Judge Strikes Down High School’s Racial Balancing Policy

On today’s podcast, David and Sarah discuss a new case striking down a high school ...

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On today’s podcast, David and Sarah discuss a new case striking down a high school admissions policy in Virginia, digress into a talk about the power of Ukrainian courage, and then return to the law to talk about Clarence and Ginni Thomas and conflicts of interest. They finish with an extended discussion of the role of legislation in regulating the dissemination and discussion of ideas in public schools.

Show Notes:

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  1. William Althoff

    I really enjoyed the CRT discussion and would like to be able to look into some of the authors/sources David mentioned. I’ve looked around here a bit and haven’t seen them yet. Are they listed anywhere? If not, I suppose I can listen again and get them there.

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    LeGrand Northcutt

    Wow-- such an amazing episode! A Little bit of insider baseball on the TJ case that goes to the point of "we need to change things legally/not using race or race proxies" for those who are interested.

    In 2021, HB 2035 was killed by Northern Virginia Democrats in the Virginia Senate after they were overwhelmed with complaints from constituents. This was a bill supported by the then secretary of education (an asian man, though from Pakistan) to require the state board of education to develop guidance (read: non-binding) for governors schools admissions policies (and other governance things).

    Now, there are all kinds of ways to be cynical about this. Who knows what the bureaucrats would have suggested or what would have ultimately come out of this guidance. But the point is that 1) you have people who are higher up than the school board making recommendations that apply to all governor's schools to fix a perceived problem (I am assuming for the sake of argument that the racial makeup of the schools is a problem, but it does not have to be) in a way that is going to be, at the very least, facially race neutral, and 2) the bill was killed by an uproar from the same group that brought the suit with the same arguments they made in the suit because they believed any attempt to change the policies must be rooted in anti-asian hatred.

    I think this goes to the broader point that y'all make all the time that this type of opposition-centered escalation where we assume the worst about each other is not good for society. Again, there is no way to say what the guidance would be or what politicians would have done with it, but it was very disappointing to see people oppose and ultimately kill a proposal to have the state study an issue to try to reach a (potentially legal) solution because of what the bad actors on their school board were doing.

    **full disclosure-- I worked for the Northam administration at the time this bill was brought. However, everything I have said can be found in news reports/committee testimony**

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  3. Will Brisley

    I remember the Gorsuch cold trucker case

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  4. Adam Shields

    The Georgia bill proposes that you cannot teach that the United States is systemically racist. But the 8th grade social studies requires the teaching of Dred Scott, Slavery and Reconstruction.

    I have yet to hear anyone that has a basic familiarity with the Dred Scott decision explain how an 8th grade teacher can teach about Dred Scott and while at the same time following the proposed GA bill. The decision essentially is an affirmation of white supremacy and that the country has no obligation to recognize the rights of Black people (free or slave) within the US.

    This is not changing the curriculum, rather it is proposing constraints on the teachers that would make it impossible to actually teach the current curriculum accurately.

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    Mack

    Is the U.S. Congress authorized to regulate state primary and secondary school curricula? David's argument that parents who object to racism being promoted in schools should rely on civil rights lawsuits seems to imply this. How common is it for a federal court to order a state-run school to change its curriculum based on a federal statute?

    I recall that in Edwards v. Aguillard SCOTUS said that Louisiana couldn't teach Young-Earth Creationism. But that was on constitutional grounds, not statutory.

    It doesn't seem to me that Congress *should* be able to restrict what state governments require in their school curricula, but I don't know if it *can*.

    If the argument is that teaching racism constitutes harassment and that Congress can ban harassment, then the problem is that not all racism would necessarily constitute harassment, but one would still wish to keep it out of the classroom. So, for example, take the case of a small town in a rural area that doesn't happen to have any Jewish residents or students. If the school taught antisemitism as part of its curriculum, no one would be the victim of harassment and therefor no one would be able to sue. It would nevertheless be perfectly legitimate to want to prevent that school from teaching antisemitism.

