A Tempting, but False, Both-Sides Angle to the Republicans' Culture War Against Critical Race Theory

by Neil H. Buchanan

Republican legislatures across the country are frantically rushing through legislation banning the teaching of Critical Race Theory (CRT) in schools and colleges.  Several states have already adopted such laws, and more will soon join them.  In a recent column here on Dorf on Law, I critiqued Oklahoma's new law and concluded that it was likely to have its intended chilling effect on discussions of race in that state's classrooms, even though it could counterintuitively be used by clever instructors to increase the discussion of systemic racism in universities and schools.

Professor Dorf's column yesterday described this as "sidelash," a neologism that he defines as "reaction against gains made in another jurisdiction by a social/political movement that seeks change" (emphasis in original).  That is, the states in which Republicans are passing these laws are not the states in which CRT is likely to have much impact on the local populace in any case, but they are passing the laws in large measure as protests against social justice movements in blue states.  "You care so much about supposed American racism?" they ask.  "Well, in our state, we're going to prevent anyone from teaching our students that America is anything other than perfect."

But what is going on in those blue states against which red states are engaging in sidelash?  Are Democratic legislatures doing the same thing, but liberal?  Is this at long last a situation in which there is actual equivalence, not false equivalence, and where a bothsidesist approach is thus appropriate?  No, but understanding why not is still an interesting inquiry.  As most liberal things tend to be these days, this story is mostly about California.

Last week, I had a brief e-conversation with an academic acquaintance who recently moved from a blue East Coast state to the even bluer Golden State.  Because I have recently moved from a different blue East Coast state to the purple-but-governed-bright-red Sunshine State, we chatted about our respective new homes.  I brought up the right's anti-CRT crusade (word choice intended), because even though I do not identify as a Crit, I do care about the issue simply as a matter of not wanting the Republicans in Tallahassee to tell me that I cannot tell my students the truth about systemic racism in, for example, mortgage lending and home ownership.

When I kvetched about that possibility, my correspondent (whose politics, based on what I know about him, lean left) surprised me by saying, in essence, that California is doing the same thing, from the other direction.  And indeed, it turns out that the Democrats who run the show in Sacramento did pass a law last year that adds a course in ethnic studies as a graduation requirement for all students in the state's vaunted public university system.  The state is also creating an ethnic studies curriculum for the state's high schools that is optional, and already the Los Angeles and Fresno districts have decided to make such courses mandatory starting in 2022-23.

Our conversation was cut short, and I have been not able to follow up with my correspondent about his views of the situation.  One of the news articles that he sent me offers a thoughtful endorsement of California's new law, so I do not want to presume that I know how he feels about this.  Instead, I wanted to think about how the California situation might be used by the people who aggressively traffic in bothsideism.
And it does superficially look the same, does it not?  Red states say, "Don't teach about racism," while blue states say, "Teach about racism."  Especially in light of my assertion (in my recent column about CRT) that "legislating academic content is always worrisome," I ought to be just as worried about either type of intervention, right?

The answer is no, but I do first want to explain why an initially appealing distinction does not work.  One could point out that California is adding to the curriculum, whereas Oklahoma and others are deleting from the curriculum, which might then be used to say that Democrats are pro-knowledge and Republicans are anti-knowledge.  But even if that conclusion is true (and it is), the adding/deleting distinction ultimately does not work.  As Texas's ought-to-be-disgraced Attorney General put it: "We should be teaching American history. We should not be teaching that people are somehow unequal."
In other words, it is not accurate to describe Republicans as being merely against CRT.  They are openly and enthusiastically (one might even say maniacally) in favor of something, and that is that students should affirmatively learn that America is great in every way, and always was.  They do not need to mandate new courses in order to achieve their ends, because they are making sure that the courses that already exist will continue to be what most of them have been all along: celebrations of American exceptionalism.

This, much like the action/inaction distinction that the Supreme Court's conservative bloc bizarrely endorsed in the first challenge to the Affordable Care Act, is a distinction which is simply untenable.  Republicans are not against teaching everything.  They are against teaching the realities of racism in the U.S., past and present.  They are for teaching a bleached-out series of half-truths and utter lies.  This is not content versus lack of content; it is a matter of comparing two types of content, which feels awkward but is in the end always necessary.
If the content/no content distinction does not give us a way out of the bothsidesist argument, what does?  One element of the answer is provided in constitutional scholar Ronald Krotoszynski's recent Washington Post op-ed, in which he pointed out that anti-CRT laws at the university level (but not at lower levels, because of a judicially invented exception) are unconstitutional.  Citing a series of blindingly bright-line Supreme Court precedents, Krotoszynski shows that the Constitution has long been recognized to protect academic freedom, at both the the professorial and institutional levels, including this: "[I]n the 1985 University of Michigan v. Ewing decision, [the Court held] that 'academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also … on autonomous decisionmaking by the academy itself.'"
But that, too, could suggest a bothsidesist approach.  California's Democrats are using their power in the state legislature to force the state's universities to teach (and all students to take) a specific subject: ethnic studies.  How is that, like anti-CRT laws, not a violation of "autonomous decisionmaking by the academy itself"?

