E-Pluribus | June 16, 2021

David French's solution to the CRT wars in action, why David French is wrong about CRT in schools, and why we need a "culture of free speech."

Jun 16, 2021

A round up of the latest and best writing and musings on the rise of illiberalism in the public discourse:

David French: A Discrimination Complaint Against Stanford Shows a Path Past the CRT Wars

David French has been a staunch critic of efforts to ban teaching Critical Race Theory (CRT) in school, arguing, among other problems, that the proposed laws are vague and overly broad. Instead, French has argued that a remedy for the excesses of CRT exists in civil rights law. In a post at The Dispatch, he highlights a recent Equal Employment Opportunity Commission complaint filed at Stanford that illustrates how this might work:

But what if we stop dealing with racial conflicts in schools, universities, and the workplace by reference to “CRT” but instead by reference to phrases that are more easily understood and well-defined in American law—phrases like “racial discrimination” or “racial harassment”? This formulation allows us to distinguish between offensive ideas (which the law protects) and discriminatory conduct (which the law prohibits.)
I’ve made this argument in the abstract before, but a Stanford psychiatrist and a Stanford therapist are now making it concrete. Earlier today, the Jewish News of Northern California reported that psychiatrist Dr. Ronald Albucher and therapist Sheila Lavin have filed an EEOC complaint against Stanford University’s Counseling and Psychology Services division (CAPS).
[ . . . ]
In his report for Jewish News, Gabe Stutman helpfully summarizes the case. “The trouble began in November 2019,” Stutman reports, “when CAPS employees were asked to join weekly seminars run by the Diversity, Equity and Inclusion program within the clinic, formed earlier that year.”
[ . . . ]
To discuss White Fragility, the complaint says, DEI members split up CAPS staff by race, facilitating “space for white staff” to “process [their] reaction” to it. The group was later named the “Whiteness Accountability group/book club.”
The complaint describes “racially segregated affinity groups that separated CAPS staff members on the basis of race or perceived race. One of these groups was for white staff, and another group was for staff comprising minorities of color.
Okay, now we’re moving from a discussion of ideas into workplace segregation. Not only is the segregation itself deeply legally problematic, the complainants objected to the way it was done. The complaint alleges that “no affinity group was ever created for members of Jewish ancestral identity,” and I shouldn’t have to explain why it’s problematic to lump Jews into a group set aside for whites—especially given the way in which white supremacists systematically target Jews for violent persecution.
Of course, that’s not all. According to the complainants, the DEI program trafficked in rank Jewish stereotypes and refused to deal adequately with an antisemitic incident
[ . . . ]
It’s important to note that we presently only have Albucher and Levin’s side of the story. Stanford may contest all or part of their account. But if their account is proven true, it could present an excellent illustration of existing law’s potential to block and punish illiberal “anti-racist” discrimination and harassment.

Read the full post at The Dispatch.

Dan McLaughlin: What David French Gets Wrong about Critical Race Theory and Public Schools

Meanwhile, at National Review, Dan McLaughlin takes issue with French’s critiques of proposals to ban CRT in schools. The problem, McLaughlin argues, is that public schools are creatures of the state and as such states have always had a say in shaping school curriculum.

