Professor Gersen writes that “[a]cademic freedom is under attack from a number of different political viewpoints, affecting the speech of professors and students of various political leanings.” I resist the construction of equivalents in this account. It appears to propose that the directives coming from the “diversity and inclusion office” are equivalent to the recent well-funded, coordinated attacks against “Critical Race Theory”—attacks that have led to the “purging” of social justice courses from Idaho colleges and universities as well as legislation in several states that purports to ban the teaching in K–12 schools of critical race theory or other “divisive concepts.” In this Commentary, I first examine the pressures on academic freedom that are coming from the left before turning to a separate examination of pressures that are coming from the right. This Commentary offers that not only are these pressures different in kind but they are also different in degree. It concludes that because these threats to academic freedom are so dissimilar, they deserve dissimilar responses. This Commentary briefly sketches the form that those responses might take.
II. The Pressure from the Left
Offices that concern themselves with matters of “diversity and inclusion” exist in universities across the nation, and part of the charge of these offices is to be concerned about the experiences of students in the classroom. Hence, the “diversity and inclusion” office is the place that is most likely to be the source of instructions to professors about conducting their classes in ways that ensure that their classrooms are “inclusive” spaces. Professors may experience this as a constraint on the things that they can say and do in the classroom.
We might interrogate how the language that we have been forced to use to talk about race and racism has led to this particular pressure on academic freedom. Universities began talking about “diversity” when discussing matters relating to race and racial inequality after Justice Powell authored his lone opinion in Regents of the University of California v. Bakke, a challenge to the university’s race-conscious admissions program. In that opinion, Justice Powell proposed that the Constitution permitted universities to implement race-conscious affirmative action programs only if these programs were motivated by a desire to increase the racial diversity of the student body. In Grutter v. Bollinger, a majority of the Court affirmed that “the educational benefits that flow from a diverse student body” constitute a compelling state interest, the narrowly tailored pursuit of which permits a race-conscious affirmative action program to survive strict scrutiny review in an equal protection challenge.
Importantly, the triumph of the diversity rationale occurred against a backdrop of the Court’s rejection of other rationales that might have sustained race-conscious affirmative action programs—rationales that included the state’s interest in remedying the effects of past societal discrimination, increasing the number of nonwhite professionals who may choose to practice in their underserved communities of origin, and educating people of color who can then serve as role models for children of color. The Court’s decisions in Bakke and Grutter explain the proliferation of diversity and inclusion offices across universities. “Diversity” is now the only language that we can use when we want to speak about race, racism, and racial inequality without fear of legal challenge. “Diversity” is the only vocabulary that the Court has identified as affording a constitutional safe harbor.
Scholars have long observed how “diversity” does not require us to engage with, or even recall, the country’s terrible racial history—a history that, in some school districts, is now being denounced as critical race theory and considered an object to expunge from K–12 curricula. “Diversity” does not demand that we investigate the afterlife of that history in contemporary processes that function to make it difficult for members of disadvantaged groups to secure admission to colleges and universities under traditional indicia of merit.
With “diversity,” everybody is a winner. The students of color who would otherwise be excluded from student bodies in the absence of race-conscious affirmative action programs clearly win. But, perhaps more crucially, White students—who would be admitted to the school without regard to race-conscious admissions programs—also win. As the majority argued in Grutter, “‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’” White students reap the benefits of the “livelier, more spirited” conversations that their nonwhite colleagues in the classroom make possible. Indeed, “diversity” is a win-win. Everyone benefits from “diversity.”
In this way, “diversity” is a “feel-good” concept. This might go some way towards explaining why the remit of many diversity and inclusion offices is to respond to students who do not feel good in their classes. A professor interested in unfettered academic freedom certainly does not have a “right to offend” if they also have a responsibility to make sure that students are unruffled when they walk out of the classroom’s door at the session’s end.
If it is true that offices of diversity and inclusion on college campuses across the nation have put pressure upon some notion of academic freedom because they have tried to ensure that students feel good inside and outside of the classroom, and if it is true that this phenomenon relates to “diversity” as a feel-good concept, then we might wonder whether these pressures on academic freedom might disappear (or at least be transformed significantly) if the Court’s jurisprudence were different. What would happen if Grutter had been decided on different grounds and we were permitted to use language other than “diversity” when we wanted to talk about the importance of having students from historically and presently disadvantaged communities in our institutions? My instinct is that the trainings and guidance coming from an office whose task is not to promote diversity and inclusion, but rather to remedy the effects of past and present societal discrimination, would be less concerned with ensuring that students feel good.
