Zac Krause
Edited by Jia Lin, Sahith Mocharla, and Roohie Sheikh
Foreword: Despite the fact that one is an abbreviation of the other, this paper makes a distinction between “Critical Race Theory” and “CRT.” “Critical Race Theory” is used to refer to the actual academic field of study that the term is supposed to reference. “CRT” is used to refer to other cultural phenomena that have been inaccurately defined as Critical Race Theory. Until I reach my definition of the term later on in the paper, I use the term mostly in quotations in order to leave its meaning ambiguous.
The date was September 1st, 2020 when Fox News viewers stopped their at-home workouts, remote work boredom, or lockdown-inspired arts-and-crafts to chime into what a man named Christopher Rufo had to say about an obscure thing called “critical race theory.” Since that moment, discussions surrounding “critical race theory” have persisted as a focal point for the political right-wing within the broader context of the ongoing culture war. Opponents of “critical race theory” claim that students all over the US are being indoctrinated by this theory. When the rhetoric around “critical race theory” spilled over into legislative action, educators all over the US were provided with new rules and regulations regarding what they can and cannot say about race. Although this was primarily focused toward K-12 education, recently the focus of CRT-bans has made a pivot toward higher education. The constitutionality of such bans has been called into question by scholars, and litigation againsts these bans has emerged in six states, yet no lawsuit brought to a federal court has experienced success [1] [2] [3] [4]. Litigation against such bans will continually arise because of the constitutional obstacles that CRT-bans in higher education face. In determining whether or not potential plaintiffs want to bring litigation against CRT-bans, they must consider the underlying purpose of these bans, which is one of discriminatory intent.
In September of 2020, the Trump Administration’s infamous “Executive Order on Combating Race and Sex Stereotyping” (EO 13950) went into effect [5]. With input from conservative activist Christopher Rufo and a stated purpose of “combat(ing) offensive and anti-American race and sex stereotyping and scapegoating,” Section 2 of the EO provides definitions for eight different ‘divisive concepts’ [6]. Section 3, 4 and 5 then go on to ban federal employers–including the military, government contractors, and grant recipients–from teaching someone to believe any of the eight divisive concepts. Viewing EO 13950 as a catalyst, the African American Policy Forum was able to identify more than 300 instances of “canceled, altered, or halted programs… at federal agencies, contractors, universities, non-profits, and more” solely due to this order [7]. President Biden revoked the Executive Order upon entering office after a mere four months, but this short period of time does not accurately reflect its legacy [8]. The divisive concepts language may no longer be federally mandated, but they have found new life in local and state governments all over the US.
The language of the order, especially the defined divisive concepts, has inspired a wave of ‘anti-CRT’ legislation all over the US. In fact, the Tracking Program at the UCLA School of Law Critical Race Studies Project indicates that a total of 783 ‘anti-CRT’ measures have been introduced by local, state, or federal government entities [9]. The legislatures of 17 states have passed legislation relating to CRT-bans [10]. Other states have taken other restricted measures such as executive orders (South Dakota, Virginia, Arkansas), attorney general opinions (Montana), and board of education resolutions or rules (Alabama, Florida, Georgia). Of the aforementioned measures, only North Dakota, Montana, and Kentucky do not use any of the divisive concepts as defined in Trump’s EO. These policies demonstrate how far reaching the implications of Trump’s EO have been. Although the Executive Order was not geared toward education specifically, the implementation of inspired measures has been strongly directed at educational institutions. As a whole, since 2020, 90% of proposed local and state level anti-CRT measures have been directed toward K-12 education, however, there has been a recent turn towards higher education. As reported by CRT Forward, institutions of higher education have become increasingly targeted by education bills tracked by the program. In 2022, approximately 17% of tracked CRT bills were directed toward higher education, whereas in 2023, 24% of tracked bills were directed toward institutions of higher education [11]. As of right now Florida, Idaho, Iowa, Mississippi, North Dakota, Oklahoma, South Dakota, Tennessee, and Utah have all passed some kind of provision that restricts how professors may discuss and teach some variation of the eight ‘divisive concepts’ [12]. More startlingly, such restrictions have been introduced in 30 states [13].
