The GOP’s ‘Critical Race Theory’ Obsession
On January 12, keith Ammon, a Republican member of the New Hampshire House of Representatives, introduced a bill that would bar schools as well as organizations that have entered into a contract or subcontract with the state from endorsing “divisive concepts.” Specifically, the measure would forbid “race or sex scapegoating,” questioning the value of meritocracy, and suggesting that New Hampshire—or the United States—is “fundamentally racist.”
Ammon’s bill is one of a dozen that Republicans have recently introduced in state legislatures and the United States Congress that contain similar prohibitions. In Arkansas, lawmakers have approved a measure that would ban state contractors from offering training that promotes “division between, resentment of, or social justice for” groups based on race, gender, or political affiliation. The Idaho legislature just passed a bill that would bar institutions of public education from compelling “students to personally affirm, adopt, or adhere” to specific beliefs about race, sex, or religion. The Louisiana legislature is weighing a nearly identical measure.
The language of these bills is anodyne and fuzzy—compel, for instance, is never defined in the Idaho legislation—and that ambiguity appears to be deliberate. According to Ammon, “using taxpayer funds to promote ideas such as ‘one race is inherently superior to another race or sex’ … only exacerbates our differences.” But critics of these efforts warn that the bills would effectively prevent public schools and universities from holding discussions about racism; the New Hampshire measure in particular would ban companies that do business with government entities from conducting diversity, equity, and inclusion programs. “The vagueness of the language is really the point,” Leah Cohen, an organizer with Granite State Progress, a liberal nonprofit based in Concord, told me. “With this really broad brushstroke, we anticipate that that will be used more to censor conversations about race and equity.”
Most legal scholars say that these bills impinge on the right to free speech and will likely be dismissed in court. “Of the legislative language so far, none of the bills are fully constitutional,” Joe Cohn, the legislative and policy director of the Foundation for Individual Rights in Education, told me, “and if it isn’t fully constitutional, there’s a word for that: It means it’s unconstitutional.” This does not appear to concern the bills’ sponsors, though. The larger purpose, it seems, is to rally the Republican base—to push back against the recent reexaminations of the role that slavery and segregation have played in American history and the attempts to redress those historical offenses. The shorthand for the Republicans’ bogeyman is an idea that has until now mostly lived in academia: critical race theory.
The late harvard law professor Derrick Bell is credited as the father of critical race theory. He began conceptualizing the idea in the 1970s as a way to understand how race and American law interact, and developed a course on the subject. In 1980, Bell resigned his position at Harvard because of what he viewed as the institution’s discriminatory hiring practices, especially its failure to hire an Asian American woman he’d recommended.
Black students—including the future legal scholar Kimberlé Crenshaw, who enrolled at Harvard Law in 1981—felt the void created by his departure. Bell had been the only Black law professor among the faculty, and in his absence, the school no longer offered a course explicitly addressing race. When students asked administrators what could be done, Crenshaw says they received a terse response. “What is it that is so special about race and law that you have to have a course that examines it?” Crenshaw has recalled administrators asking. The administration’s inability to see the importance of understanding race and the law, she says, “got us thinking about how do we articulate that this is important and that law schools should include” the subject in their curricula.
Crenshaw and her classmates asked 12 scholars of color to come to campus and lead discussions about Bell’s book Race, Racism, and American Law. With that, critical race theory began in earnest. The approach “is often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures,” Bell explained in 1995. The theory’s proponents argue that the nation’s sordid history of slavery, segregation, and discrimination is embedded in our laws, and continues to play a central role in preventing Black Americans and other marginalized groups from living lives untouched by racism.