State legislation regarding Critical Race Theory and its variants playing out in training and instruction (such as misleadingly-named “antiracism” and “equity”) is a hot political issue. Numerous examples of abusive eduational and workplace trainings that devolve into race-shaming and racial abuse have stoked public anger at CRT as it is practiced.
The landscape of state legislation is varied and still developing. Thousands of teachers have pledged to defy any laws restricting their teaching of CRT, and the National Education Association is fully behind the push to expand CRT in K-12.
The messaging against opposition to CRT, including legislative action, is organized, well-financed, and scripted, as I documented in Union-Linked Coalition Scripts ‘Messaging’ To Counter Parental Pushback Against Critical Race Theory.
What is the proper role of state legislatures, and what type of legislation is appropriate?
I was invited to speak on the topic of state legislation at the ALEC Annual Meeting in late July in Salt Lake City. My thoughts and presentation will not be complete, if my history is any guide, until sometime around 3 a.m. that morning.
I will have a lot more to say than is written here, but two aspects I’ve been focused on and wanted to put out there are (1) the distinction between K-12 and higher ed, and (2) how legislative findings under existing anti-discrimination laws may be a key, even in higher ed.
K-12 Legislation Is Most Compelling
Legislation is most appropriately and easily directed at K-12. That’s not to say higher ed is completely off the table for legislative action, but K-12 is the easier and more compelling case. Controlling the curriculum is a legitimate state interest.
First, we are talking about CHILDREN, and the case is more compelling the younger the grade level. Government action to protect children is more justifiable, whether it’s from physical or educational abuse.
Second, at the elementary and secondary level, attendance is compelled by law. It’s a captive audience. That’s not the case in higher ed.
Third, K-12 curriculum in public schools always has been subject to government approval and control, so state action is not new or unusual. Even private school curricula need to meet state standards. The notion of academic freedom as it exists in higher ed also has limited application to K-12. The issue is who controls the curriculum.
Fourth, there already is outside interference in school curricula through a massive infrastructure of left-leaning and union organizations, so local autonomy has been eroded, justifying state-level intervention.
Fifth, school curricula are not marketplaces of ideas, even if speech by K-12 students is protected to varying degrees.
None of the factors above apply to higher ed, so don’t confuse the two, it will only help muddy the waters.
I’ll add a Sixth reason to keep K-12 separate. K-12 can be won. Higher ed is mostly lost, with the victors scouring the landscape to finish off the survivors. (Okay, maybe I’ve overstated how dire higher ed is, it varies from campus to campus, please don’t give up the fight.)
Focus On Existing Anti-Discrimination Laws
In addition to focusing on the curriculum, one key to winning K-12 (which also could apply to higher ed) is to focus on conduct, and the interaction between school (and campus) conduct and the existing anti-discrimination laws.
At Cornell University, where I teach in the law school, hundreds of faculty, students and staff signed a list of demands that included race-based hiring and promotion. Those demands, which the Faculty Senate wisely never even considered, would have violated state and federal anti-discrimination laws (and Cornell’s own anti-discrimination policies). So to fight that proposal involved not “banning” the ideas, but enforcing existing law.
Take that concept and expand it. States don’t need new anti-discrimination laws, but they may need to make the educational conduct covered by those laws more explicit through legislative findings. Legislatures can take existing anti-discrimination laws and provide more specific findings of conduct that would be deemed to be a violation, or at least create a rebuttable presumption of a violation, in the educational context.
What that would look like I still need to think through, but there should be consensus, for example, that requiring students or faculty to separate by race or ethnicity for various activities is a form of discrimination that violates the law. I’m sure that additional instances of conduct can be articulated, but the key is to create legislative findings and presumptions that address the problem of CRT as it is practiced.
The advantage of using existing anti-discrimination laws is that most (or all) of those state laws provide private rights of action. While ideally students should not have to sue to obtain protection in school, lawsuits will inevitably be needed. Legislative findings as to what constitutes a violation of the law could be very helpful in that regard. Additionally, state and federal funding often is contingent on compliance with anti-discrimination laws, so better articulating prohibited discriminatory conduct could have an impact in deterring that conduct.
The focus on conduct not concepts is why we named our separate website Critical Race Training In Education. Stick with that focus on conduct.
Once again, these are just some preliminary thoughts, and by no means exclusive. And they will not be finalized until about 3 a.m. the day of my ALEC speech.
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