Doctrine involving academic freedom protections for K-12 teachers is limited, and many scholars have conceded that an argument against CRT-bans in K-12 education will likely fail [14]. Even if plaintiffs can prove that within K-12 educational spaces, such bans are unconstitutionally vague in violation of the First Amendment or discriminate based on viewpoint in violation of the Fourteenth Amendment, they still must prove that the underlying speech (K-12 instructional speech) is protected, which is a hard burden to bear. This isn't to say that doctrine regarding academic freedom for higher education is simple. In reality, despite the fact that a constitutional protection for academic freedom has been proclaimed by the US Supreme Court, they have yet to establish a clear doctrine that lower courts can use to determine whether academic freedom is protected or not [15]. In Keyishian v. Board of Regents (1967), Justice Brennan proclaimed a constitutional protection for academic freedom:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom [16].
Then, in Sweezy v. New Hampshire (1957), the court declared:
Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die [17].
In both Keyishian and Sweezy, the court expressed the importance of academic freedom, but they refrained from actually solving the issue of whether or not academic freedom protection exists under the First Amendment and provided no guidance for lower courts faced with academic freedom claims. While some scholars and courts argue that such freedoms do exist and are protected, others contend that if they exist, they apply to the institution and not to the professor or any faculty members [18][19]. However, disagreement regarding academic freedoms for professors was transformed by the Supreme Court Decision in Garcetti v. Ceballos in 2006, which established a new threshold in determining whether or not speech from a public employee is protected [20]. Under Garcetti, if the speech of a public employee is part of carrying out their official duties, it is ineligible for first amendment protections. Even though Justice Kennedy provided a relatively explicit academic freedom exception in his majority opinion, lower Courts are split on whether or not Garcetti can be applicable in cases regarding academic freedom [21]. Despite these disagreements, lower courts have continually protected academic freedom and although an exhaustive examination of this legal debate is beyond the scope of this article, there are two cases that perfectly illustrate this.
Case 1: Meriwether v. Hartop [22]. The facts of the case revolve around Professor Nicholas Meriwether of Shawnee State University, who was reprimanded by his institution for refusing to call a student by their preferred pronouns. When Professor Meriwether brough free-speech and free-exercise claims to a district court, the court dismissed his claims. The 6th Circuit, however, reversed this decision, and ruled heavily in favor of protection for academic freedom. The court utilized Keynisian and Sweezy to rule that “the First Amendment protects the free-speech rights of professors when they are teaching.” Regardless of political or personal beliefs over pronoun usage and its application in the classroom, it is important to recognize that academic freedom cannot operate as a one way street if embraced by courts, which entails that disfavorable speech is sometimes going to be protected.
Case 2: Pernell v. Florida [23]. Soon after the passage of Florida’s SB7, the so-called “Stop WOKE Act,” the NAACP’s Legal Defense and Educational Fund (“LDF”) filed a case on behalf of professors on the grounds that the First Amendment protections of academic freedom must be placed under judicial scrutiny [24]. The defendants argued that plaintiffs can enjoy protection of “academic freedom” so long as they express viewpoints that the state approves of. District Judge Mark E. Walker declared that this is “positively dystopian,” and ultimately granted the plaintiffs a preliminary injunction (in part) [25]. This ruling further shows that public university faculty possess significant first amendment academic freedom protections.
Critical Race Theory is an analytical framework that “cannot be confined to a static and narrow definition but is considered to be an evolving and malleable practice” [26]. This characteristic of Critical Race Theory is exemplified by a number of similar yet unique definitions from prominent scholars on the issue. In their book Critical Race Theory: An Introduction, Delgado and Steanic claim that Critical Race Theory is a “a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power” [27]. Kimberlé Crenshaw, who coined the term, stated that it is “A way of seeing, attending to, accounting for, tracing and analyzing the ways that race is produced… the ways that racial inequality is facilitated, and the ways that our history has created these inequalities that now can be almost effortlessly reproduced unless we attend to the existence of these inequalities” [28]. Mari Matsuda discussed it as “a method that takes the lived experience of racism seriously, using history and social reality to explain how racism operates in American law and culture, toward the end of eliminating the harmful effects of racism and bringing about a just and healthy world for all” [29]. Even the purported “godfather of critical race theory,” NAACP lawyer, and Harvard Law Professor Derrick Albert Bell Jr., when asked by one of his students what Critical Race Theory is, stated “I don’t know what that is” [30].