If institutions take it as their duty to ensure student comfort—and if antidiscrimination laws are wielded in a way to enforce that duty—then academic freedom surely will suffer. But, perhaps more importantly, the quality of the education offered in our classrooms will suffer as well. Part of the objective of institutions of higher learning has been to expose students to new ideas and, in so doing, to challenge them. Law schools in particular aim to train students to see all sides of an argument—especially the sides that do not initially occur to the student because they misalign with the student’s ethical and political commitments. If professors must ensure that classrooms are spaces in which students can expect to be free from discomfort, critique, or opposition, then colleges and universities will have failed to accomplish their mission. The graduates of these institutions will be the worse for it. And if these institutions serve a public function of producing social actors who can engage with all manner of concepts and ideas, then society, ultimately, will suffer.
I should be clear: I am not arguing that students should be subjected to abusive speech, humiliated, or otherwise harassed in the classroom. I am, however, arguing that classrooms should be uncomfortable places at times.
We might also wonder if our conversations about the classroom as a site of conflict over academic freedom might be enriched if we understood the classroom as a space of mutual vulnerability. In many of our discussions about academic freedom, the classroom figures as the site of an uneven power dynamic wherein the professor reigns as overlord and the student exists as defenseless liege, subject to the professor’s whims. In this rendering, the student must be protected from the absolute power of the professor. This cartography of the classroom’s power dynamic leads us to worry about the dangers of academic freedom inasmuch as this freedom may allow professors to say whatever they want, however they want, at any time—leaving students wholly unprotected. One can see how this representation of power dynamics leads to the conclusion that academic freedom might be an anachronistic tool that has been passed down from a benighted time when professors enjoyed impunity in their classrooms. This account counsels that academic freedom serves little function today beyond thwarting institutions, which have come to realize in recent years that students must be protected, from discharging this duty.
But this portrayal likely mischaracterizes the geography of power in the classroom. There is a power dynamic in the classroom, of course. Further, this dynamic tends to favor the professor—the actor who determines the materials that will be covered in the course, the form that classroom engagement with those materials will take, and the direction of the discussion that occurs in the classroom in most cases. Even so, there is a vulnerability that comes from being the intellectual author of a course. A course frequently is a product of a professor’s mental and, frequently, emotional labor. Students are invited to experience, and judge, something that their professors have created. Those professors who care deeply about teaching—the many who put their hearts and souls into their classes—may experience this as a vulnerability.
Moreover, professors are not equally empowered by the classroom’s power dynamic. When people of color, women, trans and gender-nonconforming individuals, gay and lesbian persons, and people with disabilities are professors, they have a more fragile, less guaranteed relationship to the power that all professors are imagined to possess in equal measure. How might a recognition that both students and professors experience varying degrees of vulnerability in the classroom deepen the quality of the conversations that we have about academic freedom in the classroom? What if we refuse to understand the classroom as the site of a Manichaean struggle between those with power and those without but rather understand it as one wherein contingently empowered actors engage with one another?
If we embraced this alternative understanding, academic freedom would not figure as a shield that professors, drunk on unadulterated power, wield against institutions that seek to prevent them from exploiting the dominion that they possess as a matter of course in the classroom. This alternative understanding might lead us to conceptualize academic freedom as an instrument that professors can deploy to ensure that their courses, which bear their intellectual signatures, truly represent them. Even more importantly, this alternative understanding might lead us to see academic freedom as a tool that contingently empowered professors use to protect themselves from the vulnerabilities that come with sharing the products of their intellectual labor with contingently empowered students.
Further, when we conceptualize students as not completely bereft of power but rather as contingently empowered, then we might see that diversity and inclusion offices are not the only forces “on the left” that are exerting pressure on academic freedom: students themselves might be exerting some pressure. In law schools specifically, students increasingly have been challenging first-year curricula and the content of other courses they are required to take. A professor of criminal law who neglects to explore how the blackletter law that she analyzes in the class interacts with inequality along the lines of class and race is more likely than ever to hear about it—either in the end-of-semester student evaluations or, sometimes, in the middle of a class one afternoon. A professor who experiences this sort of pressure from students may feel that she must include certain materials in the syllabus and make time for certain discussions over the course of the class. This may feel like a constraint on academic freedom if the professor would rather spend class time analyzing other things.
If professors were polled on their feelings about the pressure that they receive from students about the content of their classes, it is likely that the poll would reveal an overwhelmingly negative response to this sort of feedback. But this should not be surprising: courses are the brainchildren of the professor, after all. It is difficult not to experience a critique of course content as a critique of the professor himself. However, we ought to become interested in creating a discursive landscape that enables professors to experience these critiques not as constraints on academic freedom but rather as invitations to deploy their academic freedom to different ends. We ought to become interested in creating this landscape simply because society might benefit from different deployments of academic freedom.
Focusing on law schools specifically, the first-year law school curriculum, as well as the things that we feel that students absolutely must know before graduating, were mostly determined at a time in which marginalized people were excluded from the body politic. Indeed, they were determined at a time in which the exclusion of marginalized people from the body politic was a valued feature of American society. As individuals from those historically marginalized communities move into the institutions that once excluded their forebearers, we should expect that they would reject the agreements around what is essential to a legal education that were reached when people like them were not at the negotiating table. Indeed, this might reveal one of the central problems with the language of “inclusion.” It proposes that our task is simply to include underrepresented groups in institutions. This project does not require the transformation of the institution. In fact, this project might presuppose institutional stasis. The only thing the institution must do pursuant to the demands of inclusion might be to make room for those who once had been excluded.
