13 Important Points in the Campus & K-12 ‘Critical Race Theory’ Debate
After many, many requests for my thinking1 on the topic of bills that seek to regulate teaching of concepts related to race and gender (and facile accusations that by not commenting, I have revealed I am on the wrong side!), I have decided to hammer down my thoughts into these 13 points. Note that while the bills are popularly known as “anti-critical race theory” bills, that’s a misnomer I’ll address below. Instead, I’m calling them “divisive concepts” bills, which better captures what they seek to regulate.
Caveat: Some of what I discuss below, primarily issues relating to K-12 education, is beyond FIRE’s purview, which is limited to America’s colleges and universities, and accordingly — as per usual at ERI — what I say is my opinion and not an official FIRE position.
1. There are dozens of these bills, with possibly hundreds of amendments.
As you may have noticed, there are a lot of these bills. It would take a law review article or book to achieve perfect specificity and comprehensiveness in addressing each of them. Indeed, there are so many that it has made discussion of the bills difficult, with some being clearly unconstitutional, while a few others essentially reiterate existing racial discrimination law and seek to ban the kind of compelled ideological speech that is already prohibited under the First Amendment.
The sheer volume of proposed legislation has created a situation where activists on either side accuse opponents of hypocrisy for not offering a quick opinion on new bills, when it would be close to impossible for most average people to survey the whole landscape. Even this blog entry — some 5,000 words long — will only cover broad trends and common features of the “divisive concepts” bills.
2. Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture.
We’ve opposed higher ed bills that would bar points of view from the classroom loudly and often (for example, see here, here, here, here, here, and especially legislative counsel Tyler Coward’s roundup of these bills, here) for the same reasons we have opposed speech codes: The unfettered exchange of ideas is essential to the purpose of a university in a free society.
The inherent legal defect of divisive concepts bills in higher education that contain prohibitions or conditions on classroom speech is that they are, by their nature, an attempt to discriminate
Article from LewRockwell