Why Is Banning The Teaching Of Critical Race Theory In Schools Ethically Justifiable When Banning The Teaching Of Evolution Is Not?

Critical Race ban

On this, the 96th anniversary of the beginning of the Scopes Trial in 1925, let’s consider attorney Clarence Darrow’s opening statement. Here is the crux of it:

“…Along comes somebody who says ‘we have got to believe it as I believe it. It is a crime to know more than I know.’ And they publish a law to inhibit learning. This law says that it shall be a criminal offense to teach in the public schools any account of the origin of man that is in conflict with the divine account in the Bible. It makes the Bible the yardstick to measure every man’s intellect, to measure every man’s intelligence and to measure every man’s learning. Are your mathematics good? Turn to Elijah 1:2. Is your philosophy good? See II Samuel 3. Is your astronomy good? See Genesis 2:7. Is your chemistry good? See – well, chemistry, see Deuteronomy 3:6, or anything that tells about brimstone. Every bit of knowledge that the mind has must be submitted to a religious test. It is a travesty upon language, it is a travesty upon justice, it is a travesty upon the constitution to say that any citizen of Tennessee can be deprived of his rights by a legislative body in the face of the constitution.

Of course, I used to hear when I was a boy you could lead a horse to water, but you could not make him drink water. I could lead a man to water, but I could not make him drink, either. And you can close your eyes and you won’t see, cannot see, refuse to open your eyes – stick your fingers in your ears and you cannot hear – if you want to. But your life and my life and the life of every American citizen depends after all upon the tolerance and forbearance of his fellow man. If men are not tolerant, if men cannot respect each other’s opinions, if men cannot live and let live, then no man’s life is safe, no man’s life is safe.

Here is a country made up of Englishmen, Irishmen, Scotch, German, Europeans, Asiatics, Africans, men of every sort and men of every creed and men of every scientific belief. Who is going to begin this sorting out and say, “I shall measure you; I know you are a fool, or worse; I know and I have read a creed telling what I know and I will make people go to Heaven even if they don’t want to go with me. I will make them do it.” Where is the man that is wise enough to do this?

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private school, and the next year you can make it a crime to teach it from the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism are ever busy and need feeding. Always they are feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers. After a while, Your Honor, it is the setting of man against man and creed against creed until, with flying banners and beating drums, we are marching backward to the glorious ages of the sixteenth century when bigots lighted torches to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

As mentioned in the post earlier today, the issue of whether a state could ban the teaching of evolution was never settled in Scopes, but many years later in the Supreme Court case of Epperson v. Arkansas (1968), which struck down a state law that criminalized the teaching of evolution in public schools. Epperson, however, was narrowly decided on the basis that the First Amendment to the United States Constitution prohibits a state from requiring, in the words of the majority opinion, “that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” It was not based on freedom of speech, or as Darrow termed it, “freedom of thought.” The Theory of Evolution and “Critical Race Theory” are both theories, though one is based in scientific research and the other is a product of scholarly analysis. Though the latter seems to carry the heft of religious faith in some quarters, freedom of religion is not the issue where banning critical race theory is involved. Nor, realistically speaking, is freedom of speech as Darrow describes it.

School districts, which are agents of the government, have a recognized right to oversee the content of what is taught in the public schools, within reason, and when the purpose is defensible. Teachers are not free to teach whatever they choose, though their controversial choices cannot be made criminal, just grounds for dismissal. The 6th Circuit Court of Appeals made this clear in Evans-Marshall v. Bd of Ed of Tipp City Exempted Village Sch Dist. (6th Cir. 2010), a case involving a high school English teacher who was fired for using classroom assignments and materials without following the appropriate steps for approval. The court stated, “Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight.”

