chronicle.com The Academic Concept Conservative Lawmakers Love to Hate
Emma Pettit 18-23 minutes
Around New Hampshire, yard signs have popped up, telling passersby to “Save Our Children.” How? By not allowing “critical race theory” in our schools, they say.
The signs, paid for by No Left Turn in Education, an organization started by a Pennsylvania parent to push back on the “leftist agenda” sweeping public education, are similar to another, paid for by FreedomWorks, a Washington, D.C.-based conservative advocacy group, which tells viewers to “Stop Racism. Stop Hate. Stop Critical Race Theory.”
They were erected in support of New Hampshire’s House Bill 544. Among other things, it would ban teaching or training students to “adopt or believe” a list of “divisive concepts,” including that the state or the nation is fundamentally racist or sexist. One of the bill’s sponsors, Rep. Keith Ammon, a Republican, told fellow lawmakers in February that it is meant to take on “critical race theory.” He likened diversity and inclusion trainers to “snake-oil salesmen.” They propose a cure to disease, he said, but the cure is “making it worse.”
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Ammon’s reasoning is emblematic. Republican lawmakers across the country have declared war on an academic concept, and — according to scholars of the theory — reduced a dynamic school of thought to a poorly drawn caricature. They’ve introduced similar bills in at least a dozen states meant to curb what they see as the pernicious influence of critical race theory in public institutions.
Republican lawmakers have long been frustrated with higher ed’s liberal tilt and its supposed quashing of conservative viewpoints. Now, they’re taking a new tack: Instead of resolutions and bills to protect the speech of visitors on the campus quad, the recent wave of legislation often steps into the classroom to restrict what can be taught. It’s part of a larger battle playing out in state houses, schools, and the media between dueling versions of American history. Over the past few months, lawmakers like Ammon have wielded references to the decades-old theory as they argue with their colleagues about whether racism persists and if it exists at all outside of the hearts and minds of individuals.
While some of the bills have died, Idaho’s is now law. In late April, Gov. Brad Little signed legislation meant to prevent colleges and public schools from compelling students to “affirm, adopt, or adhere” with what the legislature considers critical race theory. Whether or not such a law can be enforced or would hold up in court, experts say it could have a chilling effect, if not cause an outright freeze, on classroom conversations.
“People are going to wonder, am I going to get in trouble with the state legislature if I teach history accurately, or if I assign literature that is challenging to some people?” said Ben Trachtenberg, a law professor at the University of Missouri who studies how conservative discontent is changing higher ed’s legal landscape. “Which is precisely what so many of these politicians said students shouldn’t be afraid to accept: challenging ideas in the classroom and on campus.”
Critical race theory is not easily summarized. It cannot be confined to “a static and narrow definition but is considered to be an evolving and malleable practice,” notes the civil-rights attorney Janel George in an article about the theory for the American Bar Association. Essentially, it arose among a collective of law scholars in the late 1970s and 1980s, at a time when some of the legal protections that had been extended to African Americans through the civil-rights movement were being eroded. The scholars Derrick Bell, Kimberlé W. Crenshaw, Richard Delgado, and Cheryl I. Harris were among its founders, who drew on critical legal studies, Marxism, and other schools of thought.
Scholars developed “a loose set of propositions” about the law and race, in the words of Victor Ray, an associate professor of sociology and African American studies at the University of Iowa, writing in The Washington Post. Those included that racism is “structural” and built into the law, that race is a social construction, and that racial progress is not inevitable. Critical race theorists reject the idea that the United States is a post-racial society and that “colorblindness” is a solution. Not only does the concept undermine “law and social policy that rely on race-conscious analysis, but also soothes anxiety about the stubborn endurance of the structures of white dominance,” writes Crenshaw in The Baffler.
Over the years, critical race theory spread to other academic disciplines, and some of its tenets entered the mainstream: It is now widely accepted among liberals that racism is structural rather than just interpersonal.
It was like “a little rivulet” coming down the mountain, says Jean Stefancic, a law professor at the University of Alabama who co-wrote Critical Race Theory: An Introduction with her husband, Delgado, also a law professor at Alabama. As that rivulet flowed, others joined it, and then it became “a great big river,” Stefancic said. Delgado, who was listening to the conversation, interjected with a joke: “And along come those dam builders.”
One such builder is Christopher F. Rufo. A writer and senior fellow at the Manhattan Institute for Policy Research, a free-market think tank, Rufo was tipped off last year to an “abusive” training on race in Seattle city government, he said in an email. He made a public-records request and received documents from a Seattle Office for Civil Rights training session called “Interrupting Internalized Racial Superiority and Whiteness,” which, among other things, listed tools for the white employees to use, like “practicing self-talk that affirms our complicity in racism: Racism is not our fault but we are responsible.” Rufo is a contributing editor of City Journal, a Manhattan Institute publication, and wrote a story for the outlet in July about the training and what he warned was a new “racial orthodoxy” taking over American institutions. He also wrote an opinion essay that month for the New York Post, this time about how critical race theory was “coursing through the federal government’s veins.” He cited a training document written by a consulting firm meant to facilitate conversations about racism and allyship for federal employees following the murder of George Floyd by a police officer. In that article, Rufo called on then-President Donald J. Trump to issue an executive order that banned federal agencies “from teaching the toxic principles of critical race theory, race essentialism and neo-segregationism.”
