Education Law

Nonexistent 'Critical Race Theory' curriculum is caught in the crosshairs

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Critical Race Theory Protesters

People held up signs during a June rally in Leesburg, Virginia, protesting critical race theory being taught in schools. Photo by Andrew Caballero-Reynolds /AFP via Getty Images

More than 30 years ago, law professor Richard Delgado began writing law review articles emphasizing the pervasive and pernicious role of race in law and society. He has become, according to University of California at Davis School of Law Dean Kevin R. Johnson, “a sort of LeBron James or Michael Jordan among legal academics.”

Delgado and other pioneering law professors—such as Mari Matsuda, Derrick Bell, Patricia L. Williams and Kimberlé Crenshaw—called for a fundamental reorientation of legal studies on race. Concepts of how race impacts society and the legal system were at the forefront of the discussion, often through telling stories of those impacted by race and societal discrimination. These scholars became known as critical race theorists and their approach known as critical race theory.

Some conservative members of the legal academy criticized CRT, “but for the most part, there wasn’t a lot of pushback for several decades,” says Delgado, who teaches law at the University of Alabama and is the most-cited critical race theorist with 9,925 citations, according to a 2021 article in the University of Chicago Law Review.

Recently, CRT has become the target of state legislators across the country. These bills and laws ostensibly seek to extirpate critical race theory from school curricula and public institutions.

“These laws concern me personally,” says Delgado, who fears that a bill in Alabama that would ban CRT could end his teaching career in the state.

At press time, eight states—Idaho, Iowa, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee and Texas—have variously worded bans that apply to either K-12 public schools or public colleges and universities. (In November, the Arizona Supreme Court voided the ban the legislature passed in July.) They are sometimes dubbed “anti-CRT” laws, though the term “critical race theory” normally does not appear in the text, and in fact, critical race theory isn’t a specific curriculum. Most legislators, critics and the general public cannot explain what “critical race theory” is or means. Instead, the term has been co-opted as a rallying cry by the right; and PEN America, a writers’ organization that focuses on free speech and free press issues, has dubbed anti-CRT laws “educational gag orders.”

Using language from a September 2020 White House executive order, many of these laws prohibit schools from allowing teaching that:

• “One race or sex is inherently superior to another race or sex.”

• “An individual’s moral character is necessarily determined by his or her race or sex.”

• “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.”

Identity politics

Idaho’s law contains a passage emphasizing that the intent of the law is “to respect the dignity of others … defend intellectual honesty, freedom of inquiry and instruction, and freedom of speech and association.”

“I had not heard of CRT prior to [January 2021], but I had heard from an unusual number of parents in the fall of 2020 regarding what they described as bias in the classroom,” says Idaho Rep. Wendy Horman, a Republican who sponsored the law. “We were fresh off a bitter presidential election, ‘defund the police’ movements and the rise of [Black Lives Matter], so while the parents who called me weren’t using the term CRT, they were describing situations where students were being bullied or coerced by adults to adopt a certain view.”

Horman says she watched public schools in other states become cultural and political battlegrounds around the subjects of race and gender, and she wanted “to protect Idaho children and institutions from such a fate.”

Meanwhile, Iowa’s law specifically allows “the use of curriculum that teaches the topics of sexism, slavery, racial oppression, racial segregation or racial discrimination.” Tennessee’s law allows “the impartial discussion of controversial aspects of history” and “the impartial instruction on the historical oppression of a particular group of people based on race,” although the law does not define “impartial.”

The alacrity of legislative action in this arena has caused many to ask, “Why now?” Delgado believes there are three reasons for this development: the 2020 election, the COVID-19 pandemic and demographics.

Delgado says the disappointment of President Donald Trump’s supporters over his election defeat was a factor that gave rise to the anti-CRT movement.

“They were looking for a scapegoat,” Delgado explains.

Then during the pandemic, parents and their children were suddenly spending more time together. Many parents learned that their children had more open worldviews on racial and social issues. “Many of these parents then blamed the schools for teaching their kids values different than their own,” Delgado says.

Finally, there are population projections that the U.S. will be minority white within 25 years, which Delgado says has been disconcerting for some white parents and has stoked fearmongering by politicians. The anti-CRT movement has proved a useful rallying cry.

“Pedagogically, it is inherently harmful to educate our young people and future citizen leaders with an inaccurate history that excludes inconvenient facts, thereby erasing and denying the history of marginalized communities and their continuing efforts to secure equality,” says Jin Hee Lee, senior deputy director of litigation & director of strategic initiatives at the NAACP Legal Defense and Educational Fund.

Court challenges

Many educators and activists are fighting back against laws they say stifle academic freedom and promote false narratives. Oklahoma’s law faces a court challenge, as the American Civil Liberties Union and the Lawyers’ Committee for Civil Rights Under Law represent seven plaintiffs—students, professors and others—in Black Emergency Response Team v. O’Connor.

“Across the state, educators are censoring their speech in order to avoid deeper student inquiry around race, gender, and inequality because they do not know where the line between lawful and unlawful conduct lies,” the complaint reads.

The complaint also contends that the Oklahoma law constitutes viewpoint discrimination, is too broad, too vague and limits students’ rights to receive information and ideas.

“In Oklahoma and elsewhere, there has been a conspiracy of silence and a whitewashing of our history, a purposeful erasure of important events that need telling and examining,” says Emerson Sykes of the ACLU and one of the attorneys in the case. “These laws banning the teaching of so-called critical race theory are a backlash against this general progress toward a more inclusive education.”

Joey Senat, who holds a PhD in mass communication law and is a First Amendment expert who teaches at Oklahoma State University’s School of Media and Strategic Communications, worries about the vagueness of the new law. “I agree with the plaintiffs that the statute is impermissibly vague. For example, the statute prohibits requiring or making part of a course the concept that one race or sex is inherently superior to another race or sex. Does this prohibit teaching that one race is inherently superior to another, or does it prohibit informing students that white superiority was a justification for American imperialism?”

However, the co-sponsor of the legislation believes the complaint misses the mark. “It is unfortunate but not surprising to see radical leftist organizations supporting the racist indoctrination of our children that HB 1775 was written to stop,” says Oklahoma Republican Rep. Kevin West. “The law ensures that all history is taught in schools without shaming the children of today into blaming themselves for problems of the past, as radical leftists would prefer. The legal complaint is full of half-truths—and in some cases, blatant lies—meant to generate sensationalist media coverage that, once again, distorts a commonsense bill the vast majority of Oklahomans support.”

The ACLU says the Oklahoma lawsuit is only the beginning. “We are actively exploring litigation options in multiple states,” Sykes says. “We are hopeful a positive ruling might discourage other states from moving forward and passing such laws.”

This story was originally published in the February-March 2022 issue of the ABA Journal under the headline: “Legislators Take Aim at Critical Race Theory: Nonexistent curriculum is caught in the crosshairs.”

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