August 14, 2022

T-Break

Let'S Talk Law

Why are states lining up to ban critical race theory?

UNITED STATES

Towards the end of his interview with CNN’s Anderson Cooper on 7 June, former United States president Barack Obama noted the curious fact that rather than focusing on debating President Joe Biden’s economic plans or considering what should be done about climate change, “lo and behold, the most important issue for them [the Republican Party] is Critical Race Theory.”

After a pause, the former Harvard University constitutional law professor added in an incredulous tone, “Who knew that that was the threat to the republic?”

Yet, in the previous five months, taking their cue from conservative activists like Christopher Rufo, a senior fellow at the conservative Manhattan Institute, and Cornell University Professor William Jacobson, founder of the Legal Insurrection Foundation, thousands of Republican legislators from Vermont and Rhode Island in liberal New England, to solid Republican states like South Carolina, Louisiana, Texas, Oklahoma, North Dakota, Iowa, Idaho and 11 other states, had voted for bills banning Critical Race Theory (CRT) in primary and secondary schools and-or colleges and universities, because it ‘undermines American values’.

Anti-CRT bills have become law in eight states and are set to become law in a further nine states.

According to Jacobson’s foundation’s website, unlike the Civil Rights Movement of the 1950s and 1960s led by the Reverend Martin Luther King, “which sought to work within the structures of American democracy, critical race theorists challenge the very foundations of the liberal order, such as rationalism, constitutional law, and legal reasoning … [while arguing] that American social life, political structures, and economic systems are founded on race.”

Rufo, whose 1 September 2020 appearance on Tucker Carlson Tonight is credited with spurring then US president, Donald Trump, to issue an executive order banning the use of CRT by US government agencies or those funded by the US government, divides CRT into 11 tenets.

The first two are “race essentialism” and the belief that “all white people are racists”. In addition to holding that America was founded on racist principles and remains racist today, Rufo says, CRT “claims that individuals categorised as ‘white’ are inherently responsible for injustice and oppression committed by white populations in the past”.

According to Rufo, CRT theorists believe that “meritocracy is a mechanism to uphold racist structures and is derived from ‘racism, nativism [white people] and eugenics’.” CRT leads ultimately, Rufo says, to a hard-line Marxist position that the solution to American racism “is to redistribute private property and dismantle the system of capitalism”.

The texts of the anti-CRT bills are remarkably similar. Oklahoma’s forbids, for example, the discussion of whether “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously” or if “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by members of the same race or sex”.

Louisiana’s House Bill No 564 ultimately failed, but it would have prevented the discussion of “divisive concepts”, including that “an individual, by virtue of the individual’s race or sex, is inherently or systematically racist, sexist, or oppressive, whether consciously or unconsciously, or has negative or positive characteristics that inhere in the individual’s DNA”.

Section 2, clause 7 of Iowa’s House Bill 802 enjoins discussion of whether, “an individual, by virtue of that individual’s race or sex, bears responsibility for the actions committed in the past by other members of the same race or sex”.

“Some bills soften the language, some add things,” notes Vincent Wong, research associate at African American Policy Forum, “but the reason the texts are so similar is because they are products of ‘bill mills’.”

Jim Jones, a Republican who served as Idaho’s State Attorney General from 1983 to 1991 and Justice of the Idaho Supreme Court from 2005-17, told University World News that Idaho’s House Bill No 377 was probably the product of the Idaho Freedom Foundation, which is supported by organisations funded by the Koch brothers, and the American Legislative Exchange Council, which distributes model state statutes.

Legal scholars such as Wong and Law Professor Ronald J Krotoszynski (University of Alabama) take issue with politicians who claim these laws are necessary to prevent indoctrination of students and preserve patriotic education.

Instead, they see the flurry of bills to ban CRT as being part of the backlash against the Black Lives Matter (BLM) protests that followed the police murder of George Floyd in May of 2020.

“The timing,” Wong says, “tells you they are interrelated. At a time when racial justice and specifically the BLM movement had become a majoritarian issue, when there was more cross racial support for it than ever, there is now this backlash to constrain, censor, restrict the ability to talk about racial justice both in terms of contemporary inequality but also the history of it.”

Cousins to anti-protest laws

According to Krotoszynski, the anti-CRT laws are first cousins to the anti-protest laws that have targeted BLM protests. “We’ve seen a lot of states adopt laws targeting freedom of expression and also define a riot as including as few as three people. And taking unlawful assembly punishments from small fines or maybe a few days in jail to Class C or D felonies with multiple year sentences. What you see is that legislatures are targeting a view point.”

Neither Yale Law Professor Gerald Torres nor Jones believe that most of the legislators who voted for the CRT bans understand the analytical tool that grew out of Critical Legal Studies in the 1970s.

