What’s more, these laws even make it difficult to teach U.S. history in a way that would reveal well-documented ways in which past policy decisions, like redlining, have contributed to present-day racial wealth gaps. An education of this sort would be negligent, creating ignorant citizens who are unable to understand, for instance, the case for reparations — or the case against them.
Because these laws often aim to protect the feelings of hypothetical children, they are dangerously imprecise. State governments exercise a high degree of lawful control over K-12 curriculum. But broad, vague laws violate due process and fundamental fairness because they don’t give the teachers fair warning of what’s prohibited. For example, the Tennessee statute prohibits a public school from including in a course of instruction any “concept” that promotes “division between, or resentment of” a “creed.” Would teachers be violating the law if they express the opinion that the creeds of Stalinism or Nazism were evil?
Other laws appear to potentially ban even expression as benign as support for affirmative action, but it’s far from clear. In fact, shortly after Texas passed its purported ban on critical race theory, the Texas Public Policy Foundation, a conservative think tank, published a list of words and concepts that help “identify critical race theory in the classroom.” The list included terms such as “social justice,” “colonialism” and “identity.” Applying the same standards to colleges or private institutions would be flatly unconstitutional.
These laws threaten the basic purpose of a historical education in a liberal democracy. But censorship is the wrong approach even to the concepts that are the intended targets of these laws.
Though some of us share the antipathy of the legislation’s authors toward some of these targets and object to overreaches that leave many parents understandably anxious about the stewardship of their children’s education, we all reject the means by which these measures encode that antipathy into legislation.
A wiser response to problematic elements of what is being labeled critical race theory would be twofold: propose better curriculums and enforce existing civil rights laws. Title VI and Title VII of the Civil Rights Act prohibit discrimination on the basis of race, and they are rooted in a considerable body of case law that provides administrators with far more concrete guidance on how to proceed. In fact, there is already an Education Department Office of Civil Rights complaint and a federal lawsuit aimed at programs that allegedly attempt to place students or teachers into racial affinity groups.
The task of defending the fundamentally liberal democratic nature of the American project ultimately requires the confidence to meet challenges to that vision. Censoring such challenges is a concession to their power, not a defense.