Provided that Critical Race Theory seems to elude any traditional definition, we can find insight in Delgado and Stefancic contention that Critical Race Theorists would likely agree to six unique propositions. In the table below, these six propositions have been placed in contrast with the eight ‘Divisive Concepts’ as enumerated in EO13950:
Delgato and Stefancic | EO 13950 “Divisive Concepts” |
|
|
In his podcast titled “CRT vs Critical Race Theory,” Micheal Harriot defines CRT and Critical Race Theory as entirely separate entities and states that “What most people are upset about is not Critical Race Theory, it’s CRT” [31]. This is largely how I have used these terms throughout this paper. Placing Delgado and Stefanics' propositions in opposition to the eight ‘divisive concepts' that have appeared in anti-CRT measures all over the country reveals an acute accuracy in Harriots assessment of CRT and Critical Race Theory as uniquely independent. As can be seen, Delgado and Stefanic’s propositions have little to no similarities to the eight “divisive concepts.” Does the idea that each race has its own and ever evolving history signify that one race is inherently superior to another? No. Does the concept of anti-essentialism imply that a certain race should feel discomfort in their race? Absolutely not. This comparison makes it evident that laws that purport to restrict or outlaw discussions regarding CRT do not accurately reflect what Critical Race Theory is.
The idea that CRT-bans are not actually topical to Critical Race Theory is essentially conceded by proponents of such bans because of all 17 states that have passed anti-CRT measures, only five of them mention Critical Race Theory by name, and of these five states, only North Dakota comes close in providing an accurate definition for Critical Race Theory [32]. The remaining definitions do not track closely to contemporary definitions of Critical Race Theory.
This concept is further accentuated by the fact that Christopher Rufo himself, the man that worked hand-in-hand with the Trump Administration to create the divisive concepts from EO 13950, tweeted “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans” [33][34]. The tweet coincided with a time when the term “Critical Race Theory” was mentioned 1,900 times on Fox News [35]. The startling reality that CRT is an all-encompassing phrase divorced from its original meaning–however insightful it may be–brings to the fore a new question that will be explored to conclude: if CRT-bans don’t actually ban Critical Race Theory, what is their purpose?
Provided that CRT-bans do not function to restrict discussion of or around actual Critical Race Theory, they must serve some other function. There is strong reason to believe that this function is one of a discriminatory nature that coincides with a longstanding conservative tradition of historical revisionism. Rashawn Ray from Brookings accurately summarizes this in stating that CRT-bans function as “a method for continuing to roll back racial progress regarding everything from voting rights to police reform” [36]. Then, in her analysis titled “Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory,” Vivian Hamilton contents that anti-CRT measures “prevent educators, for fear of incurring threatened penalties, from teaching about the role of racism in U.S. history and engaging students in meaningful discussions about race” [37]. She goes on to claim that the existence of such laws make it such that the next generation of students is less likely to be informed about the racial history of the United States and its legacy, and therefore less likely to improve upon it.
Considering the constitutional barriers to such CRT-bans, lawsuits targeting such laws are continually arising [38]. Professors have collectively proclaimed that they “are entitled to freedom in the classroom in discussing their subject,” and as “members of a learned profession,” professors have an inherent opposition to any encroachment on their academic freedom [39]. CRT-bans undercut such academic freedom because they restrict what professors can and can't say in the classroom. Regardless of this workplace encroachment, CRT-bans have a discriminatory intent and effect and should be recognized as such. For college or university faculty (or potentially students) that are considering serving as plaintiffs in anti-CRT litigation, not only should the chilling effect of such censorship laws be given extreme consideration, but potential plaintiffs should also give consideration to the discriminatory intent of such censorship bills.
[1] Nate Luce Jun 13, 2024 & 10:01 Am, Do Anti-CRT Laws Violate the First Amendment?, Vanderbilt Law School(2024), https://law.vanderbilt.edu/do-anti-crt-laws-violate-the-first-amendment/ (last visited Oct 21, 2024).
[2] Emma Postel, Indoctrination by Elimination: Why Banning Critical Race Theory in Indoctrination by Elimination: Why Banning Critical Race Theory in Public Schools Is Unconstitutional, 31 William and Mary Bill of Rights Journal 27 (2022), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2037&context=wmborj.
[3] Joshua Gutzmann, Fighting Orthodoxy: Challenging Critical Race Theory Bans and Fighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools, 77 Minnesota Law Review25 (2021), https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1075&context=headnotes.
[4] Raquel Muñiz, EXPLORING LITIGATION OF ANTI-CRT STATE ACTION: CONSIDERING THE ISSUES, CHALLENGES & RISKS IN A TIME OF WHITE BACKLASH, 74 Syracuse Law Review 1071 (2024), https://lawreview.syr.edu/wp-content/uploads/2024/07/Muniz.pdf.