School districts still can’t define a curriculum so narrowly that it violates students’ constitutional rights. In Board of Island Trees v. Pico (U.S. 1982), the U.S. Supreme Court held that the school district could not remove books from the school library without a legitimate pedagogical reason, because doing so violated students’ free speech rights of access to information.  Districts and schools are also limited to what they can require children to study, though most cases in this realm again involve religion. However, once school districts and schools have defined a legally permissible curriculum, courts will give them broad discretion to implement it even over community and parental objections. For example:

  • State ex rel. Andrew v. Webber (Ind. 1886) upheld a requirement that students attend music classes.
  • Mozert v. Hawkins Board of Education (6th Cir. 1987) upheld the use of a textbook in a basic reading series over parental challenged  that it contained objectionable material.
  • Brown v. Hot, Sexy & Safer (1st Cir. 1995) upheld a school requirement that students attend an AIDS education assembly. 
  • Herndon v. Chapel Hill-Carrboro City Board of Education (4th Cir. 1996) upheld a district graduation requirement of community service over an objection that it amounted to involuntary servitude. [Note: I’d pull my kid out of school over that one.]
  • Leebaert v. Harrington (2nd Cir. 2003) upheld a requirement of “health and family life” education classes over a parent’s claimed right to raise his child as he saw fit.
  • Parker v. Hurley (1st Cir. 2008) upheld the use of a book in primary grades that portrayed diverse families, including a gay marriage.
  • Brinsdon v. McAllen Ind. School District (5th Cir. 2016) upheld a class assignment requiring students to memorize and recite the Mexican Pledge of Allegiance and sing the Mexican National anthem as a part of a language exercise.  

Still, this is a balancing act, and balancing acts are always matters of ethics. The Constitution and the Bill of Rights rule, but each state has the authority to create and control school districts and define their standards and curricula. In the process of their balancing act, the courts will usually defer to educational decision makers, but expanding, rather than limiting, the body of knowledge presented in the educational process will always be the priority.

Of that, Darrow would approve.

So let us return, in light of this context, to the question posed in the headline above: “Why Is Banning The Teaching of Critical Race Theory in Schools Ethically Justifiable When Banning The Teaching of Evolution is Not?”

I don’t think it is as easy a question as we might like it to be. Remember, the question iinvolves ethics, not law. Darrow’s argument was more ethics than law; indeed most of his arguments in all of his famous cases were. In this case, Darrow is arguing that all ideas and points of view should be available to inquiring minds, including those of children. Why wouldn’t that absolute principle apply to Critical Race Theory? I suspect Darrow, a progressive social justice warrior of his time, might even embrace Critical Race Theory. He advocated other dubious theories, like the idea that the law shouldn’t punish criminals. He opposed conventional morality, at least when it suited his purposes. Would he regard CRT as something that no state should ban in the schools, because “If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private school, and the next year you can make it a crime to teach it from the hustings or in the church. At the next session you may ban books and the newspapers.“? Was “a thing as evolution”meant to mean a theory that many, even a majority found wrong and offensive, or did Darrow only mean an area of science that religious interests wanted to suppress?

I really don’t know, and I’ve spent a long time studying Clarence Darrow. He did not have a high opinion of the public, or majorities, as he was a life-long iconoclast and contrarian. However, he would recognize that the advocates for critical race theory display the same kind of intolerant certitude that he detested about organized religion. A “theory” that is taught as fact, especially one that lacks even the incomplete factual basis and evidence that evolution has, will do the opposite of what Darrow championed. I suspect that Critical Race Theory, which as Andrew Sullivan accurately describes in his essay discussed here, stacks the deck by holding that any disagreement with the theory proves the racist system of white supremacy that the theory posits, would probably be seen by Darrow as breaching this part of his principles as he articulated them in Dayton: “If men cannot respect each other’s opinions, if men cannot live and let live, then no man’s life is safe, no man’s life is safe.

The issue is not easily solved by saying that Critical Race Theory is political, not based on science, not valid and inherently destructive to society, for much of the population of Tennessee would have regarded the Theory of Evolution in the same light. Opponents of Critical Race Theory regard it as ideological indoctrination (because it is), but opponents of Darwin regarded the teaching of evolution as a deliberate effort to undermine religious faith. Eventually the courts ruled that Darwin’s work constituted “knowledge,” and thus could not be banned. Will a future court distinguish Critical Race Theory by ruling that it is not knowledge but ideology, and thus a proper target for the government to prohibit teachers from teaching as “fact”? Will it then be treated, ethically and legally, like the Supreme Court treated a Louisiana statute in Edwards v. Aguillard (U.S. 1987), as it struck down required “equal treatment” of evolution and creation science in state classrooms as unconstitutional?  

