Banning Critical Race Theory Does Not Threaten Academic Freedom

Congratulations to Virginia’s new Governor, Glenn Youngkin, for starting strong. Immediately after his inauguration, he signed multiple executive orders, including one on education, the issue that put him in office after he stood up for parental involvement in schools to fight neo-racism. 

For those unaware, this neo-racism goes by different names including critical race theory, white privilege, or DIE (diversity, inclusion and equity). But they all end up in the same place: teaching that America is quintessentially racist, as are all whites, men, and heterosexuals. Virginia’s James Madison University actually added Christians and Americans to this list. 

Virginia is hardly alone. Other states have forced students to apologize for their privilege or take race walks of shame. 

What’s more, because these doctrines teach that racial oppression persists to this day, the only solution, allegedly, is reverse discrimination. Welcome to more race shakedowns.

Youngkin’s much needed ban on “inherently divisive concepts” such as CRT is similar not only to President Trump’s EO 13950 but to many recently passed laws in other states. This legislation has prompted both discussion and confusion, including from organizations that otherwise are very clear-headed. Some now actually oppose these bans, especially in higher education, where they see threats to academic freedom and free speech, claiming: “You cannot have bans on what is taught in the classroom. Period.

Such a strong statement requires a step back. First, while these laws differ slightly in wording, they all seek to ban discrimination based on race, including the creation of racially hostile environments. They are therefore on par with laws already on the books at both the federal and state level, including the Constitution’s 14th Amendment, the Civil Rights Act of 1964, state constitutions, and state human rights laws. These bans are therefore just another component of this body of civil rights law. (Unfortunately, enforcement of these laws depends on someone’s willingness to sue, or on partisan agencies which may or may not act on a complaint.)

One wonders if those objecting to CRT laws also object to the Equal Protection clause? Or the Civil Rights Act? Indeed, Youngkin’s EO makes the ban’s connection to already established law clear when it defines “inherently divisive concepts” as “ideas [already] in violation of Title IV and Title VI of the Civil Rights Act of 1964.”

Second, while the university setting is correctly distinguished from high school, college-level liberties are not exemptions from the law. In other words, though professors enjoy many academic privileges, they still cannot discriminate on the basis of race in violation of the above civil rights statutes. (Youngkin’s EO actually only applies to K through 12 education, but other bans apply also to higher education.)

It is true that free speech and academic freedom are under siege on campus. The National Association of Scholars maintains a database of cancel culture’s casualties. But the roots of cancel culture are intolerant and authoritarian ideologies, like CRT itself. Concerns about these laws are, therefore, both ironic and misplaced.

One recurring issue is the supposed threat to academic freedom though this term is rarely defined, and often misunderstood. Some think it is a license for professors to say and do anything they want. Not so.

Academic freedom is the freedom of professors to pursue avenues of thought in an area of expertise. It allows them to follow where reason and evidence lead. This freedom applies mostly to faculty research and writing, but is sometimes also invoked for classroom teaching (and also by students). The condition of academic freedom enables the advancement of human knowledge in any given field. Indeed, society confers this freedom on academics precisely so it will benefit from these advances.

That said, academic freedom is not the freedom to teach anything, or to use the classroom in any way you want—even at the college level. Academic freedom is not, for example, a license to discriminate on the basis of race. Thus, while professors have wide discretion in the classroom, including permission to be novel and creative, they are not free to teach that some ethnic groups are intrinsically better or worse than others. Nor can professors single out an individual because of the individual’s racial or ethnic background and treat that individual differently than others on that basis. Those actions violate America’s civil rights laws, as described above, and are therefore illegal.

Finally, some fear that CRT bans will chill lawful and valuable in-class discussion about race at a time when these issues are on everyone’s mind. Such a chilling effect is contrary to the intellectual development of students. They therefore recommend that authorities refrain from these bans and let institutions work things out, provided they involve students, parents, and other stakeholders.

This sentiment is nice, even quaint. It’s also removed from reality.

It is not unfair to characterize what’s happening in America’s education system—from elementary through university—as a form of psychological warfare with its demonization of America’s founding (“systemic racism”) and the demoralization of its people (“oppressors”). Suggesting a quiet, candle-lit dinner when all restaurants are being carpet-bombed is not helpful.

Youngkin’s ban and those like it represent the American public defending itself from belligerents—and none too soon. 

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About Teresa R. Manning

Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.

Photo: Michael Blackshire/The Washington Post via Getty Images