A Critical Race Theory Analysis of Critical Race Theory Bans

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1042. I'm your host, Thomas Smith, and today we've got a really fascinating interview with Professor Carolyn Mala-Corbin out of the University of Miami. Wrote a really interesting paper that caught our attention called Critical Race Theory Analysis of Critical Race theory Bans, which was right when I read that title. I was like, that's so perfect. That's exactly, yes, I would like to read that and know what it is. Fortunately, Professor Caroline Mala-Corbin was kind enough to hop on the show and discuss this paper. So after this short break, we're going to get on over to that. If you'd like to avoid the break, go to patreon.com/law. Avoid all the commercials. Get the bonus stuff. Never have to hear ads again. And that warm, fuzzy feeling that you are what makes the show happen. All right. We'll be on with Professor Caroline Mala-Corbin after this break.

0:01:42 Thomas: Thanks so much for joining us today. How you doing? I...

0:01:44 Caroline: Am very well, thank you.

0:01:46 Thomas: I am so excited to uh to talk to you about this paper. It's something that we found and found it very fascinating. And I feel like maybe not enough people have heard about this approach you've taken. So before spoiling all that, I always love to ask people's background and kind of how they got into this, you of inquiry, so to speak. Like what's the inspiration here and what's the story for you personally?

0:02:08 Caroline: I am a constitutional law professor who specializes in the First Amendment. So I'm regularly looking at laws that affect both both religion and speech. I And live in Florida. And so there really is no shortage of problematic laws in Florida, and its ban on critical race theory was one of them. And I was originally planning to write a paper that looked both through a critical legal theory lens, as well as through a First Amendment doctrinal lens. And it was too big of a paper. So I

0:02:23 Thomas: I was going to mention that. Yeah. Yeah, yeah, sure.

0:02:54 Caroline: Actually have two papers. And this is the first one, which is examining these kinds of bans on critical race theory using critical race therapy.

0:03:06 Thomas: Oh, fantastic. Love it. It's such a good hook. And also not just a hook. I mean, it's a substantive thing that really that makes a lot of sense. I can't wait to get into.

0:03:14 Caroline: I don't know what percentage of this paper was driven by the title. I don't know. I just, a critical race theory analysis of critical race Theory Bans simply called out to me. And so I heeded the call. Mm

0:03:21 Thomas: You don't know. Do you have a guess? I don't, uh yeah. Okay. So yeah, it already feels like critical race theory is quaint at this point in terms of the media, you blitz that it had, know, you on one hand it's like, wait, isn't that, from you know, God, what is it? A couple of years ago now they're on to DEI for the next 10 minutes. And then it'll be another thing. On the other hand, I have have noticed, and with these kinds things, they tend to be a flash in the pan for the wider media or the right wing, you of, asshole media for a bit. And then they go out of our mainstream attention. But it's like there are people who seem to still be taking it very seriously and working working to undermine a lot of things on a local level or even, I guess, a state level, that and it it's goes unnoticed because we've kind of moved on. Does that seem right?

0:03:45 Caroline: Hmm. I Mean, the wave of states passing these laws has passed, but the laws are still on the books. And so I think we are now entering the phase where courts are finally getting to address these laws on the merits and are issuing decisions on them. So I think that while the latest crop of bans may be focused on something else, these bans are still law and they are still still affecting how teachers teach in the classroom, so they're still here, I guess, is the bottom line, and they still need to be addressed.

0:04:57 Thomas: Yeah. Do you want to start with this? Should you, are you going to give us maybe a survey of the laws you're talking about, or are you focusing in on your horrible state in particular?

0:05:09 Caroline: The paper didn't focus on Florida in particular, though it did inspire me, but it looked at the laws overall. And frankly, many of them can be traced back to an executive order issued by then President Trump while he was in the White House. And it was his executive order that served as a model for all the laws. So when I was talking about it and looking at the specific things that were prohibited, I really use that executive order as the basis for analysis because it was so influential in the state's version of their bans. I

0:05:15 Thomas: I know it's such a huge topic to bite off, any you piece of. Did you go further into what led to that executive order? Because I know there's a lot of like, you wing activists, social media history. That's interesting, but maybe not, of for another time and place. Did you go into that at all? Or did you kind of?

0:06:10 Caroline: Am aware of it, but I did not go into it because really a good law review does not address absolutely everything.

0:06:12 Thomas: Sure. Yeah, sure. Sure. Just wondering. Of course. Yeah. Yeah. Just wondering, but okay. So starting from there, what, what was that executive order and what, you this actually look like in terms of these laws?

0:06:28 Caroline: So if you're, because again, I'm talking about critical race theory bans. And the executive order itself, which again was the model for many of these laws, forbid a list of divisive concepts. And so that was its term. And rather than list each of the nine divisive concepts, I'll summarize them by grouping them into four clusters, so The first cluster says you must make sure that you teach that all races are equal. So a prohibited concept would be you can't teach that one race is inherently superior to another. You can't teach that a person's moral character is determined by their race. And you certainly can't teach that anyone deserves to be discriminated against because of their race, that's the first cluster, you

0:06:55 Thomas: Right.

