by Neil H. Buchanan
Even things that should no longer surprise can still be surprising. A month or so ago, I heard for the first time that Republican legislators in many states (including mine, where I teach at a public university) have decided that Critical Race Theory is a new target, with the possibility that Republicans would outright order teachers never to talk about that theory. Why was I surprised? I have no idea, especially because it fits so obviously into the longstanding panicked White grievance agenda that Republicans have been amping up this year.
Despite the targeting of Crit Race being undeniably bad news, I had not given it much thought, except in making a mental note that this would be rather easy to handle if any professor were ever confronted with a new prohibition. There were frankly too many other roiling issues that have immediate real-world impact for me to respond to this new culture war item by doing anything more than muttering quietly: "Well, of course they're doing that."
Now, however, one very red state has indeed enacted an anti-Crit Race law. The great state of Oklahoma is not OK, as I learned again and again during my year living in Oklahoma City, clerking on the Tenth Circuit. And this new ban on teaching Crit Race is a good example of the kind of wedge-issue politics that Republicans nationwide -- and Oklahoma Republicans in particular -- have decided to perfect over the last few decades.
What does the ban ban? How enforceable is it? Could it boomerang on its proponents? What does it all mean? The short answer to all of that is simple: In substance, this is a meaningless law; but its impact will be seen in emboldening further attacks on academia. Universities have been a favorite target of the right for years. Banning Crit Race is only a small part of that broader assault, but laws like Oklahoma's will provide a legislated entry point for harassing professors, administrators, and non-conservative students.
Given how frequently conservatives have told us that America is post-racial -- a Black man was elected president … twice! -- it might (or might not) be surprising that they have become positively obsessed with protecting White privilege. Even though Donald Trump has opened up the public space for expressing raw racism, Republicans to a large degree continue to profess to being non-racist, even to the point where they have to be comforted after being called out on racist stunts.
So a Republican will certainly swerve away not only from uttering the n-word but from being overtly racist in many other ways. That is not a problem for them, however, because they have had decades of experience using dodgy phrases to convey racist ideas and to trigger White anger about The Other. From Ronald Reagan's "welfare queens in Cadillacs" to Newt Gingrich's use of "urban" to mean non-White, dog-whistling is what Republicans do best.
Thus two months ago, during the debate about the COVID rescue package, the reliably Orwellian Senator Lindsey Graham attacked a provision of the bill by which black farmers were to receive loan forgiveness for 120 percent of their losses due to the pandemic, saying that "if you're a white person, if you are a white woman, no forgiveness. That's reparations."
I am not going to go into the history behind this provision, which is simply not relevant here. Instead, I will point out three relevant facts. First, in order to provide cover for his own race-baiting, Graham seems to have thought that he could put liberals in a difficult position by talking about gender in a supposedly progressive way. If you are a white woman, you do not get what black people get. Explain that, liberals!!
Second, Graham had taken a huge bill and asked either his staff or some conservative think-tank to find one incredibly small component that he could exploit as a supposedly invidious racial distinction -- reverse racism!
Third, and this is key, Graham blew the Reparations Dog Whistle. Graham’s comment was truly inane, but he likened that provision to reparations for a reason. Note that he could have accused Democrats of reverse racism even if he had stopped after the words "no forgiveness." His point, such as it is, would have been made: "This provision advantages Blacks over Whites." That he then tacked on the reference to reparations reveals that he thinks that there is guaranteed political advantage to disparaging anything that involves race simply by intoning "reparations."
The entire notion of reparations, then, has become a useful way for conservatives to make explicitly racist arguments without using racial language. Like shouting about “welfare,” which they knowingly linked to being non-White (despite all evidence to the contrary"), the Grahams of the world can stir up hatred by accusing Democrats of giving Those People unearned giveaways.
In my Verdict column last week, I called out the right's outraged reactions to so-called "cancel culture," "wokeness," and so on. We have now reached the ridiculous point where conservatives hastily tack on extra buzzwords, no matter how irrelevant they are.
For example, the leader of a right-wing dark money group was bragging about being behind the wave of voter-suppression bills that Republicans have introduced and passed this year. When she received criticism for doing that, her response was: "We’ve been transparent about our plans and public with our policy recommendations, and we won’t be intimidated by the left’s smear campaign and cancel culture.”
