Editor’s note: This commentary from Utah State Board of Education Member Jim Moss Jr. is part of Utah Political Underground’s civil dialogue opinion series focusing on Critical Race Theory.
“You keep using that word. I do not think it means what you think it means,” Inigo Montoya interjected in the 1987 cinematic classic, The Princess Bride. Many Utahns have similarly wondered in our discussions concerning Critical Race Theory (CRT) whether we are talking about the same thing. Since original sources are always essential to understanding, it is useful to review what CRT proponents and followers themselves have said.
I was invited to share my thoughts as a member of the Utah State Board of Education (USBE) and a practicing discrimination attorney. The following ideas are my own and do not represent USBE.
I was first exposed to Critical Race Theory in law school in the early 1990s. Before Fox News existed, conservatives were concerned about the “Crits’” rejection of traditional legal institutions and principles, based on the failure to apply those principles equally to minorities.
Proponents of CRT ask important questions about the history and ongoing effect of racism in America. Like others, I was not aware of the Tulsa Massacre during high school or college. Just recently, a racist travesty was exposed at an involuntary boarding school for Native Americans in a Canadian city that I happened to visit during my LDS mission.
But raising difficult questions about racism is not what distinguishes CRT as a school of thought, nor what causes concern. These questions have long been raised by civil rights leaders, with increasing acceptance of their importance. Rather, it is the answers CRT provides to these questions, and its proposals for corrective action, that make CRT a cultural flashpoint.
As the American Bar Association has pointed out, CRT grew partly from Critical Legal Studies (CLS), which argues that the law is not truly objective or apolitical. Oliver Wendell Holmes Jr. who later became a Supreme Court justice, articulated these legal ideas in his 1881 book The Common Law, opining, “The life of the law has not been logic: it has been experience.” Holmes’ legal research and court opinions influenced the later creation of CLS and significantly shifted American jurisprudence.
CLS was a departure from conceptions of the law as being (or at least aspiring to be) objective, neutral, and principled. This departure, resulting in a less deferential and more oppositional view of the forces shaping law and institutions, is a central tenet of CRT, which emphasizes individual “lived experience” over objective data and analytical tools.
In education, CRT drew from the Marxist writer Antonio Gramsci (see Critical Race Theory: an Introduction (1995), p. 5). “Education, in the right hands, … is a key instrument for shifting people’s ways of seeing the world and experiencing their exploitation, or their privilege, as historically accidental rather than necessary—and therefore as liable to change,” Gramsci wrote in his 1971 book, Selections from the Prison Notebooks.
CRT practitioners also draw inspiration from Paulo Freire’s Marxist analysis, writing from his experience teaching in Brazilian slums, of the relationship between the “colonizing” teacher and the “colonized” student in Pedagogy of the Oppressed (1968). Freire criticized what he called the “banking model of education,” which treated the student as an “empty vessel” to be filled with knowledge and then exploited for the purposes of others — an approach most Americans would find objectionable for students of any race or nationality.
Given this academic background, some have defended CRT from conservative critics on the grounds that it is simply a theoretical approach to the history of racism. That approach and its recent application have attracted criticism from both the Left and the Right, but the characterization as mere “theory” would likely disappoint CRT’s own proponents. In a primer by leading CRT authors titled Critical Race Theory: An Introduction (1995), Richard Delgado and others explained: “Unlike some academic disciplines, critical race theory contains an activist dimension. It tries not only to understand our social situation but to change it, setting out not only to ascertain how society organizes itself along racial lines and hierarchies but to transform it for the better” (Id., p. 8).
So the question is, what methods of change do CRT proponents advocate in order to address possible inequities? Delgado explains: “Unlike traditional civil rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, enlightenment rationalism, and neutral principles of constitutional law.” (Id., p. 3). The rejection of liberal norms is not a conservative straw man, but a well-established philosophical commitment.
This rejection of neutrality has been taken up by popular recent authors like Ibram X. Kendi, cited by the U.S. Department of Education in a proposed Rule on American History and Civics Education, to legitimize “reverse discrimination.” Kendi writes, “The defining question is whether the discrimination is creating equity or inequity. If discrimination is creating equity, then it is antiracist. If discrimination is creating inequity, then it is racist…. The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” (How to Be an Antiracist, p. 19)
Criticism of the unfair application of neutral principles is understandable; but applying “reverse discrimination” in schools as a corrective action to past or present discrimination can harm students and run afoul of federal law. Title VI of the Civil Rights Act of 1964 prohibits “discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. §2000d. Such discrimination includes racial harassment, which the Department of Education’s Office of Civil Rights defines to include “slurs, taunts, stereotypes, or name-calling….”
One of the most significant advances in civil rights history is the moral stigma that now attaches to the accusation of “racist” — whether individual or collective. But some proponents of CRT have broadly alleged “systemic racism” while avoiding the burden of proof that comes with an accusation against a particular individual or system, and disregarding the effect on these identified as participants in such racism (whether consciously or unconsciously), including students.
Courts have occasionally approved “reverse discrimination” to address the damaging effects of a specific prior practice of discrimination, but the Supreme Court has held that such discrimination cannot be justified by the existence of societal discrimination (what CRT might call “systemic racism”) alone. See Wygant v. Jackson Bd. of Educ., 476 US 267, 274 (1986). Moreover, Courts have never justified reverse harassment or stereotyping on the basis of a student’s race.
A question frequently put to critics of CRT is whether it is actually being “taught” in schools. It’s a reasonable question, but one that ignores the activist focus of CRT; it is often the application of CRT that raises alarms. If a teacher were to confiscate and redistribute students’ backpacks “according to their need,” as Karl Marx wrote, the teacher might never mention Marxist theory, but might fairly be described as “applying” Marxist practice (or “praxis”). Similarly, without mentioning CRT, a well-meaning teacher might apply or misapply “anti-racist” principles by asking students to admit their “identities that hold power and privilege” over other students, marking them as “oppressors” or victims; or describing students’ attempt to be “colorblind” in their judgment of others, usually intended to apply Dr. King’s dream that his children will be judged by the content of their character rather than the color of their skin, as participation in “white supremacy,” creating a sense of stereotyping and shaming.
These activities find a direct line of support in the theoretical foundations of CRT. Regardless of whether they are currently widespread in the schools of Utah or any other state, they are sufficiently divisive and harmful to warrant concern.
Last month the Utah State Board of Education unanimously passed a rule prohibiting specified forms of discriminatory treatment of students, while protecting the freedom to discuss difficult issues and ideas. We can address the concerns that animate CRT without accepting its conclusions or solutions. We should examine whether systemic racism in particular systems prevents people, especially students, from reaching their potential. Rather than jettisoning neutral principles and institutions as some CRT proponents advocate, our schools should work strenuously to ensure that they are applied fairly to all students regardless of race, nationality or other characteristics. Rather than group-based division, unity and a commitment to each student’s ability to chart their own course, as articulated in Utah’s Portrait of a Graduate, should be our goal.