0:07:22 Thomas: I pause you just, just there to say, you the legal expert and the First Amendment expert, is it normal to write an executive order that bans concepts? Is that a thing? Is that an enumerated power of the presidency, like jurist full jurisdiction over concepts?

0:07:38 Caroline: Well, The president is regulating what goes on in the federal government, that may be within his purview, is this particular order typical? I think perhaps not. Um, I haven't even gotten to the really, like, that the first cluster is not really that shocking, like You, of course, you shouldn't teach that one race is superior to the other, right? And again, one of the hallmarks of these bans on critical race theory is the fact, fact that they have absolutely no understanding of what critical race theory is.

0:07:38 Thomas: Okay.

0:08:01 Thomas: So Yeah. Yeah. Well, almost definitionally cannot, because it's a, you know, boogeyman for everything, but I just wanted to clarify, like, what it says it's banning these things, what, what was it physically, tangibly banning them from, like, okay.

0:08:27 Caroline: I think the executive order itself was focused on federal training and education programs, but the state laws are focused on K -12 public schools. They're taking the divisive concepts and they're saying these divisive concepts also cannot be taught in our public schools. His

0:08:34 Thomas: Okay. Okay.

0:08:50 Thomas: So it's almost like these are your marching orders, even though the executive order can't really, it's not like he can directly order schools to do a bunch of stuff, right?

0:08:57 Caroline: Executive order had absolutely nothing to do with the public schools, it's just his conception of what critical race theory was, and the types of thing that critical race theory taught was embodied in these divisiv concepts. So they were lifted from his prohibition of what happened in the federal government, and it was applied by the state to their own public schools.

0:09:04 Thomas: Gotcha. Gotcha.

0:09:22 Thomas: Cool, thank you for clarifying. So Now we're back to the kind of listing them out. Yeah.

0:09:24 Caroline: Yes, it's A cluster. So one, one is just, no one should treat everyone equally based on race, and this is where it gets a little more odd, is it says that a divisive concept, you can't teach that anyone by virtue of their race should be held responsible for actions in the past by other members of their race. And no one should feel, and this is good, I'm going to quote this because I don't even know how to summarize it, no one should feel discomfort, guilt, anguish, or any other form of psychological distress on account of their race.

0:09:45 Thomas: Hmm. Okay.

0:10:04 Caroline: So basically this cluster is saying no one should be held responsible for past racism, and no one should feel guilty about past or present racism, and by no one, really, white people, yes.

0:10:20 Thomas: I know this isn't the point of this paper, but I just have to say, this is the facts don't care about your feelings crowd. And they're literally like, let's write a law that says no white people have to ever feel discomfort ever.

0:10:27 Caroline: Yes. Exactly. I think they, they made a law saying you can't teach something that will make white people not just guilty, feel guilty, or anguish, but feel discomfort. Okay.

0:10:38 Thomas: It's just so pathetic. Discomfort. Okay.

0:10:46 Caroline: Discomfort is the word used. That's the next cluster is no one should feel bad.

0:10:50 Thomas: Okay. So we can call that the safe space cluster. They want, they want safe spaces. You know, they were just, okay.

0:10:55 Caroline: The Next cluster is, we'll call it the no racism here cluster. This one says you can't teach that anyone is inherently racist because of their race and that the United States is not fundamentally racist. So no teaching that anyone is racist or the United States is racist. And then the final cluster insists that we as a nation are a meritocracy and therefore you should teach colorblindness as the preferred approach to racial issues. And captured by a divisive concept that says meritocracy is racist, you can't teach that meritocracy or traits such as hard work are racist, and you can't teach that meritocracy, the, I guess the idea of a meritocracy was created by a particular race to oppress another race.

And then there is another rule that is so opaque, it is hard to figure out what it means, but basically it's been understood to bar the teaching about affirmative action and instead to really insist that people should be colorblind. And those are the clusters, right? That's basically, now again, each state has its own law and they don't all parallel the executive order exactly, but for the most part, they are drawing from it and its divisive concepts when they regulate about what teachers may do in the public school classroom. So those are the laws.

0:11:28 Thomas: Okay. Okay. Yeah.

0:12:44 Thomas: And so that was the marching orders. I have to assume that EO was immediately rescinded, I'm sure, when Biden came into office. I don't know how much tangible impact that that thing had in that time period. But in of knockoffs, how many states, what are the numbers? What are we looking at in terms of these laws.

0:12:52 Caroline: It is gone.

0:13:03 Caroline: Was focusing mostly on state laws, but it's not only states that have enacted these. Sometimes they occur at the district level. And so I can tell you that at least 17 states have implemented these kinds of gag rules with regard to critical race theory. So it is a significant minority of states, and some of them are large, like Florida. And certainly many more attempted to pass I think almost all states had at least a proposal that was considered.

0:13:20 Thomas: Jeez. Yeah.

0:13:36 Thomas: Oh, like just by the Republicans and yeah. Gotcha.

0:13:39 Caroline: States did pass them, and again, there have not yet been many decisions on the merits. So most of them, just today, there was a decision from New Hampshire that struck down New Hampshire's version on the grounds of vagueness. But I think that was one of the very first ones to actually address this issue and decide whether they're constitutional or not.

0:13:45 Thomas: Really? Yeah.

