Why they attack critical race theory
Twenty-one states have introduced or passed legislation in recent weeks to ban the teaching of “critical race theory,” a school of legal academic thought that most legislators had likely never heard of before this year. These laws get critical race theory wrong, but that’s not really what they’re about, anyway. They’re part of a backlash against movements for racial justice. Their proponents don’t want Americans to adopt policies to address persistent racial inequalities — and to make sure of that, they want to keep Americans from learning our own history.
So what is critical race theory? In 1989, a diverse group of legal scholars convened a conference in Wisconsin to address the challenges of a stalled civil rights movement and increasingly conservative courts. They wrote about how the legal system historically created racial hierarchies — and even the notion of race itself. They showed that even seemingly neutral legal structures and policies could perpetuate racial injustice.
Over the years, critical race theory has moved out of law schools into other academic disciplines. Still, it’s not something that’s taught in K-12, and most college students will go four years without encountering it.
In any case, most of these state laws have nothing to do with critical race theory. Idaho’s law, for example, lists as the object of its ban “tenets…often found in critical race theory” — but it’s just plain wrong. The tenets are: “That any sex, race, ethnicity, religion, color or national origin is inherently superior or inferior; That individuals should be adversely treated on account of their sex, race, ethnicity, religion, color or national origin; That individuals by virtue of their sex, race, ethnicity, religion, color or national origin are inherently responsible for actions committed in the past by others of the same sex, race, ethnicity, religion, color or national origin.”
One generalization it’s easy to make about critical race theory is that it is opposed to racial (or gender or ethnic or religious) hierarchies of any kind. Nor do critical race theorists argue for the kind of individual blame discussed here. The whole point of studying the history of structural racism is to understand how racial inequality can be “locked in” by institutions and systems even without individual racist action in the present.
The Texas bill just signed into law doesn’t mention critical race theory, but uses this same language, which is not surprising, since both are borrowed from Trump’s Executive Order against anti-racism training.
The Texas law, however, is even more pernicious, because it suggests that even teaching about the concept that one race is superior or inferior, or that one race should be adversely treated on account of their race — in other words, teaching about the history of racism and of racial discrimination — is barred. That means kids in Texas might not learn that Texans enslaved people of African descent and fought two wars to protect slavery. They might not learn that Texas courthouses in the 1950s had signs reading, “Colored Men and Hombres Aqui,” to enforce segregation. They might not learn about the exclusion of Mexican-Americans from Texas juries, or the lynching of Black men and their white allies.
I am a legal historian who writes and teaches about the history of law, slavery, race and racism. I teach a course for undergraduates called Law, Slavery and Race, and I just helped pass a requirement for all law students at my university to take a course on Race, Racism and Law before they graduate. There is no law against critical race theory here in California, but if there were, could these courses survive?
Teaching the history of race, racism and law is not about blaming white individuals today for the actions of white individuals in the past. It is we as a nation that must be held collectively accountable for the role of the legal system in creating and upholding racial hierarchies — and we as citizens and lawyers who can help dismantle them. We are giving students the knowledge and tools to do that.
And that, I believe, is the real reason for all of these laws. This round in the culture and memory wars is part of a much longer campaign to shut down movements for racial justice, especially when they attract white allies. It’s no coincidence that this rash of laws in 2021 followed the unprecedented multiracial Black Lives Matter protests of 2020, and growing pressure on politicians as well as businesses to address the history of systemic racism.
I hope that everyone who cares about freedom, education and equal justice before the law will stand up against these laws that seek to turn back the clock and shut down the teaching of history.