After the murder of George Floyd, a bright spotlight has been trained on issues of race in America. A burgeoning industry of diversity, equity and inclusion consulting, workshops and training already existed in the United States, and these endeavors have only spread further. Debates continue about whether such training has any effect — and whether it promulgates thinking that is itself racist (overgeneralizing about “White” and “Black” traits, for instance). Some schools and colleges are intensifying their efforts to teach about such concepts as “White privilege” and systemic racism — though it is far from clear that such instruction is pervasive in ordinary public schools. Regardless, it is evident that a struggle is underway with far-reaching implications for how race is discussed and taught in America in the future.
Let us set aside the unhelpful debate over whether what is at issue is something called “critical race theory.” Proponents and opponents of these bills have often talked past one another by shifting the boundaries of what belongs under the label. The important point is that there are controversial conceptual and empirical claims that some would like to incorporate into the public-school curriculum and that others would like to exclude. It matters not what they are called.
We should also distinguish two quite different issues. Whether there are bad ideas being rolled out in schools is one issue. Whether these bills are an effective, appropriate or helpful means for addressing that potential problem is a completely different issue. I have no doubt that there are many pernicious ideas and modes of teaching abroad in the land. Nonetheless, bills like the one proposed in Pennsylvania are the wrong tools for the job.
The Pennsylvania bill would prohibit the use of any public funds in state universities, not to mention primary and secondary schools, to “express” or “publish” any “racist or sexist concept.” No professor can “teach” such concepts, require students to “express” such concepts or “provide a venue” for a speaker who “advocates” such concepts. What is more, no student may be required to “read” or “view” any learning materials that “espouse” such concepts.
The prohibited concepts that cannot be expressed on a college campus and to which students cannot be exposed are quite wide-ranging. Students cannot be asked to read a text that espouses the view that one race or sex is superior to another; that an individual should receive favorable treatment because of the individual’s race or sex; that individuals should not be treated without regard to their race or sex; that merit-based systems are racist or sexist; or that the United States is “fundamentally racist or sexist.”
It is possible to largely share the legislators’ value judgments about these ideas while recognizing that trying to silence those who would disagree is patently unconstitutional. Professors employed at public universities have a constitutional right to teach doctrines with which politicians disagree, and speakers have a right to use generally available public facilities (such as a rented auditorium on a university campus) to promote their views.
Even if such a bill were to survive constitutional scrutiny — which seems doubtful — it would be a bad idea. To take such a prohibition seriously would do real damage to the scholarly effort to understand the world and communicate that understanding to students and other scholars. The legislation would significantly hamper, for example, the ability of a legal scholar to mount an argument in defense of affirmative action in university admissions (because such an argument might include the claim that disfavored groups deserve distinctive treatment). It would stymie the ability of a social scientist to examine the workings of the labor market and racial outcomes (because empirical studies might reveal how apparently merit-based decisions nonetheless create racial disparities). It would obstruct the ability of a philosopher to examine the argument for racial reparations (in which long-standing racist practices in the United States feature prominently) or the psychologist to explore the sources of racist attitudes and behaviors (because such examination might show that an individual is consciously or unconsciously racist).
Consider, too, what it would mean to take seriously the idea that no assigned texts may “espouse” racist views. The bill could make it unlawful for instructors to assign their students to read certain writings of Thomas Jefferson or Abraham Lincoln, to read works of literature by Mark Twain or William Faulkner. It would make it unlawful to read certain opinions by the Supreme Court (such as Dred Scott (1857), which held that Black Americans could not be full citizens) or laws passed by American legislatures (such as the post-Civil War “Black Codes” that spurred the adoption of the 14th Amendment). The bill would prohibit professors from assigning students to read the arguments made by politicians and polemicists across U.S. history defending slavery, advocating for Southern secession or encouraging racial segregation. It would shield students from confronting the historical reality of debates about race in America and, as a consequence, would impede their ability to understand the struggles that we have had and the progress that we have made.
The simple fact is that bills like the one being advanced by Pennsylvania Republicans would subvert the central mission of American universities. We expect college professors and students to be able to read, discuss, confront and dissect controversial, difficult and even repellent ideas. We expect scholars to be able to examine issues surrounding race, just like other controversial topics, and pursue their inquiries wherever they might lead without fear of political censorship. They might not always do a good job of grappling with those difficult ideas, but laws are rarely a helpful solution to that problem. Legal measures like this one are a blunt instrument that will make education worse rather than better, even if you share the political ideals that these proposals are supposed to advance.