Writing in the op-ed pages of the Washington Post last week, University of Alabama School of Law professor Ronald Krotoszynski, Jr. argues that banning the teaching of Critical Race Theory (“CRT”) in higher education violates the First Amendment. The assumptions and premises of the piece (more on them below) are decidedly leftwing, which one would expect from most of the academy these days. But many libertarians and conservatives, even if they don’t share Krotoszynski’s premises, seem to agree with his conclusion. Greg Lukianoff, CEO of the Foundation for Individual Rights in Education, tweeted enthusiastically in agreement. David French quipped his agreement with Lukianoff: “it’s not even close.”
Krotoszynski starts with an appeal to authority, noting that CRT “remains well established and widely accepted” in law schools. He laments recent GOP attempts (at my last count, 18 states have either passed legislation or are working on it) to ban its teaching or associated diversity trainings: “At a time when we desperately need to have more frank and open conversations about race, class, social justice and the concept of ‘the other,’ they hamstring educators charged with preparing young people to live and work in an increasingly diverse society.”
He rehearses the Supreme Court precedent (starting with a William Brennan opinion in a 1967 case) developing the doctrine that academic freedom means that legislators cannot tell colleges and universities what they can or can’t teach. The facts of that case are revealing: some University of Buffalo professors, as new state employees under a higher ed reshuffle, were subject to the NY requirement that all state employees formally renounce Communism. The Brennan decision declared this unconstitutional.
This and other precedents, writes Krotoszynski, mean that “the First Amendment certainly protects the right of a state-sponsored college or university to address issues of race, class and inequality in its curriculum.” Finally, he approvingly cites a quote from a 1952 Supreme Court decision in which Felix Frankfurter “characterized teachers as the ‘priests of our democracy.’”
As the pedants say, lots to unpack here. First, we should understand CRT for what it is (and it ain’t so benign as the good professor avers). As Helen Pluckrose and James Lindsay have documented well in Cynical Theories, CRT is a branch of postmodern thought that has, at its root, the rejection of all notions of truth or natural right and the reduction of all socio-political contests (and even the natural sciences—or math!) to struggles for power and recognition, with the language and narrative of the dominant class(es) as the central shapers of reality. So, no, what’s at stake here is not mere discussions of inequality and “diversity training” (as Biden mischaracterized CRT in one of his two debates with Trump last year).
For anyone who’s been following the latest evolution of CRT curriculum and training, the “frank and open conversations about race, class, [and] social justice” are neither frank nor open. The conclusion is presumed at the outset: unequal results among groups can be attributed only to white racism. Or as Ibram Kendi has put it: “racial inequity is the result of racist policy.” Justice Frankfurter’s characterization of educators as “priests'' was quite apt, it turns out. Kendi’s anti-racist catechism is unquestioned in most of our educational institutions today, and those who disagree are either self-censoring and shutting up or being cast out and defrocked.
James Madison explained in Federalist 10 that the “diversity in the faculties of men” will lead—inevitably, naturally—to inequity in wealth and interests, the “protection” of which is “the first object of government.” No, say the CRT proponents. America will only achieve full justice when all groups have equal honors, property, prestige, and positions. Well, as we all know, that’s not quite true—the ancient oppressor, the white heterosexual male and all his adjacent oppressors, must be justly laid low. If the principles and teachings of CRT continue their march from the universities to the boardroom to the bureaucracy unimpeded, the American way of life will finally be snuffed out. In this sense, the fight over CRT is a proxy for the larger American cold civil war. Many conservatives and libertarians fail to see the stakes, and so they continue to fiddle about, semantically citing Supreme Court precedent.
But even the Supreme Court precedent is dubious, especially when we consider CRT in the larger philosophical sense. The First Amendment, rooted as it is in the principles of the declaration (the equal protection of natural rights), and informed as it is by the preamble of the Constitution (the document is meant to secure the blessings of liberty rather than its curses), cannot be indifferent to speech and teachings that deny and wish to subvert its own foundations.
America may tolerate communist professors (or racialist charlatans and grifters like Ibram Kendi or Robin DiAngelo), but it need not, as a matter of right, protect and enshrine doctrines hostile to the philosophical foundations of America. The Constitution is not a suicide pact. We may disagree over this or that tactical policy question regarding what to do about the cancerous and un-American spread of CRT, but any patriot of any stripe—conservative, libertarian, or liberal for that matter—must understand this fight in existential terms … and act and argue accordingly.