    I don't see why the state legislature shouldn't try to ban antisemitism in the curricula. I don't see why transparency and civil rights laws should be the only arrows in our quiver.

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    Ian Fillmore

    AO is consistently excellent, but I thought Sarah’s Q&A with David over CRT was outstanding. Great job Sarah and David! I have been struggling to understand David’s position on anti-CRT laws for a while. Thank you Sarah for allowing him to flesh out his ideas with some good-faith push back. (I would love to see David return the favor in future episodes!) Now that I think I can understand David’s thinking on this, here are a few thoughts:

    1. David seems to think that this argument of “You guys haven’t defined CRT properly” is both valid and persuasive. I think it is neither. He’s correct that anti-CRT folks don’t really understand CRT (Who does?). But that’s really a non-sequitur. Parents across the country have a variety of related complaints about what is taught in schools. They’ve labeled that bucket of complaints “CRT,” even though their complaints don’t map well to articles written by legal scholars like Derrick Bell. So what? I value precision in language, so I would have chosen a more precise label. But it won’t due to dismiss the parents because their label is imprecise.

    2. I think Sarah hit on a really great point which I need to think about more. David acknowledged that CRT provides a lens to view the world, but that lens is both contestable and contested. Thus, to be taught appropriately, CRT has to be taught in a very nuanced and sophisticated way. When it’s not taught with the appropriate level of nuance and sophistication, you end up with ugly racial essentialism. Are high school students mature enough for that level of nuance? Are high school educators sophisticated enough to provide that level of nuance? Good questions, and I think the point has much broader implications for what a good curriculum should look like.

    3. I think one of the core issues here is trust. Parents do not trust schools and teachers to exercise wisdom and judgment when it comes to sensitive subjects. This is the thread that unites history education, civics education, race, sex ed, and gender and transgender issues. I get the sense that there has been a major erosion of trust since Spring of 2020, and that explains a lot of what’s going on here. Moreover, this distrust of schools is not a purely right-wing phenomenon (as evidenced by Northern VA and San Francisco).

    4. David likes to point out that “anti-CRT” positions and legislation are not well thought out. He’s right of course, but that incoherence is what tells me this is actually a bottom-up phenomenon. I see a lot of frustration and distrust among parents being manifested in a variety of, often contradictory, ways. It’s the job of political leaders to understand the underlying frustration and craft coherent policies to address it. In large part, things have gotten out of hand because local school boards have not responded to genuine, and legitimate, frustrations. And they have done a poor job of regaining parents’ trust.

    5. Finally, Sarah raised an excellent point about how there’s a lot of history one could teach, and very tight constraints on how much you can actually teach. Michael Huemer provides a great example (https://fakenous.net/?p=2739) of how a curriculum could teach only true things, yet still be racist. For example, a history curriculum that focused exclusively on bad things done by Jews in the past would clearly be anti-Semitic, even if everything taught actually happened. So any choice of history curriculum is going to involve value judgments and tradeoffs about which aspects of history are most important. If you want to add the Tulsa Race Massacre to the curriculum that’s fine, but you also have to say what it’s going to replace.

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    1. Anonymous

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      1. Anonymous

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        1. Adam Shields

          I didn't actually mean to post it in reply to yours. I will move it.

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      Mack

      Great post. I was just about to write a comment covering some of the same ground as your point 1, but you've done a good job.

      On the question of whether 'CRT' is the right term to describe the set of ideas to which parents are objecting, I agree with you that the question is irrelevant to the larger question of whether the ideas should be promoted as true in schools. However, I disagree that the use of the term by parents is imprecise. Many of the school systems promoting these ideas themselves describe them as CRT; moreover, some of the academics who advocate CRT see the ideas being taught in schools as natural outgrowths of CRT.

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        Ian Fillmore

        True. There's a bit of a motte and bailey thing here where advocates want to call it CRT in front of a friendly audience, then deny that it's CRT in front of a hostile audience. Also, defining CRT is a bit like trying to nail jello to the wall. But I think we agree that it's pointless to get sucked into these word games.

