Political Editors / June 22, 2021

In Brief: Critical Race Theory and Academic Freedom

State-based legislation banning the teaching of the toxic ideology is philosophically and legally justifiable.

CRT is the front line in the culture war, and nowhere is it more prevalent than academia. The Claremont Institute’s Nate Hochman focuses on that problem.

“Recent red-state bans or restrictions on the use of critical race theory (CRT) in public schools and universities have been denounced by mainstream media,” he says, which is predictable and sometimes worthy of an eye roll. However:

Beyond the hyperbole, substantive critiques of the new legislation usually allege that curricular restrictions violate “academic freedom.” Insofar as this contention originates on the left, one could regard it as a cynical manipulation of language. After all, progressives have had little to say about free speech in education for at least a generation; that they have suddenly rediscovered the virtue of an open marketplace of ideas now is convenient.

At the same time, however, a significant number of genuine defenders of academic freedom, on the left and right, have also voiced opposition to the bans on CRT-based curricula in taxpayer-funded schools. Their views deserve to be taken seriously. These critics object to the anti-CRT laws on first principles, contending that a ban on teaching a particular ideology or doctrine in public schools undermines free speech and related constitutional rights. “The federal courts should reflexively invalidate anti-CRT laws on First Amendment grounds,” writes First Amendment law professor Ronald Krotoszynski in the Washington Post. “Educators cannot do their job if state governments attempt to ban the teaching of ideas they fear.”

But the dogmatic insistence that political “neutrality” — a fuzzy idea, by any measure — be strictly adhered to in all government policy, in lieu of legislators ever promoting a substantive vision of the good, represents a fundamental misinterpretation of academic freedom in a publicly funded setting. This argument is particularly perplexing in the context of taxpayer-funded grade schools. The idea that banning specific topics in these schools’ curricula is government “overreach” misses the fact that public K-12 programs are monopolistic, government-run institutions; a change in their curricular requirements does not expand state power in any substantive way.

This misunderstanding is clearly visible in the writings of figures like Acadia University professor Jeffrey Sachs, a self-described “mainstream liberal” who “care[s] deeply about classic liberal norms like free speech and academic freedom.” Sachs argues that the recent anti-CRT laws are condemnable for their “use of state power to suppress ‘woke’ speech and viewpoints.” And yet, the debate over legislative interventions in woke K-12 curricula does not actually consider the use of state power to suppress private speech rights; it deals with the question of whether state employees should be allowed to teach woke doctrine on the taxpayer’s dollar. Are policymakers proscribed from ensuring that tax dollars are not used in ways that harm the taxpaying polity? For Sachs, such intervention is tantamount to using “the blunt instrument of the state” to infringe on the rights of public educators. But if crafting public education policy and overseeing its implementation is not the role of the state, then whose is it?

Hochman develops his argument further, using and critiquing the thoughts of others, before concluding:

Teaching a specific ideology in a taxpayer-funded curriculum is not a mere exercise of neutral “free speech” or “academic freedom.” To defend it in this context is, in fact, a defense of its content, or at least a defense of the idea that its content is legitimate enough to be backed by state funds and taught to our children. And to make that argument is to defend government-run classrooms teaching a doctrine that explicitly undermines the American constitutional order.

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