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Critical Race Theory Is About To Face Its Days In Court
aka: When Anti-Racists... Are Racists.

https://www.realclearinvestigations.com/articles/2021/04/27/critical_race_theory_is_about_to_face_its_days_in_court_774290.html
https://www.realclearinvestigations.com/articles/2020/09/02/the_deeply_pessimistic_intellectual_roots_of_black_lives_matter_the_1619_project_and_much_else_125033.html

As recently as last summer, few people outside academia had heard of
critical race theory, whose central claim is that racism, not liberty,
is the founding value and guiding vision of American society. Then,
President Trump issued an executive order last September banning the
teaching of this “malign ideology” to federal employees and federal
contractors.

Trump’s ban was blocked by a federal judge in December and immediately
revoked by 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.

David Pitvorak, plaintiffs' attorney: Equity "is a euphemism for
race-based outcomes."

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.”

Margaret Burnham, critical race scholar: “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.”

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.

“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.”

andré douglas pond cummings, critical race proponent: “Treating people
with dissimilar histories equally ... can lead to unjust results and
outcomes."

    "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.

Perhaps the biggest wild card in these lawsuits is the staggering
cultural shift of the past five years, during which many of the
precepts of CRT have become widely accepted, especially among many in
the nation’s intelligentsia and the professional managerial class.

President Biden has adopted the language and made equity part of his
platform, including a proposal to establish an Equity Commission “to
support the rights of Black, Brown and Native farmers.” Immediately
upon taking office, he issued an “Executive Order on Advancing Racial
Equity” to address systemic racism and “affirmatively” promote equity
and racial justice in the federal government.

“Our Nation deserves an ambitious whole-of-government equity agenda
that matches the scale of the opportunities and challenges that we
face,” the executive order states.

Biden's Education Department cited the 1619 Project among proposed new
priorities for education.

And last week, Biden's Education Department proposed new priorities
for its American History and Civics Education programs in recognition
that the Covid-19 pandemic and "the ongoing national reckoning with
systemic racism have highlighted the urgency of improving racial
equity throughout our society." The priorities include incorporating
diverse perspectives and anti-racist practices into the teaching of
history, with The New York Times 1619 Project cited as an example.

Ibram X. Kendi: "The only remedy to past discrimination is present
discrimination. The only remedy to present discrimination is future
discrimination.”

This paradigm shift has catapulted “anti-racist” experts like
diversity trainer and best-selling “White Fragility” author Robin
DiAngelo into the stratosphere of fame. Another beneficiary of the
zeitgeist is Ibram X. Kendi, the Andrew W. Mellon Professor in the
Humanities at Boston University who runs the school’s Center for
Antiracist Research. Kendi is the author of the 2019 bestseller “How
to Be an Antiracist,” which contains a succinct antiracist formula
that rests on the distinction between bad discrimination (racism) and
good discrimination (antiracism): “The only remedy to racist
discrimination is antiracist discrimination. The only remedy to past
discrimination is present discrimination. The only remedy to present
discrimination is future discrimination.”

The nation’s current anti-discrimination law does not make such a
distinction, and would read Kendi’s proposal as absurd as claiming
that there’s a meaningful difference between good theft and bad theft;
instead, all discrimination is wrong in the existing legal framework,
with the exception of limited, narrowly tailored exemptions that are
subject to strict scrutiny by the courts.

A sampling of recent lawsuits and complaints shows how critical race
theory practices have played out in a variety of circumstances.

The suit against the New York City Department of Education alleges
that employees were told at a diversity retreat that “there is White
toxicity in the air and we all breathe it in.” Examples given included
the Protestant work ethic and being socialized to be “defensive.” Such
messages about “interrogating Whiteness” were repeated over the course
of a year, during which time four white employees who later filed suit
were accused of privilege, shamed, demoted and replaced by African
Americans. The pair of lawsuits, filed in 2019, are in the discovery
phase as the Department of Education and the lawyers for the four
white women suing exchange documents and evidence.

A fall 2020 civics curriculum at a Nevada charter school encouraged
students to “unlearn” the oppressive structures within their families,
their religion and their intersectional identities. The teacher, who
identified herself in class materials as a bisexual agnostic with a
mental health disability, asked 12th-graders to reflect on the parts
of their identity that “have privilege attached to it.” according to a
discrimination suit filed by the biracial male student and his black
mother who allege he was coerced to affirm a political ideology
against his conscience and his Christian faith. The case, filed last
December, is headed for trial after a judge, saying the allegations
raise “some serious constitutional issues,” refused to toss it out.

Featured speakers: Blacks don’t use the outdoors in proportion to
their population due to white racism.

