The Critical Race Theory Boogeyman

Ron DeSantis said it “teach[es] kids to hate our country” and targets kids “as young as kindergarten” [1]. Yet, the Chicago Teachers Union has called it a form of “teach[ing] truth” [2]. The American Civil Liberties Union has called the bans of it a “supress[ion] of free speech” [3]. Some people fear it, others laud it, and many aren’t sure it's even happening. That’s right, it’s critical race theory.

Since January 2021, 44 states have taken some kind of action either banning or effectively banning critical race theory (CRT) from being taught K-12, spearheaded by groups such as the Moms for Liberty who staged protests nationwide. With all of the controversy that critical race theory has created, it’s become increasingly important to know what it is and more importantly, if it violates people’s constitutional rights.

What is Critical Race Theory?

Critical race theory is a legal framework created in the 1980s positing that race is not a biological category but a legal one that pervades the everyday lives of people [4]. Discrimination is no longer the idea of one race being better than others or explicit legal segregation but a system of structures that lead to inequality. It also questions the idea of colorblindness in the law which may ignore historical injustice. In other words, as Mari Matsuda, a law professor at the University of Hawaii and a pioneer of critical theory states, “The problem is not bad people. The problem is a system that reproduces bad outcomes. It is both humane and inclusive to say, ‘We have done things that have hurt all of us, and we need to find a way out’” [5].

From that explanation, it appears decently benign, but the question remains, is it being taught to kindergarten students like Mike Pence says? Teachers are saying they haven’t changed curriculum due to critical race theory and aren’t intending to teach it [6]. In fact, Georgetown Law Professor Gary Peller states, “We struggle to explain these ideas to law students” [7] However, conservative studies have shown that kids are learning the fundamental concepts of critical race theory, such as white privilege and systemic racism [8].

With these conflicting claims, in order to determine the truth, we should read from the original source and see if children have the capacity to easily comprehend these subjects. Here is an excerpt from a critical race theory studies paper:

“This paper does not traffic in teleologies of the anarchic or lawless as they emerge in Western thought; instead, it refuses settler sovereignty and calls for forms of collective Indigenous life that are attuned to queerness’s wretched histories and future-making potentialities. Indigeneity is an ante-ontology of sorts: it is prior to and therefore disruptive of ontology. Indigeneity makes manifest residues or pockets of times, worlds, and subjectivities that warp both common sense and philosophy into falsities that fall short of completely explaining what is going on. Indigenous life is truncated in the biopolitical category of Savage in order to make our attachments to ourselves assimilable inside settler colonialism’s national sensorium. Settler colonialism purges excessive forms of indigeneity that trouble its rubrics for sensing out the human and the nonhuman” [9].

Critical race theory isn’t easy material. It’s something you need years of education to even begin to understand. Learning the basic ideas of critical race theory (like racism may impact us today) doesn’t mean you’re learning Critical Race Theory just like you aren’t learning about Multivariable Calculus or Set Theory because your third grader learns multiplication.

But more importantly, the current bans and complaints from legislatures and parents contend that more fundamentally, critical race theory violates the legal principles of the equal protection clause and Civil Rights Acts. The next portion will evaluate these claims. While this article will primarily pull from the language of the Virginia complaint, the logic in each legal text remains pertinent to other legal action over critical race theory.

Virginia vs. CRT: Dawn of Justice

The first line of the Virginia resolution, the resolution filed by parents and children against the Albemarle County School Board (specifically the superintendents) against CRT, immediately pulls a quote from the case of Parents Involved in Community. Schools. v. Seattle School Dist. No. 1, which struck down the Seattle School District’s attempt to accelerate integration by moving students of color from their original zoned schools to increase diversity: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” [10].

They also quote from Shaw v. Reno, which struck down the usage of race as the primary factor in redistricting: “[c]lassifications of citizens solely on the basis of race are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality” [11]. These opening lines encapsulate the core argument forwarded by the parents in the County of Albemarle: students' education should be colorblind.

Having established the illegality and immorality of explicit legal racism, the resolution forwards how they believe CRT violates these principles. Firstly, it notes that CRT sees “everyone and everything through the lens of race,” “fosters racial stereotyping,” and “treat[s] students differently based on race” [12]. Then, it notes that the definition of racism has changed and it now “classifies all individuals into a racial group and identifies them as either perpetually privileged oppressors or perpetually victimized members of the oppressed, denying agency to both” [13]. It instead forwards the definition used by Merriam-Webster: “a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race” [14]. The resolution also problematizes the usage of terms in teacher equity training such as “racial dominance” and “white privilege” that contend that white people are “inherently advantaged in life because of their race” by stating these are racial stereotypes [15]. Finally, the resolution notes these actions violate the Virginia constitutional protection against governmental discrimination and the equal protection clause of the Fourteenth Amendment [16].

The resolution correctly described some major elements of critical race theory. Firstly, it noted how critical race theory expands upon the old definition of explicit legal racism and includes racial inequalities from the consequences of governmental policies. Yet, the resolution often strawmans critical race theory into a reductive model that doesn’t encapsulate the wide breadth of the field. Additionally, statements in the resolution that state people are inherently racist fall flat: critical race theorists often emphasize how individuals aren’t the main perpetrators of racism but the systems they are a part of. These systems may give benefits for being a certain race which is dubbed as “white privilege.” To call this a form of “reverse racism” means it is racist to point out racism.