0:14:04 Thomas: Thought that the Florida, there's something with, with DeSantis's, right?

0:14:07 Caroline: I'm focusing on the public schools as opposed to higher education or private companies. I mean, Florida's law applied not just through K -12 public schools, but also applied at the university level. And some of it even extended into private companies.

0:14:14 Thomas: Okay. Gotcha, because he, because, so did he have something where the, the court said, uh, yeah, this is, yeah.

0:14:35 Thomas: Jeez.

0:14:35 Caroline: So the governor, the state of Florida was trying to regulate what private companies could do in terms of their own educational efforts, and certainly that was held to be a blatant violation of the free speech clause. Yeah.

0:14:36 Thomas: Wow. Yeah. Oh Boy, I will never forget, and this is my personal grudge, but I will ever forget the time period I was in, from 2000, I don't know, 12 to 2016, where free speech was a right-wing issue and they were so much better on free speech because the left was trying to silence everybody and blah, blah, bla, blah. Um, I will NEVER forget that. That's my personal grudge that I have to bear. Um, and then you see things like this, where it's like, no, we're literally to police, like, and speech in a company, like what, what, right?

0:15:19 Caroline: And you know, this is not the only law that in which they're trying to do that. Again, Florida was the pioneer of a whole cluster of laws that have been nicknamed the Don't Say Gay laws, which prohibit teachers from talking about sexual orientation or gender identity. And so clearly, this is not about free speech. It's about indoctrination of their own views.

0:15:30 Thomas: Yeah, oh, wait, is that what I was thinking of when it, I can't believe I've forgotten that there's also that entire culture war that they tried to ban, oh, okay,

0:15:53 Caroline: And that's ongoing. I think that one's becoming a little more popular.

0:15:56 Thomas: Geez, okay. So, that's, I didn't know that, it's kind of scary that, like not many court decisions have come down, you talk about the chilling effect, I think is a term that's usually used in these things

0:16:06 Caroline: Yes, definitely. So when you're talking about the real life consequence of these laws, and mind you, the penalty can be quite severe. Very often teachers may not only lose their jobs, but their whole vocation, because some punishment is losing their teaching license. And Florida's law, for example, allowed parents to sue if they thought a teacher was was violating the law. And so their teachers are really quite vulnerable. Out of an abundance of caution, they are steering clear of not only what is actually prohibited, but anything that might conceivably be construed as falling under the coverage of these laws. And as you said, their speech has has been chilled.

0:16:07 Thomas: Oh, God. And Given how vague they are that's even makes it even harder to know what you're worried about, uh, I

0:17:05 Caroline: Like these these laws are not clear right. Really hard to know what is covered and what is not covered. And so again out of abundance of caution teachers are changing their curriculum avoiding entire topics so that they don't get into trouble. It's hard to blame them.

0:17:26 Thomas: I mean, I used to, like, I think it, having dealt with the legal system a little bit, I think there can be a naive view of like, well, yeah, but this is, I mean, it was obviously unconstitutional, so it's whatever, it was just good, whatever, you know, I'm sure it'll be struck down, it's like, well, yeah, okay, but there's a whole time period, potentially, of when you've got teachers who, not the most privileged, wealthy, you know, comfy people, like teachers who are making God knows how little, who are having to make decisions about this and potentially lose their jobs, and to tell them like, well, yeah, but I'm sure you could probably like maybe get that back someday, five years from now when it goes through the courts. That's ridiculous.

0:17:47 Caroline: Exactly.

0:18:02 Caroline: And, And, you know, and some of the examples that there was some excellent reporting on this issue, and some examples are, let's see if I can, oh, there was one economics teacher who longer wanted to make the link between the sort of disparity of wealth to Jim Crow laws and redlining because he thought, well, what if someone thinks I'm trying to teach that people should feel bad or that one race is better than the other? So he simply dropped that whole sort of line of inquiry. Or another teacher who in her unit on race dropped any discussion of privilege in case it was under, unless it fell under the prohibition, and you know, at least she's teaching a unit on grace, but Um, questionable how much

0:18:32 Thomas: Yikes. Yeah. Knows what that looks like?

0:18:52 Caroline: Yes, How much it's been carved out, how much has been carved out is open to question. And so they're just example after example of teachers who are really, really revising their curriculum and rethinking their teaching methods because they don't want to violate these incredibly unclear laws.

0:19:16 Thomas: Yeah. Wow. It is just really disturbing. The of fascism this is. And point earlier, like one thing that is so interesting about what's happening here is you have people passing laws based on like Twitter fights. You know, like you've got people passing in power who it seems to me are forming their theory of what critical race theory even is or what this quote unquote problem is based on the most, you arcane things that.

0:19:16 Caroline: Yeah, these, I, between actual critical race theories and these divisive concepts, is very wide. I, all critical race theorists would completely agree that the races should be treated equally and That no one is inherently superior, no one's moral character is inherently inferior, like that is absolutely nothing to do with critical race theory, in fact, right, the major focus of critical race therapy is not on individuals at all but On sort of structural racism, racism at a broad systemic level. So there's just misunderstanding top of misunderstanding in terms of what critical race theory actually looks at.

