogatory names by his teacher. In a lawsuit, the student’s family alleges he was labelled an oppressor, told denying that status was “internalized privilege,” and told he needed to “unlearn” the Judeo-Christian principles imparted by his mother. When he refused to complete certain “identity confession” assignments, the lawsuit claims, the school gave him a failing grade. He has had to attend counseling.
- Third grade students in California were forced to analyze their racial and other “identities,” rank themselves according to their supposed “power and privilege,” and were informed that those in the “dominant” culture categories created and continue to maintain this culture to uphold power.
- Parents in North Carolina allege that middle school students were forced to stand up in class and apologize to other students for their “privilege.”
- Buffalo public schools teach students that all white people perpetuate systemic racism and are guilty of implicit racial bias.
- Elementary children at the Fieldston School in Manhattan were sorted by race for mandatory classroom exercises.
These exercises are indeed illegal, and some of the proponents of the new bills are worried by stuff like this. They are right to do so, especially because ascertaining that these things happened might be difficult if children’s speech is chilled. I have no doubt that much of this stuff goes on now and yet is unreported.
9. Legislation is not the only way to address the aforementioned concerns. First of all, many of the behaviors prohibited by the new bills are already illegal. This could be remedied with either lawsuits or things like issuing the “warning letters” that are a specialty of FIRE. The other ways are less convincing, involving vague notions of “broader reform with a positive vision and lots of creative thinking and experimentation.” Granted, it wasn’t this article’s brief to outline specific reforms, but rather to give us thinking and talking points. Still, if you don’t think the bills are a good idea, but still shouldn’t be banned in general, you need to figure out a way to eliminate their invidious effects.
10. Critical race theory isn’t a perfect term for the problematic behavior these bills are trying to address. The authors note that the academic version of CRT, as adumbrated by scholars like Kimberlé Crenshaw and Derrick Bell, isn’t what is being prohibited. Instead, it is the more authoritarian versions of anti-racism, as spread by people like Ibram Kendi and Robin DiAngelo. The authors consider variants of the latter ideas to be “antiliberal.”
11. The California ethnic studies curriculum helps demonstrate what the proponents of these bills are afraid of. I won’t go into detail here, but the authors consider the California curriculum anti-Semitic. Their essay gives examples.
12. What is the deeper cause of this battle? A breakdown in societal trust and trust in expertise, particularly along partisan lines. One quote from the essay:
While trying to explain the situation in a forthcoming interview with Michael Moynihan at VICE, I realized that at the core of what’s going on is a fundamental lack of societal trust and the lack of trust in expertise. Many parents, even many on the left, don’t necessarily trust K-12 teachers to do the right thing on their own. They believe that without new laws, rather than educating about certain historical facts, teachers will be indoctrinating their children into a bleak worldview.
The authors see no quick fix for this problem. Indeed, it is the reason why we have so much vaccination resistance and opposition to evolution in the U.S.!
13. There are going to be lots of lawsuits. That’s for sure!
The authors’ conclusion, with which I again agree, is that “Sometimes the principled thing will make nobody happy.” Apparently the “principled thing” espoused by Lukianoff et al. is that teaching bans are unconstitutional for higher education, but often are not unconstitutional in secondary schools, so they can’t be dismissed or attacked as illegal. Here’s how the authors end:
The reality is, as usual, complicated. Proponents of these bills need to realize that they can’t legislate these ideas out of existence, and that the more egregious bills are not only unconstitutional and thus totally futile, but throw fuel on an already raging culture war fire. Opponents of these bills need to read the bills and be honest about what’s actually in them and recognize that their opponents are motivated by something other than a desire to hide the true history of slavery. It is my hope that, wherever you lie on this issue, this article has given you a greater understanding of the opposing side. And if not, you’re welcome to join those yelling at me across both sides of the aisle!
I’m not yelling, as these are all good points. It’s worth reading the piece and cogitating before you take a stand on the anti-CRT (or anti-DCB) bills.