However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it. I am, in all honesty, disappointed in the court’s decision but that isn’t what has been eating away at me. My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on “critical race theory” (CRT) make their way to Georgia’s universities.
As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities. In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.
It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students. Even so, I have at least a basic understanding of it such that I at least know it when I see it.
To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT. While I genuinely doubt this was an intentional reference, their intentions do not affect this determination. Specifically, in siding with the state of Arizona to uphold these new laws on voting, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,” neutral and color-blind policies will leave minorities at a disadvantage in terms of voting rates.
In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color-blind) policy will “predictably” lead us to this result. This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.
Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy. So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students. There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.
Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic. Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party as it seeks a cultural wedge issue to fire up its base. In so doing, the party is waging a full-fledged attack on academic freedom and on education itself. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with.
The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom. That is what lies at the root of my despondency. In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.
The author of this essay, Nicholas Barry Creel, researches religion and politics, constitutional law and national security law.