Rufo wasn’t alone in wanting some kind of intervention. The Heritage Foundation, where Rufo was a visiting fellow, held a forum in July called “Wokeism at Work: How ‘Critical Theory’ and Anti-Racism Training Divide America” and would later produce a report on the theory and its “grip” on America. “The year 2020, with its protests and riots — as well as the overwhelming acceptance by the media, professional sports, corporations, the academy, and virtually all power centers, that America is irredeemably racist and must overhaul its entire system” has shown that “CRT’s teachings have moved beyond the ivory towers and ivy walls,” the report reads in part.
The American Legislative Exchange Council held a forum on critical race theory’s “onslaught” in December. The Goldwater Institute, too, took up the mantle, calling the theory “destructive.” It had proposed ways of “de-escalating” the “curriculum wars” in K-12 schools, in part by requiring public schools to publicly list learning materials online. A bill in that vein crafted with the institute passed the Arizona Senate. A Rhode Island-based nonprofit organization called the Legal Insurrection Foundation created a website, CriticalRace.org, where parents and students can search a database to “look up the steps their school has taken to mandate Critical Race Training in different parts of the college experience, from changing academic codes of conduct to funding ‘equity’ projects.”
Back in September, Rufo appeared on Fox News’s Tucker Carlson Tonight to talk about his reporting. Critical race theory, Rufo told the viewing audience, had become “the default ideology of the federal bureaucracy” and is now being “weaponized against the American people.” He again called on Trump to issue an executive order.
The president was watching. The next morning, Rufo was contacted by Mark Meadows, Trump’s chief of staff. Two days later, the Office of Management and Budget issued a memo that cited “press reports” about federal trainings. It had come to the president’s attention, the memo says, that executive branch agencies have spent “millions of taxpayer dollars to date ‘training’ government workers to believe divisive, anti-American propaganda.” Agencies were told to identify all money going to training on “‘critical race theory,’ ‘white privilege,’” or “any other training or propaganda effort” that suggests that the United States, or any race or ethnicity, is “inherently racist or evil.”
On September 17, Trump spoke from the National Archives Museum. College students, he claimed, are being “inundated with critical race theory,” which is a “Marxist doctrine holding that America is a wicked and racist nation.” On September 22, he issued an executive order that alluded to Rufo’s work, forbidding the federal government and its contractors and grantees from holding training sessions that the president said promote racial or sexual “stereotyping” and “scapegoating.” The order outlined nine “divisive concepts” that cannot be taught or promoted, including that:
• “the United States is fundamentally racist or sexist.” • “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” • “an individual’s moral character is necessarily determined by his or her race or sex.” • “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.” • “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” • “meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.”
Initially unsure if the order would apply to colleges, at least a few institutions paused their diversity efforts, while others issued full-throated defenses of the work. Deans of the University of California law schools wrote that the sentiment behind the OMB memorandum reduced “a sophisticated, dynamic field, interdisciplinary and global in scope, to two simplistic absurdities” — that the United States and white people are both “inherently racist or evil.” Trump’s characterization of the field was “entirely unfair,” Delgado told The Chronicle. “We do criticize various episodes in American history, including some that are frankly embarrassing for people who’ve been taught the standard version of American history. But we don’t hate the country.”
Rufo celebrated Trump’s actions. He had begun his reporting with a singular goal, he wrote on his website: to persuade Trump to “abolish” critical race theory within the federal government. With his order, Trump had gone much further and taken “a dramatic step towards saving the country.”
That dramatic step was halted by a federal judge, who issued a temporary injunction to stop the order partly on First Amendment grounds. The order was then rescinded by the Biden administration.
But it got a new life in state houses. Rufo said over email that he had provided his work to a half- dozen state legislatures and congressional offices, though he didn’t specify which. He later testified in support of House Bill 544 in New Hampshire. Bills that closely tracked the language or embodied the spirit of the order were introduced in at least a dozen states, including Arkansas, Iowa, Idaho, Louisiana, Oklahoma, Rhode Island, and West Virginia. The bills range in their scope. An earlier version of Louisiana’s would have, among other things, barred colleges from teaching that “concepts of capitalism, free markets, or working for a private party in exchange for wages are racist and sexist or oppress a given race or sex.”
One of Oklahoma’s bills is notably broad: It would not just have banned any curriculum that “promotes or degrades any race, gender, or sexual orientation,” but would also have made public colleges liable for students or employees who are harmed by the institution “promoting, requiring, or allowing any political, social, or unorthodox views as part of the curriculum.” That caught the attention of the Foundation for Individual Rights in Education, a nonpartisan free-speech watchdog. The concept of “degradation” is largely subjective, and professors would have no way of knowing what they can teach, wrote Joe Cohn, FIRE’s legislative and policy director, in an analysis of the bill. (A different bill, which bans the teaching of certain concepts in public schools, was signed into law by the governor. It also bars colleges and universities in the state system from requiring that students engage in “gender or sexual diversity training or counseling,” and prohibits any orientation that presents “race or sex stereotyping.”)
