More than three dozen states have passed, or are considering, laws restricting how public school teachers can talk about racism under the guise of banning “Critical Race Theory.” But what is Critical Race Theory? And how can law schools, law professors, and law students respond to these campaigns, when most — if not all — of the political discussion falls somewhere on the spectrum between misleading and false?
Three experts join Berkeley Law Dean Erwin Chemerinsky: Kimberlé Crenshaw, Isidor and Seville Sulzbacher Professor of Law at Columbia Law School, Distinguished Professor of Law at UCLA Law, and Co-Founder & Executive Director of The African American Policy Forum, whose work has been foundational in critical race theory and in “intersectionality,” a term she coined to describe the double bind of simultaneous racial and gender prejudice; Berkeley Law Professor Khiara M. Bridges, the author of “Critical Race Theory: A Primer”; and Emerson Sykes, Senior Staff Attorney at the ACLU Speech, Privacy, and Technology Project, who focuses on First Amendment free speech protections and is working on litigation involving some of these new laws.
More Just from Berkeley Law is a podcast about how law schools, students, and professors can make our legal system better and more equitable for all.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Hello, I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is More Just, a podcast about what law schools, students, and professors can do to make our legal system better and more equitable for everyone. Today, we’re here to talk about how law schools respond to the attack on critical race theory, and ultimately how law schools could do better to be anti-racist and to work for greater racial equality. Since January 2021, bills have been introduced in 36 states to inhibit the teaching of critical race theory in schools. Nine states have adopted legislation to the teaching of critical race theory. In four more states, governors by executive action have done so.
The bills follow and often are based on executive order 13950 from the Trump administration, which was appealed by President Biden in his first day in office. At the same time, it is worth noting that recently the American Bar Association changed its rules so that now every accredited law school must provide bias training when students begin their legal studies and at least once more before they graduate. This was in response to a letter signed by 150 law school deans calling for this change, all of which leads to today’s discussion.
I am joined by three terrific experts on these issues. To save time for our discussion, I’ll just briefly introduce them. Khiara Bridges, Professor of Law at Berkeley Law, Kimberlé Crenshaw is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School, and distinguished Professor of Law at UCLA Law School. And Emerson Sykes is a staff attorney at the American Civil Liberties Union. Welcome to all of you and thank you so much for joining me for this important conversation.
I think we need to begin by defining what is critical race theory? Kim, you’re one of the parents of critical race theory. You’ve been part of this almost from the beginning. So, if I could turn to you to start the conversation.
Well, thank you Erwin, and it’s such a pleasure to be on your podcast. Critical race theory is less of a particular thing or set of tenants, but more a way of reading our history and its relationship to the present. It’s a prism for understanding why after decades now, civil rights reforms, we continue to see and expect and predict a whole range of racial disparities, ranging from access to higher education, to wealth, to health disparities, to encounters with police.
The basic insight of critical race theory is that racial disparities are not merely the product of individual level bias. It’s not simply carry-over from old ideas about superiority or inferiority, biologically produced, but in fact are the products of ways that our institutions were originally shaped, the ways that many of the values and practices that were created during a period of time that white supremacy was explicitly normatively the rule of the land, are embedded in ways that many times we don’t notice and we don’t see, and yet they continue to produce particular kinds of outcomes.
So, critical race theory, I sometimes say it’s like archeology. We are digging under the ground upon which we stand to understand what came before and how that which came before continues to shape the landscape of American institutions today.
It’s a wonderful explanation. Khiara, Emerson, is there anything you’d want add just in terms of defining what do we mean when we speak of critical race theory?
Khiara M. Bridges:
I think Kim has done a wonderful job of explaining it, and I hesitate to add anything in as much as we think of Kim as the foremother of this body of scholarship. I will only add something that Kim has actually already explained in her scholarship, which is that CRT is not a noun as much as it is a verb, it is something that is constantly interacting with our environment, it’s constantly changing, it’s constantly interrogating new formations, new discourses, new narratives.
And I think that, that is one of the greatest strengths of CRT, that is not a thing that is out there in the world that you can point to and say, “There it is,” but rather it’s this constantly fluctuating, constantly flexible adapting way of reading. But I also think that as much as it has been a strength of the theory, I think that its detractors have exploited that and used it to reference anything that they don’t like. And so that exploitation of what CRT is has catapulted it into the new cycle and made it into something that it is not at least when it’s being used by its detractors.