0:19:55 Thomas: And Yeah. Yeah, yeah.

0:20:28 Thomas: And it's because so much of this is ginned up through, I don't know, Fox News and other sources where it's like, here's our theory of all the country's problems. It's this vague enemy called critical race theory. Let's attribute all this stuff to it. It just makes it insane when you look at what they try to ban. And so therefore, like the law becomes even more vague, which which makes it even harder to know what you're going to violate. Go

0:20:29 Caroline: Yeah.

0:20:50 Caroline: I paper takes these bans seriously. And that might be a fundamental error because as you yourself said, this is not really about critical race theory. This is more about anti -racist efforts of any kind, right? Critical race theory is a legal theory that developed in law schools help explain why racial inequality persisted despite the gains of the civil rights movement. And It's a critique of equal protection doctrine that only recognizes sort of first generation discrimination and not second generation discrimination or sort of structural discrimination. And these are things that are really quite distinct from a lot of what these divisive concepts seem to be geared at. I mean, to the extent that all of them seem to focus on attacks of the individual, they really completely missed the mark. Now, having said that, every and then, perhaps by accident, they approach a couple of key critical Race theory concepts. But for the most part, it's really sort lawmakers' view of what critical race therapy might be, not that they actually ever figured out exactly what it was. Yeah.

0:20:53 Thomas: Mm hmm. Mm Hmm. MmHmm. Mmhmm.

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0:23:42 Thomas: Should we transition maybe to the kind of the CRT on CRT approach that you took?

0:23:47 Caroline: Absolutely. I start by saying that there is not a critical race theory, there Are different versions of critical race theory, but there are some key concepts that most share. I'll just mention a few and focus on what I think are perhaps the most important ones. So some ideas that flow that are part of critical race theory is the idea that race is not grounded in our biology, but really is a social So again, So what does that mean? Here's an example that I use in class. Imagine a person who is one -eighth black and looked white,

0:23:53 Thomas: Right. Mm Hmmm.

0:24:31 Thomas: MmHm.

0:24:31 Caroline: Right? Is that person black or white? The answer turns out depended on what state you were in because states defined race differently, right. So that's the first idea, that it is something that is not sort of natural preexisting, but something that is created by law and culture. And

0:24:38 Thomas: Yeah, I remember how much the conservatives made a big deal about like, well, why is Obama, you know, he's half white. Why is he identifies? But it's like, Well, think if you were ever to operate in the world as someone who looks like Barack Obama, I imagine the society kind of dictates where you stand.

0:25:09 Caroline: I mean, that's an important component. Just because it's constructed doesn't mean it doesn't have significant impact on people's lives. To that end, one of the goals of a critical race theory approach is to put the Black experience at the center rather than the white experience. So it's important to look at these questions through the viewpoints of Black Americans rather than white Americans.

So that's, that's another crucial aspect, is to thing that sort, a hallmark of critical race theory is it wants to be more than just a theory. It wants to be a practice. Goal is to achieve social justice. The goal is to achieve racial equality. So it wants to be not just thinking but doing. In terms of the kind of racism it's most focused on, as I mentioned before, it's structural racism rather than individual racism.

So it's not denying that there are still individual people who have strong animus, but for the most part, it's broader. So, for example, think about education. And you're thinking about the era of segregation, you might argue, well, Black students were denied access to excellent white schools because of individual racist people who refused to allow them to attend the better white schools, right? Understands racism as a bigot who is acting out of animus.

Structural racism is still thinking about education, the fact that Black students still don't have access to the best schools, but it's because of the way we have have set up our educational system. The, the fact that we fund our school by taxes, right? That's a decision.

0:27:07 Thomas: Property taxes.

0:27:08 Caroline: And Property taxes. And the fact that the funding depends on where you live, given that neighborhoods are often segregated. And of course, the reason why neighborhoods are often segregated was because of redlining and past discrimination. And again, the focus now is not their individual people whose racism is preventing Black students from going to excellent schools, but rather we have structured our school system in such a way that their quality is is dependent on our neighborhood and our neighborhoods are segregated. And there are also structural reasons why our neighborhoods are segregated, whether, again, it's due to, right?

0:27:08 Thomas: Yeah.

0:27:55 Thomas: It structures all the way down. Yeah, right.

0:27:58 Caroline: Whether it's Due to Redlining or the funding of highways to enable white flight, right, so that's the kind of the big picture that critical race theory is focused on. And so a lot of these divisive concepts are just not on the radar are of critical race theory. So it really reflects a very fundamental misunderstanding of what they're thinking about and what they care about.

0:28:04 Thomas: Yeah yeah.

0:28:25 Thomas: And as most of this is just obviously true and common sense, like if you look at the issue for two seconds. And as someone who spent a lot of time just kind of, you the war stuff and these, you right wing commentators, the anti-woke commentators. It's so clear to me that they are trying so hard to avoid this point, like it is the most obvious rebuttal to almost everything they say.

It's like, hey, racism isn't just some guy you remember from a picture of one of the you in the 60s and civil rights era. That's not what racism is. It isn't that one guy from the South with those glasses that will always look like like that. Like, it can exist and it does exist, not because of any individual's like effort for it, like it just perpetuates because it's a systemic you that it's not as though individual races don't exist, they definitely do.

