The issue is going to be adjudicated in various courtrooms in the coming months. A post at Real Climate Investigations examines the cases for and against policies based on Critical Race Theory (CRT). Critical Race Theory Is About to Face Its Day(s) in Court by John Murawski. Excerpts in italics with my bolds and images.
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.
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.
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.”
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.
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.
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.
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 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.”