A more ambitious project would not be invested in maintaining the institutional status quo; instead, it would be interested in reconstructing the institutions that were created during the period of formal racial apartheid, formal homophobia, formal sex inequality, formal trans erasure, etc. That is, instead of seeking to include individuals from formerly excluded groups in these institutions, we might be committed to asking individuals from formerly excluded groups to participate in the task of creating these institutions anew. Co-creation is a dramatically different project from inclusion. We might understand student pressure on curricula and course content as invitations to reimagine legal education together. If that is what this pressure is, then a society that purports to value equality benefits when professors learn to experience this pressure not as a constraint on academic freedom but rather as an entreaty about the destination to which their exercise of academic freedom might lead.
III. The Pressure from the Right
The above describes the pressure on academic freedom coming from the left. The pressure coming from the right is qualitatively different. Moreover, the right’s threat to academic freedom is more inconsistent with the values that the country purports to embrace.
The Republican Party has launched a war on what it called “Critical Race Theory.” We might trace the beginning of the war to September 2020, when conservative activist Christopher Rufo appeared on Tucker Carlson’s popular Fox News show to lament the federal government’s practice of teaching “Critical Race Theory” to its employees in trainings. While it is doubtful that the federal government has ever trained its employees in actual Critical Race Theory (CRT)—that is, the intellectual toolset and body of scholarship that investigates the law’s role in producing and reproducing racial stratification—Rufo’s call to arms resonated with the Trump Administration. Shortly after Rufo’s appearance on Fox News on September 4, 2020, the Administration issued a memorandum that instructed federal agencies to
begin to identify all contracts or other agency spending related to any training on “critical race theory,” “[W]hite privilege,” or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil.
The memo stated that “[t]he divisive, false, and demeaning propaganda of the critical race theory movement is contrary to all we stand for as Americans and should have no place in the Federal government.” President Trump ultimately issued an executive order that prohibited trainings funded with federal monies that are “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country.”
As the war against “Critical Race Theory” gathered steam, conservative activists, commentators, and politicians broadened their focus beyond federal agencies and turned their attention to K–12 schools, sites that they identified as hotbeds of instruction in “Critical Race Theory.” Trump asserted that,
Critical race theory is being forced into our children’s schools, it’s being imposed into workplace trainings, and it’s being deployed to rip apart friends, neighbors, and families.
. . . .
Teaching this horrible doctrine to our children is a form of child abuse in the truest sense of those words.
After Biden defeated Trump in the 2020 presidential election, Biden swiftly rescinded the previous Administration’s executive order. Republican lawmakers thereafter turned their attention to the states, introducing—and, in many cases, successfully passing—legislation that purports to ban Critical Race Theory in government and schools.
The descriptions of “Critical Race Theory” that the theory’s conservative opponents offer make it obvious that the target of their crusade is not, in fact, the body of scholarship that legal academics first began generating in the 1980s. It is important to bear in mind that these misdescriptions are no accident. As Rufo himself tweeted: “We have successfully frozen their brand—‘critical race theory’—into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category.” “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.”
If “Critical Race Theory” has become a term that references not a distinct legal literature but rather a “brand category” that is intended to capture everything that is “unpopular with Americans,” it raises the question of what efforts to ban it are, in fact, banning. A closer investigation reveals that these bans endeavor to prohibit ideas—like “structural racism,” for example—that challenge the notion that the country’s dreadful racial past is, indeed, a thing of the past. These bans target any concept—like “White privilege,” for example—that proposes that race helps to explain why some people live lives that are longer and more comfortable than others. As theorist David Theo Goldberg describes it, for the political right, “Critical Race Theory” means “any talk of race and racism at all, a catch-all specter . . . —or indeed any suggestion that racial inequities in the United States are anything but fair outcomes, the result of choices made by equally positioned individuals in a free society.” The status of “Critical Race Theory” as a stand-in for any talk about race that is nothing less than triumphant, smug, and wholly complacent about the racial state of the union likely means that these bans, if upheld, will simply censor any and all talk about racism, racial inequality, and racial injustice.
This Commentary earlier proposed that academic freedom will suffer if antidiscrimination laws are deployed so as to compel institutions to ensure that students “feel good” in the classroom. It deserves emphasizing that this is exactly how some conservatives would deploy antidiscrimination laws vis-à-vis speech concerning racism, racial inequality, and racial injustice. Austin Knudsen, the Montana attorney general, issued a binding opinion holding that
the use of “Critical Race Theory” and “antiracism” programming discriminates on the basis of race, color, or national origin in violation of the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, Article II, Section 4 of the Montana Constitution, and the Montana Human Rights Act.