If I could ask you before I turn to Emerson, do you have thoughts, Khiara, about why now?
Khiara M. Bridges:
Critical race theory, because critical race theory isn’t new and its teachings preceded even existing as something we would’ve labeled as critical race theory. The attack as we’ll talk about, is about teaching it in K through 12, or at least that’s primarily been what it’s about. And critical race theory generally hasn’t been taught in K through 12. So why has this so come to the fore in the last year?
Khiara M. Bridges:
Well, I think that if we look at when the term became part of the news cycle, we can trace that back to September 2020, when a conservative activist, Christopher Rufo appeared on Tucker Carlson’s Fox News show explaining to the audience there that CRT was being taught in executive agencies in these trainings. Now, of course, it is highly unlikely that actual CRT, the CRT that I was introduced to in law schools, by Professor Kendall Thomas, and that I wrote a whole primer about in 2018, it is highly unlikely that, that is what was being taught in these executive agencies. Nevertheless, he said that, that was being taught. It was an ideology that taught that there was no oppressor race, and no oppressed race, and also some nonsense about it, and a caricature of what CRT actually is.
Somebody from the Trump administration was watching. And Trump issued his executive order shortly thereafter. September 2020, that’s coming on the heels of a long hot summer of protest in response to the murder of George Floyd. A lot of observers had said we were entering into a racial reckoning. I think if we recall that summer, I was bombarded by emails, ranging from Betterment, which holds my retirement account, to Amazon, where they were telling me that Black lives matter. So it was this moment where a lot of attention was being brought to racial injustice. And I understand the recent attention to CRT, especially as caricature by folks on the right to be a direct response to that racial backlash. It is an effort designed to put those people who might have been having epiphanies about our racial order, folks who might have been thinking that perhaps all is not right in this country when it comes to racial injustice, it’s designed to put those people back where they were before the protests and the awakening to racial inequality that we started to witness in the summer of 2020.
And Kim you’re nodding with regard to Khiara’s explanation. Would you give the same explanation of why now?
Absolutely. My very first law review article was called Race, Reform and Retrenchment. And the basic theme of that article is that forward momentum towards anti-racism inevitably breeds retrenchment of some sort. What we have learned, what I’ve learned since then is sometimes the retrenchment is more powerful and long lasting than the reform that prompted it, if we look at the course of history, and we had basically 10 good years of reconstruction that were followed by seven decades of apartheid, of embodied white supremacy, we had another 10, 15 good years of civil rights reform that quickly were followed by efforts to slow the pace of legal transformation, and then to reverse it in many ways. And I think then this most recent moment, we had about three months of significant investment in trying to understand racism, not simply as the product of a few bad apples, Derek Chauvin didn’t act alone when he took the life for George Floyd, and people were beginning to use concepts and frameworks that understood that racism was something other than the narrow story that has been the one that, for the most part, people feel comfortable with.
And so it was not surprising to me at all, that there would be a massive backlash against this reckoning. What is, I guess, surprising and disappointing is the silence of so many of the folks who produce those Black lives matters messages from corporate America, from the media, and even from people who took to the street, not being able to anticipate this and having had the language of critical ways of thinking about race prior to this moment meant that the commitment was, and the understanding was fairly deep. People could sing the first chorus of structural racism, but didn’t know the verse. And so when the counter melodies started to ring across the land, too many people went mute at that point.
I think all of which the both of you have just said resonates deeply. At the ACLU we pivoted directly from protecting protesters’ rights around the clock in that summer of progress that you both referenced, to directly now working on trying to prohibit what we’re calling these education gag orders, these bands on inclusive education. And I think Erwin’s question about what is CRT is so fundamental because obviously no one could better explain it than professor Crenshaw, but as you said, professor Bridges it’s also as much about what CRT is not, because I think we’ve seen it be used as a bucket in which people can place all of their racial anxieties and their discomfort with any sort of diversity, equity, inclusion anti-racism, issues around LGBTQ have been grouped in as well. So I think as much as it’s critical that we think about and understand what CRT is and how it plays into our intellectual and social fabric as a country, also resisting this framing of CRT as the new boogieman.