Will CRT being banned even as something for students to consider along with other alternatives (such as that the United States of America was not built on racism and that racial animus does not explain all problems facing African Americans) be upheld as a reasonable regulation of school curricula? After all, the courts would surely rule that a state- mandated curriculum teaching that whites are the superior race, and the women should stay at home and have babies would be irresponsible. Isn’t CRT the ethical equivalent?

I think it is, and I’m confident that laws blocking the teaching of Critical Race Theory will be upheld, at least when the question reaches the U.S. Supreme Court.

But it still feels uncomfortably close to prior restraint to me, and to Darrow’s “law to inhibit learning.”

19 thoughts on “Why Is Banning The Teaching Of Critical Race Theory In Schools Ethically Justifiable When Banning The Teaching Of Evolution Is Not?

  1. So, should students be given an “opportunity to learn” theories that support white supremacy and the inferiority of other races, as well as learning CRT? They have exactly as much basis in fact as CRT does. CRT, like critical Marxist theory, is an artificial construct that attempts to provide authority to support a dehumanizing and failed ideology.
    CRT is, in reality, a godless religion of the Left, accepted on faith (since it lacks facts) and preached to unhappy “oppressed” people looking for someone to blame for their troubles, and used as a club against anyone who declines to join in their flagellation of the “oppressors.” The Left has embarked upon a secular Inquisition against social justice heretics. It must be denounced defeated.

    • Not that he cared. I always wondered about that: either Darrow was so contemptuous of anyone using the Bible as an authority in contemporary times that he didn’t check, or it was a “speak-o” and he just goofed. I cut him a lot of slack since he didn’t use any notes in his courtroom oratory. Darrow had many public debates over Bible stories, so I’d be surprised if he didn’t know the Bible pretty well.

    • That’s OK. The more I hear about Darrow (mainly from Jack), the more I think he was not that concerned with actual law, so why worry about facts? He might fit in quite well with today’s proggies.

  2. This is one of your best in a long while, Jack.

    As an aside, I’d note that so-called “Critical Race Theory” is wordsmithing of a high order. It’s curious that progressives – those so determined to rub our noses in Science (or, at least, their perceptions of it) are so ignorant of the difference between a theory and a hypothesis.

    A hypothesis is an assumption that needs to be rigorously tested.

    A theory is a concept that has survived those tests, but is not yet recognized as immutable.

    Once it’s shown to be immutable, it becomes a law.

    At minimum, Critical Race Theory is essentially a hypothesis, because the testing has not occurred.

    Unless it’s just a power grab exploiting the ignorance of others. Naaahhhh…. that couldn’t be it, could it?

    • And how would you test it? As a theory, it’s like a “theory” of how life began, primordial stew. Nobody has yet duplicated living stuff coming from random mixes of elements over millions of years—how could you? The best “proof” is, “Well, we’re here, aren’t we?” And we’re back to Dayton…

      • Aye, there’s the rub. It CAN’T be tested, and that’s part of why it’s so nefarious.

        Instead, proponents cleverly hung the word “theory” on it and a non-testable hypothesis gained instant credence from those who wanted to believe. In this regard, it’s more similar to a religion than it is to any form of scientific and/or sociological study.

        This is all essentially a word game, not the result of rigorous analysis or testing. The concept defies both.

        • That’s exactly it. CRT is a hypothesis that’s impossible to test. Darwin and his theory of evolution has been validated by countless fossils subsequently discovered which demonstrate clear evidence of prehistoric ancestors of life forms today. CRT has no place in a public school classroom as it’s sole purpose is to indoctrinate impressionable minds.

  3. Teaching critical race theory cannot be banned in a free society. Indeed, teaching about CRT, done critically and responsibly (irony intended), is essential as a current topic of public interest.

