School CRT Bans Aren't Speech Codes - No Matter How Little You Like Them
Only a few people reading now will remember, but the original concept of this blog was to deconstruct bad arguments. My thinking was that every week I’d find someone making a shitty argument of some kind, and I’d attack just the argument itself. It wouldn’t matter if their conclusions were right or wrong or if they were on my side; I’d just pick holes in the way they were saying it, examining the validity of the methods they’d use to convince people of various things. It turned out very quickly that it was more fun to write other things as well, and I gave the “attack only arguments” concept a rest, which I think suits everyone better.
And so it was, until I was betrayed by John McWhorter and Andrew Sullivan. And David French, a little.
Understand that I actually like McWhorter and Sullivan a lot (I’ve tried and failed to get into French multiple times, for what it’s worth). I agree with them on more than I disagree with them on. I think both are brilliant writers. And then they drop this:
And both these things are dumb. These are smart guys, but they are both saying something that’s wrong on multiple levels, and they are both smart enough that they probably know they are. And so now I’m sucked back into the argument disassembly game, whether I like it or not. May god have mercy on your souls.
To spice up what might otherwise turn into a bit of a slog, I’ll try to break down how I approach things like this. Like pyramids, there’s a lot of levels to clamber up before I get to the point. Also like pyramids, sometimes the point is missing entirely.
The first level is semantics - basically looking to see if what they are saying is technically true. Sullivan is fine here (if a bit hyperbolic), but McWhorter is instantly pretty off the mark. (Note: Since Sullivan’s tweet here was responding to McWhorter’s, I’m going to verbally treat them as a team for most of this article. This isn’t quite correct, but it’s much, much easier than wrangling pronouns the whole article) He’s quoting French’s use of “speech codes” here because it’s scary sounding even if you don’t have an opinion on them already. The words smell faintly of oppression and totalitarians; they have a certain built-in negativity. But the NYT article he’s talking about mentions laws like this:
Tennessee House Bill SB 0623, for example, bans any teaching that could lead an individual to “feel discomfort, guilt, anguish or another form of psychological distress solely because of the individual’s race or sex.” In addition to this vague proscription, it restricts teaching that leads to “division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class or class of people.”
Texas House Bill 3979 goes further, forbidding teaching that “slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States.” It also bars any classroom from requiring “an understanding of the 1619 Project” — The New York Times Magazine’s special issue devoted to a reframing of the nation’s founding — and hence prohibits assigning any part of it as required reading.
McWhorter is banking on you seeing “teaching” and understanding these are laws that affect schools and associating them with speech codes, which also have to do with both those things. But here’s FIRE’s definition:
FIRE defines a “speech code” as any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large. Any policy—such as a harassment policy, a protest and demonstration policy, or an IT acceptable use policy—can be a speech code if it prohibits protected speech or expression.
Many speech codes impermissibly prohibit speech on the basis of content and/or viewpoint. An example of this type of policy would be a ban on “offensive language” or “disparaging remarks.”
And here’s Wikipedia:
A speech code is any rule or regulation that limits, restricts, or bans speech beyond the strict legal limitations upon freedom of speech or press found in the legal definitions of harassment, slander, libel, and fighting words. Such codes are common in the workplace, in universities, and in private organizations. The term may be applied to regulations that do not explicitly prohibit particular words or sentences. Speech codes are often applied for the purpose of suppressing hate speech or forms of social discourse thought to be disagreeable to the implementers.
Today’s conventional wisdom seems to be that university speech codes banning “offensive” expression on campus are a distant relic of the heyday of political correctness in the 1980s and 90s. But in truth, speech codes—university policies prohibiting expression protected by the First Amendment in society at large—are nearly as popular as ever.
Note the through-line: speech codes are codes that limit speech at a workplace or especially at a school that restrict speech more than the usual narrow restrictions on people’s free speech. But teachers speaking in a classroom are not people, at least as far as free speech is concerned. From ACLU:
Example 4: You are instructed not to discuss with students your personal opinion on political matters. In a classroom discussion on racial issues in America, you let your students know that you have recently participated in a Black Lives Matter demonstration. This “speech” may not be protected. Courts have found that teachers can be disciplined for departing from the curriculum adopted by the school district, and inserting your personal experience as a protester could be considered such a departure. This is because school districts have the authority to control course content and teaching methods. It is not as clear whether the First Amendment would protect you if you had not been specifically instructed not to share your political beliefs. Some courts have ruled that schools may not discipline teachers for sharing certain controversial words or concepts in class that are relevant to the curriculum.
This is pretty damn well established, and for good reason: teachers are, while teaching in a classroom, the government rather than people. This is a pretty good summary of the issue in play, but to the extent the government has free speech it has those protections as an entity, in the interests of being able to function. It doesn’t need those protections to be able to speak (since it’s the government, and can shoot you if you try to stop it) but it does need them to be able to have a consistent message. So while they can say whatever they want in their free time, while on-the-job a government employee is generally constrained to saying only those things the government wants them to say. If a government couldn’t do that, it couldn’t have a coherent message - every agent of the government could represent the government as thinking and wanting whatever they (as individuals) might like. Put short, when acting they as private citizens have the right to say whatever they’d like; as agents of a government, they can only say things the government wants to say.