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  7. Stephen Gilbert

    Hey David and Sarah! Long time listener and fan! I know this has nothing to do with anything going on in the legal system right now, but I have a constitutional question. I'm attending the University of Arkansas, and in my Constitutional Law class we are discussing the 14th amendment, as well as certain Supreme Court cases regarding the 14th amendment. My question is, what is the legal difference between Lochner v. New York (Judicial Anti-canon), and Griswold V. Connecticut? One is despised by the legal academy, while the other is well regarded and is the basis of so many unenumerated rights in modern Supreme Court jurisprudence. These Cases seem Identical to me, and neither my professor nor my classmates have been able to give a good reason for the discrepancy outside of a preference for social liberalism, and a dislike of economic liberalism. They want to favor unenumerated social rights and disfavor unenumerated economic rights. Thank you for your time and everything you guys do!

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    PaulH

    I think that David’s outrage at parents’ unwillingness to rely on civil rights laws to combat CRT is misplaced. The issue is that much of what parents’ rightly find objectionable about CRT does not implicate civil rights laws.

    For example, teaching a Marxist view of history and politics probably does not implicate any civil rights laws. But parents would rightly object to their children being indoctrinated into the view that class conflict explains our history and politics.

    CRT is similar, but just with a different monocausal explanation. Much like Sarah’s mentor said that you can find a gender discrimination explanation for anything that goes wrong with your life, CRT says that any disparity between blacks and whites must be the result of racism. Indeed, CRT goes farther and says that even the things many people would consider good about America (rule of law, our constitutional rights, economic prosperity etc.) are in fact racist. While some CRT teachings implicate civil rights laws (for example, teaching that whites are inherently racist) much of it doesn’t. Parent’s need to look to tools other than civil rights laws to object to those teachings.

    So, sure, civil rights laws might be helpful certain situations. And, yes, getting the right curriculum in place makes sense too.

    But why is the middle ground approach of using anti-CRT laws to establish principles to guide education so wrong? As David and Sarah admit, some provisions serve to amplify civil rights principles. In other cases, I think they are just not reading the statutes correctly. For example, the laws do not ban teaching things that might make a person feel ashamed of their races; rather the laws ban teaching that a person SHOULD feel ashamed because of their race.

    There may well be problems with some anti-CRT laws, but that is an argument for fixing them, not abandoning the approach entirely. David and Sarah have never given an argument (convincing or otherwise) why it is inappropriate for a state to set principles that K-12 educators must adhere to. And the idea that civil rights litigation (which is slow, uncertain and unable to address some of parents’ real concerns) is a sufficient solution is baffling. School curriculum is ultimately the responsibility of the political branches not the courts; there is no reason that parents should not avail themselves of the political process in order to get appropriate subject matter taught in their children's' schools.

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    Ben Connelly

    I laughed out loud when David said “strawberry Hi-C.” And then again at, “I just like to party.”

    Also I love how those of us in the comments just got our status upgraded!

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  10. Lylegruby

    I thought your discussion of Ginny Thomas’s conduct was very good. I was prepared to disagree, but I came away pretty close to Sarah’s view. Canon 2 of the Code of Conduct for Judicial Employees instructs that judges and their employees are to avoid even the appearance of impropriety in all activities. That’s obviously broad and vague, but Sarah, your point about the gamesmanship that parties would engage in to disqualify judges in certain cases persuaded me that your view is the correct one. Recusal must be based on narrow fact patterns so that the administration of justice can actually work.

    While I am also very uncomfortable with Ginny Thomas’s activities, there is no evidence that Justice Thomas would have ruled differently in any case, which is the most salient question to ask. If I were the spouse of a federal judge, I would gladly sacrifice any personal pursuit that could lead to the appearance of impropriety because federal judges occupy a special place in our system of government, which depends on the public’s trust that judges issue their rulings dispassionately. But I suppose it isn’t fair to expect that same viewpoint from everyone else.

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