We’ve not shied away from talking about CRT as CRT, but also highlighting how much broader many of these initiatives are than any one particular theory or approach. And so we’ve been thinking through with our communications team and our advocacy team, along with the African American Policy Forum, with professor Crenshaw’s wonderful colleagues, trying to figure out how we reframe this discussion in a more positive way, not to, in any way, hesitate to defend CRT in its own right, but to also make sure that we’re using accurate nomenclature to discuss what’s actually at play here.
Khiara M. Bridges:
I’ll just add that during that summer, I spent a lot of time defending the boundaries of the term, I spent a lot of time with media outlets trying to explain what CRT is, and that CRT has never been taught in a kindergarten classroom, that it would be the most advanced of advanced both grade classrooms that would introduce their students to Derek Bell and Kim Crenshaw and Ian Haney López, and the actual body of literature that I’ve always thought of as CRT. And so after spending months on the phone with folks ranging from the New York Times, Washington Post podcast, trying to defend the boundaries of the term, it took me a while to say, well, if that really how we should be spending our time, if they’re not banning CRT from elementary schools, so what exactly are they banning? What discussions are actually under attack?
And so I think it’s a very awkward position to be in as a self-identified critical race theorist, somebody who wants to hold onto this thing as an advanced legal theory while also being flexible enough to defend progressive discussions of race, discussions of race in which we don’t conceptualize racism as something that happened in the past and as a couple of bad apples in the present, but rather as this systemic structural banality, really. I want students K through 12 to be exposed to that thought. And so, again, it’s an awkward position to both want to be faithful to critical race theory as an advanced legal theory, while also being able to respond to attacks on progressive thinking about race.
It’s a great point. Let me ask this. We should probably talk about what are the laws that have been adopted. Nine state legislatures have adopted statutes that prohibit the teaching of critical race theory, four governors have issued executive orders. Emerson, might you describe these laws? And I realize they vary. Some are K to 12, some go from K to university, their language varies somewhat, though a lot sure based on the Trump executive order.
Yeah. We’ve seen that they’re cut from the same cloth, but it’s interesting to track how different legislative efforts. And as you mentioned, there are legislative efforts, there are executive orders, they’re all sorts of local and district level policies, informal and formal that have been instituted. But as litigators, we’ve been focusing on state level laws, I think for maximizing impact, which there are pluses and minuses to that strategic decision. But focusing for a moment on the state laws, you’re right, that they do often cut and paste from each other. But in some ways they’re realizing some of the worst provisions and taking out some of the most egregiously unconstitutional provisions and trying to cover their tracks while also introducing new and interesting ways to be flagrantly unconstitutional in some cases. So it’s been interesting to notice also how they’ve been adapted to particular instances, local examples in each state. This is a national conversation.
This is a conversation, a dialogue about who we are as a country that’s been going on since our founding, but at the same time, each of these laws reflects in many cases, something that’s happened in the last six months in that state. So as you know, we filed the first federal lawsuit, facially challenging one of these state laws in Oklahoma, and this law in Oklahoma covers both K12 and higher education, and uses the list of eight “divisive concepts” that was lifted directly from Trump’s executive order that’s been cited a few times, but they also added a particular provision covering orientations or requirements in higher education. And we believe that this provision was included specifically to target one of our plaintiffs, which is the Black Emergency Response Team.
This is a student activist group that was formed in response to a racist incident on campus. This is a story that unfortunately we see on almost every single campus, and this student activist group created a list of demands. They held protests, they held marches, they circulated petitions, they held meetings with administrators. They came up with a list of demands, among those demands was that there be a required course on diversity, equity and inclusion for all incoming students, so that they can establish norms for how to operate within a heterogeneous community.
And in response to anxiety around this mandatory course, the legislature included a specific provision banning orientations or requirements that cover, or present in any way racial bias or stereotyping. And they worded it in this incredibly vague and broad way, where their intent was clear. They were trying to claw back this progress that was hard fought by the Black Emergency Response Team, but in the process they created so much confusion about what is covered, what is prohibited, what is not, that we’ve brought four different claims against this law and against these enforcement actions, because we think that it’s a violation of due process rights on vagueness grounds. It’s a violation of academic freedom and first amendment principles in higher education. It violates students’ right to access education. And it’s an equal protection issue because these laws were passed with racial animus and have racially disparate impact.