In New Hampshire, Ammon, the Republican legislator who introduced House Bill 544, told lawmakers that the idea came from a professor within the University System of New Hampshire. That person, Ammon said, didn’t want to be named for fear of retaliation, because, in Ammon’s words, “academic freedom really doesn’t exist, or we’re losing it, in at least the public university system.”
Yet academic freedom “does not allow for the government to attach conditions on how controversial ideas can be taught,” writes Cohn. The bill does allow “discussing, as a part of a larger course of academic instruction, the divisive concepts … in an objective manner and without endorsement,” which Cohn called an “insufficient exception.” Academic freedom, he wrote, “protects the rights of faculty to assert positions as they see fit.”
One of Arkansas’ bills would have banned classes, activities, and events that promote “division between, resentment of, or social justice for” any race, gender, political affiliation, social class, or “particular class of people.” No events or activities could group students based on ethnicity, race, religion, gender, or social class. “I think it’s appropriate and correct to present that information to students,” the bill’s lead sponsor, Rep. Mark Lowery, a Republican, told the Arkansas Democrat-Gazette. “What is not appropriate is being able to theorize, use, specifically, critical race theory.”
Republican legislators in other states cited their interpretations of critical race theory, mixed with their understanding of American history and progress, in advocating for these bills. The theory is just “Marxism 2.0.,” said one Iowa lawmaker when discussing a bill that would ban “divisive concepts” from being taught in diversity training. (Marxism has been taught among other theories in college classrooms for decades.)
Another Iowa Republican, Mark Cisneros, called “implicit bias” an attempt at “policing thought.” To illustrate his point, Cisneros, who is Mexican American, asked if a member of the minority caucus would “look at me and describe me” for the benefit of audience members who were listening at home. Marti Anderson, a Democrat, obliged: “I would describe you as a male from Muscatine whose family is very proud of you because I got to meet them … when you were sworn in. I would say you have black hair. I would say you have brown skin. I would say, Maybe he’s Latinx? I don’t know where his heritage is from. And I would say, He’s a Republican, and I’m just getting to know him.”
“Let me translate that. Implicit bias,” said Cisneros, who was wearing a gray suit. “… I am wearing a sombrero. I am wearing chanclas. And I am leaning on a cactus. Taking a nap.” Some of the bills, which faced strong opposition from Democrats, have stalled. “We can’t fix racism if we refuse to talk about it,” said Asma Elhuni, the movement politics director at Rights & Democracy New Hampshire, a progressive organization that has mounted opposition to House Bill 544. In some cases, other Republican lawmakers and conservative thinkers have voiced their concerns. Charlie Ruger, vice president for philanthropy for the Charles Koch Foundation, told The Chronicle through a spokesman that universities flourish “not by top-down policies restricting what to teach, what to study, and what to say, but by inviting examination of all ideas.”
“Even if they’re well-intentioned,” Ruger said, “policy makers’ heavy-handed efforts work against that.”
That hand is heavier than earlier efforts, like the tide of free-speech bills introduced in 2017 to correct what lawmakers saw as higher ed’s hostility to conservative thought. This new wave of legislation is “playing the same kind of music,” said Neal Hutchens, who chairs the higher- education department at the University of Mississippi, but, alarmingly, it’s an attempt to reach into the curriculum.
That spirit is not confined to the critical race theory-targeted bills, said Hutchens. In Florida, for example, the legislature backed a bill that will require colleges to assess “intellectual freedom” and “viewpoint diversity” on campus. It also allows students to record lectures to be used “in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding.” In Georgia, a Republican state lawmaker asked the university system to document how its institutions teach “privilege” and “oppression.”
For Trachtenberg, the Missouri law professor, the bills highlight a complicated dynamic for college leaders, whose job is partly to get along with state politicians. “Naturally,” he said, “if the people in charge of that money start yelling at you, you don’t want to yell back.”
Rep. Justin Humphrey, a Republican who sponsored Oklahoma’s House Bill 1641, told The Chronicle that he was inspired, in part, because he was contacted by several employees at Oklahoma State University who were upset about a training video they had to watch, which included information about microaggressions. He said he got in touch with the university and was later told the video was taken down. “While specifics are vague on the matter referenced,” a spokesperson for the university said in an email, “we have reviewed, removed, and adjusted materials in the spirit of improving the content based on constructive input and genuine concerns in the past.”
In Iowa, the Department of Education postponed a conference on social justice and equity in response to the divisive-concepts legislation. (An amended version of the bill has since passed both houses and was sent to the governor.) “One of the things that we would contend in our presentation is that there has been historic racism in the way systems have functioned,” one scheduled presenter told Iowa Public Radio. “And therefore, do we say that that didn’t happen? Do we just not talk about it? That’s sort of where I’m left a little confused.”