BY HANK REICHMAN

Greg Lukianoff, executive director of the Foundation for Individual Rights in Education (FIRE), and three co-authors have written a piece, “13 important points in the campus & K-12 ‘critical race theory’ debate,” discussing the avalanche of proposed and, in some cases, already enacted legislation governing classroom instruction in both higher ed and K-12 about race and gender, which Lukianoff calls “divisive concepts” bills but proponents and many critics call “critical race theory” bills.  The piece, Lukianoff is quick to stress, “is my opinion and not an official FIRE position” [boldface in original; Lukianoff apparently uses the first-person pronoun in opinion pieces in which he has co-authors].  It is mostly a thoughtful contribution, in which I find much to agree with, but also a good deal with which to disagree.  In what follows I do not intend to offer a fully coherent critique, much less an alternative interpretation or program, but simply want to make a series of comments highlighting some, but by no means all, of my areas of both agreement and disagreement.

1) To begin, Lukianoff’s point #1, “There are dozens of these bills, with possibly hundreds of amendments,” is well taken.  He is correct that this “has made discussion of the bills difficult, with some being clearly unconstitutional, while a few others essentially reiterate existing racial discrimination law and seek to ban the kind of compelled ideological speech that is already prohibited under the First Amendment.”  While I believe that almost all provisions in all of these bills are ill-conceived and harmful, it is essential to take care in clarifying their differences and focusing on their most dangerous elements.  And, yes, legally speaking, much in many of these bills is simply redundant of existing law, although, one should add, usually more tendentiously and crudely articulated.

2) Lukianoff notes that the bills mostly pertain to K-12 education and often only indirectly if at all apply to higher education and, hence, stand outside the usual purview of concern for FIRE and, I should add, the AAUP.  He therefore devotes but a single point, #2, to colleges and universities: “Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture.”  I agree, and would add that they almost always also violate academic freedom, whether that concept is defined by the AAUP conception or by the institutional conception articulated in the 1950s by US Supreme Court Justice Felix Frankfurter.

Well, mostly I agree.  Because in defending this position Lukianoff writes:

For the project of human knowledge to advance, nothing should be completely off limits in the crucible of higher education. Those who genuinely believe the ideas addressed in these bills to be indefensible should encourage them to be tested in that crucible, not protect those ideas from potentially devastating analysis by exiling them from the institutions dedicated to that inquiry.

But these two sentences stand in conflict.  For what of ideas that fail the test in “the crucible of higher education?”  Can these not then be rendered off limits, at least in the classroom?  And if these are not off limits, then can anything actually be truly “tested” in higher education?  Unlike most final exams, can ideas “retake” the test multiple times, perhaps in perpetuity?  To take an easy example, the Lamarckian-Lysenkoist theory of inheritance of acquired characteristics has been everywhere disproved; modern genetics has triumphed.  If a professor wishes to teach the former, should a biology department permit it, can it not be rendered “off limits”?  What about discredited ideas about race and “intelligence,” recently the subject of controversy at my own university (see my post from last November as well as an extremely thorough treatment, unfortunately behind a paywall, in yesterday‘s San Francisco Chronicle)?  To be sure, Lukianoff qualifies his claim with the adverb “completely” modifying “off limits,” suggesting, perhaps, that even if some ideas are off limits in the classroom they must not be elsewhere on campus, but if so that needs clarification.  The real question, of course, is not whether ideas must be allowed to persist once they “fail” the test, but who designs and administers the “test,” qualified scholars or partisan politicians?

3) Turning to K-12 education, Lukianoff makes a series of points with which I agree and find Lukianoff’s elaborations on them helpful, relatively minor quibbles aside.  These are:

3. Students’ rights to free expression and freedom of conscience should be the first priority in the K-12 context, and public K-12 students should be afforded greater recognition of their First Amendment rights.

4. K-12 curricula are not suddenly political. They have always been political.

5. Most of the divisive concepts bills aimed just at K-12 are probably constitutional, given that legislatures have a lot of power to decide curriculum. That doesn’t mean they are above criticism.

