Critical Race Theory and Academic Freedom
Nate Hochman, City Journal, June 17, 2021
Recent red-state bans or restrictions on the use of critical race theory (CRT) in public schools and universities have been denounced by mainstream media. While most of the bans primarily target CRT’s racial essentialism—prohibitions on “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” according to a bill signed into law in Iowa last week—the new legislation is regularly described as an attack on “diversity” or “racial sensitivity” training. According to New York Times columnist Michelle Goldberg, the reforms amount to “outright government censorship; for Atlantic staff writer Adam Harris, they show the GOP’s cynical desire to spark “another battle in the culture wars.” A recent MSNBC headline goes further still: “GOP Pushing Bill to Ban Teaching History of Slavery.”
Beyond the hyperbole, substantive critiques of the new legislation usually allege that curricular restrictions violate “academic freedom.” Insofar as this contention originates on the left, one could regard it as a cynical manipulation of language. After all, progressives have had little to say about free speech in education for at least a generation; that they have suddenly rediscovered the virtue of an open marketplace of ideas now is convenient.
At the same time, however, a significant number of genuine defenders of academic freedom, on the left and right, have also voiced opposition to the bans on CRT-based curricula in taxpayer-funded schools. Their views deserve to be taken seriously. These critics object to the anti-CRT laws on first principles, contending that a ban on teaching a particular ideology or doctrine in public schools undermines free speech and related constitutional rights. “The federal courts should reflexively invalidate anti-CRT laws on First Amendment grounds,” writes First Amendment law professor Ronald Krotoszynski in the Washington Post. “Educators cannot do their job if state governments attempt to ban the teaching of ideas they fear.”
But the dogmatic insistence that political “neutrality”—a fuzzy idea, by any measure—be strictly adhered to in all government policy, in lieu of legislators ever promoting a substantive vision of the good, represents a fundamental misinterpretation of academic freedom in a publicly funded setting. This argument is particularly perplexing in the context of taxpayer-funded grade schools. The idea that banning specific topics in these schools’ curricula is government “overreach” misses the fact that public K-12 programs are monopolistic, government-run institutions; a change in their curricular requirements does not expand state power in any substantive way.
This misunderstanding is clearly visible in the writings of figures like Acadia University professor Jeffrey Sachs, a self-described “mainstream liberal” who “care[s] deeply about classic liberal norms like free speech and academic freedom.” Sachs argues that the recent anti-CRT laws are condemnable for their “use of state power to suppress ‘woke’ speech and viewpoints.” And yet, the debate over legislative interventions in woke K-12 curricula does not actually consider the use of state power to suppress private speech rights; it deals with the question of whether state employees should be allowed to teach woke doctrine on the taxpayer’s dollar. Are policymakers proscribed from ensuring that tax dollars are not used in ways that harm the taxpaying polity? For Sachs, such intervention is tantamount to using “the blunt instrument of the state” to infringe on the rights of public educators. But if crafting public education policy and overseeing its implementation is not the role of the state, then whose is it?
Krotoszynski suggests an answer in his Washington Post editorial, where he approvingly quotes Supreme Court justice Felix Frankfurter’s characterization of teachers as “priests of our democracy,” who “cannot carry out their noble task if the conditions of a responsible and critical mind are denied to them.” Leaving aside whether CRT actually promotes or detracts from “critical thinking,” do teachers’ purported positions as “priests of democracy” elevate them above democracy itself, as conducted through democratically elected state legislative bodies, tasked with overseeing public education? The idea that it is “unconstitutional and a violation of academic freedom,” in Sachs’s words, to restrict public K-12 schools from teaching something like the New York Times’s 1619 Project—the revisionist “reinterpretation” of the American Founding specifically targeted by bans enacted in Arkansas and Iowa—would suggest that public educators should be insulated from accountability and democratic oversight, operating instead as private citizens outside the purview of the very state legislatures that pay them.
This is the final problem with the idea of political “neutrality” in public school curricula. Public school teachers are not private actors, and a public school curriculum is not a neutral or free marketplace of ideas. What one teaches and does not teach in this setting is an unavoidably political decision, using public funds to favor certain concepts and theories at the necessary exclusion of others. A public educator teaching the 1619 Project is not a private voice in a free marketplace of ideas, but a specific—and taxpayer-endorsed—state employee, acting as an extension of the state itself. To assert that a curriculum is somehow less “political” in the hands of a teacher rather than a legislator is to accept the notion that teachers are not servants of the public good, but masters of it.
One could object to the CRT bans on pragmatic grounds, such as the concerns that some have raised about the use of overly broad language in some versions of the legislation, but the legitimacy of the new laws on principle depends not on whether the government should “ban” or “suppress” certain viewpoints in the public square but on whether CRT serves a genuine pedagogical purpose in public schools. Why does the 1619 Project—debunked by historians for a number of blatantly ahistorical claims—have an inviolable claim to publicly funded classrooms? Does its demonstrably false assertion that the American Revolution was fought to preserve slavery have a place in a U.S. history class any more than creationism has a place in biology courses?
Sachs argues that his “interest isn’t defending Critical Race Theory, it’s defending free speech and academic freedom.” David French, a prominent conservative critic of the bans, tweets that “defending the right of free speech is [not] the same as defending the content of that speech.” But teaching a specific ideology in a taxpayer-funded curriculum is not a mere exercise of neutral “free speech” or “academic freedom.” To defend it in this context is, in fact, a defense of its content, or at least a defense of the idea that its content is legitimate enough to be backed by state funds and taught to our children. And to make that argument is to defend government-run classrooms teaching a doctrine that explicitly undermines the American constitutional order.
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