In the opinion, Knudsen argues that “a school that permits, promotes, or endorses curricula or pedagogical methods that tell an individual that he or she should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, almost certainly creates a racially hostile environment,” and thereby violates federal and state antidiscrimination laws. It is unclear which curricula or pedagogical methods “tell” an individual that they should feel any of the psychological and emotional states listed in the opinion. However, what is clear is that Knudsen is desperately concerned about lessons and classroom discussions that make (presumably) White students “feel bad” about their race. Moreover, Knudsen is committed to using existing laws to protect White students from these unhappy feelings.
Further, many bans that were inspired by the attacks on Critical Race Theory endeavor to prohibit the teaching of “divisive concepts.” The uncertainty in what constitutes a “divisive concept”—trickle-down theory? Ranked-choice voting? Gender‑inclusive language?—means that such bans, if upheld, will chill all manner of speech. The mortal threat that these laws pose to academic freedom should be obvious.
IV. The Way Forward
While there may be pressures on academic freedom that are coming from the left, we do ourselves a disservice when we conceptualize them as identical to those coming from the right. The construction of equivalents in this context is inaccurate. Understanding pressures from the left and right as indistinguishable may lead us to believe that we ought to respond to them in the same way—for example, by doubling down on a notion that academic freedom permits professors to say anything that they want in their classrooms and to expect the full support of the administration when affected parties raise concerns about the content of the speech. However, if the pressures on academic freedom that are coming from the left and the right are, in fact, different, then they might require different responses.
What is the best way to respond to pressures on academic freedom generated from the left? I suggest a holistic response. It is likely true that professors could more freely exercise their “right to offend” in the classroom if the rest of the institution was not so offensive. That is, if students did not experience the educational institution, as a whole, as a hostile space, it is likely true that they would be more tolerant of difficult conversations in the classroom. In recent years, law students, in particular, have provided us with guidance about what a less hostile law school experience might look like. It involves the availability of a wide variety of courses that allow students to explore inequality in its myriad forms. It involves exposure to these questions about law and inequality early in the process of legal education. It involves an institution that recognizes that many students were drawn to law school not because they were interested in engaging in an abstract, academic exercise but rather because they understood the study of law to be a way to access tools that could help them construct a world that more closely comports with their visions of justice.
And what is the best way to respond to pressures on academic freedom generated from the right? It seems like the right might need to remind itself of the claims that it made in the 1990s, when self-identified critical race theorists argued that the First Amendment should not be interpreted to protect racist hate speech. During that historical moment, many conservatives (and liberals) rejected these theorists’ claims, arguing that the First Amendment was incompatible with protections against injurious speech. They contended that the best response to harmful speech was not to limit speech but rather to ensure that everyone could speak.
In the 1990s, conservatives wanted more speech. In the 2020s, they want less. If conservative pundits, activists, and scholars really value the First Amendment as much as they claimed just three decades ago, then they should recognize the bans on “Critical Race Theory,” “divisive concepts,” and the like as the wildly un‑American efforts that they are.
Jeannie Suk Gersen, Academic Freedom and Discrimination in a Polarizing Time, 59 Hous. L. Rev. 781, 781 (2022).
Judd Legum & Tesnim Zekeria, The Obscure Foundation Funding “Critical Race Theory” Hysteria, Popular Info. (July 13, 2021), https://popular.info/p/the-obscure-foundation-funding-critical [https://perma.cc/KM7W-XP5M].
Michelle Goldberg, Opinion, The Social Justice Purge at Idaho Colleges, N.Y. Times (Mar. 26, 2021), https://www.nytimes.com/2021/03/26/opinion/free-speech-idaho.html [https://perma.cc/44T5-J948].
Gersen, supra note 1, at 792–94, 796–800; Anuli Ononye & Jackson Walker, The States Taking Steps to Ban Critical Race Theory, Hill (June 9, 2021, 1:13 PM), https://thehill.com/homenews/state-watch/557571-the-states-taking-steps-to-ban-critical-race-theory [https://perma.cc/9F5A-7QFJ]; see S.B. 627, 93d Gen. Assemb., Reg. Sess. (Ark. 2021) (enacted); H.B. 564, 2021 Leg., Reg. Sess. (La. 2021); H. 6070, 2021 Gen. Assemb., Jan. Sess. (R.I. 2021); H.B. 2595, 2021 Leg., Reg. Sess. (W. Va. 2021).
Gersen, supra note 1, at 792–93.
Adam Harris, The Supreme Court Justice Who Forever Changed Affirmative Action, Atlantic (Oct. 13, 2018), https://www.theatlantic.com/education/archive/2018/10/how-lewis-powell-changed-affirmative-action/572938/ [https://perma.cc/6R8M-452X]; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 269–70 (1978).
Bakke, 438 U.S. at 311–12, 320.