6. Banning specific curricular materials like The 1619 Project in public K-12 schools, whether or not you agree with doing so, is within the power of the government in many states.

Lukianoff is an attorney and much of his discussion, especially of K-12, references less these bills’ advisability than their constitutionality.  While he is likely correct that many provisions, including ones that he finds troubling, will withstand judicial scrutiny, it is important to recognize that the Constitution does not protect us from all dangers; American history is littered with terrible legislation that passed, and would still pass, Constitutional muster.  As Lukianoff acknowledges, “the majority [of these bills] are not carefully worded and I fear even good faith efforts to abide by these laws will lead to self-censorship of otherwise unobjectionable, factual, or appropriate material. . . .  navigating vague regulations like these will come at a high cost.  The vagueness will lead to frivolous complaints being filed and some of those complaints being acted on incorrectly in an attempt to conspicuously comply with the laws, and that will result in a chilling effect on even non-controversial teaching.  So again, while the divisive concepts bills that apply only to K-12 may not be unlawful, there are good reasons to think that most are unwise.”

4) In point #7, “Misleading reporting has muddied the waters,” Lukianoff correctly points out that some critics of the recently passed Florida legislation have incorrectly exaggerated the potential impact of its call for a survey of faculty opinions — although I think he underestimates the dangers implicit in this survey — and actually miss the arguably more dangerous part of that legislation, “its extremely broad granting of rights to surreptitiously record professors” (see, however, the AAUP’s statement on the legislation, which dealt with all elements of the proposal, I believe, accurately and appropriately).

5) In point #8, “Proponents and critics of the divisive concepts bills are largely talking past each other on the issue,” Lukianoff veers into a misleading both-sidesism.  He writes: “While some on each side are undoubtedly acting in bad faith, the majority are motivated by sincere and valid concerns, and both proponents and opponents are motivated to ignore the valid points of their opposition.”  That may be true, but it’s at best a distraction and, at worst, a backhanded validation of what is patently little more than a racist backlash, implying that the motivations and actions of both sides are somehow equivalent.

Lukianoff argues:

As I’ve already gone into many of the good points made by the critics of these bills, I would like to pay some attention to the valid concerns that the bills were meant to address.  With the exception of the vague kinds of clauses mentioned above, most of what these bills prohibit are speech or patterns of behavior by teachers that even many of the critics of these bills would find problematic, and arguably would already run afoul of laws prohibiting racial discrimination and harassment. . . .  These bills are a reaction to legitimately concerning documented cases of K-12 students being singled out due to their race and made to participate in exercises that are, arguably, racially discriminatory.

He then proceeds to enumerate several anecdotal examples of instances where such instruction is alleged to have taken place.  These include a lawsuit filed on behalf of a single high schooler in Las Vegas, a class of third-graders in California, an allegation by some parents in North Carolina, and two incidents in private schools.  I would suggest that the examples cited are less matters of race than, if proven (and, again, these are overwhelmingly allegations), examples of poor teaching plain and simple.  Nonetheless, Lukianoff on this minimal basis concludes:

While there is some debate to be had over how widespread the phenomenon is, some students are being made to feel, in class, that their mere existence is problematic and requires an apology or explanation. These bills, wise or not, are intended to address this problem.  If your argument against these bills is that they’re much ado about nothing, or a solution in search of a problem, I think you should look deeper and think more critically about what proponents of these laws are worried about.

I’m sorry, this is not enough to either justify or explain these ill-conceived pieces of legislation!  There is no “debate” on “how widespread the phenomenon is.”  There is, rather, simply no evidence at all, aside from a relatively small number of allegations and anecdotes without even a hint that these are representative, that it is even a “phenomenon.”  If your argument is that these bills are not, as many, including me, believe, largely — though not entirely — “a solution in search of a problem,” then it is your obligation to actually offer convincing evidence of the problem’s existence and extent and of its precise nature.  Those who have introduced these bills have not done so, nor have their supporters, and, I must add, neither have Lukianoff and his co-authors (although one, apparently, has a forthcoming book that claims to do so).