“Rather than grapple with CRT’s question, ‘How has the variable of race, especially anti-blackness, affected institutional structures or decision-making or the distribution of goods?’, it’s part of the culture wars,” says Torres. “It’s a slogan that you can attach to people you disagree with without engaging with the intellectual content of what the subject matter of CRT might be.”

The legislative history of Idaho’s ban hardly indicates it was the product of informed legislative deliberation. “Here in Idaho, the primary supporters of the bill don’t really know what’s in it,” says Jones. “They just know that the Idaho Freedom Foundation is strongly supporting it. And that’s what they do.”

He backs up this assertion by telling me that everyone who showed up to the quick hearing the legislature held on the first version of the bill was against it. “And so, they went back to the drawing board and just threw this bill together in a kind of haphazard fashion,” he told University World News, before adding, “It’s a piece of crap, actually.”

Yet, bills like Oklahoma’s House Bill 1775, (perhaps not so) coincidentally, the year the American Revolution began, have immediate real-world consequences. Shortly after Governor Kevin Stitt signed it into law, both the University of Oklahoma and Oklahoma State University announced their student diversity training could no longer be mandatory.

Echoes of McCarthy era

Equally importantly, these laws will have a chilling effect not dissimilar to that during the McCarthy period of the 1950s. Ultimately, the Red Scare laws that banned the teaching of Marxism and communism, and required professors to swear loyalty oaths were struck down by the United States Supreme Court; something Krotoszynski expects to happen in the case of the anti-CRT laws.

Until then, however, he wonders if teaching CRT as a legal theory and then testing for mastery of it, runs afoul of the prohibition requiring students to ‘adhere’ to it.

“I don’t see how someone could competently teach a survey course on the First Amendment without talking about CRT critiques of the US protection of hate speech.”

His goal, he told University World News, is not to convince students that the CRT critique is right or wrong but, rather, to show that “the free speech orthodoxy that we take for granted in the US doesn’t hold up in other democratic countries that have First Amendment type guarantees,” says Krotoszynski.

While Missouri’s Bill 952 applies to all state-supported two- and four-year colleges, the regulation that authorises the “department of higher education and workforce development to withhold the maximum of 10{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of the distribution of state funding to the institution” where CRT is taught is particularly problematic for Harris-Stowe University and Lincoln University, Missouri’s two historically black universities.

Private colleges and universities may not be insulated from these laws. Almost all of them receive some state monies and tens of thousands of students receive state loans. Hence, while none of the anti-CRT laws mention private colleges and universities, the state funding bans could affect how these colleges and universities order their curricula.

At both private and public universities and colleges, guest lecturers who discuss Critical Race Theory could also run up against the proscription against state monies going to support CRT.

“I don’t think that the law school in Boise, Idaho could invite Richard Delgado [one of the founders of CRT] to give a lecture in a classroom where the power bill was to be paid with state funds,” says Krotoszynski. “This is not a flaw in these laws. It’s a design feature – they are meant to lead to self-censorship by faculty members.”

An expansive interpretation of the prohibition of the use of state funds to support CRT could also include limiting a professor’s research into the links between BLM protests and CRT, for example.

“Arguably it could,” says Krotoszynski, though “telling a professor you can’t write a book on CRT or you cannot write an article criticising the Internal Revenue Code for disadvantaging black families probably violates the First Amendment. But you would want to go to court and get an injunction” just to be sure, he says.

First Amendment protection doubts

Georgetown University Law Professor Gary Peller is less hopeful than Krotoszynski about whether the First Amendment is a strong enough shield. “You have a body of First Amendment law that looks like it protects against censorship by the government, and this looks like censorship by the government.”

However, over the past 30 years, the more and more conservative Supreme Court has developed a body of law that says First Amendment principles “don’t apply here, here, here and here,” he told University World News.

Sanguine or not, Peller’s criticism of the anti-CRT laws is trenchant. CRT’s opponents make a “pristine claim about principle” as they play out a particular logic to its illogical conclusion, he told me. The logic is that “thinking about race is a sign of prejudice and irrationality”, as Rudy Giuliani averred in July 2016 on Face the Nation when he attacked the hashtag #BlackLivesMatter: “When you say black lives matter, that’s inherently racist.”

If that’s true, Peller says, then “describing history using racial generalities, like there was racial subordination during slavery, is actually committing the sin of thinking about things in terms of race”.

The anti-CRT call for “colourblindness” made by Jacobson and other CRT critics, Peller underscores, is deeply ironic. “Its logic is that you can’t see racism because you’ve categorically removed that filter” from perception and consciousness. Accordingly, you claim that “you don’t see race at all”.

Then, sardonically, he added, “You also don’t notice that all the slaves are black.”

According to Jones, Idaho’s Bill 377 suffers from several legal faults. First, it invokes Article IX, section 6 of Idaho’s constitution as the grounds for prohibiting having students adhere to CRT’s tenets concerning “sex, race, ethnicity, religion, colour or national origin”. However, that section prohibits religious tests for teaching in the public school and prohibits the teaching of religion in them. It is silent on sex, race, ethnicity, colour or national origin.