In the California lawsuit brought by the two white men, a discussion
hosted by the state Department of Fish & Wildlife featured speakers
who said that black people don’t use the outdoors in proportion to
their population because of white racism, generational trauma and a
historical fear of lynching. White employees were instructed on the
country’s deeply racist legal system and advised that “silence is
complicity” when it comes to racial injustice. According to the
lawsuit, employees were subjected to implicit bias training that
amounted to compelling staff to take “loyalty oaths” to CRT ideology.
The lawsuit, filed last October, is in the early procedural stage; the
state’s lawyers are seeking to have the case dismissed.

In one of the more unusual cases, the Department of Education’s Office
of Civil Rights agreed in early January with an Illinois public school
teacher that her school district violated anti-discrimination law when
it implemented a discipline policy that explicitly directed staff to
consider a student’s race when evaluating behavioral and disciplinary
issues.

The case offers indications that different judges will likely reach
opposite conclusions in such disputes: Just two weeks after ruling for
the schoolteacher under the Trump administration, the Department of
Education put the case on hold when President Biden took office and
issued the “advancing racial equity” executive order.

Jonathan O'Brien, Nevada plaintiffs' attorney: “The ideology is so
patently stupid and racist to the common person that the only way you
can implement it or teach it is with an element of coercion, otherwise
it would just be laughed at.”

The Department of Education initially found that the K-8 school
district engaged in illegal stereotyping when administrators and staff
were invited to write down “some defining aspects of white culture” in
a white privilege awareness exercise. The materials provided several
examples of “common white reasoning,” including: “we [whites] haven’t
had to develop the skills, perspectives or humility that would help us
engage constructively” in cross-racial conflicts. The agency also
flagged a segregated “affinity group” for white students that served
as a “safe space” for students to learn about white privilege,
internalized dominance, microaggressions and how to act as an ally for
students of color.

Hovering in the background of these lawsuits is the unresolved
question: To what extent does truth provide a defense against charges
of discrimination? It will come as no surprise that to conservatives
and other critics of CRT its fatal flaw is its factual wrongness.

“The ideology is so patently stupid and racist to the common person
that the only way you can implement it or teach it is with an element
of coercion, otherwise it would just be laughed at,” said Jonathan
O’Brien, the lawyer representing the student and mother who filed the
Nevada lawsuit. “That’s why the training sessions are like pressure
cookers.”

But if critical race theory is true, as its adherents believe, then
labeling the truth as discriminatory smacks of censorship.

The lawyers who successfully challenged Trump’s executive order last
year, for example, claimed truth as a defense when they argued that
their clients offer instruction about systemic racism and white
privilege as an essential part of their social justice mission to
provide equitable health care services. Systemic racism is understood
as the totality of social institutions operating in such a way as to
generate disparate outcomes for people of color in criminal justice,
health care, education and other areas.

Camilla Taylor, Lambda Legal: “We’re talking about a structure, a
system, that was set up to benefit white people."

    “We’re talking about a structure, a system, that was set up to
benefit white people. Whether people realize it or not, they’re often
continuing that system in a way that hurts people of color,” said
Camilla Taylor, director of constitutional litigation for Lambda
Legal, which calls itself the nation’s oldest and largest LGBTQ rights
group.

    “And to undo that structure you need to be able to name who it
benefits and who it disadvantages.”

Lambda Legal represented the NO/AIDS Task Force, Los Angeles LGBT
Center and Dr. Ward Carpenter, the Los Angeles center’s co-director of
health services who specializes in transgender medicine and personally
treats 200 patients. Their successful legal challenge argued that the
restrictions in Trump’s executive order “not only run afoul of First
Amendment protections, but they ignore verifiable and truthful
information, and therefore restrict highly protected professional
speech.”

In a phone interview, Taylor cited medical research published in 2019
in the Proceedings of the National Academy of Sciences that contended
when African American newborns are cared for by African American
physicians, their mortality rate is cut by half. There is no
explanation for the disparity in death rates but the race of the
provider, she said.

    “Implicit bias is a problem that is greater in white people than
it is in people of color,” Taylor said.

    “To prevent people from talking about these facts, because they
make you feel some sense of personal responsibility or guilt that you
don’t want to feel, is not only wrong but it hurts people in real
time.”

The stakes of this dispute couldn’t be higher, at least judging by the
rhetoric expressed by both sides.

One of the conservative groups planning to file lawsuits, the Upper
Midwest Law Center in Golden Valley, Mich., is in talks with
prospective clients who include non-whites, said the center’s
president, Douglas Seaton.

Seaton described the abandonment of the colorblind idea as giving up
on the nation itself.

“You can’t have a country as diverse as ours without equality before
the law,” Seaton said. “It’s a recipe for communal violence,
tribalism. You can’t simply proceed that way. You’d be doomed to
internecine battles between groups.”