I’d like to come back and talk about that litigation, but it might even be worth reading some of the language from the statutes. And then I’d be interested, Khiara and Kim, in you elaborating what Emerson said, explaining what’s wrong with this. The law in Tennessee prohibits teachers from instructing “that an individual by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or unconsciously. The Tennessee statute says it does not prevent impartial discussion of controversial aspects of history, or give another example, the Arizona law prohibits “instruction that presents any form of blame or judgment on the basis of race, ethnicity, or sex.” These provisions that I read from Tennessee, from Arizona, the ones that Emerson mentioned is from Oklahoma, are quite typical of the laws that have been adopted. So I think it’d be important to explain what’s wrong with this.
And let me just throw one more into the pot. North Dakota, for example, explicitly prohibits critical theory, and goes on to define what’s prohibited is that racism is not merely the product of learned individual bias or prejudice, but that racism is systematically embedded in American society and the American legal system to facilitate racial inequality. Now in so some of these states, this language applies not just to K through 12, which again as everyone has noted, people aren’t teaching critical race theory there, but they are teaching critical ideas about race. It also extends to higher education. So let’s just think about how law professors would go about teaching, say disparate impact theory in a state that says the only way that you can talk about race and racism is as a product of prejudice and bias, not as policies and practices that are embedded in institution with disparate impact, which is still the law of the land, is effectively precisely what these states are saying cannot be taught.
So this effort to not only take certain topics out, but certain viewpoints about those topics, certain dynamics, certain functions, certain things that do exist, there is such a thing as institutionalized forms of discrimination. We have had laws against it for decades. They are now saying that this is the kind of thing that can’t be taught. I think it’s important for people, and I’m glad that you’ve taken us through this exercise, to actually read what it is that they are trying to prohibit. I think too many folks actually think that, number one, they don’t know what critical race theory is, but whatever it is, it’s probably some extremist stuff that they’d be uncomfortable with. And that there needs to be a little bit more balance brought back. I think if they actually see that in the name of this so-called fighting extremism, they are fighting legitimate existing laws that protect against certain forms of discrimination. They are prohibiting material books, the story of Ruby Bridges who integrated a school at the age of six, they are prohibiting ideas about what is privilege and what is systemic.
This is specific kinds of material that they are saying cannot happen. So people are comfortable with the idea of rebalancing the scale, they need to be aware of what’s being taken off, and they also need to be aware that if this is constitutional, if this is permitted, or if this is even an arena in which they are allowed to play, there is nothing that cannot be legislated out of education. Eventually there will be someone who comes up with a bright idea to say that the story that’s told about January 6th, which was an invasion, an attempt to undermine our democracy, is a false story and cannot be told. There is no difference between this effort to rewrite history and that potential effort that we might see happening in the future
Khiara, I’d be interested in you elaborating on what Kim was saying and what you see is wrong with these laws.
Khiara M. Bridges:
Well, there’s so much, we’re taking concepts off of the table. We’re disallowing people, kids, young adults from being introduced to concepts like structural racism, perhaps like intersectionality, perhaps even implicit bias. And I think that it just strike most people as fundamentally un-American to ban ideas. Some of the listeners might remember the war, or I wouldn’t say war, but dialogue that was had in the 1990s about whether the first amendment protected hate speech, whether college campuses could ban slurs, racial slurs and punish folks who use racial slurs. And there was a lot of contention of folks, mostly from the right, many of whom, the loudest perhaps were on the right, who were up in arms about the idea that we would be banning speech, even hurtful speech, even speech that made people uncomfortable. And they were up in arm, they were talking about this marketplace of ideas and that we have to balance hurtful speech with other speech and the best speech, the most valuable speech would rise to the top and everybody would accept it as true.
