Anti-Critical Race Theory Laws Are Un-American
By Kmele Foster, David French, Jason Stanley and Thomas Chatterton Williams
The authors are a cross-partisan group of thinkers who have written extensively about authoritarianism, liberalism and free speech.
What is the purpose of a liberal education? This is the question at the heart of a bitter debate that has been roiling the nation for months.
Schools, particularly at the kindergarten-to-12th-grade level, are responsible for helping turn students into well-informed and discerning citizens. At their best, our nation’s schools equip young minds to grapple with complexity and navigate our differences. At their worst, they resemble indoctrination factories.
In recent weeks, Tennessee, Oklahoma, Iowa, Idaho and Texas have all passed legislation that places significant restrictions on what can be taught in public school classrooms, and in some cases, public universities, too.
Tennessee House Bill SB 0623, for example, bans any teaching that could lead an individual to “feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex.” In addition to this vague proscription, it restricts teaching that leads to “division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class or class of people.”
Texas House Bill 3979 goes further, forbidding teaching that “slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States.” It also bars any classroom from requiring “an understanding of the 1619 Project” — The New York Times Magazine’s special issue devoted to a reframing of the nation’s founding — and hence prohibits assigning any part of it as required reading.
These initiatives have been marketed as “anti-critical race theory” laws. We, the authors of this essay, have wide ideological divergences on the explicit targets of this legislation. Some of us are deeply influenced by the academic discipline of critical race theory and its critique of racist structures and admire the 1619 Project. Some of us are skeptical of structural racist explanations and racial identity itself, and disagree with the mission and methodology of the 1619 Project. We span the ideological spectrum: a progressive, a moderate, a libertarian and a conservative.
It is because of these differences that we here join together, as we are united in one overarching concern: the danger posed by these laws to liberal education.
The laws differ in some respects but generally agree on blocking any teaching that would lead students to feel “discomfort, guilt or anguish” because of one’s race or ancestry, as well as restricting teaching that subsequent generations have any kind of historical responsibility for actions of previous generations. They attempt various carve outs for the “impartial teaching” of the history of oppression of groups. But it’s hard to see how these attempts are at all consistent with demands to avoid discomfort. These measures would, by way of comparison, make Germany’s uncompromising and successful approach to teaching about the Holocaust illegal, as part of its goal is to infuse them with some sense of the weight of the past, and (famously) lead many German students to feel “anguish” about their ancestry.
Indeed, the very act of learning history in a free and multiethnic society is inescapably fraught. Any accurate teaching of any country’s history could make some of its citizens feel uncomfortable (or even guilty) about the past. To deny this necessary consequence of education is, to quote W.E.B. Du Bois, to transform “history into propaganda.”
What’s more, these laws even make it difficult to teach U.S. history in a way that would reveal well-documented ways in which past policy decisions, like redlining, have contributed to present-day racial wealth gaps. An education of this sort would be negligent, creating ignorant citizens who are unable to understand, for instance, the case for reparations — or the case against them.
Because these laws often aim to protecting the feelings of hypothetical children, they are dangerously imprecise. State governments exercise a high degree of lawful control over K-12 curriculum. But broad, vague laws violate due process and fundamental fairness because they don’t give the teachers fair warning of what’s prohibited. For example, the Tennessee statute prohibits a public school from including in a course of instruction any “concept” that promotes “division between, or resentment of” a “creed.” Would a teacher be violating the law if they express the opinion that the creeds of Stalinism or Nazism were evil?
Other laws appear to potentially ban even expression as benign as support for affirmative action, but it’s far from clear. In fact, shortly after Texas passed its purported ban on critical race theory, the Texas Public Policy Foundation, a conservative think tank, published a list of words and concepts that help “identify critical race theory in the classroom.” The list included terms such as “social justice,” “colonialism” and “identity.” Applying these same standards to colleges or private institutions would be flatly unconstitutional.
These laws threaten the basic purpose of a historical education in a liberal democracy. But censorship is the wrong approach even to the concepts that are the intended targets of these laws.
Though some of us share the antipathy of the legislation’s authors toward some of these targets, and object to overreaches that leave many parents understandably anxious about the stewardship of their children’s education, we all reject the means by which these measures encode that antipathy into legislation.
A wiser response to problematic elements of what is being labeled critical race theory would be twofold: propose better curriculums and enforce existing civil rights laws. Title VI and Title VII of the Civil Rights Act both prohibit discrimination on the basis of race, and they are rooted in a considerable body of case law that provides administrators with far more concrete guidance on how to proceed. In fact, there is already an Education Department Office of Civil Rights complaint and federal lawsuit aimed at programs that allegedly attempt to place students or teachers into racial “affinity groups.”
The task of defending the fundamentally liberal democratic nature of the American project ultimately requires the confidence to meet challenges to that vision. Censoring such challenges is a concession to their power, not a defense.
Let’s not mince words about these laws. They are speech codes. They seek to change public education by banning the expression of ideas. Even if this censorship is legal in the narrow context of public primary and secondary education, it is antithetical to educating students in the culture of American free expression.
There will always be disagreement about any nation’s history. The United States is no exception. If history is to judge the United States as exceptional, it is because we welcome such contestation in our public spaces as part of our unfolding national ethos. It is a violation of this commonly shared vision of America as a nation of free, vigorous and open debate to resort to the apparatus of the government to shut it down.
Kmele Foster is a partner at Freethink and co-host of the podcast “The Fifth Column.” David French is senior editor of The Dispatch. Jason Stanley is a professor of philosophy at Yale University and the author of “How Fascism Works: The Politics of Us and Them.” Thomas Chatterton Williams is a contributing writer for The New York Times Magazine, a columnist at Harper’s and a visiting fellow at the American Enterprise Institute."
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