ProPublica/The Atlantic Investigation of CRT Pushback Focuses on “Something Called the Legal Insurrection Foundation”

ProPublica/The Atlantic Investigation of CRT Pushback Focuses on “Something Called the Legal Insurrection Foundation”

At the end of September 2022, I was contacted by Dan Golden, a senior editor/reporter at ProPublica, requesting an interview:

I’d very much like to chat with you for an article I’m working on, to be co-published by ProPublica and The Atlantic Monthly, about the impact on faculty and pedagogy at public universities of the laws in Florida and other states restricting teaching of Critical Race Theory. Since your watchlist, “Critical Race Training in Education,” spotlights CRT courses and programs, and you’ve been critical of CRT, your insights into the debate would be very helpful.

At my insistence, the interview was conducted by email, so there would be a clear record. That’s a procedure I prefer because I’m not afraid of defending what I do say, I don’t want to have to defend what some reporter inaccurately claims I said.

Over the next several weeks Golden submitted numerous questions to which I responded, and there was follow up, and follow up to the follow up. Among other things, I disputed that CriticalRace.org is a “watchlist,” I explained my own background as to CRT, my experiences as a conservative professor, and a whole lot of other things. At the bottom of this post I reprint the initial set of questions (there were many more follow ups) and answers.

The ProPublica article ran on January 3, 2023, Muzzled by DeSantis, Critical Race Theory Professors Cancel Courses or Modify Their Teaching (archive). (The same article ran under a different headline at The Atlantic, ‘It’s Making Us More Ignorant’.) The subheadline advanced the narrative of the article:

As fewer faculty members are protected by tenure, they’re finding it harder to resist laws that ban certain racial topics. Their students suffer the consequences.

The article is a compendium of interviews and anecdotes with professors, mostly in Florida, about how they have suffered under laws that directly or indirectly address the teaching of Critical Race Theory. It’s at the top of the ProPublica home page as of this writing:

Golden’s tweet promoting the article has gone semi-viral:

The article is having an impact:

I was not misquoted and was not misrepresented in the article, so that’s good.

I can’t speak to the accuracy of the reporting as to most of the anecdotes, but I can speak to the accuracy of the anecdote in which the Legal Insurrection Foundation and CriticalRace.org were mentioned. We were used as props to emphasize the supposed in terrorem impact of our coverage on a particular professor at Florida State. But the timeline in the article shows differently.

Here’s the section that involved us (emphasis added):

The sociologist Shantel Buggs is hoping to become a rarity: a tenured Black woman in Florida State’s College of Social Sciences and Public Policy. In 2021, the college had one tenured Black woman. Overall, it had two tenured Black faculty and 59 white faculty.

The daughter of two Marines, Buggs was the first college graduate in her family. She has won teaching awards, published book chapters and articles in refereed journals, developed new courses and helped establish an anti-racism task force on campus. When UCF offered her a tenured associate professorship in 2021, Florida State gave her a raise to stay.

“Your work is powerful, timely, and extremely socially relevant, and you have quickly gained national recognition in your areas of expertise,” Buggs’ department chair at Florida State, Kathryn Tillman, wrote in 2021. Tillman also called her a “fantastic teacher and mentor.”

As the Individual Freedom legislation was being enacted, Buggs detected a subtle recalibration of her prospects. In April 2022, Buggs told me, Tillman urged her to take advantage of a COVID-19 extension and delay her candidacy for tenure by a year. Buggs protested. “I thought it was unfair that I be asked to wait to go up for promotion in this political climate because what I teach and what I research will place a target on me,” she said. But she agreed, she said, after Tillman expressed concern that higher-ups might deem her publication record insufficient for tenure. (Tillman told me via email that she can’t comment on personnel issues.)

One course that Buggs had developed and taught was “Critical Race Theory.” She last offered it in the spring of 2021. The following September, she learned that it was the only Florida State course listed on the Critical Race Training in Education website, which has been featured on “Tucker Carlson Tonight” and describes CRT as a “radical ideology” that challenges “the very foundations” of American democracy. Buggs discovered that the website was a project of something called the Legal Insurrection Foundation.

