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The following is an opinion contribution and reflects the author’s views alone.
Critical race theory (CRT)-influenced curriculum and supporting parental concerns about education have become winning issues for the post-Trump GOP—look no further than the Virginia governor’s race. But what should Republicans do about CRT once in office? GOP-dominated state legislatures are attempting to tackle the problem with varying degrees of success. Many bills are explicitly described as “bans.” However, banning CRT in schools is not the approach conservatives should take in response to racially divisive (and sometimes simply racist) educational materials. There are far better alternatives.
To begin, any attempt to ban or limit the discussion of CRT at the college level is both unconstitutional and fundamentally illiberal. The First Amendment applies to bans on private college instruction. While a function of state government, public colleges must also protect the academic freedom of their professors and students. Federal courts have ruled repeatedly that limits on public employee speech “pursuant to their official duties” do not apply to university professors’ teaching and research. As Judge Thapar of the Sixth Circuit wrote, “If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as ‘comrades.’”
Banning teaching of disfavored and uncomfortable ideas on college campuses is directly inimical to the basic principles of liberal democracy, not to mention an acquiescence to the “snowflake,” “safe space,” and “political correctness” culture conservatives have long mocked. Students, as adults, are full participants in American self-governance and the marketplace of ideas, and they should be treated as such. Finally, as Princeton professor Robert P. George writes about liberal education, “We should honor academic freedom as a great and indispensable value because it serves the values of understanding, knowledge, and truth that are greater still.” It is a “condition,” he writes, “of the personal appropriation of the truth”—an “intrinsically valuable” human good.
While states have the authority to ban CRT in K-12 education, these bans are severely troubled. Though case law about curriculum is often mixed and sometimes nonsensical, state legislatures are ultimately in charge of school districts, which choose curriculum and set learning requirements (though both must protect the rights incorporated against the states in the federal constitution). However, the statewide bans many conservatives support are simply bad laws and will serve to hurt conservatives in the future. At the higher end of the K-12 spectrum, these policies carry similar negative effects to bans on CRT in college. After all, it would be difficult to argue that there is a vast cognitive difference between twelfth graders and college freshmen. Teachers should be able to discuss CRT—and the plethora of other ideas that fall under these laws’ prohibitions—with competent students. More importantly, these laws violate the basic principles and common sense of a liberal society at all levels. Attempts to ban the discussion of ideas do not work—they never have and never will. All of the bills are necessarily and naturally vague and can be interpreted to forbid many ideas far outside the umbrella of CRT. As longtime free speech litigator David French writes, the problem with speech codes is that, “the execution is always clumsy and dangerous if it’s broad, and narrow to the point of irrelevance if it’s precise.” Anti-CRT bills chill much important, beneficial, and educational speech, placing teachers in fear of legal action for bringing up any history or concepts related to race and justice. In fact, these bills are already being used to target reasonable curriculum. Furthermore, state intervention to ban discussion of progressive ideas can just as easily be used by Democrats to ban conservative views in schools or advance explicitly partisan curriculum (like our own state of New Jersey requiring education about “unconscious bias”).
Conservatives should instead adopt a positive approach to confronting bad curriculum: increasing family educational choice and replacing CRT dogma with better curriculum. Pro-family and pro-individual rights conservatives should respect the rights of parents to choose the education and values they believe are best for their family—a right that is currently regressively restricted based on economic status. Expanding education options for all families—conservative, progressive, and anything else—is a conservative policy proposal that would help dilute the toxic effects of CRT in schools while expanding equality of opportunity and liberal pluralism. But conservatives also can—and should—take an interest in the public schools that their tax dollars and votes most directly influence. Advocating for a different curriculum is well within parents’ rights, and changing it is within the powers afforded to school boards. This allows citizens, alongside state and local governments, to decide what values and concepts are most important to them while avoiding the knotty practical difficulties of a negative ban. Rather than carelessly banning the discussion of a wide range of vague terms and principles, this method of conservative advocacy is respectful of the realities of education and the fundamental principles of a liberal society while advancing realistic and valuable reform to the way our children are taught. Only then will our children be prepared for full, unfettered engagement with the great liberal tradition of open discourse and pursuit of truth and virtue.
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