On the other hand, there is evidence — in textbooks, in the legal record, in psychological studies, etc., etc., — of longstanding and ongoing discriminatory and degrading treatment of students from racial and other minorities and of those who do not in some way conform to majoritarian norms, including trans students and those with disabilities.  (Is it merely a coincidence that some of the very legislatures so concerned about the feelings of students subjected to “critical race theory” are also rushing to pass legislation to restrict the rights of trans students to, say, participate in sports or even use a toilet?)  In the leadup to Brown v. Board of Education, Gunnar Myrdal’s An American Dilemma carefully and extensively documented how segregated education harmed Black students.  Subsequent studies continue to reveal how, not only has de facto segregation persisted, even expanded, but that even where integration triumphed institutional racism in education may stubbornly continue.  Where, however, is there a single study effectively demonstrating that the “phenomenon” of white students being made to feel “their mere existence is problematic” (and, yes, let’s be honest, we’re talking almost exclusively about the supposedly delicate sensibilities of white students here) is anything approaching a major societal problem demanding immediate legislative attention?

Lukianoff then concludes:

Concerns about the mental health of students right now are well-founded. The documented decline in mental health among Gen-Z and younger students that we discussed in The Coddling of the American Mind has only gotten worse since we wrote the book (as we covered in our Catching up with Coddling series that updates the trends we covered in the book).  With skyrocketing rates of anxiety among young people, it is not hard to see why some would want to prohibit teaching kids that they should feel guilt or anguish due to immutable characteristics of their person.

If indeed there are “skyrocketing rates of anxiety among young people,” one might ask, why should we be concerned that, for example, teaching about racism or reading the 1619 Project may be contributing?  And, I wonder, among which groups is anxiety higher, white students or black students, straight students or gay students?  Who is most anxious about the possibility of being killed by the police or by some Florida vigilante?  Certainly not those whom these bills allegedly aim to protect!  To claim these bills are about addressing childhood anxieties has to be one of  the most absurd contentions I have encountered in quite some time.

6) I’ve already considerably exceeded the recommended word count for this blog, so I’ll leave Lukianoff’s remaining points unaddressed, especially since I do not have major differences with them.  With one exception, point #11: “The California ethnic studies curriculum helps demonstrate what the proponents of these bills are afraid of.”  This argument is disingenuous at the least.  In March, California, after much contentiousness, approved a model ethnic studies curriculum for K-12.  It remains controversial, largely, but not exclusively, over charges of antisemitism.  In Lukianoff’s view, the curriculum “seems like the precise opposite of a tolerance program, and its provenance suggests an intentional effort to inculcate tribalism at the very least,” which, he suggests, is somehow what these recent “disputed concepts” or CRT bills are trying to prevent.  But there are two problems with this suggestion.

First, in states where these bills have been proposed, and certainly in those where they have been enacted, there is no evidence that anything remotely resembling the California curriculum is even under consideration, statewide or, for that matter, in the overwhelming majority of local school districts.  So how can the largely nonexistent threat of such a curriculum be the motivation for these proposals?  Second, and more important, there is an absolutely critical difference between the California curriculum and these bills.  The California curriculum is a suggested resource.  No individual teacher, no district, much less the entire state, is obligated to adopt it, either in whole or in part.  They can, if they wish, not only ignore it, they can forcibly reject it.  That, however, is hardly the case with the legislative proposals discussed by Lukianoff.  By stark contrast, in most instances they would impose state-wide limits on curriculum and teaching that are politically motivated, practically partisan (has there been a single Democratic vote for any of these bills?), and educationally stifling; those who do not conform to the laws’ strictures will be in legal jeopardy.  That is the problem.

Again, to conclude, there is much to agree with in Lukianoff’s 13 points, but also more than a little to undermine his own best arguments.