But like the bigger force here is obviously these structures you're describing, and I can't decide if they are trying not to understand that because they know their paycheck depends on it or white identity depends on it, or if they just genuinely don't understand it. I don't know. Either way, it's such a fundamental concept to this, and it's so obviously true.

0:29:30 Caroline: How much of it is ignorance and how much of it is willful blindness, I think it depends from person to person. But Certainly banning the teaching of critical race theory, also known as banning discussions of race in the classroom, is not going to help matters. Sort I think, of critical race theory, and I think it is a more recent development, is to focus not just on how black Americans are disadvantaged because of their race, but how white Americans are advantaged because of the race. Race. So to understand that discrimination, there are two sides to discrimination. It's the disadvantage of one race and the advantages of another race. Those are sort of the two sides of the same coin. Is only a very cursory look at critical

0:29:36 Thomas: For sure, yeah.

0:30:18 Thomas: Sure,

0:30:18 Caroline: Race theory, but those are some of the key components of it.

0:30:19 Thomas: Yeah, oh, actually, I want to ask you you a question that might seem kind of basic, but you mentioned earlier that you teach this in class. Do you teach a class called critical race theory, or is this something you bring into another class, or I'm just curious how that works for you in the classroom? Room Hmm.

0:30:36 Caroline: Absolutely. So I teach equal protection clause. So ultimately, Ultimately, you could think of this as a critique of Equal Protection Clause doctrine. So the Equal Protection Clause of the 14th Amendment in the U.S. Constitution prohibits discrimination based on race. There are lots of ways to think about discrimination. And the way our law currently looks at it is that it requires a bad actor.

0:30:49 Thomas: Yeah.

0:31:07 Thomas: You.

0:31:08 Caroline: For example, a law that uses race in its language, definitely a race-based law, it'll be subject to strict scrutiny, probably struck down as unconstitutional. On the other hand, if a law is neutral on its face, but has a disparate impact on Black or another racial minority, right, so you might think, well, isn't that discriminatory since it's, you would think, right? Right? It's harming one race significantly than another nonetheless,

0:31:31 Thomas: Would. Think. Since. All. This takes is this in racist technology of not saying explicitly what you're doing, which.

0:31:45 Caroline: This is a case from Washington, D.C. where the police department was using a test that black applicants failed at four times the rates as white applicants. And they never validated the test. So there was no evidence that the test did anything to help pick out people who would would become better police officers. The only thing that you could say conclusively about this law is that it discriminated against Black applicants.

0:32:11 Thomas: Okay.

0:32:12 Caroline: But the court did not subject it to any kind of heightened scrutiny under the Equal Protection Clause, because although it had a racially disparate impact, it was not passed with the intent to discriminate.

0:32:25 Caroline: And So, right, under existing equal protection doctrine, the law is not considered racially problematic no matter the law if you don't have some sort of white villain saying, ha ha ha, I'm going to pass this so that the black applicants fail.

0:32:25 Thomas: So. That's fine, yeah.

0:32:42 Thomas: Racism. Is an intent crime, I guess.

0:32:46 Caroline: Exactly. Right? And critical race theory is a critique of this. And it's saying you don't understand. That's not the only kind of disadvantage that people of color experience. It's not always due to a villain. Sometimes it is due to indifference to structures that perpetuate inequality, like the way we have structured our educational system. Like fact that they use a test that may do absolutely nothing other than discriminate against Black applicants.

0:32:46 Thomas: Yeah. Well.

0:33:23 Thomas: To. Say, say the least, that that's just them not saying the words out loud. That's not even like a structural, like, you could even have plenty of racist intent that just isn't explicitly said. Yeah.

0:33:34 Caroline: So So, that's that's a whole other, like, it's very hard to prove racist intent. But the very fact that it's required is a sort of one of the critiques. And so I teach it in law school when I'm talking about the law and how it perpetuates racial inequality. So that's where it naturally belongs. And it certainly appears in my classes when I teach protection.

0:33:34 Thomas: Right. Yeah. Right. Yeah, sure. Sure. Yeah.

0:33:58 Thomas: So when was that case, and is that really, that's the current, like, state of the law? That, that, when was that?

0:34:03 Caroline: Yes. That was from the 80s. So that is the current state of equal protection law and applies to sex as well and to any other group that's protected by the Equal Protection Clause. If the law is neutral on its face, if it does not, in its language, single out race or sex, then it is not considered something that deserves heightened scrutiny, not something that the court cares enough about to look at much more closely. The court will not be suspicious despite a impact unless there is also a discriminatory intent, a proven discriminatory intend. Yeah.

0:34:07 Thomas: Jeez.

0:34:44 Thomas: Terrible.

0:34:44 Caroline: So that's the critical race theory critique of equal protection law. Not something like that that kind of discussion, of course, not generally something you find in grade school or high schools. Were asking me if I taught critical race theory. And so the answer is yes.

0:34:44 Thomas: Yeah.

0:35:02 Thomas: I was just wondering within what class. Yeah, no. And also, I mean, uh,

0:35:05 Caroline: Teach a whole course on it right now.

