Ethan Yang
– June 4, 2021 American Institute for Economic Research
The American legal system is the most respected in the world. Its
intellectual roots go back to antiquity whether it be ancient Roman Law,
which forms the foundation of the Western legal order, to the English system of common law, and the notion of a separation of powers articulated by Montesquieu.
This is our heritage and it is worth defending. Not just because it has
fostered a society that possesses equality under the law, prosperity,
and order, but because it also allows the coexistence of diverse
opinions.
Even those who oppose this system of ordered liberty and legal
equality in favor of more arbitrary and authoritarian schools of
thought may still uphold their beliefs provided coercion is not invoked.
That is because the American legal tradition is fundamentally about
preserving individual rights and dignity. That is also why the emergence
of critical race theory in the legal academy as not simply an
intellectual pursuit but a mandated practice should be incredibly
disturbing.
On May 17, 2021, the Foundation for Individual Rights in Education put out a press release condemning
the actions taken by the Student Bar Association of Rutgers Law School,
the largest public law school in the Northeast. The SBA, in a shocking
and unconstitutional move, mandated that student organizations host
programming regarding critical race theory in order to receive school
funding. FIRE writes,
The SBA of Rutgers’ Camden campus
added a section to its constitution entitled “Student Organizations
Fostering Diversity and Inclusion” on Nov. 20, mandating that any group
that wishes to receive more than $250 in university funding must “plan
at least one (1) event that addresses their chosen topics through the
lens of Critical Race Theory, diversity and inclusion, or cultural
competency.” Last fall, 19 of 22 student groups requested more than
$250.”
If you know anything about running a student organization, $250 can
get you a few pizzas for some meetings but that’s about it. Without
extra funding, guest speakers, banquets, conferences, reading groups,
and other significant events are out of the question. Most importantly, a
public school cannot discriminate based on viewpoint or compel speech
which is exactly what this policy does. In a formal letter to Rutgers
President Jonathan Holloway FIRE notes,
“The SBA’s mandate puts student
organizations in the unenviable position of deciding either to falsely
affirm their belief in an ideological proposition with which they
disagree or on which they simply prefer to remain silent, or to forgo
accessing university resources. This amounts to compelled speech in
violation of the First Amendment.”
In particular, FIRE notes that it was alerted to this development by
the school’s Federalist Society chapter, which would understandably be
threatened by such a policy of viewpoint discrimination. FIRE notes,
“The SBA is placing student
organizations in a position where they must adopt viewpoints they may
not agree with,” said Nick DeBenedetto, the group’s president. “Worst of
all, the SBA’s policy may stifle the establishment of new student
organizations in the future that do not agree with critical race theory
or simply wish to take no position.”
A regime of viewpoint discrimination and compelled speech is
tremendously damaging to higher education in general as it stifles the
very essence of what it means to engage in the pursuit of knowledge. It
is far more dangerous in the legal academy not only because a legal
education is very much about rational argument and discussion but
because the entire premise of American law is the classical liberal
tradition.
Of all things, Critical Race Theory should be the last that is not
only taught but enforced. One of the core reasons is because it is
directly antithetical to the American legal tradition due to its blatant
political underpinnings. Phil Magness
discusses this issue when writing about intersectionality, another
theory coined by Kimberle Crenshaw, the architect of Critical Race
Theory, by pointing out
“Here I refer to the scholarly literature, including subsequent contributions by Crenshaw,
that takes the relatively uncontroversial if also mundane elementary
iteration of the concept then extends it to a universal mode of
socio-political analysis and, with it, socio-political activism.
Examples
of compound intersectionality theory abound in the scholarly
literature, often taking the form of sweeping denunciations of disliked
beliefs, concepts, and social institutions. In most forms it functions
as a normative identification strategy to imbue the characteristics of
racism, sexism, white supremacy, and other bigotries onto the
oppositional target of the activist’s political agitation.”
Critical Race Theory much like intersectionality has a commonsense
and acceptable component to it but then gives way to a vast manifesto of
blatantly Marxist political objectives. In fact, an article published
by the American Bar Association’s Human Rights Magazine even acknowledges this and endorses Critical Race Theory by writing,
“Another important consideration
is that many of our nation’s systems and structures—including the legal
system—were created when people of color were denied full participation
in American society. Therefore, as many critical race theorists have
noted, CRT calls for a radical reordering of society and a reckoning
with the structures and systems that intersect to perpetuate racial
inequality.”
The article is of course vague on what this radical reordering of
society will look like but judging by what the critical race theorists
have deemed racist, which ranges from capitalism to the entire American
Founding, we can be assured they would be coming for the entire
constitutional order.
In fact an article published by The First Amendment Encyclopedia references Critical Race Theorist on legal theory by writing,
“For example, instead of helping
to achieve healthy and robust debate, the First Amendment actually
serves to preserve the inequities of the status quo; there can be no
such thing as an objective or content-neutral
interpretation in law in general or of the First Amendment in
particular; some speech should be viewed in terms of the harm it causes,
rather than all speech being valued on the basis of it being speech;
and there is no “equality” in “freedom” of speech.”
Legal scholars who subscribe to Critical Race Theory seem to view the
entire constitutional order not just in contempt, but subscribe to
interpretations of legal theory that have little standing in any sort of
serious understanding of the law. The First Amendment states that,
“Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.”
Nowhere in the text does it say anything about fighting inequality,
protecting individuals from “hate speech,” or any sort of recommendation
to taking account arbitrarily assigned power dynamics. A healthy and
robust debate is facilitated by free speech, and you either believe in
free speech or you don’t. If you believe that some people should not be
able to speak their minds, provided they are not calling for violence in
the discreet ways that have been established by legal precedent, then
you do not believe in free speech. If you believe that somehow it is
possible for certain people (likely you and your colleagues) to
determine who is able to speak freely and whose speech preserves the
inequalities of the status quo, that makes you a tyrant. Critical Race
Theory in the legal academy is the equivalent of Modern Monetary Theory
in the field of economics. Both are not only dangerous, but their
assertions are so disconnected from any respected academic understanding
of economics or law that it is clear it is more of a political tool
rather than a serious discipline worthy of application.
The policy undertaken by Rutgers’ SBA is unconstitutional on its face
but deeply troubling for what it symbolizes. It openly strays from the
perfectly permissible but potentially misguided endorsement of Critical
Race Theory to blatantly mandated conformity and compelled speech. It
would be beating a dead horse to lament that higher education is blindly
leading itself down a path that is self-destructive when it comes to
the diminishment of intellectual diversity and the establishment of an
ideological orthodoxy. However, the slow degradation of the American
legal academy in this fashion should be especially concerning. That is
not only because law students and faculty should already know full well
the values of open debate and individual dignity, but because they are
quite literally the vanguard of our legal order.
Ethan Yang is an Adjunct Research Fellow at AIER as well as the host of the AIER Authors Corner Podcast.
He holds a BA in Political Science with a concentration in
International Relations with minors in legal studies and formal
organizations from Trinity College in Hartford Connecticut. He is
currently pursuing a JD from the Antonin Scalia Law School at George
Mason University.
Ethan also serves as the director of the Mark Twain Center for the
Study of Human Freedom at Trinity College and is also involved with
Students for Liberty. He has also held research positions at the Cato
Institute, the Connecticut State Senate, Cause of Action Institute and
other organizations.
Ethan is currently based in Washington D.C and is a recipient of the
13th Annual International Vernon Smith Prize from the European Center of
Austrian Economics Foundation. His work has been featured and cited in a
variety of outlets from online media to radio broadcast.
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