If I Can’t See Color, It Can’t See Me!

But regardless of the public’s lack of understanding of critical race theory, there is a more fundamental and legal criticism underlying the resolution: the equal protection clause. The idea that people shouldn’t be judged based on their skin color (a quote that anti-CRT groups often appropriate from MLK) is often used to explain why preferential treatment for people of color is unconstitutional. In the context of the CRT debates, this idea is used to justify why anti-racist measures such as affirmative action or white privilege are racist because it doesn’t treat groups equally. Critical race theorists would counter by suggesting history has used differential treatment that has only very recently been addressed (and some would argue not fully). In order to rectify centuries of racism, differential treatment is necessary to achieve equity. Yet, the question remains; regardless of whether critical race theory is good or bad, is it constitutional to be taught in schools?

Previous interpretations of the equal protection clause very much indicate that disparate treatment is constitutional as long as it addresses a “compelling state interest” such as mitigating racism. For instance, in Adarand Constructors, Inc. v. Peña, the Supreme Court affirmed that the government could use funds in a race-conscious way [17]. Additionally, a district judge in Colorado rejected a lawsuit claiming that diversity training was reverse racism because according to the judge, “‘white fragility’ and ‘white exceptionalism’ are objectively not the kind of abusive language that could support a discrimination claim, even if they may have offended the plaintiff” [18]. More importantly to the Virginia resolution, a federal court blocked a Virginia suit claiming Loudoun County’s equity and diversity education was unconstitutional. There is also a legal argument to be made that in order to achieve true equal protection, previous injustice has to be addressed first or at the least recognized, something CRT aims to do.

While the fears of CRT are often overblown and the calls for bans have little legal precedent to back them up, it has had profound cultural effects. Teachers have become hesitant to mention anything about race due to fears about being fired or suspended, creating issues with freedom of speech [19]. Any mention of race has been conflated with CRT, turning the term into a boogeyman to create a moral panic. It’s become impossible to put the race genie back in the bottle, no matter how hard colorblindness tries. The courts should continue to affirm a more equitable future by recognizing the “CRT” that parents are calling to be banned is not unconstitutional and dangerous but is instead a better lens to achieve a more equitable future.

Bibliography

[1] CBS Miami. 2022. “DeSantis: Critical Race Theory Teaches 'Kids To Hate This Country'; Pushes Legislative Proposal To Strengthen Enforcement Against It.” CBS News. https://www.cbsnews.com/miami/news/desantis-critical-race-theory-florida-legislative-session/.

[2] Cooper, Lauren. 2022. “Pledge to Teach the Truth.” Zinn Education Project. https://www.zinnedproject.org/news/pledge-to-teach-truth.

[3] ACLU. 2022. “Defending Our Right to Learn | ACLU.” American Civil Liberties Union. https://www.aclu.org/news/free-speech/defending-our-right-to-learn.

[4] Fortin, Jacey. 2021. “What Is Critical Race Theory? A Brief History Explained.” The New York Times. https://www.nytimes.com/article/what-is-critical-race-theory.html.

[5] Fortin, Jacey. 2021. “What Is Critical Race Theory? A Brief History Explained.” The New York Times. https://www.nytimes.com/article/what-is-critical-race-theory.html.

[6] McCausland, Phil. 2021. “The teaching of critical race theory isn't happening in classrooms, teachers say.” NBC News. https://www.nbcnews.com/news/us-news/teaching-critical-race-theory-isn-t-happening-classrooms-teachers-say-n1272945.

[7] Zalaznick, Matt. 2021. “Are schools teaching critical race theory? No, says one expert.” District Administration. https://districtadministration.com/are-schools-teaching-critical-race-theory-no-says-one-expert/.

[8] Chalk, Casey, and Robin DiAngelo. 2022. “Your kids know they ARE being taught critical race theory despite the denials — here's the proof.” NY Post. https://nypost.com/2022/11/22/your-kids-know-they-are-being-taught-critical-race-theory-despite-the-denials-heres-the-proof/.

[9] Belcourt, Billy-Ray. n.d. “A POLTERGEIST MANIFESTO.” feral feminists. Accessed October 11, 2023. https://feralfeminisms.com/a-poltergeist-manifesto/.

[10] Ibañez v. Albemarle County School Board, Case No. CL2100173, Virginia Circuit Court (2022) [11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Thought, Black. 2021. “Why Did Critical Race Theory Emerge from Legal Studies?” Journal of Free Black Thought. https://freeblackthought.substack.com/p/why-did-critical-race-theory-emerge.

[18] Kanu, Hassan. 2023. “'White fragility' lawsuit exposes emptiness of 'anti-Woke' movement.” Reuters. https://www.reuters.com/legal/government/white-fragility-lawsuit-exposes-emptiness-anti-woke-movement-2023-02-13/.

[19] Waxman, Olivia B. 2022. “Anti-‘Critical Race Theory’ Laws Are Affecting Teachers.” Time. https://time.com/6192708/critical-race-theory-teachers-racism/.