0:35:07 Thomas: Yeah yeah. But is this the kind of thing, I don't know the setup of your school or whatever, but were you, did you have to worry about this or these laws or?

0:35:13 Caroline: Well, fortunately for me, my school was was private. And so these laws did not apply to it.

0:35:21 Thomas: Gotcha.

0:35:21 Caroline: And my law school, the University of Miami School of Law has always been very supportive of its law professors and their scholarship and has never been frightened by Articles like a critical race theory analysis of critical race theory bans. So I

0:35:33 Thomas: Gotcha, the thing we get to the critical race theory analysis of these bands? Yeah, they're racist. Done. I did it. Sorry, I saved I saved you a lot of writing.

0:35:45 Caroline: Okay. All Right, so Okay, a sort of more interesting development in critical race theory is to look not only at the disadvantages, um, of racial minorities, but also the advantages that white people enjoy. And so there are two concepts that I talk about, and they're white privilege and white fragility. And my argument is that these bans are a textbook case of white privilege, and especially white fragility. So let me start with the first one, which is white privilege. What is white privilege? It's generally been defined as the advantages white people enjoy just for being white, often without even realizing it. One of those advantages is that whiteness is sort of the unstated norm in our society. So, for example, if you go to a drugstore and you need a band-aid, you can find flesh-colored band-aids if you're white, right? They're flesh-colored if you are white. Or if you need stockings, you could find nude stockings but nude if you're white.

0:36:19 Thomas: Yeah, Up until like a year ago, like it was shockingly recent that they finally started thinking like, oh, maybe other colors of people.

0:37:07 Caroline: They finally started, but again, that's a really recent development. Or if need shampoo and conditioner, if you're white, you go to the general section for shampoo and conditioners and you can find it for normal hair, oily hair, dry hair. There's an infinite selection. Now, if you're a black person and need hair care products, you often have to go to the ethnic section, right? So a little example of how white is a norm and black is other. It's the ethnic session, right. A couple of other privileges flow from this is that white people don't have to learn about black culture, including its legal theories, right? When the world is sort of designed around your needs and experience, it's not necessary to learn about other people's needs and experiences. On the other hand, Black people inevitably study white culture in order to navigate dominant white spaces, which is most of mainstream culture.

0:37:14 Thomas: Yeah. Absolutely. Yeah.

0:38:15 Caroline: For example, again, I'm sticking with hair, right? What is considered professional hair? Well, it's not the hairstyles that are natural to Black women. They have to understand what's considered professional is white women's hair, straight, right? Or put in a ponytail or something like that. One quote that I have in the article from a very clever one by a Black columnist who wrote that she was an AP in white hair, but her colleagues got left behind in remedial Black Hair 101. Again, it's this idea that white people don't have to make the same kind of effort to understand cultures, societies, thinking not their own. And the very fact that you have all these white legislatures banning critical race theory without even bothering to learn it shows Shows how far it goes, right? They do not need to learn about theories outside their own particular world. So the fact that critical race theory gets it so wrong so often sort of exemplifies this white privilege of not having to learn about cultures and theories outside your own.

0:38:17 Thomas: Sure. Yeah.

0:39:34 Thomas: To the point where you're like to your point, it's like it's one thing to be like, oh, I haven't studied that particular thing in my life. It's another to be like, no idea what this is, but I'm banning it.

0:39:44 Caroline: Exactly. Exactly. And not only that, but a real privilege of being white is that you can be oblivious to the role that race itself plays. So again, right, if you're a white person, you may not realize all the ways that you benefit from in your day-to-day life because you're white. You don't pick up on the fact that unlike you, right, it's not always easy to find nude stockings or flesh color bandages or hair care products designed for your hair. And because white people are often unaware of the role race plays in their life, they may assume that race also plays no role in the lives of others, at least until they're faced with this, you know, paradigmatic bigot, Right.

0:39:55 Thomas: Mm-hmm. Mm hm. Right. Yeah

0:40:34 Caroline: Their obliviousness to how their whiteness makes their life easier may make them equally oblivious to how being not white makes other people's lives harder. And this oblivious maybe explains why they can actually believe that racism is not an issue and that we are, in fact, a true meritocracy. And to argue otherwise just doesn't make any sense. Exactly.

0:40:34 Thomas: Well, The only way to stop discrimination on the basis of race is to stop discrimination on the basis of race of very insightful quote

0:41:06 Caroline: Right. So again, so the first point is they bans reflect white privilege in a couple of ways. It reflects white privilege and the ability to be ignorant of legal, -white culture and theories. And it also reflects the white privilege of being oblivious about how much race does affect people's day-to-day lives. Okay, really, we're, right?

0:41:32 Thomas: Where the gold mine is in terms of, yeah, content for this. Yeah.

0:41:38 Caroline: Really, these bans could be understood as an said, a textbook example of white fragility. And so what's white fragality? White fragility, sort of a collection of defensive reactions white people exhibit when their racial privilege is pointed out. Ways, there's different kinds of reactions. And

0:42:02 Thomas: Also known as several emails I'm sure will be in the inbox just from doing this episode will be several white fragility reactions to there always are, even even among liberal, uh, audiences. Try.