Leaving aside her pretense that the accusation was that they had not been transparent (as opposed to criticizing the content of her actions), note that "and cancel culture" is not merely superfluous but simply out of place. Nothing and nobody are being canceled, even under the most expansive meaning of that silly term. She simply says it, because that is what they now do.
[Update: What was I thinking? "Nothing and nobody are being canceled, even under the most expansive meaning of that silly term"? Of course that's wrong. Because being canceled has come to mean "someone disagreed with me or said something unsupportive of me," it is true that "the left" has indeed met the most expansive definition of trying to cancel her. All of which only clarifies how empty that trope is. Again, I wrote about this last week on Verdict, so how could I have forgotten so quickly? The larger point is that "and stop yer cancel culture, ya PC commies" can now be added to any statement from an American conservative, changing nothing while parading their deep sense of grievance.]
This is all part of the grievance machine, so the messaging builds on itself, with everything that Democrats do being characterized as an assault on decent, conservative not-at-all-racist White people who are just tired of "all this political correctness."
Tossing in "and cancel culture" is a bit more of an all-purpose move than "and reparations." That, however, actually makes the Reparations Dog Whistle more useful, because every time a Republican might be confronted with an especially tricky discussion of racial issues, Graham's example says, "Just call it 'reparations,' and that will put the libs on their heels."
This is why the attack on Critical Race Theory is so interesting. Even though the concept of reparations is probably not familiar to most people, conservatives have used their echo chamber to convince themselves that "everyone knows that reparations are a terrible idea," which they then take as a reason to go out into the world and assume that their new weapon will be devastatingly effective. Similarly, although even fewer people could say what Crit Race is all about, Republicans have decided that it is enough to say that it is about race and that it is taught at universities, making it per se objectionable.
As I noted above, however, it is actually very difficult to define Critical Race Theory. For those of us who toil in the world of legal academia, we know that there is a now-well-established school of thought called Critical Legal Studies, from which there have been offshoots including Critical Gender Studies and Critical Race Theory. (In my earlier years as an economist, I also came across critical scholars; but they were truly marginalized in that methodologically arid field.)
As it happens, every year I attend an academic gathering called the "Critical Tax Conference." Having myself organized that conference twice over the years, I have been asked, "What is Critical Tax Theory?" Also: "Are you, Neil, a crit?" The answer to the latter question is "probably not," but the "probably" is there crucially because I do not know the answer to the first question. I do know that there are serious scholars who definitely identify their work as "critical," and I know that those scholars believe that my work does not fit into that category. I am not so immodest as to say, "You're wrong, I am a crit," even though I could probably make that case if I wanted to do so, because it simply does not matter to me that I be grouped under that label.
At bottom, I am probably not a crit, even though I have a lot of sympathy for their insights. Certainly, critical theory in general has a lot going for it, because it focuses on power relationships in law and society and exposes the presumptions underlying standard conservative pseudo-neutral analyses. But so does legal realism, among other academic approaches. There are situations in which it is essential to distinguish between crits and legal realists and others, but I have never been in such a situation.
In the absence of a clear and widely adopted definition of Critical Race Theory, then, I suspected that any Republican legislation that tried to ban Crit Race would end up being a dead letter, invoking the dreaded monster and condemning it without ever defining it. It turns out that, on that score, I was wrong.
In an op-ed in yesterday's Washington Post, University of Oklahoma classics professor Kathryn Schumaker runs through the handiwork of her state's Republican legislators. Rather than simply condemning Critical Race Theory as if it is obvious what that means (which would, of course, allow any professor simply to relabel what she is teaching), the Oklahoma legislators gamely offered a definition of sorts. As Schumaker explained:
The controversial law bans teachers from promoting the idea that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” Moreover, teachers must not instruct students that “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,” nor make students feel “guilt” or “anguish” on “account of his or her race or sex.”
Schumaker's piece is excellent, and I recommend that everyone read it. For present purposes, however, I want to emphasize the emptiness of the definition that she describes. Although Schumaker makes the point to which I referred above, that the very existence of the law will cause academics simply to avoid talking about race in class (which is, after all, what Republicans are hoping will happen), it is nonetheless notable that the Oklahoma law's definition of Crit Race is nonetheless quite pliable.
