Governments Have a Right to Ban Critical Race Theory, But It Doesn't Matter if They Do

Interpretation of Laws, Not Their Actual Content, is What's Important

In the early 2000s, there was a controversy about teaching “Intelligent Design” in public schools. The ID crowd said that they didn’t want to ban Darwin, only that we should “teach the controversy.” Nobody considered this a free speech issue; while the ID movement officially lost in courts because judges decided that the doctrine was religious in nature, not many disagree with the idea that schools should not teach ideas without empirical support.

Few things in American politics are getting as much attention as the debate over whether Critical Race Theory should be taught in schools, and whether Republican legislators should try to ban it. Here’s a map showing how successful the movement pertaining to the latter has been as of June 17. There has been some activity since that time, including a bill signed in Arizona. Also important to note is that the map doesn’t include Florida, which banned CRT through its school board.

Some, like Andrew Sullivan, take the position that CRT is a pernicious and false doctrine, but that legislators should nonetheless do nothing about it. I’m struck by the discrepancy between his discussion of what’s being taught and his ultimate recommendations. Here’s how Sullivan describes CRT, implying that it is psychologically damaging to children and even potentially abusive.

The goal of education of children this young is to cement the notion at the most formative age that America is at its core an oppressive racist system uniquely designed to exploit, harm, abuse, and even kill the non-white. This can be conveyed in easy terms, by training kids to see themselves first and foremost as racial avatars, and by inculcating in them a sense of their destiny as members of the oppressed or oppressor classes in the zero-sum struggle for power that is American society in 2021.

Liberals want to teach Critical Race Theory because they think it is true, while others want to ban teaching it because they think it’s false. I can understand both positions. In contrast, the position “this is all pernicious lies but nobody should do anything about it” is puzzling to me. Nonetheless, I don’t think banning CRT will have much of an effect, and may actually make the ideas behind it more popular in schools, given the political preferences and attitudes of teachers and administrators.

Government Schools Have Curriculums Set by Government

Legislators tell schools what to teach and not to teach all the time. It’s sort of a basic function of government. Illinois just mandated “Asian American History” and California requires teaching of “LGBT History,” cementing the idea that American history should be understood through the lens of groups of people defined by their sexual preferences or racial characteristics (or, in the case of “Asian American History,” a made-up census category). As of 2019, California mandated “LGBTQ+ inclusive sex ed,” which includes teaching kids about newly discovered genders and sexual identities. A Vox article tells the story:

It’s the second meeting of the Informed and In Charge program at Western High School, and today’s activity is called the “sexuality wall.”

The gist is pretty straightforward: At one end of the classroom is a big sheet of paper with “Sexuality?” written in blue marker. “Write down as many different terms regarding sexuality, regarding identity, regarding gender, as you may have heard,” the instructor, Sinai Torrejon, asks the class.

A mix of around 20 students from different grade levels — wearing tank tops and wide-legged pants, ripped jeans and hoodies, false eyelashes and no makeup — grab markers and get to work. They chat among themselves. “I wrote pan — pansexual,” one says. “Asexual means you don’t like nothing, you don’t have those feelings,” explains another…

“Can someone else tell you what your gender identity is?” Torrejon asks.

“No,” several students say.

“Is it okay to not be 100 percent sure yet?”

“Yes!” is the enthusiastic response from the class.

A bit later, Torrejon tells the class, “You are your own person. You are unique. You are perfect the way you are.”

Welcome to the future of sex education in America. California wants to lead the way.

You may think high schoolers should learn such things, or not. But the fact is that if you have government schools, it is government that makes the rules. How could it be otherwise?

High school kids in California learning certain ideas about gender and sexual morality, as mandated by law

Notice that by mandating one thing, you ban another. A classroom that is required to teach gender is fluid and homosexuality should be accepted is banning traditional sexual morality. One that teaches that every major racial census category has its own history decides which groups are singled out for official identities (“Hispanic” and “AAPI,” but not “Jewish” or “Italian”), and denigrates the idea that American history should be taught from a more unified perspective.

The idea that government schools teach some things, but not others, and that a government school curriculum is set by government, has never been controversial. It’s only causing such debate now because instead of Democrats mandating that you teach identity politics and gender fluidity, it’s Republicans wanting to teach their own ideas.

Now maybe you think Critical Race Theory is true. In which case, you should oppose these bans. If you think it’s a false and harmful doctrine, then banning it is pretty much the job of government.

Personnel, Not Law, Is What Matters

That being said, I think that the movement to ban Critical Race Theory is naive if it thinks it’s going to change much about public schools. While people have pointed out that some of the Critical Race Theory bans are written in ways that allow absurd interpretations, many laws are like this. Here’s a 2011 story from the LA Times asking “How to Teach Gay Issues in 1st Grade?,” showing that current standards do not always have straightforward applications. As I wrote in my piece on civil rights law, vague standards like “discrimination,” “stereotypes,” and “disparate impact” are everywhere in statutes and regulations, and how they get interpreted by relevant government agencies is the essence of law. Maybe in tax law or budgets you can rely on the literal words in statutes, but on hot button social issues you often can’t.

People are only noticing that laws can have absurd interpretations if they are read literally because once again, the idea that conservatives might actually do something about cultural liberalism seems fundamentally illegitimate to the left and many centrists like Sullivan.

