Excerpted From: Amelie Whitehurst and Susan Tanner, How Critical Is Critical Race Theory?, 57 Creighton Law Review – (December 2023) (163 Footnotes) (Full Document Requested)

WhitehurstTannerCritical Race Theory (CRT) has been a mainstay in law school education since the latter part of the twentieth century but has only recently become a household word due to an increase in public discourse and media coverage of issues related to race and racism, as well as the growing influence of CRT in academia, legal studies, and social movements. CRT has been increasingly the subject of political debate and controversy, particularly in the United States, with some conservative groups and individuals opposing it as a form of “critical theory” that they see as promoting a divisive political agenda. Proponents of CRT argue that we must attend to issues of race in order to promote a more equal and just society, but opponents of the theory often argue that we should be more race blind.

Critics of race blindness argue that it ignores the reality of systemic racism and the ways in which race can affect individuals' experiences and opportunities. By not acknowledging and addressing the ways in which race shapes peoples' lives, society can perpetuate racial disparities and discrimination. Instead of race blindness, they advocate for race consciousness, which means being aware of how race affects people's lives and taking steps to counteract the effects of racism. More critical opponents of race blindness argue that it is a disguise to mask the promotion of systemic bias already entrenched in our legal, social, and economic systems.

It is important to note that, despite the fact that many would argue that an anti-CRT agenda has, at its root a deep disrespect for other races and cultures and a blindness, not to race, but to diversity of thought, vocal opponents of CRT often do not engage with these lines of reasoning. Instead of arguing that we should not teach CRT because racism is good, they actually argue that CRT is a tool that promotes racist thought by placing a divide between racial groups. But, opponents of CRT seem blind to the fact that race and legal theory have always been intertwined. It is only recently that they have been critically examined.

Tensions revolving around race have been intertwined with the law since the founding of our nation. The establishment of slavery before the formation of the United States has caused ripple effects throughout all aspects of society, including the development of the legal system. The legal impact of the deep scars slavery and race relations have left on our nation continue to be a relevant issue that is necessary to contend with in modern times and has manifested itself in the debate about CRT.

Critical Race Theory is the idea that racism is embedded into the very foundations of our American society, such as business, the economy, the healthcare system, and housing. The theory does not claim that people are necessarily actively racist toward their counterparts; rather the theory contends that racism exists because it remains an integral part in these areas of our society. The depth of these inequalities causes racial disparities that continue to be an issue over one hundred years after slavery was abolished in the United States. Recently, legislators have attempted to pass laws relating to CRT, specifically regarding whether it can be taught in schools. Bans on the teaching of CRT are being enacted across the country, prompting responses from both sides of the political aisle. Some believe that the banning of CRT is appropriate because it promotes the idea that one race is superior to another, and by teaching young children about this theory, teachers are keeping racial issues embedded within the educational system. Others claim that banning this theory is inappropriate because it is an attempt to teach the history of racism in America through a particular, inaccurate lens, which is an insult to those whose ancestors were slaves or those who continue to feel the effects of racism in their everyday lives.

Today, laws aimed at limiting the teaching of CRT are facing legal challenges that are constitutionally based, with reference to the First and Fourteenth Amendments to the United States Constitution. Specifically, constitutional questions arise as to whether laws restricting the teaching of CRT violate the First Amendment free speech rights of teachers, and whether restricting teachers' instruction on the CRT violates students' Fourteenth Amendment rights to learn. A discussion of the merits of CRT and the arguments of both sides, an examination of proposed legislation, and a thorough analysis of the First and Fourteenth Amendments as applied to such legislation, as well as a comparison to the constitutionality of teaching creationism in schools can help predict the constitutionality of these new laws. Similar analysis can also be applied to the most recent Parental Rights in Education legislation to determine whether such legislation might infringe upon the constitutional rights of American citizens.

This article aims to examine the false dichotomy of “race-blind” and “race-conscious” and explore the arguments that oversimplify discussions of race that include systemic inequality.

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Discussions of CRT too often fall victim to the false dichotomy narrative between CRT and free speech. The idea that the two are mutually exclusive is a fallacy that obscures the real issues at stake. The First Amendment protects the right to free speech, including the right to express controversial and unpopular ideas. At the same time, the educational system has a responsibility to provide a curriculum that accurately reflects the history of race and racism in the United States. These two principles are not inherently incompatible, and the debate over CRT should not be framed as a choice between them. Rather, it should be a conversation about how to create a learning environment that is both academically rigorous and socially responsible.

Based on an analysis of jurisprudence and a basic understanding of proposed and enacted legislation, it is likely that many of the proposed laws and statutes are unconstitutional, but not on the grounds of freedom of speech violations that much of the media has argued. It is more likely that these laws are overbroad or vague so they will not pass muster on First Amendment grounds. Even if legislators revised proposed legislation to be more specific, it is likely that such statutes will still not place teachers on sufficient notice of what can or cannot be taught and will remain unconstitutional. In addition, by its nature, CRT is linked to an identifiable group, and the historical context of its beginnings is not going to change; therefore, a Fourteenth Amendment racial animus issue remains.

Because education is the foundation of good citizenship and is necessary to the understanding of cultural values, there should be a place for teaching about race relations in the classroom. Rather than drafting legislation that prohibits educators from teaching CRT, it would be more beneficial for schools to align their social studies curriculum so that education on race issues is age appropriate, beginning with the understanding that all cultures have value in elementary grades and leading to an in-depth discussion of the impacts of racial animosity among upper-level students. This would allow teachers of younger students to foster environments of forgiveness and inclusiveness, and upon reaching an age where students have the intellectual capacity to discuss sensitive topics such as race, the conversations would be more productive.

Racial tension is not going away. Rather than continuing to divide our nation on this issue, we can use these conversations as a small step to bridge the divide between races and move toward repairing damage done in the past.

Amalie Whitehurst is Special Assistant District Attorney with the Marine Corps JAG.

Susan Tanner is Assistant Professor of Law at University of Louisville, Brandeis School of Law.