The term “insurrection” alarmed her. Anxious that she might be trolled or harassed, Buggs was receptive in May 2022 to another Tillman request — to change the name of the course. Tillman told me that she and Buggs had discussed whether another title would help avoid “potential misperceptions about the course’s intent. Together, we agreed to give it a try.” The course, which Buggs plans to teach in the upcoming semester, was relisted as “Sociology of Race and Ethnicity.”

The purpose of the Critical Race Training in Education website is to “document what students can expect at a particular campus,” according to William Jacobson, a Cornell University law professor and the president of the Legal Insurrection Foundation. Jacobson told me that, because he had criticized the Black Lives Matter movement, Cornell alumni petitioned to have him fired, a faculty statement denounced him and a student group called for boycotting his courses. “Considering what I have gone through, I am very sympathetic to left-leaning faculty who come under attack, but it also is clear that the overwhelming campus cancel culture is from the left towards the right, not the other way around,” he said.

A Florida State spokesperson told me critical race theory scholars should have no concern that their specialty will hurt their tenure chances. But Katrinell Davis, the director of the university’s African American Studies program and the only tenured Black woman in the college of social sciences, says she is “saddened” by Buggs’ predicament. “Her trajectory as a scholar may be impacted” by the Individual Freedom Act “and because of the doubts that might arise around the value of CRT,” Davis told me.

For her part, Buggs said she is open to leaving Florida for another state where she can teach critical race theory without legal consequences, but she doesn’t want to. “I have enjoyed working here,” she told me. “I’m a stubborn person. I don’t want to give DeSantis the satisfaction.”

Buggs also worries that the political climate is rubbing off on students. In the past year or two, Buggs said, some students have begun to “ding” her in evaluations as judgmental or biased. Last spring, one called her a “misandrist” — a man-hater. “Part of what pissed me off is, he got an A,” she said. She has added a disclaimer provided by the faculty union to her syllabi: “No lesson is intended to espouse, promote, advance, inculcate, or compel a particular feeling, perception, viewpoint, or belief.”

LIF and CriticalRace.org are used as foils to demonstrate restraints on Buggs academic freedom and career. But the timeline in the article doesn’t support that narrative.

Buggs says she saw her course listed act CriticalRace.org in September 2021, but the article also says the last time she taught the course on Critical Race Theory was the prior semester. So by the time she saw her course listed at CriticalRace.org, she already had stopped teaching the course, it had nothing to do with the listing. Second, the course name was changed not in reaction to the listing of the course at CriticalRace.org, but at the suggestion of someone else in May 2022, two semesters later. Again, the listing at CriticalRace.org had nothing to do with the course name change. So on the two main points as to Buggs supposed academic constraint, we were not involved.

And then there’s the fear factor. But Buggs says she feared she might be “trolled or harassed” because of the listing at CriticalRace.org. But she doesn’t say that ever actually happened. Rather, she had a subjective fear of the term “insurrection” in our name. For that fear, she might want to blame the round-the-clock media and Democrat fearmongering about “the insurrection,” not us. We’ve used our name since October 2008, and Buggs might be the first person in history to shake in her boots over it. Most people chuckle. We make no apologies for our oxymoron.

Reading the article, you might think we are part of the problem. But the opposite is true, we are part of the solution. At CriticalRace.org, our data is neutral. The data is the data. The facts are the facts. Do with the data and facts what you want, but don’t suggest that the light we shine is the problem.

If you don’t want sunshine, you are the problem, not us.

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Email Interview Between Dan Golden of ProPublica and William Jacobson (initial questions and answers):

Here are answers to your questions. As you undoubtedly are aware, I have given many speeches and interviews on these topics, which should be readily accessible online. Nonetheless, I will try to answer the questions as you have framed them.

1) What got you interested in CRT? Were you familiar with it prior to the Black Lives Matter protests that followed George Floyd’s death? Are you active online/politically on any other issues besides CRT? 

(a) I was aware of and familiar with CRT long before George Floyd’s death. As a student at Harvard Law School in the early 1980s (Class of 1984), I observed the development and popularization in law school of Critical Legal Theory (CLT). HLS was, in many ways, where CLT developed. CLT had a cultish feel to it at HLS in the early 1980s, and its student and faculty followers were called “the Crits” among students.