Grutter v. Bollinger, 539 U.S. 306, 310, 343 (2003).
Bakke, 438 U.S. at 305–12; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274–78 (1986).
For critiques of the impoverishment of our discourse around race that the diversity rationale demands, see Asad Rahim, Diversity to Deradicalize, 108 Calif. L. Rev. 1423, 1483 (2020); Khiara M. Bridges, Class-Based Affirmative Action, or the Lies that We Tell About the Insignificance of Race, 96 B.U. L. Rev. 55, 108 (2016), lamenting that “efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion”; and Ian F. Haney López, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness, 59 Stan. L. Rev. 985, 1042 (2007), noting that in Bakke, “Powell favored cultural pluralism . . . not racial equality, as a sufficient justification for affirmative action.”
See Gabriella Borter, ‘Critical Race Theory’ Roils a Tennessee School District, Reuters, Sept. 21, 2021, https://www.reuters.com/world/us/critical-race-theory-roils-tennessee-school-district-2021-09-21/ [https://perma.cc/FBJ6-JP2M] (reporting that a group of concerned parents in Tennessee identified two books titled Martin Luther King Jr. and the March on Washington and The Story of Ruby Bridges—which is about “the Black 6‑year‑old who integrated a Louisiana public school in 1960”—as inappropriate for children in the second grade). One of the parents argued that “the books and pedagogy are divisive, giving children the impression that all [W]hite people are ‘bad’ and that people of color are mistreated by [W]hites.” Id. This parent stated, “There’s so much positive that has happened in the 60 years since, but it’s all as if it never happened.” Id.; see also Ben Hecht, Moving Beyond Diversity Toward Racial Equity, Harv. Bus. Rev. (June 16, 2020), https://hbr.org/2020/06/moving-beyond-diversity-toward-racial-equity [https://perma.cc/EG6E-4K68].
Grutter, 539 U.S. at 330 (quoting App. to Pet. for Cert. 244a, 246a).
Angela Mae Kupenda, Simply Put: How Diversity Can Benefit Whites and How Whites Can Simply Benefit Diversity, 6 Seattle J. Soc. Just. 649, 652–61 (2007).
See Nimisha Barton, Me, Myself, and DEI, Redacted: An Excavation Blog (Dec. 4, 2020), https://www.drnimishabarton.com/redacted/me-myself-and-dei [https://perma.cc/HC8M-9SMD] (noting how many Black students and alumni pointed out under #BlackIntheIvoryTower that “student-facing DEI efforts aimed at promoting college access and success are, at heart assimilationist—that is, focused on helping ‘them’ become more like ‘us’”). Put plainly, though DEI offices attempt to help students feel a sense of belonging, assuming the school finds diversity a worthy goal, they are often “fortunate enough to extend existing student programming to better support vulnerable students”—not address the issues of structural oppression prohibiting the sense of belonging in the first place. See id.; see also Tatiana McInnis, A Farewell Letter to DEI Work, Inside Higher Ed (Aug. 20, 2020), https://www.insidehighered.com/views/2020/08/20/diversity-equity-and-inclusion-offices-cant-be-effective-if-they-arent-empowered [https://perma.cc/CLZ3-39DP] (“The role was student-facing, and I was expected to support students . . . . [A]nd encourage campus activism—unless that implicated the mistakes or misdoings of the institution. . . . [These offices] exist not to create systemic change but as evidence that the work has already been done.”).
Maranda E. Fritz, What Will We Tell the Children? A Discussion of Current Judicial Opinion on the Scope of Ideas Acceptable for Presentation in Primary and Secondary Education, 56 Tul. L. Rev. 960, 962–63 (1982) (noting the “‘open classroom’ model” as a purpose of education in which “school[s] must operate as a free ‘marketplace of ideas’”); Emily Holmes Davis, Protecting the “Marketplace of Ideas”: The First Amendment and Public School Teachers’ Classroom Speech, 3 First Amend. L. Rev. 335, 336–37 (2005) (“The classroom is a unique ‘marketplace of ideas’ where future leaders learn through a vigorous exchange of different arguments and theories. Society has an interest in exposing students to this ‘robust exchange of ideas’ in order to train future leaders and members of democracy to be critical and analytical thinkers.” (footnotes omitted)); Derek Bok, Universities: Their Temptations and Tensions, 18 J. Coll. & U.L. 1, 2–3 (1991) (“[M]embers of the academic community [must] do their best to remain open to new or opposing ideas and to evaluate them on their merits.”).
See, e.g., Andrew Moore, Conversion and the Socratic Method in Legal Education: Some Advice for Prospective Law Students, 80 U. Det. Mercy L. Rev. 505, 507 (2003) (“[T]he law professor’s job is to constantly challenge student assertions.”); id. at 509 (“[L]egal education broadens a student’s perspective by showing there are two sides to issues. . . . Confronting students with the opposing view, or better yet, requiring them to argue the opposite side . . . force[s] them to think through an issue more completely.”).