And those folks aren’t, they’re not loud enough right now in 2022, I don’t hear them being up in arms about the idea that school districts, universities, institutions would band speech, would ban concepts. I would hope that they would recognize how fundamentally un-American that is. I have so many thoughts, and I don’t want to take up too much of the discussion, but you mentioned, Erwin, when you were reading the language of the statute, this doesn’t ban impartial discussions. Query, what exactly is an impartial discussion? I think that leaves teachers and instructors worried about what an impartial discussion is. It says any sort of normative, like a critique, like slavery was bad, slavery was a denial of human rights and the Holocaust was bad. Genocide is always bad. Is that not an impartial discussion, or is it? So the vagueness of it is terrifying.
How can there be an impartial discussion of slavery, and why should we aspire to an impartial discussion of such an [inaudible 00:24:29] practice? So Emerson, if I can come to you, Kim and Khiara have just presented powerful arguments of what’s wrong with this legislation, but let me now put it into the context of the litigation that you’re involved in. Traditionally state legislatures and school boards get to set their curriculum. And if they want to set the curriculum this way, is that the same as violating the first amendment? And so I want to come back to the arguments that you’re advancing in the Oklahoma litigation, and perhaps talk a bit about them and why the points that Kim and Khiara have made support this being unconstitutional.
Sure, these laws, some of the provisions that have been included, some of them are ungrammatical. They don’t really actually make sense on first read. There’s especially one in Oklahoma that has a triple negative. And so teachers’ licenses are literally on the line if they violate a law that the school district said, unfortunately, “no one understands what this means.” So that even aside from the substance of why these things are wrong, several of these provisions, we think are a due process violation, because they’re so poorly written that no one could possibly understand where the line is. And as we said, the stakes are extremely high if you are found to be in violation of the is law. So there are those provisions that are, just on their face, incomprehensible.
Then there are the other ones I think, where we talk about, they seem innocuous, they say, don’t teach racism, but what the subtext is, is actually don’t talk about racism. And so I think people talked about a couple of the different examples of provisions that we think are unfortunate. Professor Bridges was talking about how even offensive speech is protected under the first amendment. And, of course, as the ACLU, we fight passionately for that. But these laws include provisions where it is unlawful to create discomfort, guilt, or any other form of mental anguish, which is quite the opposite of that principle of the first amendment. And one final provision. There’s one that I can’t miss the opportunity to highlight. It talks about meritocracy. So in some states, or in some of these bills, it is prohibited to teach that meritocracy is not the truth and the reality in the United States. If you actually do a bit of digging, you realize that the term meritocracy was coined in satire, criticizing the myth, that there could be such a ridiculous idea of a true meritocracy.
So these laws in the name of preventing the misconception of history are in fact, cementing a misconception of our history by prohibiting the discussion of meritocracy. As you said, there are several legal tests at play here with our different claims. For the due process claim, the question is, on its face, does this make any sense? And can you hold someone accountable for violating such a vague law? When we get into the first amendment claims, there are two situations. There’s a higher education situation where the Supreme Court and other courts have held that there are special protections for the first amendment and for free speech in higher education, because everybody there is adults. It is a dedicated space where we want new ideas to be created and flourish. And we want the widest breadth for new and controversial ideas on a university campus. Courts are skeptical of any effort by the government, whether it be the legislature or other bodies, to limit, especially what can be said in a college classroom.
And some of these laws are so broadly written that they impact what a teacher can teach within their expertise in a college classroom. And that on its face is presumptively a violation of the first amendment. In K12, as you mentioned, there is a different test, there is an understanding that the state and the local districts have a bit more leeway to create a curriculum the way they see fit. And so the test there, the government is allowed to take a viewpoint. The government is allowed to choose some text to highlight in its own curriculum and some not to, you can’t cover every single book. You’re not going to have every single issue covered in every single state curriculum. So the state is going to inevitably make some choices about what to cover and what not to cover.
And arguably there’s a relatively permissive test created by a string of Supreme Court cases that says, as long as the curricular decisions are reasonably related to a legitimate pedagogical interests, as long as there’s some reasonable relationship between the regulation and some legitimate educational concern, it’s okay and the courts don’t have anything to say, but where you have regulations such as these, that are entirely based on partisan political interests, and are totally untethered from the unanimous educational research that says that an inclusive education improves students’ understanding, it improves their behavior. It improves their academic performance. It is so antithetical to many of the standards that these states themselves, their departments of education have created, saying that they need to have a comprehensive, inclusive, diverse curriculum. Then for these state legislators to come in and prohibit the discussion, in many cases, of this broad, vague, overly inclusive list of concepts, we think fails even this relatively permissive test where there is no reasonable relationship to any legitimate pedagogical interests.