This highlights what is so strange about David French and other writers arguing that if CRT discriminates against whites, that’s already illegal under the Civil Rights Act, and people can just sue. As I have pointed out, the Civil Rights Act has been interpreted to not only allow anti-white discrimination, but actually mandate it in the form of affirmative action. As it turns out, people interested in enforcing civil rights law think discrimination against blacks is a major problem society has to constantly be on guard against, while discrimination against whites isn’t really a thing.

More important than what CRT bans say is who will be interpreting them. A 2017 survey of school teachers and education bureaucrats showed that they voted for Hillary over Trump, 50% to 29%. That’s actually not as lopsided as I would have guessed, but there’s evidence that Democratic teachers are more committed to politics than Republican teachers, just as liberals care more about politics more generally. In 2020, educators who donated money to a presidential campaign were six times more likely to support Biden than Trump. So while Democrats may have “only” a 21-point lead in voting preferences among educators, when it comes to those who care more about politics, it’s more like an 85%-15% advantage. And teachers are probably conservative compared to the kinds of people who write textbooks, design curriculums, and work in education departments.

With those kinds of numbers, there’s really nothing conservatives can do to make the schools friendlier to their ideas and values. A CRT ban might mean a teacher won’t say “Ok, kids, today we’re going to learn about Critical Race Theory!,” but they’ll still teach variations of the same ideas. Neither Robin DiAngelo nor Ibram X. Kendi, the two thinkers that seem to offend conservatives the most, identifies as a Critical Race Theorist. In fact, the American Federation of Teachers just announced a campaign to bring Kendi’s teachings to every student in the country, and they don’t appear to be deterred by CRT bans. This is their full time job, and they’ll still be at it whenever public attention has moved on from the controversy of the day.

Some Republican legislators have done a bad job crafting the CRT bills, simply banning anything that is “racist” or “sexist,” and it’s easy to see how a liberal profession will interpret such mandates. But the point isn’t that legislators should do a better job, it’s simply that personnel is policy, and what the law actually says in plain English isn’t what determines what goes on in schools.

Focus on Institutions, Not the Curriculum

The implication here is that the only real option for conservatives is to attack public education and encourage a larger migration to private schools and home schooling. A state can ban CRT, but if it does, kids are still being taught by the same people who thought CRT for kindergartners was a good idea in the first place. Instead of passing the right law and relying on liberals to teach things more consistent with conservative values, simply transfer money from those liberals to people who would teach something else.

The percentage of kids attending private schools has actually stayed quite stable for decades at around 8%, while home schooling has jumped from around 1.7% to close to 4% over the last 20 years. If you don’t like what’s being taught in schools, the goal should be to change those numbers.

Around 12% of parents have already checked out of the public school system, and that’s while being forced to pay for government schools whether they use them or not. Taking money out of the hands of public education and putting it under the control of parents is the only way to fundamentally change what children are taught. Programs like school vouchers make modest attempts to make non-public options more affordable for certain parents, but no state is anywhere close to putting private schools and home schooling on an equal footing with public schools, and much more can and should be done. Teachers’ unions fight so vigorously against school choice because they know that the only reason many families haven’t already checked out of the system they’ve built is they can’t afford to. 

Until now, school choice bills have simply nibbled around the edges of public education. For example, this year Governor DeSantis signed a $200 million voucher expansion, on top of current programs that as of early 2020 were spending $1.3 billion on such programs. Although the recent expansion was worth doing, the entire K-12 budget Florida just passed is $22.4 billion, making support to private schools a fraction of what public schools get.

That being said, are private schools really any less liberal than public schools? Maybe not at the most elite level, as Bari Weiss has shown. Yet every indication is that private schools are in general more conservative. According to a 2015 study, “of the 5.8 million students enrolled in private elementary and secondary schools, 36 percent were enrolled in Catholic schools, 13 percent were enrolled in conservative Christian schools, 10 percent were enrolled in affiliated religious schools, 16 percent were enrolled in unaffiliated religious schools, and 24 percent were enrolled in nonsectarian schools.” Combining Catholic and “conservative Christian” schools, this indicates that at least half of private schools teach a sexual morality that would be illegal if promoted by a public educator, at least in California and other blue states.

Private schools have been more likely to reopen for in-person learning during the COVID-19 pandemic despite usually having fewer resources. There are two reasons for this. First, attitudes towards COVID-19 precautions have been shaped by political preferences, and although I can’t find data on whether private school employees are more Republican than public school teachers and administrators, I’d be shocked if they weren’t. But more importantly, being private institutions, they are more responsive to the needs and preferences of those they serve.

When conservatives are told not to worry about big tech censorship, a popular sarcastic refrain has been “Go build your own Google/Twitter/Facebook!” The idea here is that it’s unrealistic to think new tech companies are going to pop up and replace those giants. But there’s nothing absurd about the idea of “build your own schools.” In fact, people do it all the time; all that’s required to get more options in education is for states to create a more even playing field for public and private education to compete.

“Banning Critical Race Theory” sounds like a new, vigorous, and exciting idea, while “more school choice” seems like the same old conservative spiel.

But those who hope to change the public schools have no plan to make an overwhelmingly left-wing, and increasingly radicalized, profession reflect their preferences and values.

Trust me, I like finding new and original ideas to promote, and hate to come out for such a conventional and boring suggestion like “more school choice,” although I at least take comfort in the fact that I took an unconventional path to get to that conclusion. Nonetheless, please try not to judge the idea based on how edgy it sounds, but based on a clear understanding of how the world actually works.