This podcast moderated by Bari Weiss is a pretty good discussion of the legal issues around these critical race theory or “CRT” bans some state legislatures are considering and passing. David French argues against them, anti-CRT activist Christopher Rufo argues in favor.
I’m against for a few reasons (including, regardless of your take on CRT, do you really want legislatures mucking around like this?) but that seems irrelevant because it seems like most of this legislation won’t survive the federal courts anyway. Meanwhile, some of what the CRT ban folks claim to be most concerned about wouldn’t survive judicial review either. But that’s not the point, it’s about politics and signaling, which is why people (on all sides) are suddenly completely spun up about an academic legal theory they hadn’t heard of ten minutes ago but now see as either revelatory or an existential threat to American institutions.*
One reason some of these bans are legally questionable is because they conflate K-12 and higher education (and the French-Rufo discussion does at times as well), where academic freedom or free speech rights are different for instructors. There is more latitude in higher ed. It’s a parallel to the transgender students and sports debate where state legislatures are approaching high school and college sports together in ways that are a poor fit.**
Speaking of conflation, a concern I have is that the generally poor job we do teaching history is getting lumped in with this “CRT” debate in a way that obscures a lot of common ground and could turn efforts to improve history instruction into a casualty of this culture war. Seems like there is a constituency out there that thinks it’s pedagogically suspect to have young kids doing “privilege walks” and similarly age inappropriate things, finds the absolutism of 1619 and 1776 lacking nuance, and thinks it’s also a scandal that many people are just learning about the Greenwood Massacre today, on its centennial.
Given the evolving contours of this debate, however, I’m not sure where those people go.
*It should go without saying that few academic theories survive the jump into popular discourse intact. A lot of what we’re talking about here isn’t really critical theory, at least in the various iterations of it amongst its actual academic adherents. It’s more a mash up of poorly done DEI workshops, cultural “wokeism”, and more recently Kendiism than it is any specific ideology. That’s why as a practical matter these bans seem basically unenforceable except at the margins anyway.
**Too long for a blog post, or at least this blog post, but in brief the NCAA has policy on this, most high school sports leagues do not even though it’s most acutely an issue for adolescent competitive sports where there are complicated issues. The bans would, in some cases, override the NCAA policy, which seems an odd “conservative” position to take.