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.”