Julie Macfarlane, Teacher Power in the Law School Classroom, 19 Dalhousie L.J. 71, 72 (1996) (“As a university teacher one is constantly reminded of the . . . traditions in which the authority and the legitimacy of the teacher rest on clear lines of hierarchy. Professorial power seems inherent in university culture, rather than something I can choose to use, or not.”); id. at 71 (“The intrinsic hierarchies and highly competitive culture of law school sustain this traditional model of knowledge along with its congruent image of the professor as autonomous, powerful and the focus of the classroom.”).
Hugh Russell, Ethical Obligations in the Student-Professor Relationship, 31 J. Risk & Ins. 393, 395–96 (1964).
See Sylvia R. Lazos, Are Student Teaching Evaluations Holding Back Women and Minorities? The Perils of “Doing” Gender and Race in the Classroom, in Presumed Incompetent: The Intersections of Race and Class for Women in Academia 164, 175–79 (Gabriella Gutiérrez y Muhs et al. eds., 2012).
There have been challenges to the mandatory curriculum in medical schools as well. See Sam Schuiteman et al., The Role of Medical Student Government in Responding to COVID-19, 96 Acad. Med. 62, 62–63 (2020) (“[A] symbiotic relationship between students and administrators has allowed students to help shape every aspect of the UMMS curriculum.”); AMA, Medical Education Innovation Challenge (2016), https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/ace/ace-innovation-booklet.pdf [https://perma.cc/322E-9PPG] (compiling medical students’ proposals regarding what the medical school of the future looks like).
Leslie Ridgeway, USC Gould to Offer Unique Required Course Focusing on Race in Legal System, USC Gould Sch. L. (Feb. 4, 2021), https://gould.usc.edu/about/news/?id=4814 [https://perma.cc/4UHV-8G7E]; Press Release, UCI Law, UCI Law Faculty Adopts New Race and Indigeneity Curriculum Graduation Requirement (Apr. 6, 2021), https://www.law.uci.edu/news/press-releases/2021/race-indigeneity-curriculum.html [https://perma.cc/7SNA-NGCW]; J.D. Degree Requirements, Penn St. Dickinson L., https://dickinsonlaw.psu.edu/required-courses [https://perma.cc/7LET-KAVR] (last visited Jan. 6, 2022) (describing a new requirement that 1L students take a course with a “subject matter focused on civil rights, equal protection, or social justice”); Stephanie Francis Ward, Required USC Course on Race Is Expected to Help Law Students with Various Viewpoints, ABA J. (Mar. 18, 2021, 9:11 AM), https://www.abajournal.com/web/article/required-USCcourse-on-race-expected-to-help-law-students-with-various-viewpoints [https://perma.cc/29BK-2HY2]; Steve Bornfeld, Leading the March for Change, UNLV News Ctr. (Feb. 8, 2021), https://www.unlv.edu/news/article/leading-march-change [https://perma.cc/VF8T-PNNJ] (noting that a new course, “Law and Inequality: Policing, Protest, and Reform,” was a required course for all first-year law students); Preparation for Practice, B.C. L., https://www.bc.edu/bc-web/schools/law/academics-faculty/curriculum.html [https://perma.cc/24XY-WDAJ] (last visited Jan. 6, 2022) (noting “Critical Perspectives in Law and Professional Identity” as a required 1L course).
Stephen J. Friedman, Why Can’t Law Students Be More Like Lawyers?, 37 U. Tol. L. Rev. 81, 82–83 (2005).
The American law school “originated with the model of legal education . . . established at Harvard in 1870,” Robert W. Gordon, The Geologic Strata of the Law School Curriculum, 60 Vand. L. Rev. 339, 340 (2007), and although a Black person graduated from Harvard Law School in 1869, History of Harvard Law School, Harv. L. Sch., https://hls.harvard.edu/about/history/ [https://perma.cc/SA7R-UPSL] (last visited Nov. 3, 2021), “only a handful of schools admitted [B]lack [students] until 1936,” David B. Wilkins, From “Separate Is Inherently Unequal” to “Diversity Is Good for Business”: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 Harv. L. Rev. 1548, 1560 (2004). Elite law schools “remained overwhelmingly [W]hite and male . . . until the 1960s,” and until “[a]s late as 1964, there were only seven hundred [B]lack law students in the entire country, fully one-third of whom attended one of five historically [B]lack institutions.” Wilkins, supra, at 1561.
See generally Susan Grover & Nikeshia Womack, Stories at the Edge of Class—Marginalization in the Law School Experience, 16 Seattle J. Soc. Just. 41 (2017).
