Banning things that don't exist

Critical Race Theory and Virginia

“Critical Race Theory isn’t even taught in Virginia schools!”

One of my bits of advice is to always concede the universal, demand the particular. This has application to the recent Youngkin gubernatorial win in Virginia and the Critical Race Theory issue.

Critical Race Theory (CRT) is now a major electoral issue among independents and Republicans. Numerous anti-CRT candidates have been running and winning across the country, and this will undoubtedly continue into 2022 and beyond. I have a whole long-form op-ed I wrote months ago walking through candidates running against CRT (which, as is my wont, is unpublished—no one has more cutting-room floor content than me). My good friend Ryan Girdusky has a whole PAC with a 75% win rate that is running anti-CRT school board members. It’s a big deal!

Confronted with this, the left has numerous responses, but my favorite is some form of this: “These stupid right-wingers are concerned about something that doesn’t exist. CRT is a technical field that is graduate-level and only taught in law schools.” This phenomenon is very interesting to me as a bit of propaganda.

At root, however, it’s an example of the left conceding the universal (CRT might be inappropriate at the grade-school level) but demanding the particular (but it’s not taught, therefore CRT bans are silly). There are other aspects of this propaganda, such as the way it attempts to turn Sokal-tier bullshit, which justifies the least-productive and least-intelligent among us into tenured academics, into a field of “expert” study. I recall a professor at my law school, for example, covering up for his laziness by pretending his “all As” policy for constitutional law was about “equity” rather than his inability to focus for long enough to develop and administer a final exam to students.

“Racism isn’t a part of public accommodations!”

The Boomer response is: “this is gaslighting: of course CRT is taught.” And there’s truth to this, but I would like to take a more radical approach (or a less radical approach, less concerned with intent and thoughts, and more with proper order). Let us concede, or at least set aside, the particular—CRT is a Wittgensteinean “family resemblance” concept, in principle undefinable or actually not taught in public schools across the country. Fine. Let’s hold that thought for a minute.

We can still ban CRT.

Query: does federal law ban racism? Answer: No. The Civil Rights Act of 1964, and other follow-on statutes, do not ban “racism.” Is this because racism didn’t exist prior to that law? (Bear with me). No.

What does the CRA ban? “Discrimination.” But does the word “discrimination” mean what normal people think it means? No. The word “discrimination” in the statute is highly abstract and technical, and involves a thicket of caselaw, including Supreme Court caselaw in both purely statutory and quasi-constitutional areas.

So if it didn’t ban “racism,” or even “discrimination,” why do we even have the CRA? First of all, read Christopher Caldwell—his book of last year, on the subject, is excellent. What the CRA did, and what follow-on statutes like Title IX of the Educational Amendments of 1972 did, was to create a bureaucracy.

The bureaucratic, Diversity Equity Inclusion (DEI) world we live in is very much endemic to the CRA. Higher tuition (campus administrators) and lower wages (corporate VP for DEI, huge and costly HR apparatuses), as well. (Footnote: this is part of the COVID mandate poison pill—companies are trained to collect and reject religious exemptions— this will have long-term consequences). And it has changed the culture. All of that from a law which doesn’t even ban racism.

So we can ban CRT, even if we don’t “ban CRT.” We can establish closely related standards, and set up appeals processes, local boards of review, auditing, direct rights of action, and the whole bit. And we can get at CRT without using the term, and we can go beyond merely listing what is off-limits.

I was privileged to be in the room when the first words of the CRT EO were laid into a Word document, just myself and one other person in an office in the White House, spitballing. And the instruction was to deal with purely federal training (I was dual hatting at OPM at the time). But in that first few minutes, I recommended, and we adopted the view, that we could leverage federal contracting rules to prohibit CRT.

I had no part in defining CRT—to tell the truth, the “scapegoating” language was a bit Boomer (and I said so at the time, but deferred—I am at heart a mere advisor). But piggybacking off of already existing state (say, Virginia) or local antidiscrimination law (even, carefully, federal law) is a fine method for getting the ball rolling.

There is so much energy right now on CRT—parents understand that it is a part of a frog-boiling strategy to destroy local communities and families, and to change the culture for evil. So my recommendation (and I expect to write something more granular on what Virginia / Texas / others can do) is to do something, anything. You have the wind at your back and can pass technical amendments going forward. Just start now, fight the legal fights, and don’t worry about the perfect.