The term “Critical Race Theory” was not yet in use, but the core of CRT was CLT, and the approach to centering race in analysis of the legal system and more general political system already was evident. The concepts were evident even if the terms to characterize them were not. Even in those early years, the racialization of CLT was evident, with some student groups at HLS in the early 1980s trying to build an anti-Israel coalition through a racial lens.

After entering private law practice after graduating HLS in 1984, I didn’t pay a lot of attention to CLT or CRT or politics in general, until I started the Legal Insurrection website in October 2008, about a year after joining Cornell Law School. One focus in the early years of the website was in documenting, reporting on, and commenting on, how coalitions were being built on campuses against Israel centered around race and color, just as had happened at HLS in the early 1980s.

It was in the context of understanding the anti-Israel movement that I became familiar with the Black Lives Matter (BLM) organization and movement. I was aware of the term Black Lives Matter as a result of the Trayvon Martin case, which my website followed closely and received acclaim for our coverage. Among other things, I saw the racial manipulation of the shooting by activists and the mainstream media, including NBC News doctoring the 911 call by George Zimmerman to make it appear that he was motivated by race.

But it was not until the Michael Brown shooting and Ferguson riots in 2014 that I more closely understood the race-based activism, and how what I observed at HLS in the early 1980s was playing out. I initially followed the Ferguson riots to document how anti-Israel activists had infiltrated the protests to turn the protests against Israel based on the false claim that Israel was responsible for training the Ferguson police. As an outgrowth of seeing the manipulation by anti-Israel activists of the Brown shooting and Ferguson riots, I began to understand how centering race (people of color versus supposedly white Israel) was exploited. It was a replay of what I witnessed at HLS in the early 1980s.

I don’t recall if the term “Critical Race Theory” was used by those activists in 2014, but the concepts were the same as I saw in the early 1980s and we see now. I also became very familiar with the false narrative spread by BLM and related groups that Brown was shot with his hands up, while saying don’t shoot. “Hand Up, Don’t Shoot” became the signature BLM slogan, but it was based on a fabrication, which even the Obama-Eric Holder Justice Department found had no credible evidence to support it. This BLM slogan fabrication was something I would write about multiple times over the years; my writing about it again in June 2020 resulted in attempts to get me fired and denounced.

So I’ve been generally familiar with CRT concepts and activism for decades, but I don’t recall where along that timeline the term “Critical Race Theory” came into my view. Clearly, the specific focus on CRT as a theory and how it was used on campuses came into focus with the activism pushed on campuses and elsewhere after George Floyd’s death. In July 2020, the President of Cornell University announced an “anti-racism” initiative, preceded by an announcement that Ibram Kendi’s book How to Be an Antiracist was campuswide recommended summer reading for the university and to be the subject of seminars and meetings after the summer. The book was made available for free online to members of the Cornell community, and I read it.

I was horrified to see the same racial narratives and approaches I had seen back in the early 1980s at Harvard Law School being played out in activist format in 2020 accompanied by a university endorsement and promotion. The book explicitly calls for current discrimination to remedy past discrimination. The combination of the Cornell promotion and the Kendi book as campuswide recommended reading together with a presidential “anti-racism” initiative, caused me to look into the “anti-racism” activism, which by the summer of 2020 was being widely characterized as “Critical Race Theory” in action. While I understand some CRT scholars dispute that Kendi truly reflects CRT, he is by far the most prominent advocate for putting CRT concepts into action.

My concern was further elevated when, in early September 2020, several hundred Cornell faculty, students, staff, and alumni issued a set of demands as to how they thought the campus anti-racism initiative should look. The demands parroted much of Kendi’s approach, including explicit demands for race-based hiring and promotion.

It was at that point, after we researched the CRT and “anti-racism” activism on campuses, that we decided to create a database that became CriticalRace.org.

