Legislating Against Critical Race Theory

Lawmakers in 16 states have introduced or passed legislation this year seeking to limit the teaching of critical race theory within public institutions. These bills all resemble former President Trump's now-defunct executive order prohibiting federally funded institutions from teaching “divisive concepts” about race and gender. But whereas Trump's order was widely interpreted to apply to diversity training, and lacked serious bite with the 2020 election fast approaching, these new state-level bills are already impacting the college curriculum.

Many faculty members see this as censorship, by design.

Shutting Down Conversations?

“That's the point -- it will have a chilling effect so that our administrators or even people like me say, ‘I don't want to get into trouble, right, maybe this is a little too close, I better change it I better modify what I'm doing,’” Brian Behnken, associate professor of history at Iowa State University, said of his state's pending anti-divisive concepts law. “That's instead of saying, ‘You know, it's valuable and important for students to learn about institutional racism, and I can't be scared or timid going into the classroom to teach about these things.”

Critical race theory, an outgrowth of critical theory and critical legal studies, has been around for decades. Its core tenets -- including that racism isn't just an individual phenomenon, it's structural and systemic -- have long undergirded academic discussions about race. But it's become a bigger part of the collective consciousness since the killing of George Floyd, when many Americans began to believe that former police officer and convicted murderer Derek Chauvin wasn't just a so-called “bad apple,” there is something wrong with the tree. Or, more to the point, the orchard.

With this new focus on structural racism has come more criticism of the theory behind it. Conservative lawmakers have argued that critical race theory is divisive and regressive, focusing too much on the darkest parts of America's past and not nearly enough on the racial progress that's been made.

But if opponents think critical race theory will keep the U.S. in some kind of racial hamster wheel, many academics view bans on talking about systemic racism as doing the same. They see evidence of the legacy of racism in their research and data, and think that keeping these truths out of the classroom means failing to prepare students for the world beyond it.

“It's not an either-or, or, ‘Let's vilify this one group,’” said Katherine Cho, an assistant professor of educational leadership at Miami University who studies critical social justice and institutional accountability. “It's this idea, how can we complicate the existences that we already have? Because the singular narratives that we're purporting are leaving so many voices out of the conversation.”

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Ariela Gross, John B. and Alice R. Sharp Professor of Law and History at the University of Southern California, said it's still strange to her that a concept based in critical legal studies is suddenly getting so much air time. In any case, she said, race theory examines, in part, how “there are all kinds of ways that institutions can continue excluding people and maintaining hierarchy," even if overt discrimination is illegal.

Racial gerrymandering is one example of many, she said. “You make a really funny district in order to cut out the Black part of town and make sure that a white representative will be elected. You didn't specifically say no Black people can vote here but, you know, it worked out that way.”

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Leonard Moore, George Littlefield Professor of American History at the University of Texas at Austin and author of the forthcoming book Teaching Black History to White People, calls this notion the civil rights framework, and said it's quite common. “Some people really believe that when those laws were passed that everybody has equal access now. They really believe that as a person.”

Even so, it's a flawed belief, Moore said, citing ongoing voter suppression efforts as one example of the lasting legacy of racism. At the same time, Moore said that “especially around issues of race and ethnicity, our conversations have gotten way too complicated and theoretical. I think students need an old fashioned Black history course. They need a class on Mexican-American history. And maybe a course on women's history.”