    However, there are behaviors that can be regulated among professionals, including teachers. Disparagement on the basis of race can and should be prohibited. Indeed, honestly enforcing existing codes of conduct should make indoctrinating in CRT impossible.

    A good code of conduct should help calibrate ethics alarms, tuning them to the essential values of the organization. Classifying a significant portion of the students and faculty as “oppressors” based solely on the fungible concept that is “race” should set off a deafening alarm. Existing mechanisms to address racial grievances should be able to shutdown irresponsible uncritical teaching of racist material.

    This of course requires courageous, responsible administrators.

    • Any strategy against CRT must focus in preventing overt harassment and disparagement to not be mere censorship antithetical to a free society.

  4. The difference between Critical Race Theory and the Theory of Evolution I think is fundamental. Evolution is taught as a theory, though the dominant one. CRT is taught not as a theory, but as established fact when it is anything but. Furthermore, Evolution can be questioned and it has shown that it changes over time where fraudulent evidence such as the Piltdown Man can and are rejected through evidence based research and scientific skepticism.

    Skepticism, much to my own personal disappointment is a rarely used intellectual tool today. For CRT, as Jack said, any skepticism is proof of racism and thus can easily be rejected, when I feel skepticism is the most vital aspect of the examination of any scientific or sociological claims. Simply asking the question “where is the proof?” is for many issues ignored, rejected or poorly researched “proof” is provided and taken as fact. Not very scientific, but very human. And I think this is where CRT simply does not hold up. Any idea that cannot be questioned is by definition unscientific and falls more into the category of religious dogma. And the forced indoctrination by religious dogma is foolish in the extreme and cannot be enforced by any level of government. I think the proponent of CRT of aware of this and wish to avoid the argument altogether

    Where I think it will ultimately fail is a simple fact. I may or may not believe the theory of evolution, just as I may or may not believe the Bible, the Koran, the teachings of Buddha or the religious beliefs of the Yanonami tribe of South America. I may say so publicly without penalty. But to question the tenets of CRT publicly is to invite the destruction of my reputation, firing from my job and ostracizing by “polite society”. Put simply, I am directed to believe whether I believe or not. And this cannot stand in a free society

  5. Hoping this link will work and make the op-ed piece available to all:
    https://www.houstonchronicle.com/opinion/outlook/article/Opinion-I-taught-critical-race-theory-at-a-16305355.php

    I generally agree with some assertions I have seen here, including Jack’s, that CRT is not a theory at all. It is rather a presumption of a “social ill” particular to this country that is intolerably adverse to a particular subset of the society’s population. In turn, that presumption is claimed to be based on, and the “illness” is claimed to be sustained by, highly dubious additional presumptions and conclusions about the racial consciousness of people in this country.

  6. I have no interest in supporting some of the more foam-flecked pronouncements of Critical Race Theory, especially the idea that even the most minute of objections cannot be countenanced, but I do have some observations:
    1. The court cases you cite, Jack, are all examples of what communications theory (there’s that word, again!) calls “positive connections.” That is, a school district decided that requiring those music classes, that assembly, that textbook, would have a direct benefit to the student. This is different. Forbidding CRT would be a “negative connection,” in that the prohibition seeks to prevent a negative occurrence rather than to create a positive one.
    2. It is deeply ironic that the recent legislative proposal in Nebraska, for example, forbids CRT in the interest of free speech. In other words, the pandering pols seek to protect freedom of expression by stifling it. I’m reminded of the “stomp out violence” buttons of a decade or so ago.
    3. Because CRT is ill-defined, or rather because its proponents and opponents describe it very differently, the potential for abuse is just as prominent among dissenters as among promoters. That is, it’s one thing to argue that America ought not to be presented as founded by white supremacists. But it is a fact, not an opinion, that the majority of the signatories of the Declaration of Independence were slave-owners. The Tulsa Massacre happened only a century ago. I didn’t know about it until well into adulthood; I should have.
    Presenting the nation as a work (still) in progress towards the goal of a “more perfect union” doesn’t strike me as a bad thing. And sometimes you have to rip off the scab to cleanse the wound.
    Ancient Athens is generally regarded as the world’s first democracy. And it was… sort of. You had the power of the vote simply by being a citizen. Of course, that meant you were male, that you and both your parents were all born in Athens, and (of course) that you were not a slave. Those conditions narrowed the field considerably, but Athens was, for a little over a century, the most democratic state the world had ever known, or would know for centuries to come.
    And here is where the US and CRT converge. Both started, I fervently believe, with pure motives: to give voice to more of the populace. Both had flaws from the outset; both sometimes lost/lose their way. The dream of “liberty and justice for all” has not yet been achieved, and inevitably there is the temptation to blame those unlike ourselves (in race, religion, gender, heritage, whatever) for the problems we face.
    I will always believe that the answer is more speech, not less. That’s why, although I despise Donald Trump with a passion, I don’t think he should be banned from social media. That’s also why I think the people who should be deciding whether and to what extent CRT belongs in classrooms are teachers, administrators, and school boards, not posturing politicians.