And there is some precedent for these kinds of laws, even at the K to 12 level being struck down. There is a case in the Ninth Circuit, Arce versus Douglas. In fact, I argued that involved an Arizona law that prohibited the teaching of ethnic studies, and specifically trying to stop the teaching of Mexican-American studies. And ultimately it was declared unconstitutional. And there’s been a decision more recently of the Arizona Supreme Court with regard to the Arizona anti-CRT litigation. So I think there’s a real chance to succeed in your Oklahoma case and in others in challenging this, whether as you say, it’s on vagueness grounds, or it’s on first amendment grounds, or it’s on equal protection grounds. Before I move from this, I just wanted to be sure, Kim and Khiara, if there’s things that you wanted to say about the litigation?
First, I just wanted to say that I’m also quite hopeful with respect to the litigation, for those who don’t see fully the value of litigation. This is a space where it is important to be able to draw the constitutional line and also draw out a 14th amendment implications of this. This is targeted, but it also runs counter to at least the most dynamic interpretation of Brown versus Board of Education, which identified education as the key vehicle towards creating a fully inclusive democracy. Remember the reason for striking down segregation was the fact that it would undermine Black children. It sent a message, and it sent a message unlikely to ever be undone. This is also sending a message. It’s sending a message that the history of race and racism, which undergirds much of the society today, the ability to understand our history, all of these are important aspects of what it means to come to terms with who we are, what our country is and what the imperatives are to realizing the true promise of what the 14th amendment was all about.
So being able to elevate, and reconfirm what our basic commitments are, is essential to understanding why these laws don’t do that and run a file of our constitution. And at the same time, I think it’s important to recognize that the long game here can still be pursued, whether the right wins in court or not. In fact, it’s the chilling effect that is so worrisome. It is the fact that teachers know that they can be targeted by parents. Some of the states have actually created basically vigilantes, and given them now the power of the state to go after teachers who teach things they don’t like. Teachers have been accused of violating these laws for teaching Black History Month text. What does this do to most teachers? Most teachers aren’t going to put their livelihoods on the line, whether or not they think these laws are reasonable, whether or not they think that they’re doing a disservice to their children.
At the end of the day, we all know that their economic wellbeing will factor significantly on whether they think it’s worth it to take this risk. And that is where the real victory is for the other side. And it is why the resistance has to be not only legal, but it has to be cultural. It has to be social. We have to take back the narrative that we were not born perfect, and that the process of me making the democracy we want is an ongoing one, and it involves confronting and understanding how the past continues to shape the future. And all of us have a responsibility for addressing it, responsibility and guilt are not the same thing, and we should not allow those things to be confused in this debate.
Khiara, if I could ask you, and then I want to ask each of the panelists about law schools, what can law schools as institutions, as well as law faculty, law students, law staff, be doing? How should we be responding to the attack on CRT? How should we, as institutions, individuals, be handling this?
Khiara M. Bridges:
Thanks for posing that question. I’ve actually thought a lot about it. One thing I want to say before I actually respond to your question, is just about how these laws seek to protect unnamed White students. We know that’s who are being protected by these laws, seeking to protect White students from feelings of discomfort. And I query whether that’s an appropriate goal for any educational classroom, K through 12, but specifically as it relates to higher education, I often begin my every semester criminal law, certainly family law, as well reproductive rights and justice, by warning the students that they will feel some discomfort at some point in the semester. Indeed, if they complete a semester of criminal law having not felt discomfort at all, I feel like I haven’t done my job. I think the point of law school is to be exposed to ideas, arguments, positions that make you uncomfortable and empower you in turn to respond to them in an effective way.