(b) I am active on many issues other than CRT, particularly campus free speech and academic freedom, as well as countering the anti-Israel movement’s false narratives and intimidation tactics. Prior to launching the Legal Insurrection Foundation, a 501(c)(3), in March 2019, the website was more involved in promoting particular political candidates, but we don’t do that anymore. Also, in the early years of the website we were loosely part of the Tea Party movement, though we never affiliated with any group and always maintained our political independence. I have many dozens, maybe even hundreds, of lectures and media appearances unrelated to CRT.

2) I have seen you quoted as describing Critical Race Theory as “current discrimination in order to remedy past discrimination.” Does this mean that you believe that systemic or structural racism (the focus of CRT) no longer exists in American society, and that there is no “current discrimination” against Blacks and Hispanics? Is this the gist of your dispute with CRT? 

That quote is a paraphrase from Kendi’s book, How To Be An Antiracist: “The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” I stand against racial discrimination regardless of the purpose. The answer to racial discrimination is not more racial discrimination, it’s less discrimination. It’s moving toward a fair treatment of all, not unfair treatment of some to benefit others. Whether or not “systemic or structural” racism exists, the cure is not racial retribution, which only reinforces negative stereotypes and creates resentment.

3) Assuming that systemic racism existed in the past, for example during Jim Crow, when exactly did it disappear? To what do you attribute continuing racial disparities in educational attainment, income/assets, employment, arrests and imprisonment, police shootings/killings, and many other aspects of American society? If you do think that systemic racism is still a significant factor in America, what is your disagreement with CRT?

I reject the premise, after the progress made in the past 50+ years, that group results are the measure of fairness or equality. Focusing on groups identified by skin color or other markers is an ideological viewpoint and presumes that people have identical life experiences just because of the color of their skin. People espousing that approach mistakenly assume that focusing on group statistics is the only legitimate approach because they have grown up in the CRT environment. I am focused on the individual. If the process is fair and individuals are treated equally without regard to race, then we have achieved justice. So I disagree philosophically with the CRT/Kendi group identity approach.

From an evidentiary point of view, the CRT/Kendi approach also presumes but does not prove that racism causes group disparities. The typical approach is to say it “must” be race, but the burden is on those claiming the group disparities are the result of racism to identify the specific causes as to specific individuals, not to use racism as the default explanation and to expect others to prove a negative. Scholars such as Prof. Wilfred Reilly have demonstrated that many “racial” disparities in results close or disappear when non-racial causes are factored in, so it’s not enough to presume racism.

4) I wrote a book called “The Price of Admission: How America’s Ruling Class Buys Its Way Into Elite Colleges–And Who Gets Left Outside The Gates,” which is sometimes taught in college classes. It documents that very rich families often donate large sums to selective universities, which then admit their under-achieving children under the rubric of “legacy preference” (if the parents are alumni) or “development preference” (if they aren’t). 

My book examines these admissions preferences primarily as an issue of wealth and social class. But because the vast majority of the donor families are white, some academics would regard the preferences as an example of systemic or structural racism–i.e., they institutionalize admission of white students with weak grades and test scores. Do you disagree with this characterization, and if so, what would your counterargument be? Should teaching of this race-based interpretation of legacy and development preference be discouraged or banned in college classes? 

I have not read your book, and don’t have time now, so I can’t comment on your theories and findings. I am against legacy admissions preferences regardless of whether they have a racial impact on admissions, because they contribute to a cronyism that shifts the focus from the individual’s merits to the school’s interest in developing alumni fundraising. I’d like to see all identity-group admissions preferences eliminated to level the playing field and to increase the focus on the intrinsic merit of each applicant without regard to group identity.

 5) Your watchlist, “Critical Race Training in Education,” identifies CRT courses and programs at colleges and universities in Florida and nationwide. How would you like to see this information used? For example, should colleges and universities cancel these courses and programs? Should students boycott them? Should parents and donors protest to the colleges about them? Many teachers of these courses are assistant professors on the tenure track. Should colleges deny them tenure because they specialize in CRT? 

