Education law. Legislators Take Aim at Critical Race Theory

• Author: David L. Hudson Jr.
• Pages: 20-21

EDUCATION LAW

Legislators Take Aim

at Critical Race Theory

Nonexistent curriculum is caught in the crosshairs

BY DAVID L. HUDSON JR.

More than 30 years ago,

law professor Richard

Delgado began writing

law review articles em-

phasizing the pervasive and pernicious

role of race in law and society. He has

become, according to University of

California at Davis School of Law Dean

Kevin R. Johnson, “a sort of LeBron

James or Michael Jordan among legal

academics.”

Delgado and other pioneering law

professors—such as Mari Matsuda,

Derrick Bell, Patricia L. Williams and

Kimberlé Crenshaw—called for a fun-

damental reorientation of legal studies

on race. Concepts of how race impacts

society and the legal system were at

the forefront of the discussion, often

through telling stories of those impact-

ed by race and societal discrimination.

These scholars became known as critical

race theorists and their approach known

as critical race theory.

Some conservative members of the

legal academy criticized CRT, “but for

the most part, there wasn’t a lot of push-

back for several decades,” says Delgado,

who teaches law at the University of Al-

abama and is the most-cited critical race

theorist with 9,925 citations, according

to a 2021 article in the University of

Chicago Law Review.

Recently, CRT has become the target

of state legislators across the country.

These bills and laws ostensibly seek

to extirpate critical race theory from

school curricula and public institutions.

“These laws concern me personally,”

says Delgado, who fears that a bill in

Alabama that would ban CRT could

end his teaching career in the state.

At press time, eight states—Idaho,

Iowa, New Hampshire, North Dakota,

Oklahoma, South Carolina, Tennessee

and Texas—have variously worded bans

that apply to either K-12 public schools

or public colleges and universities. (In

November, the Arizona Supreme Court

voided the ban the legislature passed in

July.) They are sometimes dubbed “an-

ti-CRT” laws, though the term “critical

race theory” normally does not appear

in the text, and in fact, critical race

theory isn’t a specic curriculum. Most

legislators, critics and the general public

cannot explain what “critical race the-

ory” is or means. Instead, the term has

been co-opted as a rallying cry by the

right; and PEN America, a writers’ orga-

nization that focuses on free speech and

free press issues, has dubbed anti-CRT

laws “educational gag orders.”

Using language from a September

2020 White House executive order,

many of these laws prohibit schools

from allowing teaching that:

• “One race or sex is inherently superior

to another race or sex.”

• “An individual’s moral character is

necessarily determined by his or her

race or sex.”

• “An individual, by virtue of his or her

race or sex, bears responsibility for

actions committed in the past by oth-

er members of the same race or sex.”

Identity politics

Idaho’s law contains a passage empha-

sizing that the intent of the law is “to

respect the dignity of others … defend

intellectual honesty, freedom of inquiry

and instruction, and freedom of speech

and association.”

“I had not heard of CRT prior to

[January 2021], but I had heard from

an unusual number of parents in the fall

of 2020 regarding what they described

People hold up signs during a June

rally in Leesburg, Virginia, protesting

critical race theory being taught in

schools.

Photo by Andrew Caballero-Reynolds/AFP via Getty Images

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