The answer begins with the fact that state universities are -- and I know that this will shock my readers -- state universities.  The state legislature is surely permitted to put in place general education requirements without violating academic freedom.  A state can require students to take a foreign language (even a specific foreign language), just as it can require humanities majors to take some number of natural science courses (and vice versa).  Whether this is done explicitly at the state level, versus the university decision-making level, is essentially a formal distinction.  Surely, however, the concerns raised by the language quoted above from Ewing would become pertinent if the state's academy was opposed to the new course.

One of the central reasons, if not the most important reason, that "the academy" would not oppose an ethnic studies requirement -- and might in fact have agreed to impose one on its own, if the legislature had asked it to do so rather than requiring it -- is that academic freedom's importance revolves around expanding the range of possible conversations, ideas, and theories.  That is, universities are all about challenging their students (and society at large) to wonder if the earth is truly flat, or if bleeding people is necessary to get rid of "humours," or if the Gold Standard is the key to economic prosperity, or if separate-but-equal accommodations are consistent with the Equal Protection Clause.

At its core, the anti-CRT movement is designed to make it impossible for universities to carry out the most important aspect of their mission.  A student who enters college after a K-12 education that most likely deals with American history as a long sequence of successful conquests and wars, along with exaltation of our becoming an ever more perfect union, has until now run at most a slight risk of finding himself in a classroom in which a professor says something that challenges parts of that view of history.
The sponsor of the anti-CRT bill in Texas's House says that this should not be challenged by CRT, because his bill "is about teaching racial harmony by telling the truth that we are all equal, both in God’s eyes and our founding documents."  That is why he opposes what he calls “a souped-up version of Marxism.”  California has decided that this is unacceptable, because part of being educated is being at least temporarily surprised and disoriented.

During my first year as a teaching fellow in the Intro to Economics course at Harvard (the infamous Ec10), I was pleased to note that (due to some student activism in prior years) two lectures per academic year were given over to the department's only tenured professor who identified himself as a "radical economist," a sort of post-Marxist approach.  One of my students saw me in the hallway before the first of those lectures, and he was panic-stricken.  "I'm scared," I recall him saying.  "I've never been in the same room with a Communist before."  I assured him that it was not an infectious disease, and I tried to gently point out all of the obvious things that he needed to rethink: the lecturer was not a Communist; Marx could be right and important about some things even if he was wrong and irrelevant about others; learning about that with which one disagrees is valuable, and so on.
That conversation occurred at a private university, but the basic idea is the same.  This student's reaction was extreme (caused by a highly sheltered upbringing), but days like that are good.  They might even be the best days in a student's entire educational career.  We are doing our job when we cause students to think about new things.

There are, of course, limits to this argument.  A state should not be able to require students to learn that the Holocaust never happened, or that evolution is merely a theory, and so on.  Yes, being taught those things would be surprising and disorienting to students, but challenging students with unfamiliar ideas has to be aimed to expand one's understanding of the world.  A professor should be allowed to bring up crank theories if she chooses (even to endorse them), within the range that her department and administration consider to be of academic value; but teaching falsehoods cannot be required.

California has not mandated that any student be taught that lies are fact, because facts are still very stubborn things.  A student could take a required ethnic studies course but conclude that America's history of racism and the systemic effects that reverberate to this day are of no concern, and that would be (unfortunate but) fine.
But if a professor wants to tell students that, say, a 19th Century property law decision is best explained by the fact that the losing party was a woman, the state legislature should not be able to prevent the professor from doing so, even -- or especially -- if the legislature desires to prevent (as in Oklahoma) a student from feeling "guilt or anguish" at being associated with a gender that has benefited from oppressive sexist laws over the centuries.
What California's Democrats did will not affect my colleague who now teaches there.  If Florida's Republicans do here what their fellow partisans have done in Oklahoma and elsewhere, it will very much affect me and every professor in the state.  Even people who think that the ethnic studies course is "a waste" for students cannot seriously argue that the level of intrusiveness is even close to equivalent.
Conservatives have spent decades railing about the left's supposed moral relativism, arguing instead that certain universal truths should be taught to our youth.  Here, it is not a battle of absolutism versus relativism.  It would be silly and dangerous to say that the Holocaust "was right for Hitler," and the academy has a responsibility to rule out that kind of kooky idea, just as it has a responsibility to figure out which ideas deserve a place in the curriculum and which do not, leaving it to individual professors to decide what to cover, when to play the devil's advocate, and so on.
Legislatures should not (and, per Krotoszynski, cannot) take away that freedom from individual professors or their institutions.  Legislatures can require that a state-approved degree be awarded only after students have undergone an acceptable minimum exposure to live controversies and factual knowledge across the curriculum.  Shielding students from unpleasant facts violates academic freedom.  Exposing them to such facts is education at its best.
Once again, both sides are not the same.