Critical Race Theory haled into court

jPosted on April 27, 2021 by Paul Mirengoff in Critical Race Theory, Law @ Powerline

When I first encountered critical race theory (CRT) in the early 1980s, I considered it an interesting, albeit flawed, part of a larger interesting but flawed academic movement — critical legal studies. Nowadays, however, I consider CRT to be superstructure built to cover the fact that Blacks, to a disproportionate degree, have not done what it takes to succeed in a society where barriers to their advancement have largely been removed (and where Blacks sometimes are treated more favorably than Whites due to their skin color).

CRT has produced a war on standards — standards like grades, test scores, rules of school conduct, criminal laws — that are supported by common sense and vast experience, and that wouldn’t be questioned if Blacks were meeting them to the same degree as Whites and Asian-Americans. That war is destructive. America can’t be a great country if it discards important, time-tested standards. I doubt it can even be a well-functioning society.

But the war on White identity and American history seems even more dangerous than the war on standards. A nation that teaches children to hate its history and to demonize a plurality of its population is probably doomed.

Fortunately, as John Murawski at RealClearInvestigations documents in detail, CRT is under challenge in courts. Here are some of the legal actions he describes, along with my tentative, off-the-cuff thoughts about the cases:

*[A] California suit filed last year by the two white men alleges that the state hosted a discussion series in 2020 in which speakers stated “that any disparate outcomes in society must be the result of white supremacy.”

This statement is CRT in a nutshell. It’s blindingly stupid. However, it’s also an expression of opinion. I’m not sure California violated the law by airing this rubbish.

*A pair of lawsuits filed in 2019 by four white women against the New York City public school system allege that a diversity trainer told employees, “White colleagues must take a step back and yield to colleagues of color,” and that they should “recognize that values of White culture are supremacist.”

Under the law, Whites need not “take a step back and yield to colleagues of color.” In fact, it is a violation of the law to require them to do so.

It seems problematic for an employer to sponsor such a demand or exhortation. Certainly, an employer who sponsored a speaker who told Blacks they need to yield to Whites would be in trouble.

Telling employees to recognize that the values of White culture are supremacist seems to border on racial harassment, which is prohibited under employment law. An employer that sponsored the view that Black culture is problematic might have difficulty defending a racial harassment suit. The same difficulty should obtain here.

However, in both scenarios — a suit by a White or a suit by a Black — the employer might be able to defend a harassment suit by arguing that the harassment wasn’t severe or pervasive.

*A 2019 complaint filed by an Illinois public school teacher led to a finding that as part of a year-long course on equity and diversity, seventh- and eighth-graders participated in a white privilege awareness exercise that required them to remain “in silence” and with “eyes lowered” as they responded to a facilitator’s prompts.

This is obvious racial harassment. The direct victims are students, not employees. However, the teacher might be deemed an indirect victim, depending on the facts.

As for the students, I would hope that the Constitution prohibits the government from singling them out for harassment to which fellow students of different races are not subjected.

*A 2020 lawsuit filed by a 12th-grade biracial student and his African American mother says that a civics class in a Nevada charter school taught that “reverse racism doesn’t exist” and that “people of color CANNOT be racist.”

As doctrine, this is nonsense on stilts. However, it’s expression of an opinion. Without more, I’m not sure there’s a legal case here (but I might be missing something).

Murawski presents a defense of the CRT rot by Margaret Burnham, a law professor at Northeastern University and a former Massachusetts state judge. She argues:

Anything that is about the education of the person so that they can do a better job is fair game. Just like you have to learn new technologies, new languages, I consider this part of being an employee, part of being in a public space where you’re going to interact with other people.

Fortunately, neither the Constitution nor the relevant employment law statutes considers learning dogma about race, or being harassed because of one’s race, the equivalent of learning new technologies or languages.

Murawski also quotes Douglas Seaton of the Upper Midwest Law Center, which is planning to file lawsuits challenging the imposition of CRT, on the stakes of the legal battle ahead. Seaton says:

You can’t have a country as diverse as ours without equality before the law. It’s a recipe for communal violence, tribalism. You can’t simply proceed that way. You’d be doomed to internecine battles between groups.

I agree.