CriticalRace.org is not a “watchlist” and is not fairly characterized as such. While there are analytical resources available on the website, the core of the website are the databases. The databases document a wide range of activities under the umbrella of “Critical Race,” and the focus is not on classroom instruction but how CRT manifests itself in mandates and other campus activities. The data is neutral, it’s just data, and almost entirely comprised of information available on university websites. We list for users what the universities are saying they do, with a live and archived source link for every piece of data. The databases are not limited to schools that have active CRT activities, and include schools that do not. That is made clear on the website. So being listed does not reflect a need to “watch” out, it simply provides information for people to make their own decisions. It is entirely possible that users of the database will find attractive schools that have active CRT programming, and that is okay with us if that is what a student or parent wants.

6) Let us assume that scholars can disagree on the existence and extent of systemic racism. You may be a skeptic; others are believers. But just because a doctrine is in dispute, does that mean it should not be discussed in college classes? Surely there are many debatable doctrines and ideas discussed in the classroom, perhaps even in your courses on securities law.  Why should CRT be singled out as unworthy of discussion? 

I have never said that CRT should not be the subject of discussion. It is so pervasive on campuses in many different forms, that I believe there should be more robust debate over it, rather than having it forced on students, faculty, and staff under administrative mandate with the implicit threat that questioning CRT’s assumptions or Kendi’s dogma reflects racism. It is rare on a campus to have a discussion that is critical of CRT, and it would be impossible to be hired almost anywhere if one took a public position hostile to CRT and Kendi’s “antiracism” approaches. So when it comes to CRT I am in favor of more debate, particularly debate that presents a critical side that rarely is heard on campuses.

7) My understanding is that your expertise is primarily in securities law. What qualifies you to pass judgment on the validity of Critical Race Theory as a tool for analyzing racial inequality?   

CRT is not rocket science. No special expertise is needed to evaluate its race-based focus and the implications on society. The appeal to credentials is a logical fallacy that is particularly applicable to attempts to insulate CRT from criticism.

8) The Florida law describes “racial colorblindness” as a virtue and prohibits “instruction that espouses, promotes, advances, inculcates” that racial colorblindness is racist. This appears designed to combat a body of scholarship by sociologists such as Eduardo Bonilla-Silva (author of “Racism Without Racists”) that interprets ostensibly race-neutral language (“law and order,” “states’ rights,” etc.) and policies (gerrymandering, voter ID laws, etc.) in racial terms. Have you reviewed this scholarship? Do you give any credence to the concept that race-neutral language or policies may still have racial overtones or target minorities? If you don’t, why not? Is the concept of colorblind racism so outrageous that no scholar should be allowed to promote or espouse it to students? If any faculty members in Florida continue to promote the idea that colorblindness can be racist, should they be disciplined, and if so, how? 

I have not studied the Florida law, so I cannot comment on its specifics.

9) What reception or backlash have you received from colleagues at Cornell and elsewhere to your criticism of CRT and your watchlist? Have you been subjected to “cancel culture”? If so, do you feel any kinship with CRT scholars who face a cancel culture from the right? Is academic freedom perhaps under threat from two directions? 

Once again, CriticalRace.org is not a watchlist. That’s not a fair characterization.

I have been subjected to “cancel culture” almost since the day I started my website, with years-long attacks, harassment, and threats from the left because I expressed non-liberal views openly. I stopped answering my office phone in 2009 because of the vitriol thrown at me. The attackers, until 2020, were from off campus and most were mainstream liberal Democrats who felt it their right to interfere in my employment.

In 2020, that all changed when I wrote, as I had in the past, about the fabricated BLM Trayvon Martin and Michael Brown narratives, and accurately wrote about the background and goals of the activist leaders of the BLM movement. At that point the attacks came from withing the Cornell Law School community as part of the panic and protests that swept the nation. There was an alumni petition to get me fired, a faculty statement denouncing me, a student group boycott (which failed), and a misleading and inaccurate denunciation by the then-Dean. Fortunately, I received a lot of support from across the country, including from many alumni, and was able to weather that storm. I have not received any public reaction from within Cornell to the launch in February 2021 of CriticalRace.org. The reaction outside of Cornell has been overwhelmingly positive.

Considering what I have gone through, I am very sympathetic to left-leaning faculty who come under attack, but it also is clear that the overwhelming campus cancel culture is from the left towards the right, not the other way around.

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