The Erosion of Academic Freedom and Democratic Principles: Anti-Critical Race Theory Assaults on Higher Education

• Pages: 71-94
• Date: 01 January 2024
• Published date: 01 January 2024
• Author: Chelsea Clayton
• Subject Matter: Derecho Civil

NOTES

The Erosion of Academic Freedom and Democratic

Principles: Anti-Critical Race Theory Assaults on

Higher Education

CHELSEA CLAYTON*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

I. DEFINING CRITICAL RACE THEORY. . . . . . . . . . . . . . . . . . . . . . . . 73

A. Emergence of Critical Race Theory . . . . . . . . . . . . . . . . . . . . . . 73

B. Modern Anti-Critical Race Movement . . . . . . . . . . . . . . . . . . . 75

C. Development of “anti-CRT” Policies in Higher Education . . . . . 79

II. ACADEMIC FREEDOM AS A CONSTITUTIONAL DOCTRINE . . . . . . . . 84

III. ANALYSIS OF FLORIDA HOUSE BILL 999 AND SENATE BILL 266 USING

ACADEMIC FREEDOM PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . 90

A. What May Be Taught and How It Shall Be Taught . . . . . . . . . . 91

B. Who May Teach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

INTRODUCTION

Lani Guinier, a legal scholar who devoted her life to envisioning and fighting for a

more just society, was the first Black woman tenured Harvard Law professor.

1

Matt Schudel, Lani Guinier, law professor and embattled Justice Department nominee, dies at 71, WASH. POST

(Jan. 9, 2022), https://www.washingtonpost.com/obituaries/2022/01/09/harvard-law-prof-lani-guinier-dies.

Despite

her significant contributions to the legal profession and the preservation of our demo-

cratic ideals, Guinier found herself at the center of a major controversy when former

president Clinton announced her nomination as Assistant Attorney General for the

* J.D., Georgetown University Law Center, 2024, Symposium Chair, Georgetown Journal of Law and

Modern Critical Race Perspectives, 2023-2024. Thank you to the MCRP staff for their hard work and dedi-

cation in preparing this piece for publication. I would also like to acknowledge the invaluable contributions

of Professor Frederick M. Lawrence, whose guidance and feedback were instrumental in the early drafting of

this Note. Finally, I extend my heartfelt thanks to my support system. I am honored to have your support and

am grateful for your unwavering belief in me. © 2025, Chelsea Clayton.

1.

71

Civil Rights Division on April 29, 1993.

2

Following President Clinton’s announce-

ment of Guinier’s nomination, conservative leaders and activists hijacked the nomina-

tion by accusing Guinier, then a University of Pennsylvania Law school professor, of

“championing a radical school of thought called ‘[C]ritical [R]ace [T]heory.’”

3

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/

Guinier’s “radical” scholarship examined America’s electoral processes, focusing

on how race permeates electoral outcomes.

4

She called for reforms to make the politi-

cal system more inclusive and advocated for creating an electoral system that allowed

Black voters to elect candidates who represented their interests.

5

Guinier’s academic

writings soon became fodder for news and media outlets as they began to besmirch

Guinier’s nomination. At the Wall Street Journal, Clint Bolick, a former employee

of the Justice Department during the Reagan administration, labeled Guinier a “quota

queen”—a racially charged term meant to evoke the welfare queen stereotype.

6

Richard Harris, How a Celebrated Legal Scholar Got Swept Up in the Political Machine, POLITICO

(Jan. 1, 2022), https://www.politico.com/news/magazine/2022/01/29/lani-guinier-ground-national-tv-doj-

nominaton-legal-ideas-00003375.

Bolick

alleged that Guinier supported “racial quotas in judicial appointments,”

7

despite Guinier’s

previous writings where she explicitly opposed the use of quotas.

8

Guinier’s detractors suc-

ceeded in distorting the narrative around her, diverting attention away from her actual

views and instead steering the nation to their interpretations of them. Soon, both the polit-

ical left and the right began to distance themselves from Guinier and her “anti-demo-

cratic” views.

9

David G. Savage, Guinier’s Ideas Viewed as Largely Theoretical: Nominee: In her ‘academic’ article on vot-

ing rights, the conclusions she reaches appear to be tentative, L.A. TIMES (June 5, 1993), https://www.latimes.

com/archives/la-xpm-1993-06-05-mn-43571-story.html.

On June 4, 1993, President Clinton withdrew Guinier’s nomination,

denouncing her writings as unrepresentative of his views on civil rights.

10

Guinier’s scholarship engendered controversy because of her extensive writings on

the insidious nature of racism after the Civil Rights era and its continued threat to

America’s democratic institutions.

11

She challenged the dominant discourse on race

by revealing how racism was ingrained in America’s political, institutional, and social

structures—an analysis rooted in the theoretical framework of Critical Race Theory

(CRT).

12

Instead of allowing Guinier to explain her positions or debate the merits of

her claims, the anti-CRT movement tethered Guinier to CRT and labeled the theory

2. Id.

3.

4. See Lani Guinier, Keeping the Faith: Black Voters in the Post-Reagan Era, 24 HARV. C.R.-C.L. L. REV.

393 (1989); Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral

Success, 89 MICH. L. REV. 1077 (1991).

5. WILLIAM F. TATE IV, AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, CRITICAL RACE THEORY

AND EDUCATION: HISTORY, THEORY, AND IMPLICATIONS, REVIEW OF RESEARCH IN EDUCATION, 195

(Vol. 22, 1997).

6.

7. Id.

8. Id.

9.

10. Id.

11. See Lani Guinier, Keeping the Faith: Black Voters in the Post-Reagan Era, 24 HARV. C.R.-C.L. L. REV.

393, 398–99 (1989).

12. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE

1960S TO THE 1980S 156 (1991).

72 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 16:71