Where French’s argument jumps the rails is when he uses it to criticize state governments for attempting to ban the teaching of critical race theory (CRT) in their schools. There are fair criticisms of how some of the bills that would enact such bans have been drafted; legislation is a blunt instrument with which to control a curriculum, and some of the initial efforts have been more careful than others. But French casts the bills themselves as violations of the principles of classical-liberal procedural neutrality, and they are not — except to the extent that the very existence of public schools is a violation of classical-liberal principles. (That’s a legitimate stance, to be sure, but it’s unlikely to prevail any time soon.)
Public primary and secondary schools are the state and local government. They are owned by the state. They are built by the state. They are staffed by employees of the state. They are funded by exactions from taxpayers. The government forcibly compels attendance at them, if parents cannot provide or pay for an alternative means of schooling their children. It assigns children to a school of its choosing. Kamala Harris even threatened to jail people for not forcing their kids to attend. Public-school curricula are already thick with governmental mandates of what they must teach, and what students must show that they have learned. Rare is the public-school teacher in the United States who may walk into a classroom with total freedom to cover whatever material he or she would like to discuss — and even the teacher who has that freedom is exercising it as an agent of the government. We could no more get the government out of public schools than we could get water out of oceans.
There is therefore no question of having a public school without a government orthodoxy. That orthodoxy may be general, or it may be specific, but ultimately, content neutrality is impossible. There will be content that gets taught in government classrooms to a captive audience of children. It will be content dictated by one or more agents of the state — teachers, school boards, state agencies, or state legislatures. We can argue, fairly, for content neutrality from the federal government, which would ideally be accomplished by abolishing the Department of Education. We can and should argue for content neutrality in what government dictates to private schools. But public education has content, and somebody has to decide what it is. If the Right does not take a seat at the table, it will be on the menu.
French frets that “if you can ban CRT in one school, you can compel it in another, and heaven help the professor who tries to stand in the way.” But that treats public-school curricula like Schrödinger’s cat, which is both alive and dead until you open the box and find out one way or the other. In fact, with or without legislation on the topic, CRT ideology will either be taught or not taught in public schools. In every government classroom, an agent of the government will either instruct children in a collective, racialist vision of America, or they will not. There is no neutrality, any more than flipping a coin results in neutrality between heads and tails when it reaches the ground. There is only passing the buck from one arm of the state government in which conservatives will be heard to another in which we will not be, and then washing our hands of the outcome. That’s not neutrality; it’s surrender.

Read it all at National Review.

Robert Tracinski: We Need More Than the First Amendment, We Need a “Culture of Free Speech”

Discussions about free speech often devolve into questions about whether certain speech is protected by the First Amendment of the U.S. Constitution. But, as Robert Tracinski argues at Discourse, today’s arguments over acceptable speech and, well, discourse often have more to do with cultural norms than our legally protected rights. We should want to protect and promote a “culture of free speech,” he contends, because those values ensure a free and prosperous society.

A culture of open debate also protects us from falling into uncritical groupthink. Consider a very recent cautionary tale: the “lab leak hypothesis” for the origin of the COVID-19 outbreak, which was initially dismissed as a crackpot conspiracy theory but is now acknowledged as a plausible alternative. Whether the lab leak theory proves to be true or not, it’s a bad precedent for public health experts and commentators to ignore the evidence about a potential danger.
Yet most of us would also accept that there are ideas beyond the pale, claims such as denial of the Holocaust that are so intellectually discredited and so vicious in their implications that we see no value in entertaining debate over them. Such delusions are tolerated legally, at least in the United States, but not culturally.
Dismissing some ideas—such as Holocaust denial—may even be required to clear the way for a free and open debate on questions of actual substance. Authoritarian rulers, for example, have begun to adopt the tactic of flooding the media with conspiracy theories and unsubstantiated claims, not so much to convince people to accept these claims, but rather to confuse the debate and make people give up the effort to sort truth from fiction.
And of course, there are always hucksters and charlatans who exploit concerns about “cancel culture” to escape legitimate criticism. The all-time prize for chutzpah probably has to go New York Governor Andrew Cuomo for declaring that he would “not bow to cancel culture” as his way of dodging credible allegations that he sexually harassed employees and suppressed data on coronavirus deaths.
So unless we define our terms more clearly, appeals to the culture of free speech will inevitably be murky or subjective and will seem like a selective protection for people we like that is withdrawn for people we don’t like. Every society has to draw lines to determine what is acceptable and what is not, and we’re just upset that people are drawing the lines in different places. Or worse, we’re upset that different people are drawing the lines.

Read it all at Discourse.