The longer I live—and the more I watch the United States grow more diverse and more polarized—the more I’m convinced that the reasonable and textual application of American nondiscrimination law offers us a path through the wilderness. I’m also convinced that we need to change the way in which we argue about issues like “CRT” (critical race theory) and “DEI” (diversity, equity, and inclusion.)
Widespread ignorance about CRT—is it a relatively obscure legal and academic discipline no one really learns until college, or is it an all-encompassing world view that’s infiltrating every aspect of American life?—makes the debate remarkably frustrating. CRT is at once everywhere and nowhere.
A right-wing activist sees a silly or sinister PowerPoint slide from a corporate diversity seminar and says, “CRT!” A left-wing law professor sees the same slide, rolls their eyes, and says, “Derrick Bell would disagree.” Laws drafted to deal specifically with CRT often reflect ignorance and outrage more than careful deliberation and deliberate drafting.
As I’ve argued before, anti-CRT laws are both under-inclusive and over-inclusive. Their short provisions don’t begin to encompass an academic discipline discussed in hundreds of books and thousands of peer-reviewed articles. Yet they also sweep broadly enough to ban instruction in or promotion of ideas that are outside the scope of critical race theory. For example, Tennessee recently banned public school educators from promoting “resentment” against, among other things, any “creed.”