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 Trump’s ban was blocked by a federal judge in December and
immediately revoked by President Joe Biden upon occupying the White House in
January. Since then, federal agencies and federal contractors have resumed staff
training on unconscious bias, microaggressions, systemic racism and white
privilege – some of the most common but also most disputed concepts associated
with the four-decade-old academic theory.
Now, critical race theory is about to face a major real-world test: a spate of
lawsuits alleging that it encourages discrimination and other illegal policies
targeting whites, males and Christians. But unlike Trump’s executive order,
which ran into First Amendment problems by prohibiting controversial speech, the
lawsuits name specific policies and practices that allegedly discriminate,
harass, blame and humiliate people based on their race.
The common thread of these legal challenges is the inescapable logic that making
accommodations for critical race theory will erode the nation’s
anti-discrimination law as it has developed since the 1960s. This would mean
replacing the colorblind ideal of treating all people equally, which has been
widely viewed as the crowning achievement of the civil rights movement, with a
contrary strategy: implementing race-based policies, which can range from
affirmative action to reparations for compensating African Americans for the
injustices of the past and for producing equitable outcomes in the future.
"Critical race theory is a Trojan horse of sorts," said David Pivtorak, a Los
Angeles lawyer representing two white men who are suing two California state
environment agencies. "It disguises itself as the gold standard of fairness and
justice but, in fact, relies on vilification and the idea of permanent oppressor
and oppressed races. Its goal is not ensuring that all people play by the same
rules, regardless of race, but equity, which is a euphemism for race-based
outcomes."
About a dozen lawsuits and administrative complaints have been filed since 2018,
with another wave planned this summer by conservative public interest law firms
and private attorneys. Their goal is to draw attention to some of the more
pronounced practices and win court judgments to slow down the spread of CRT in
K-12 schools, government agencies other organizations.
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." The
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."
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. 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.”
Critical race theory scholars assured RealClearInvestigations that white people
should never be fired, penalized or gratuitously humiliated for the historical
accident of being born white. But organizations should be granted wide leeway in
adopting diversity training and equity policies, they say, even if asking white
people to acknowledge their unearned privilege and think about their complicity
in white supremacy makes them feel singled out and induces anxiety.
“Part of being an employee or a public official or a school teacher requires you
to appreciate your own standing – your identity and your positionality,” said
Margaret Burnham, a law professor at Northeastern University and a former
Massachusetts state judge, using CRT terms that describe racial and gender power
hierarchies.
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“Anything that is about the education of the person so that they can do a better
job is fair game,” Burnham said. “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.”
Proponents of critical race theory say the lawsuits are a form of white
denialism that confirms the pervasiveness of the problem that CRT exposes. Many
critical race theorists believe that the United States has functioned as an
elaborate affirmative action scheme to empower and enrich white males, a
strategy that depends on a certain degree of coverup.
“I see these lawsuits as a last gasp attempt of those who benefit from the
racial hierarchy to cling to the power and the privileges that have been
associated with whiteness from the beginning of the country,” said andré douglas
pond cummings (who writes his name in lowercase letters), a business law
professor at the University of Arkansas at Little Rock who has taught courses on
corporate justice and “Hip Hop & the American Constitution.”
"Critical race theory challenges the very legitimacy of the legal system in
which these lawsuits are situated,” cummings said. “Treating people with
dissimilar histories equally, where some have been historically oppressed, can
lead to unjust results and outcomes, thereby requiring a focus on results and
outcomes, not on blind process, with the goal being equal economic opportunity
and equity.”
The central unifying insight of critical race theory is that racism is embedded
in the U.S. legal system and social structures, “so that you don’t have to think
about it anymore and you can have racism without racists at this point,” said
Robert Westley, a Tulane University law professor who specializes in critical
race theory and reparations.
“You don’t have to be an avowed racist in order for there to be race-based
outcomes in this society,” Westley said, noting that confronting these matters
“is going to entail talking about things that make a lot of people very
uncomfortable.”
CRT rejects the foundational premises of classical liberalism – such as legal
neutrality and individual rights – and from that perspective, colorblindness is
not understood as a strategy to overcome racism but as a method to perpetuate
it.
“It’s a white ideology,” Burnham said. “Colorblindness really comes into fashion
as a means of denying the persistence of racial stratification in the United
States.”
The lawsuits face a number of challenges, a point borne out by early setbacks
some of the claims have experienced so far, including the defeat of Trump’s
executive order on free-speech grounds. In another case, lawyers dropped the
discrimination allegations in one of the first such lawsuits, filed in 2018
against the Santa Barbara Unified School District in California, because, they
said, students and staff who supported the lawsuit were “deathly afraid” of
repercussions if they spoke out and came forward publicly as plaintiffs.
Claimants generally have to prove the alleged discrimination is severe and
pervasive. They also have to overcome the freedom-of-speech rights of those who
are professing to be dismantling systemic racism. What’s more, lawyers on both
sides say that courts traditionally defer to employers and educators to set
policy on workplace training and classroom curricula, a built-in restraint on
activist judges.
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