0:42:14 Caroline: Right? And so, I, what are some of these reactions? One is to overreact. Another is to bring the issue back to them and make them the center of attention. And doing that, white people often make themselves themselves out to be the true victim of any story, which allows them to create false equivalencies. Ultimately, it allows white people to reinforce the unequal racial status quo. So those are four different things, and I'll talk about each of them. So it's overreacting, moving the spotlight back onto them, making themselves the true victim of the story. And finally, all of these maneuvers allows white people to reinforce the unequal racial status quo. Okay. Is overreaction, right? Very fact that these laws exist is an overreaction, right, very belief that this is being taught anywhere, again, school, high schools are not learning about the flaws of the Equal Protection Clause application to race, but

0:42:24 Thomas: Hmm.

0:43:11 Thomas: Passing these bans seems like, yeah, textbook overreaction. It should be, but yet they're not.

0:43:29 Caroline: Right. Very I fact that these laws are passed at all is something of an overreaction, given how rarely critical race theory is actually taught in K through 12 schools. Which is 1 % Black, actually passed this as an emergency measure, right? That's somewhat of an overreaction. Also slightly hysterical to assume that that an argument that black people are not inferior equates to arguing that white people are inferior. I don't even know where they get that idea, right? Their distorted understanding, the way they assume that an agreement about equality, inequality, means that they are somehow now being cast as inferior, is a little bit of an overreaction. Or actually, that's an understatement. Part of this overreaction is the glee with which they engage in red baiting, right? Red baiting is when you try to equate something you want to discredit by linking it with communism, which is something that's something that a lot of legislatures and politicians do.

0:44:06 Thomas: Yeah oh is so quaint. You know, that red baiting is so, it really harkens back to a different time because I think in this, like the new generations are like, I don't really understand what that that means. All this like communist, you know, rhetoric, anti -communist rhetoric from the 50s through the 80s kind of thing. Doesn't resonate as much now.

0:45:01 Caroline: And yet a even includes in its critical race theory law that you cannot teach that you should violently overthrow the government.

0:45:12 Thomas: Darn it. Got to cancel that course. All right.

0:45:14 Caroline: Critical race theory would like to reform our culture, but it has never advocated the violent overthrow of the government. And yet that somehow these two things have been linked by many politicians. So people are really somewhat hysterical about the whole thing. And again, there was no need to pass the laws in the first place. And the very distorted understanding is really somewhat telling.

0:45:38 Thomas: Yeah, it's hard. I'm like a New York jury evaluating a Trump case. I don't know. This is such an easy case for you to make that I don't have my, like, yes, obviously hysterical. So I'm not, it's hard to even, I'm not going to pretend that I have some objections or counterpoints because it just this, it's so obviously white fragility. Um, so let's hear more about how it's so obviously white fragility. Yeah.

0:46:00 Caroline: So another other attribute is the way that white people make it all about them, right? And so these laws are really focused, like people think about race, the only thing they're thinking about is how is this going to affect me, right, not why did we once, you in chattel slavery and why did he dehumanize people. Again, no, we need to do in our laws is make sure that nobody feels guilty and certainly that nobody feels uncomfortable. You mentioned earlier, it's really unusual for laws to protect emotions.

0:46:39 Thomas: Yeah.

0:46:40 Caroline: Extreme solicitude for white children and make sure they don't get hurt. And especially when you pair it with with their total disregard for how history has affected Black school children. Even Or something like the effect of Confederate monuments on Black students. Mean, there are schools named after Confederate veterans. Like, the only thing they care about is how discussions of race are going to affect white people. So it's all about them. Kimberly Crenshaw, who's one of the founders of critical race theory, observed that these laws reflect that they care more about white kids' feelings than they do about black kids' reality. And I think that is a very good summary of this second factor, which is it's just about them, right? The ones that matter. Um.

0:46:56 Thomas: Yeah. Has There Been any attempt, uh, kind of use these laws against them at all and be like, hey, well, it says that no one can feel uncomfortable with us on the race. Well, this Confederate monument certainly makes me feel uncomfortable. Interesting.

0:47:47 Caroline: Wrote an entire paper about how this can be used to help um racial equality and The one example that I mentioned is something like manifest destiny, we might have to rethink how we taught it. The underlying manifest destiny probably all learned it in like eighth grade US history, the idea that we were destined to occupy the whole of the United States.

0:47:54 Thomas: Interesting.

0:48:11 Thomas: Don't remember learning about that, but that sounds insane.

0:48:14 Caroline: Right, superior white Christians deserve the land more than the heathen Native Americans. That was sort of the underlying belief behind Manifest Destiny. And if you're really going to insist that you can't teach that one race is superior to another, you cannot teach Manifest Destiny uncritically, which I would not be surprised if many schools do. And so absolutely, some of these divisive concepts can be used to further a progressive agenda.

And in fact, these, as I mentioned, some of these are things that no one would disagree with and certainly not critical race theorists. Another example is if you can't teach that one race is superior to another, then how you explain the fact that there are such extreme racial disparities? A perfect setup for discussing systemic discrimination, systemic racism, and sort of the history and legacy of past racism. And so, yes, if the question is, can you use some of these concepts in a beneficial way? Absolutely.

