Let me begin by stating that I know what Critical Race Theory is. This method of interpreting history and culture began with the legal academy as an offshoot of critical legal studies, which examines how the law and other institutions perpetuate social hierarchies. An example of a critical feminist studies paper I loved is a fantastic law review article on how the status of emotional harm in Tort law stemmed in part from a lack of female judges and a dismissal of harms more commonly experienced by women. Although I still believe that physical harm merits more protection than emotional harm (for a variety of reasons including the subjectivity of emotional harm and the free speech concerns that arise when protecting some emotional harm), the article was an illuminating read. Critical Race Theory examines how our laws have defined and subordinated racial groups. The criminal procedure textbook I use incorporates important insights from this perspective.
Critical Race Theory can help us understand our current racial landscape and may lend support to certain racial justice initiatives. It is a necessary antidote to the view that the law is totally neutral (although I believe it is more neutral than many). Critical Race Theory has been an invaluable lens for grappling with our racist past and current racial divisions. However, even in its sophisticated form, it is often built around narratives and individualized experience. Although scholarship based on critical legal studies sometimes lacks academic rigor, few are willing to come forward and dismantle some of the conclusions built around incomplete narratives. Thus, even in its sophisticated form, Critical Race Theory tends to the extreme and sometimes overlooks non-hierarchical explanations for social phenomena, because its proponents often polarize themselves into an intellectual bubble. Conflicting data is sometimes ignored, as is evidence of our legal system’s many attempts to dismantle hierarchies, often in ways that (perhaps unfairly) impose major penalties on “dominant” social groups.
In its unsophisticated form that has captured the current zeitgeist, Critical Race Theory has led many to believe that our entire country is built around white supremacy, despite the fact that the Enlightenment-style thinking that created this country and its Constitution (although written by some slave-owning hypocrites), has been a source of progress and equality around the world. In its unsophisticated, popular form, Critical Race Theory has been digested in ways that actually turn off people’s critical thinking faculties and cause them to denounce even merit-based thinking as white culture or white supremacy, or to consider even things like capitalism, an economic alternative historically linked to liberty and progress, to be racist, or Jane Austin to be colonialist. If white people dislike being lumped together or generalized in their beliefs and practices, that is considered white fragility, not the natural response to stereotyping. You can see how, in the wrong hands, a legitimate scholarly movement has gone round the bend. I have been called classist and elitist on social media for explaining the correct use of the term “begs the question” and suggesting that removing nuance from language undermines our ability to appreciate complex ideas.
The discussions around how much Critical Race Theory to incorporate into schools has become toxic, largely due to the fact that many opponents and supporters don’t exactly know what it is. This definitional problem is, in part, because Critical Race Theory is now many things to many people. A major barrier to examining the issue of Critical Race Theory in schools is polarization. Many school administrations have been captured by those with extreme progressive ideologies, and then those with extreme regressive ideologies fight back. This type of issue, in particular, becomes toxic and polarized because it is so delicate that mostly those with strong, extreme opinions want to discuss it publicly.
What I want to add to this discussion, ironically, is personal, but I do invite others to weigh in because I firmly believe that more speech leads to more understanding and better outcomes. I do not believe school boards or legislators should ban teaching Critical Race Theory in school. There are legitimate lessons to be learned and important modes of analysis to be incorporated, and we owe it to all students to understand the racist foundations of this country. Banning any type of teaching is a blunt, censorious measure. However, at least in my personal experience, the way we are incorporating anti-racism into schools is deeply flawed. Law schools and universities are making statements – purportedly on behalf of all faculty – that contain interpretations and opinions, not facts, on highly contested issues. We now feel required to teach versions of “cultural humility” and “cultural competency” that border on – I’ll say it – indoctrination, which I would define as requiring students to learn and believe normative opinions instead of teaching them how to think and rigorously analyze. There is not sufficient political diversity among professors, and I can’t imagine it’s much better in K-12 education, where the local political silos are probably even more separated from each other. In the name of social justice, education is compromising its main purpose and its academic integrity and credibility. We are also losing our ability to have nuanced discussions on race, in part because people are afraid to express opinions that go against university orthodoxy on these issues. I think the CRT battles we are seeing are partially a biproduct of resentment of this academic capture.
I have faith that we can correct our past incomplete teaching on racial issues without overcompensating and allowing faulty, self-serving history (like the 1619 Project) to be taught as truths in schools. (Apparently, many schools are not teaching it as truths anyway but as a way to understand the subjectivity of history.) We need to have informed, nuanced discussions for this to happen, however – and we need to listen to each other and respect our experiences as individuals while also rigorously analyzing the conclusions we reach.