See Sam Dorman, Chris Rufo Calls on Trump to End Critical Race Theory ‘Cult Indoctrination’ in Federal Government, Fox News, https://www.foxnews.com/politics/chris-rufo-race-theory-cult-federal-government [https://perma.cc/KV8D-7V24] (Sept. 2, 2020); Tim Baysinger, Fox News’ ‘The Five’ Topped Tucker Carlson as Most Watched Cable News Show in October, Wrap (Nov. 2, 2021, 2:29 PM), https://www.thewrap.com/the-five-most-watched-cable-news-show-ratings-tucker-carlson-fox-news/ [https://perma.cc/68QQ-NU2Q]; Benjamin Wallace-Wells, How a Conservative Activist Invented the Conflict over Critical Race Theory, New Yorker (June 18, 2021), https://www.newyorker.com/news/annals-of-inquiry/how-a-conservative-activist-invented-the-conflict-over-critical-race-theory [https://perma.cc/MWE5-VSEW].
See Fabiola Cineas, Critical Race Theory, and Trump’s War on It, Explained, Vox (Sept. 24, 2020, 2:20 PM), https://www.vox.com/2020/9/24/21451220/critical-race-theory-diversity-training-trump [https://perma.cc/NPB2-BKYU]; Dorman, supra note 25.
Khiara M. Bridges, Critical Race Theory: A Primer 8 (2019) (“CRT is an intellectual movement, a body of scholarship, and an analytical toolset for interrogating the relationship between law and racial inequality.”); Critical Race Theory: The Key Writings that Formed the Movement xiii (Kimberlé Crenshaw et al. eds., 1995) (“As these writings demonstrate, there is no canonical set of doctrines or methodologies to which [Critical Race Theorists] subscribe. Although Critical Race scholarship differs in object, argument, accent, and emphasis, it is nevertheless unified by two common interests . . . to understand how a regime of [W]hite supremacy and its subordination of people of color has been created and maintained in America . . . [and] a desire not merely to understand the vexed bond between law and racial power but to change it.” (emphasis omitted)).
See Off. of Mgmt. & Budget, Exec. Off. of the President, M-20-34, Memorandum for the Heads of Executive Departments and Agencies (2020).
Exec. Order No. 13,950, 85 Fed. Reg. 60,683 (Sept. 22, 2020).
Cineas, supra note 26 (quoting Remarks at the White House Conference on American History, 2020 Daily Comp. Pres. Doc. 2 (Sept. 17, 2020)).
See Michelle Goldberg, Opinion, The Campaign to Cancel Wokeness, N.Y. Times (Feb. 26, 2021), https://www.nytimes.com/2021/02/26/opinion/speech-racism-academia.html [https://perma.cc/2LKZ-FQZ3].
See id.; e.g., S.B. 627, 93rd Gen. Assemb., Reg. Sess. (Ark. 2021) (enacted). The Florida State Board of Education, for its part, banned “Critical Race Theory” in Florida public schools, with encouragement by Florida Governor Ron DeSantis. See Bobby Caina Calvan, Florida Bans ‘Critical Race Theory’ from Its Classrooms, Associated Press, June 10, 2021, https://apnews.com/article/florida-race-and-ethnicity-government-and-politics-education-74d0af6c52c0009ec3fa3ee9955b0a8d [https://perma.cc/FE92-KWRD]. Overseas, politicians on the political right have been inspired to denounce CRT within the borders of their individual nations. A minister in the United Kingdom declared that schools were “breaking the law” if they taught specific “elements of critical race theory.” Goldberg, supra note 32. Over in Australia, an assistant attorney general worried about taxpayer dollars being used to fund trainings in “critical race theory.” See David Theo Goldberg, The War on Critical Race Theory, Bos. Rev. (May 7, 2021), https://bostonreview.net/articles/the-war-on-critical-race-theory/ [https://perma.cc/K534-FEBD].
See, e.g., Sam Dorman, Legal Coalition Forming to Stop Critical Race Theory Training Around the Country, Fox News (Jan. 20, 2021), https://www.foxnews.com/politics/legal-coalition-critical-race-theory [https://perma.cc/N27Q-R2GH] (“It divides Americans by race and traffics in the pernicious concepts of race essentialism, racial stereotyping, and race-based segregation—all under a false pursuit of ‘social justice.’ Critical race theory training programs have become commonplace in academia, government, and corporate life, where they have sought to advance the ideology through cult-like indoctrination, intimidation, and harassment.” (quoting a press release from a conservative, anti-critical race theory coalition led by Christopher Rufo)).
Christopher F. Rufo (@realchrisrufo), Twitter (Mar. 15, 2021, 2:14 PM), https://twitter.com/realchrisrufo/status/1371540368714428416 [https://perma.cc/K22X-VJMB].
Christopher F. Rufo (@realchrisrufo), Twitter (Mar. 15, 2021, 2:17 PM), https://twitter.com/realchrisrufo/status/1371541044592996352 [https://perma.cc/WVT4-H3FW].