Looking at the first sentence in the quoted paragraph above, what could be easier? All a teacher has to do is avoid saying, "You're inherently racist, etc. because of your race." That hardly seems likely to be a burden to anyone teaching on any topic. I am not saying that this makes the law inoffensive, because legislating academic content is always worrisome, but I am saying that few if any teachers are likely to be pushing that line of argument in any case.
More interesting is the second (final) sentence of the quoted paragraph, which again reminds us that Republicans are more snowflake-y than any of the "woke lefties" of their fevered nightmares. Teachers must not make a student feel guilt or anguish? How can I stop that from happening?
For example, if I say (truthfully) that redlining and other laws governing the housing market systematically disadvantaged non-White Americans, such that the differences in wealth between the races today are in substantial part explained by decades of de jure racism, I might make students feel "anguish," because this history is so patently unjust.
Even so, I do not want any students to feel anguish (or certainly guilt), most assuredly not on "account of his or her race or sex." If some students go there, however, what am I to do? I am not guilty of trying to make a student say (or think): "White people did bad things in the past, and I'm white, so I'm feeling guilty and anguished." But if I state the facts, and the student is triggered to blame himself, have I violated the law? I doubt it, but again, the point is to get teachers and professors to say nothing. A classic chilling effect.
For that matter, could a teacher in Oklahoma mention slavery? Even if it were described in an absurdly race-erased manner -- "Some people owned other people as property, and then the U.S. government's laws were changed to make that illegal" -- kids already know that it was White people who owned Black slaves. Is the teacher responsible for any guilt or anguish that might ensue from indirectly reminding students about what they already knew?
Or if a student says, "My great-great grandfather fought and died for the Confederacy, so I deserve to have his sacrifice publicly recognized," does that mean that we are supposed to talk about the Civil War in order to give that student what he says he deserves? But if we do so, and other students have heard elsewhere that the Confederacy was explicitly formed to prevent abolition of the enslavement of Black people, are those students being triggered?
In a Property Law class, if a student argues that “my title to the land that my ancestors gave me confers present-day rights that must be honored," is the professor supposed to say that we are not allowed to talk about where those titles came from, or why only some land titles have been honored? (In places like Oklahoma in particular, cue the discussion of Native Americans being displaced and cheated.) If a White student is willing to reach back in time to claim advantages, is that a free pass for everyone else to discuss those times and the racial realities that determined who could own property?
More broadly, a cheeky professor could discuss Critical Race issues by asking whether or not something is or is not a Critical Race issue. In my tax classes, I typically make passing comments about situations in which a court has relied on sexist or racist assumptions in reaching an outcome. (No, tax is not a "neutral field" in which racism and sexism never arise.) Under the Oklahoma law, I would be encouraged to say something like this:
By law, I am not allowed to make any of you feel guilt or anguish about these issues. Moreover, I am not allowed to say that any of you bear responsibility for the actions in the past by people of your race or sex. So let's talk about this issue in depth, so that I can be clear that I am not at all saying that White people today are responsible for actions by now-dead White people. One argument for race-based reparations is that White people today are benefited by the ongoing effects of those previous laws and actions. So is it acceptable to say that reparations are not about intergenerational guilt but about present-day advantages and disadvantages?
In other words, staying within the letter of the law could cause a professor to spend more time talking about racial issues, in order to separate the "visiting the sins of the fathers on the children" arguments from the importance of tracing how the past affects the present. Indeed, if a professor were to go out of her way to assure students that this is not about individual guilt -- "You don't need to feel guilty that your great-great-grandfather was a slave trader." -- that would almost surely lead to a discussion of how systemic racism is different from conscious, individualized racism. That is, "It's not your fault, Johnny," can be explained by saying, "Racist outcomes can be generated even when no individual person consciously wants that to happen."
All of this, of course, assumes that the professor is tenured and is confident that her life will not be upended by angry conservatives, who would not be amused by her having followed the law's perverse incentives to their logical end. That few professors (much less teachers in public schools) can be confident in that way is exactly why this is all so chilling.