Again, looking you at them all more broadly, the fact that they are chilling so much discussion of race in America is more problematic. Again, you could be clever, right? It's always good to try and be clever about sort, use what you have to the best of your advantage, but sometimes it's better to just change what you you have. So getting back to the fragility, how these laws reflect white fragility. So first, they're an overreaction. Second, they are focused exclusively on how these affect white people. So again, white fragility, it's all about white people. The spotlight is on them.

And what really takes a lot of chutzpah is the way that the laws try and make out that white people are the real victim in this story because talking about racism is racist, or like talking about past discrimination is racist. Racist, there's quote after quote where you have this idea that talking about racism is as harmful as racism itself, which

0:49:36 Thomas: Yeah, yeah, sure. Yeah.

0:50:41 Caroline: I I can't, right?

0:50:43 Thomas: Not true. Fact check, not true, just, uh, I'll do that, tackle that real quickly.

0:50:47 Caroline: Underlying, trying to look in the most generous way possible, it could be that because white people are so oblivious to the role that race plays in the lives of people who are not white, they may really believe that we are a meritocracy. And therefore, if people's, we, accomplishments and achievements are entirely due to their own effort, then there's no reason to talk about race.

0:51:14 Thomas: If anyone thinks that, somebody better get some critical theory in their veins quickly. Hopefully, hopefully, some sort of school that

0:51:18 Caroline: I mean, And so that might explain this theory. I don't know. And of course, what's really adding insult to injury is the way that sometimes they co -opt the language of civil rights icons like Martin Luther King to

0:51:36 Thomas: One quote, they know from him. Yeah, yeah.

0:51:39 Caroline: Exactly. Right. Luther, Luther King is trying to urge people to end racism and they use his language to attack a theory that's trying to do just that. A move. A reaction. It's an arguably fragile white reaction. And finally, and I think this is like a lot of this is sort of theoretical and sort of entertaining, but the bottom line, as we started our discussion, the bottomline is it shuts down anti -racism education in public schools. And does that, then students are not going to learn about the past. They're not going learn about intentional discrimination against black Americans in the past, they're not gonna learn to recognize the systemic discrimination of the present. Are not gonna learn to question today's unequal distribution of wealth and power, they are not gunna learn the tools to dismantle it. So basically, by trying to shut down anti -discrimination in public schools, it's going to enable the existing status quo, which is one of racial inequality, which ultimately benefits white people.

0:51:51 Thomas: Yeah. Yep. I, what a, what a clear, comprehensive case. Go.

0:53:02 Caroline: I Of it is that, again, and I've seen this in other areas of law as well, is that moving from a privileged position to a position equal to others, right? Not discrimination, but it's still a step down in status and it's experienced as discrimination. So again, trying to be as generous as possible to white people and their reactions to critical race theory, or what they think critical race theory is, sort, it's hard to go from privilege to just like everybody else, and maybe they feel like this step down is discrimination against them. Um, it's not. Theory

0:53:48 Thomas: Facts don't care about your feelings. So, I know. Yeah, it's frustrating, too, because would it be one thing if there were some really like solid, tangible examples of that step down that you're even talking about. But so much of it is just made up Or perceived. Yeah. It's like not even real. I mean, I would, I would have some sympathy if it's like, oh, yeah, now, you know, I used to have this thing and now I don't. But most of it ist so rhetorical or theoretical or or just spun up by Tucker Carlson or something, that it's, it is hard to be sympathetic. But yeah, you that through so efficiently and so well done. I, there anything else? Any closing thoughts on

0:54:03 Caroline: Yeah. You're Right, okay.

0:54:24 Caroline: I, I just think, um, most, most important bottom line is that these bans, um, cement the existing racial status quo of inequality, and that may well be the point of them, uh.

0:54:35 Thomas: Yeah, think so. I don't think that's a good good thought.

0:54:41 Caroline: Even if it's not, they, they should not stand. And know, we haven't even talked about legally why they're unconstitutional, but that we could, could save that for another podcast if you want me to, as I said, I have another paper that focuses more on the law than on the theory, uh.

0:54:50 Thomas: Sure. Yeah. Yeah, yeah. We'll have to. That. Is it is already out. I you so much for taking the time. It's really fascinating paper using critical race theory to talk about these critical race theory bans.

0:54:57 Caroline: Almost done, it's going to be done in the next few weeks. Yeah.

0:55:07 Caroline: So again, the bottom line is, right, I think the critical race, Race Theory bans provide a textbook case of both white privilege and white fragility. I

0:55:20 Thomas: Absolutely. All Well, thank you so Much. People can find the paper. We'll absolutely link it in the show notes. Oh, is there anywhere else you want to send people?

0:55:27 Caroline: Oh, there's one other thing to mention. Hampshire decision that found New Hampshire's critical race theory ban to be unconstitutionally vague cited the paper that we've just talked about.

0:55:40 Thomas: Oh, wow. Fantastic. That must feel nice.

0:55:43 Caroline: Your timing was perfect.

0:55:45 Thomas: Caroline Mala Corbin, thanks so much. Thanks so much, Caroline Mala Corbin for joining us. We really appreciate it.

0:55:49 Caroline: You for having me.

0:55:50 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.