“A more fundamental problem with this bill is that it is void for vagueness [or too vague under constitutional law] and would be very difficult to enforce under the federal and state due process clauses,” says the former justice of the Idaho Supreme Court who served as chief justice from 2015-17. If a school is going to be penalised under a state statute, then its administrators have to be adequately advised as to what the requirements they are accused of violating are.

While Bill 377 mentions “critical race theory”, it does not define it. “It doesn’t say what this horrible thing is that they are banning discussion of.” In an article published in the Idaho State Journal, Jones compared the Republican legislators who laboured to define CRT with those adventurers who sought to capture Sasquatch, the ape-like creature purported by folklore to inhabit the forests of North America.

“They could not tell us what their prey was or where it could actually be found, but they knew it had to be stopped.”

His tone turned more serious when he told me: “You are entitled to due process before you are deprived of funding. And when the state can’t show that you have been adequately advised of what you are accused of violating, then it has a serious void for vagueness, due process problem.”

CRT as a ‘critical lense’

What then is CRT and what does it illuminate?

While there are different subgroups among critical race theorists, all would agree that CRT is based on the premise that the legacy of racial injustice and inequality still matters, especially in America.

More specifically, Wong says, “CRT is an analytical tool that allows us to view through a more critical lens how institutions, laws and policies contribute to replicating or reproducing racial inequality even under explicitly colour blind or race neutral regimes.”

Contrary to what critics like Rufo say about critical race theorists being “essentialists”, that blacks and whites are immutably different, Wong says that CRT holds that race is a social and not a biological construct. In practice, however, the social construction of whiteness or blackness through American history creates not only different social categories but a hierarchy that places – or functions to maintain – the position and power of white Americans.

“A key tenet of CRT,” he says, “is the removal of racial hierarchies.”

In her recently published book, The Whiteness of Wealth, Emory University Law School Professor Dorothy Brown shows how the apparently colour-blind tax code advantages white Americans and contributes to the impoverishment of black Americans and other persons of colour.

For instance, the provision that allows married couples to file jointly lowers their tax rate by, among other things, doubling the standard deduction, which means that the (doubled) deduction is taken off the higher spouse’s income.

Not only are white American couples more likely to be married than are black American couples, but even when blacks are married, they cannot benefit equally from filing jointly because the spouses’ income levels tend to be more equal.

Another part of her analysis examines home ownership. While black Americans may prefer to live in a racially diverse or all-black neighbourhood, “research shows that once more than 10{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of your neighbours are black, the value of your home declines”, Brown wrote in an essay published in the New York Times.

The famed GI Bill that triggered the home ownership boom of the 1950s (and the growth of suburbia) may have been colour blind on paper, but anti-black local ordinances (local government regulations) effectively froze blacks out: 98{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of homes built under the GI Bill were owned by whites.

The mortgage interest tax deduction helps homeowners build wealth by effectively subsidising ownership. But, Brown writes, “most black Americans are renters and can’t take advantage of any subsidies for homeownership”.

Nor does the US tax code effectively treat white and black college and university graduates who borrowed to go to school equally. The average black student’s debt is US$53,000, while white students owe almost half, US$28,000.

“The deduction for student loan interest, capped at only US$2,500 a year, does little to help the average black borrower, who has higher debt and more interest; the average white borrower … can deduct all of their student loan interest in their first year,” she wrote in an essay supplied to University World News.

In addition to pointing to how whites have been advantaged in wealth development and capital formation throughout American history, Torres underscored that a CRT analysis of the American criminal justice system illuminates the ‘carceral state’ in which, according to Pew Research Center (2018), black males are incarcerated six times more frequently than are white males (1,501/100,000 to 268/100,000).

CRT vs American exceptionalism

The vociferousness of the attack on CRT, epitomised by Representative Brian Seitz, a member of the Missouri state legislature who asked, “Will they [students] grow up to hate America or will they grow up to applaud American exceptionalism,” should come as no surprise to those familiar with American history and, specifically, its racial politics.

As Peller points out, it’s of a piece with the battles over Affirmative Action of the 1970s and 1980s, during which conservatives argued that quotas or targets instituted to increase the number of blacks in various jobs, such as construction, meant every new black worker had taken his or her job from a more deserving white worker.

“Sadly, race is a powerful motivator for the right wing. There are a lot of people in America that are motivated by the idea that black people are getting ahead, that ‘we are losing our country’.”

By calling it a “lost cause” ideology, Peller links it to the Antebellum South, the Confederacy and the post-Civil War glorification of its “white man’s” government, as well as the racial hierarchy of slavery and Jim Crow laws.

“This is a sad reflex of largely working-class white people, who, for a couple of centuries in America have been sold a lie that the black people are their enemies as opposed to the rich white people,” Peller said, summing up the situation across America today.