So in as much as these laws are protecting students from discomfort, it’s really perverting, I would say, the space of the classroom as a place where people should feel discomfort and emerge as more intelligent, more effective advocates, specifically law school, but what can law schools do? What should law schools be doing? I would love it if law schools were to take it as they’re charge to ensure that discussions of race are not siloed, that they are not just courses that you take when you’re interested in the subject. In an ideal world, if this battle has to happen again, 20 years from now, 50 years from now, 75 years from now, I would hope that most lawyers would say, oh, I know what critical race theory is, because I took a class on it in law school, or I was introduced to the concept in my torts class, or in my civ pro class, or in my conscience class. And I know that what Fox News is saying is not what critical race theory is.
So I would hope for some baseline familiarity with the concept in 50, or 75 years. Beyond that, I would hope that difficult discussions of race are embedded in every classroom where it is relevant, in my view, it’s relevant in most classrooms, towards [inaudible 00:36:50] law, constitutional law, for sure, property, such that imagining a classroom in which you don’t talk about race just seems like fantastical, because race is such an embedded part of education, an embedded part of American life. So I would love to see that integration happen in law schools with respect to discussions of race in theorizing and thinking about the role of race and law.
That’s great. Thank you. Kim, if I could ask you the same question in terms of how should law schools be responding to the attack on CRT and what should we be doing?
So I think several things. First, I think law schools should take a leadership role in supporting the resolution campaign that several of us are proposing, the African American Policy Forum, the AAUP have been supporting faculty across the country in bringing academic freedom resolutions to their academic Senates, affirming not only the freedom to teach, but the absolute fundamental role of the university in maintaining open and free interrogation of the fundamental aspects of who we are as humans, who we are as a society. Law school should be part of that. They should lead that campaign. Every university in the country, particularly one that has a law school should have some kind of academic freedom resolution. And I would, of course, more broadly every college and institution of higher education needs to affirm this. This is just the first step in a wider slide, into a very difficult period for us in the future. When politicians have decided they can dictate what can be taught and who can do the teaching, when tenure can be contingent on whether or not you abide by the dictates of politicians, we are in trouble as a society.
And so I would count on my colleagues to understand just what kind of a threat we are under. We have been through this before. It was an ugly period in our history. It was called McCarthyism. We are not far from that in this moment. So I think our faculty should take the lead on that. I also completely agree with Khiara that critical race theory should not be cabined off somewhere as a mere elective critical thinking about really came out of the law school, and it should stay as a part of the education that we provide to law students. So yes, courses should make it a point to include critical text, just like legal realism is included, just like other frameworks. People should be exposed to it so it’s not that thing. And then for those who want to do further study in critical race theory, there are ought to be seminars and courses on critical race theory. So it should be mainstream and it should be available for those who want further opportunities to develop an expertise in it.
And the last thing is we have clinics all over the country. Those clinics should be amenable and available to the teachers who are seeking advice and support in all the states that are attempting to dictate to teachers either toe the line or lose your job. They need advice. They need support. We need to train lawyers in the next generation to be prepared to support teachers and others who find themselves under these dictates. And so that’s at least three ways that law schools can step up to the plate to protect those things that came out of legal education.
That’s wonderful. And Emerson, I’ll ask you the same question I ask Khiara and Kim of what you think law schools can be doing in response to the attack on CRT.
Well, at the risk of speaking out of turn, given that I’m the only one here who doesn’t actually work at a law school. I think one is that we’ve worked with AAUP, which Kim mentioned, they’re one of our plaintiffs in Oklahoma. We’re also co-counsel with them on a lawsuit in New Hampshire, but my work has focused on the interaction between activists and institutions, including on college campuses. And I think administrators have an incredibly hard job in terms of balancing the protection of free space, academic freedom, while also creating an inclusive environment. I understand how hard that can be. It’s a thankless job. Many times, especially administrators of color who are doing their best to try to change things on a daily basis. And student activists just won’t let up. They are still getting grilled and criticized and pushed. It’s a really, really tough position to be in.
And unfortunately, the thing that I often tell administrators, whether they’re at law schools, at other parts of the university, is you, unfortunately can’t expect thanks. And you have to remember that every little step of progress, rather than expecting student activists to thank the university for including this course or including a new requirement. Remember that those changes only happened because those student activists refused to let up on the pressure. And so it is only because of activist students and activist professors that institutions change at all, and we should never expect, or we should hope that, that pressure never lets up. Every little modicum of progress is great, but there’s so much more to do. And so it can’t be a situation where law schools feel like, well, we made all these changes last semester, so how can you still be upset? No, everybody’s going to continue being upset and that’s the right way that things should be, I think.
