The Race to Ban Race: Legal and Critical Arguments Against State Legislation to Ban Critical Race Theory in Higher Education
46 Pages Posted: 26 Sep 2022
Date Written: September 23, 2022
Anti-critical race theory (“CRT”) bills have garnered national attention in the K-12 context. However, many CRT bans also impact institutions of higher education. The bills seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Those opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. However, scholars and educators have criticized anti-CRT bills for their mischaracterization of the use and tenets of CRT and related theories of scholarship. This article argues that state anti-CRT laws and policies in higher education run afoul of legal and normative principles. First, the bans conflict with basic First Amendment legal standards. Second, the bans are poor policy choices because they run contrary to the pursuit of equity and inclusion in educational environments, as well as the traditional norms of higher education. Part I of the article provides an overview of recent efforts to ban CRT and their relation to higher education. Part II presents a First Amendment legal analysis of why the bans are legally impermissible as written. Part III contends that anti-CRT legislation, in serving to perpetuate existing racial inequities in education and elsewhere, demonstrates the ongoing importance of CRT and other critical lines of scholarship in higher education.
Keywords: race, higher education, CRT, critical race theory, First Amendment
Suggested Citation: Suggested Citation