It is worth noting that even if the Critical Race Theory bans that Republican‑controlled legislatures have passed actually endeavored to ban Critical Race Theory—properly conceptualized as the academic framework that investigates the law’s role in protecting and legitimating the nation’s racial hierarchy—the scholarship and ideas that the bans prohibit would still be unclear. Would the bans prohibit exposure to any and all arguments that critical race theorists have made? For example, are they banning critiques of discriminatory intent—as opposed to disparate impact—as the test for when strict scrutiny ought to be used to review racially burdensome laws under the Fourteenth Amendment? Does it matter that people who are not critical race theorists have also critiqued the discriminatory intent test? Would they ban any discussion of “intersectionality,” as the term has been useful to many critical race theorists and was coined by the same person who gave “Critical Race Theory” its name? See Bridges, supra note 27, at 8 (noting that Kimberlé Crenshaw coined the term “Critical Race Theory”); Matt Hartman, Jennifer Nash: Unsettling the Romances of Black Feminism, Duke Today (Oct. 16, 2020), https://today.duke.edu/2020/10/jennifer-nash-unsettling-romances-black-feminism [https://perma.cc/TXN7-WJYF] (noting that Kimberlé Crenshaw coined the term “intersectionality”). Does it matter that the concept of intersectionality also has been useful to people who are not critical race theorists? Does it matter that some people whom proponents of the bans would likely identify as critical race theorists have critiqued the concept of intersectionality? See, e.g., Hartman, supra. Would the bans prohibit explorations of implicit bias research—explorations in which many critical race theorists have engaged? Would they also prohibit critiques of implicit bias research—critiques that many critical race theorists have authored? See generally Jonathan Kahn, Race on the Brain: What Implicit Bias Gets Wrong About the Struggle for Racial Justice (2018). The uncertainty around what bans of a rigorously defined Critical Race Theory would prohibit is simply due to Critical Race Theory’s status as a framework—an approach to viewing law and society. Scholars investigating the same questions can deploy the framework and arrive at different answers.
See Cineas, supra note 26 (quoting Kimberlé Crenshaw, a self-identified critical race theorist, who explains that the various strands of thought that conservatives have called “Critical Race Theory” are united by their refusal “to participate in the lie that America has triumphantly overcome its racist history, that everything is behind us”); Adam Harris, The GOP’s ‘Critical Race Theory’ Obsession, Atlantic (May 7, 2021), https://www.theatlantic.com/politics/archive/2021/05/gops-critical-race-theory-fixation-explained/618828/ [https://perma.cc/AGM2-VLLY] (“[Critical Race Theory] soon stood in for anything resembling an examination of America’s history with race. Conservatives would boil it down further: Critical race theory taught Americans to hate America.”); Daniel Trilling, Why Is the UK Government Suddenly Targeting ‘Critical Race Theory’?, Guardian (Oct. 23, 2020, 8:22 AM), https://www.theguardian.com/commentisfree/2020/oct/23/uk-critical-race-theory-trump-conservatives-structural-inequality [https://perma.cc/D3N4-XBTC] (“[Critical Race Theory] has become a kind of shorthand in US politics for an approach to race relations that asks [W]hite people to consider their structural advantage within a system that has, historically, been profoundly racist.”).
Stephanie M. Wildman, The Persistence of White Privilege, 18 Wash. U. J.L & Pol’y 245, 246–47 (2005); Ann Gleig, Opinion, Waking Up to Whiteness and White Privilege, UCF Today (Oct. 7, 2020), https://www.ucf.edu/news/waking-up-to-whiteness-and-white-privilege/ [https://perma.cc/67T4-LR9G].
Goldberg, supra note 33.
See Harris, supra note 38 (stating that Critical Race Theory bans “would effectively prevent public schools and universities from holding discussions about racism”).
See supra pp. 807–09.
58 Mont. Op. Att’y Gen. 1, at 1 (May 27, 2021).
Id. at 21.
See Ononye & Walker, supra note 4 (highlighting legislation in Arkansas, Louisiana, Rhode Island, and West Virginia that banned the teaching of “divisive concepts”).
See William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DePaul J. Soc. Just. 7, 9 (2007).
See Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment 1–2 (1993).
See, e.g., Gilbert Paul Carrasco, Hate Speech and the First Amendment: On a Collision Course?, 37 Vill. L. Rev. 723, 726 (1992) (discussing the argument that “hate speech regulations have historically been used against the very groups they were intended to protect” and that regulation of hate speech would lead to an unraveling of free speech theory).
Crenshaw has observed the inconsistency in the conservative position on speech. Crenshaw states in a New York Times article that “[t]he commitment to free speech seems to dissipate when the people who are being gagged are folks who are demanding racial justice.” Goldberg, supra note 32. The Times explains:
To Crenshaw, attempts to ban critical race theory vindicate some of the movement’s skepticism about free speech orthodoxy, showing that there were never transcendent principles at play. When people defend offensive speech, she said, they’re often really defending “the substance of what the speech is—because if it was really about free speech, then this censorship, people would be howling to the high heavens.”