    • Would the “more speech” principle still apply if teachers, administrators, and school boards decided to teach that designated racial, gender or ethnic groups were inferior to others? The argument that teaching that white society has been deliberately oppressing and destroying black lives and STILL do so as a matter of routine seems at least as destructive. If we can’t trust teachers, administrators, and school boards (and teachers unions), and based on personal experience monitoring my son’s experiences, we can’t, isn’t the government obligated to step in?

      Oh—the case banning teaching of “intelligent design” along with evolution was a negative ruling, but yes, the rest were as you describe. Hence the “more knowledge” bias. I doubt “more knowledge” applies to CRT. Teaching about the slave trade, slavery, slavery politics and Jim Crow—absolutely, but those are facts.

      • But that’s my point about what the term means. Many of my friends–who plan to use elements of CRT in their college classes–argue that it’s really the ability to speak about facts (objective, verifiable facts, not opinions masquerading as facts) that’s at issue.
        I don’t think it’s unreasonable to teach those facts, and it’s certainly fair game to talk about the implications of those facts to students mature enough to understand the distinction between fact and opinion.
        Moreover, I see little evidence that there’s a widespread attempt to introduce CRT at the secondary or especially at the primary level. There’s anecdotal stuff that makes headlines, but most of the claims are exaggerated in both quantitative and qualitative terms. It’s this decade’s version of the argument against “requiring Sharia Law,” which of course was little more than an opportunity for anti-Islamic pols to pander to their base.
        Six weeks or so ago, I wrote: “One group wants Critical Race Theory to be mandatory; another wants it completely expunged. The idea that it might be available, possibly required in certain specific disciplines in the sense of knowing its tenets, but with no expectation of having to agree with its conclusions: this doesn’t seem to be acceptable to the ideologues on either extreme… and it appears at first glance that virtually everyone indeed positions themselves at those opposing poles.” Note: The mention of “required” coursework here refers specifically to the university level.
        I stand by that. And, little as I trust the people in charge of schools, I trust politicians less.

        • Based on reading what students at, say, Harvard and Georgetown, my two universities, argue with remarkable consistency, I have grave doubts that “students mature enough to understand the distinction between fact and opinion” exist in sufficient numbers to make this a wise course of action. Institutionalizing the CRT definition of one’s own nation and culture as an evil force in the world and humanity (or “God DAMN America” in the words of Rev. Wright), is simply cultural suicide for this or any country, unless the objective is a complete revolution, which seems to be the case.

          Since by most metrics the US has been an epically successful experiment, the sudden push to make CRT central to any curriculum (or corporate training) is sinister and inherently suspicious. The nuance you seem to think is possible in teaching such stuff, in a system that is increasingly reluctant to place the Founders, for example, in proper context because they were slaveowners when slave-owning was legal and generally accepted, seems wildly optimistic. CRT is generally understood to mean holding that there not only has been but continues to be pervasive systemic racism that explains all racial pathologies and inequalities in the US. That’s not a fact, and Sullivan is quite right that when a political and ideological theory like that as part of its tenets declares that dissent, counter-arguments and disagreement simply prove its assertions, it cannot be accepted as a legitimate field of study or academic freedom. It’s mandatory cant. No?

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