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“These classroom techniques raise very serious potential legal questions and liabilities for public school systems that indulge in them.”

The classroom techniques in question are “the educational or curricular phenomenon known as Critical Race Theory or – quite misleadingly – as ‘anti-racism.'” The warning appeared in a recent presentation by legal scholar Maimon Schwarzschild to the Orange County (CA) Board of Education. According to Schwarzschild, curricula based on CRT and similar theories open schools to liability under the US Constitution, under federal law (Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and under state law as well. It’s an excellent presentation throughout and well worth reading in full. Here are a few more excerpts:

Although the claims of the 1619 Project have been thoroughly refuted and rejected by eminent historians from across the ideological spectrum, including scholars whose entire careers were on the liberal or radical Left, the 1619 Project, and related teaching plans along the same lines, have been introduced in various school systems across the country. It is very important to recognize that in many classrooms – in fact in most classrooms where these curricula are in force – these ideas are not presented as one point of view, contested by other and very different ideas, facts, and interpretations, with pupils being taught to think independently and to develop skills of critical thinking and the evaluation of evidence.

On the contrary, there is now widespread evidence that these curricula centre on psychological techniques to “train” pupils that their race determines nearly everything about them. Pupils are separated by race for “Privilege Walks” and other classroom exercises, inculcating the idea that white pupils are privileged oppressors, and that non-white pupils are victims of this pervasive oppression. These lessons advance the claim that any counter-evidence or reasoned criticism are themselves racist and a discredited defence of whiteness. Students who venture to object to being deemed privileged, and to being held personally responsible for white racism, are ridiculed for their “white fragility” and in effect are compelled to voice agreement as to their racial guilt. …

On a personal note, as a law professor I try to see all sides of public and legal issues, and in my teaching and writing to present the best case for each contesting view in any dispute. Critical race theory, as actually practised in many classrooms in California and across the country, seems to me to defy any hope of defending or justifying it. Its mix of half-truths and sheer falsehoods, its stereotyping and scapegoating of entire races of people, its relentlessly divisive setting of one group against another, its visceral hostility to reasoned debate, freedom of thought, and freedom of expression, and its well- documented tendency to proceed by stealth, all evoke the practices of authoritarian and even totalitarian regimes. My own family had personal experience of some of the totalitarian regimes in 20th century Europe, and some of the tropes and techniques of ethnic studies and critical race theory, as now practised in many US classrooms, have chilling parallels in the techniques of ideological indoctrination in the schoolrooms of those regimes.

Critical race theory, as actually adapted to K-12 classrooms, has been tellingly described as the kind of curriculum that might be imposed on a defeated country by a conquering power determined to divide and demoralise the defeated population.

You can find more commentary by Prof. Schwarzschild in A Dubious Expediency: How Race Preferences Damage Higher Education, which he co-edited with fellow University of San Diego law professor Gail Heriot.

Jon Guze / Senior Fellow, Legal Studies

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over twent...