Let me turn to each of you for just a minute to offer your concluding thoughts on the topic, or what you most want the listeners to take from our discussion. Maybe Khiara, if I could start with you.
Khiara M. Bridges:
Yeah. That’s a tough question. I don’t know, I think that we are in a very terrifying political moment and with so many of the things that are essential to our democracy under attack, voting rights, the Supreme Court, it’s about to undo many of the protections that at least my generation grew up on. And I think that it’s important for us not to normalize this moment. This is unusual. This is something that I hope we understand as a dark and unfortunate period of time in our nation’s history. And so I want us to understand the attacks on critical race theory, this particular racial backlash, as a piece with this unfortunate moment in US history. And it’s up to us today to make sure that this is passed, that the regression, the retrenchment that we’re witnessing, that, that doesn’t become the norm. It’s up to us today to ensure that this is aberrational as opposed to the new baseline.
Thank you. Kim.
I think, Erwin, that what I most want our listeners to hear is that the conditions of this possibility rest on the questions that have been unresolved, the discomforts that we have used as reasons not to interrogate and go deeper, the ways in which we have sought shortcuts to get through some of the tension and discomfort around confronting how the past is not simply prologue, the past is not fully the past. We are a country that’s a post-slave and post-genocide country. We are not a country that never has been those things. And that means that to effectively navigate to the future we want, we need to be far more literate than we have demanded of ourselves. And because of that, the door was open for a kind of retrenchment, a kind of aggression in the name of self-defense, a kind of January six, it’s playing out, not just against our democracy in the Capitol, but against all the values that we think hold us together as a very special place. That has been an opening that we are now struggling to figure out how to close.
This struggle, this particular chapter that we’ve been under since 2020 has not been one that people have showed up in the way that they needed to partly because they didn’t see it for what it was. Allies that are many were slow to answer the call, partly because we haven’t been looking at this through the lens that we need to. So my hope is that as each new effort to suppress the truth, to label honest interrogation as un-American, to ban books, to burn the legacy of civil rights and so many of our struggles to create where we are, as each of those things happen, people are now made to see that this is a crisis that is all linked, we’re fighting one battle. The battle against the big lie about the election, is the battle about the big lie about our history, which is the big lie about what’s going on in our classrooms.
All of this is one struggle. And if there’s any reservation about why we need to put everything we have on the field, I just invite people to imagine what the world looked like, what the media sounded like, what politicians were talking like in 1876, in 1875, when there was an effort to end reconstruction, end the one experiment that we had in a truly multiracial democracy, when one party was tired of being the party of equity and decided they wanted to move on. And when the media decided to tell stories that were many times false about what was happening in places where Black people were. What did that look like? And did people who had the power to stop it, use their full power to say, no, we’re not going in this direction?
We know that the end of reconstruction created decades, decades of tyranny and anti-democracy. We can’t afford to think that this fight right now is just about a few schools and about a couple of elections. It is about the century. It is about our future, and it’s high time that we all acknowledge that and step to this moment with everything we have to fight it.
Thank you. Emerson, the last word.
I’m so thankful for the invitation and to be with this esteemed group. I think at my most hopeful, I try to remember that as professors Bridges and Crenshaw said, this is backlash to progress and remembering that our movement, despite everything that professor Crenshaw just said, our movement is strong. And just within our litigation team, we are working with our affiliate in Oklahoma, the Lawyers’ Committee, pro bono counsel from Schulte Roth & Zabel, but then also with the NAACP Legal Defense Fund, with AAUP and so many other national organizations that maybe belatedly, but nonetheless all are putting their full weight behind this. And I think whether our movement is in the classroom, in the courtroom, on the streets, or even around the dinner table, we do have incredible strength among our ranks. And so I’m hopeful that we can succeed.
Khiara, Kim, Emerson, thank you so much for this thoughtful, important, really terrific conversation. For our listeners, I hope you enjoyed this episode of More Just, and I hope you’ll be sure to subscribe wherever you get your podcasts. Until next time, I’m Berkeley Law Dean, Erwin Chemerinsky.