[5] Executive Order 13950, Combating Race and Sex Stereotyping, 85 Fed. Reg. 60,683 (Sept. 28, 2020).
[6] Sam Dorman, Chris Rufo Calls on Trump to End Critical Race Theory “cult Indoctrination” in Federal Government, Fox News (2020), https://www.foxnews.com/politics/chris-rufo-race-theory-cult-federal-government
[7] TRUTH BE TOLD, AAPF, https://www.aapf.org/truthbetold
[8] Executive Order 13950, DOL, https://www.dol.gov/agencies/ofccp/executive-order-13950
[9] CRT Forward Tracking Project, https://crtforward.law.ucla.edu
[10] Tess Bissell, Teaching in the Upside Down: What Anti–Critical Race Theory Laws Tell Us About the First Amendment, 75 Stanford Law Review, https://review.law.stanford.edu/wp-content/uploads/sites/3/2023/01/Bissell-75-Stan.-L.-Rev.-205.pdf.
[11] See [9]
[12] Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, Education Week, Jun. 11, 2021, https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06 (last visited Oct 21, 2024).
[13] The Conversation, Tracking the Attack on Critical Race Theory in Education, US News and World Report (April 11, 2023),
[14] See Bissel
[15] See Bissel 83
[16] Keyishian v. Board of Regents, 385 U.S. 589 (1967), Justia Law, https://supreme.justia.com/cases/federal/us/385/589/
[17] Sweezy v. New Hampshire, 354 U.S. 234 (1957), Justia Law, https://supreme.justia.com/cases/federal/us/354/234/
[18] Meriwether v. Hartop, 992 F.3d 492 | Casetext Search + Citator, https://casetext.com/case/meriwether-v-hartop
[19] Urofsky v. Gilmore, 216 F.3d 401 | Casetext Search + Citator, https://casetext.com/case/urofsky-v-gilmore-2
[20] Office of the Solicitor General | Garcetti v. Ceballos - Amicus (Merits) | United States Department of Justice, (2014), https://www.justice.gov/osg/brief/garcetti-v-ceballos-amicus-merits (last visited Oct 21, 2024).
[21] See Bissel 89
[22] See Meriwether v. Hartop
[23] PERNELL et al v. FLORIDA BOARD OF GOVERNORS OF THE STATE UNIVERSITY SYSTEM et al, No. 4:2022cv00304 - Document 63 (N.D. Fla. 2022), Justia Law, https://law.justia.com/cases/federal/district-courts/florida/flndce/4:2022cv00304/442797/63/
[24] See Pernell
[25] See Pernell
[26] A Lesson on Critical Race Theory, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/ (last visited Oct 21, 2024).
[27] See Delgado and Steanic
[28] Jacey Fortin, Critical Race Theory: A Brief History, The New York Times, Nov. 8, 2021, https://www.nytimes.com/article/what-is-critical-race-theory.html (last visited Oct 21, 2024).
[29] University of Hawaii law professor Mari Matsuda
[30] Jelani Cobb, The Man Behind Critical Race Theory, The New Yorker, Sep. 2021, https://www.newyorker.com/magazine/2021/09/20/the-man-behind-critical-race-theory (last visited Oct 21, 2024).
[31] CRT vs Critical Race Theory Part 1, TheGrio, https://thegrio.com/podcasts/thegrio-daily/crt-vs-critical-race-theory-part-1/ (last visited Oct 21, 2024).
[32] See Bissell 221
[33] See [6]
[34] x.com, X (formerly Twitter), https://x.com/realchrisrufo/status/1371541044592996352?lang=en (last visited Oct 21, 2024).
[35] Fox News’ obsession with critical race theory, by the numbers, Media Matters for America (2021), https://www.mediamatters.org/fox-news/fox-news-obsession-critical-race-theory-numbers
[36] Why Are States Banning Critical Race Theory?, Brookings, https://www.brookings.edu/articles/why-are-states-banning-critical-race-theory/
[37] Vivian E. Hamilton, Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through the Lens of Critical Race Theory, 61 (2021), https://works.bepress.com/vivian_hamilton/35/ (last visited Oct 30, 2024).
[38]1940 Statement of Principles on Academic Freedom and Tenure, AAUP (2006), https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure
[39] See Pernell