So while speech codes are generally aimed at students or at least are generally aimed at restricting speech that isn’t already well-established as restricted, this isn’t that - it’s a separate issue with separate implications. You can like that separate issue or hate it - this isn’t a value judgement. But McWhorter and French sort of know that if they try to scare you by accurately describing this as a normal, well established element of how government speech works you won’t get properly frightened, so they try to tuck it under a creepier umbrella on the sly.
So we’ve looked to see if they were tricking you with word choice; they sort of were. But if I stop there, the next thing I hear from someone, somewhere is that “I know what they mean” - that yes, maybe the words were poorly chosen, but it’s not fair to pick apart the words of a tweet and that in their heart-of-hearts they meant something more reasonable. So now we have to look at what they appear to want you to end up believing as a result of reading those tweets - the opinion they were hoping they could get you to hold.
McWhorter wants you to be scared, as we mentioned before; that’s why he used a scare phrase to scare you. But Sullivan and McWhorter both want you to believe something else: that legislative intervention here is weird and clearly wrong, and that literally any other way of blocking this would be better.
Sullivan suggests, for instance, that instead of going to elected officials to correct this, you should instead “get on the school board”. But school boards are either elected officials or serve at the pleasure of elected officials, as a general rule. And there’s no particular reason to think they’d be less OR more overbroad than a legislature; he’s just asking you kick the can down the road a bit further in hopes you lose it in a ditch.
French, on the other hand, pushes a muddled concept of “proposing better curriculums” and lawsuits:
A wiser response to problematic elements of what is being labeled critical race theory would be twofold: propose better curriculums and enforce existing civil rights laws. Title VI and Title VII of the Civil Rights Act both prohibit discrimination on the basis of race, and they are rooted in a considerable body of case law that provides administrators with far more concrete guidance on how to proceed. In fact, there is already an Education Department Office of Civil Rights complaint and federal lawsuit aimed at programs that allegedly attempt to place students or teachers into racial “affinity groups.”
It’s unclear what means by “propose better curriculums” here. He might mean that legislatures should kindly suggest them to schools who, without the weight of a law mandating it will tell them to screw right off. Or he might mean that legislatures pick and enforce specific curriculums with the full force of the law, but he doesn’t actually; he’s already calling bans of specific ideas speech codes and saying they are terrible abuses; there’s no way he’d take the legislature mandating every word of a curriculum to exclude them (which would be necessary to stop them) to be less forced-speechy. This half of his recommendation is just straight up gibberish as a result; he doesn’t seem mean anything by it except “give up and drown”.
When called on the apparent weak-sauce no-legislation ask of his article, French suddenly clarified that “propose better curriculums” had meant legislation all along:
Here he completely renders himself incoherent. If this version of French’s position is the real one, then he’s essentially saying “Don’t ban specific topics - that would be forced speech.” on one hand, while saying “Just completely define the curriculum so nothing BUT what you want can be said, that would be fine and not forced speech at all.” on the other. If you’ve read any French at all, there’s no way he believes this, but here he is saying it. Make your own judgement as to why.
He also proposes lawsuits as an alternative. Lawsuits are a little more defensible as an option presenting an actual difference in outcome, since we would expect them to be narrower in scope. But a lawsuit trying to get curriculum banned is something you do when you’ve already lost the conversation, as French knows - it’s risky. A loss in a lawsuit is immediately entrenched in a way a failure to pass a law isn’t. More than that, French gives the impression that a lawsuit is likely to accomplish everything a law could, but this is far from clear - decisions in lawsuits are often distressingly narrow; a win might feel nice, but very well could end up preventing only the very most visible forms of the issue.
The end result of all of this is people asking others to pursue only the lowest-probability and highest effort options to solve the problem they can. The only real difference between pursuing bans at a state legislature level and the lowest levels that have any actual authority is that it forces CRT opponents to fight dozens or hundreds of battles in their states instead of one; it makes it harder to succeed and infinitely harder to reverse. Basically, they seem to want this to be messy; there’s no other benefit gained. Or, where they can’t get messy, they will take something like “uncertain, time consuming, expensive and more irreversible” in addition to the fight-it-on-a-thousand-fronts option, which what suing under CRA pans out to be.
And, you know what? They can argue those points. Maybe the over-broadness of the laws exists and outweighs all the downsides of their other proposed solutions. But note that if those decisions are overbroad, they are the reactions of elected officials to their electorate - under our system of government, those overbroad decisions represent what the people who voted those legislatures in want. Moreover, they are super-easy to reverse compared to anything other proposed solution. Statewide laws can be reversed by flipping the legislature, if the voters want it. Court rulings are potentially eternal.
Making their argument a little weaker is the face that none of this is new or really all that unusual; a lot of decisions like this are handled at the state level. From Wikipedia:
On February 19, 2008, the Florida State Board of Education adopted new science standards in a 4-3 vote. The new science curriculum standards explicitly require the teaching of the "scientific theory of evolution," whereas the previous standards only referenced evolution using the words "change over time."
In Florida, the state board serves at the pleasure of the Governor; in any real sense, this was a decision under the control of a single person. I chose something that’s broadly from the other end of the political spectrum in terms of what a person might support on purpose - if you support, say, a Governor or an elected state school board possessing the power to mandate curriculum changes in one case, you should also support it in the other. - if you feel split, that’s an issue of what you think should or shouldn’t be taught, not who you think should mandate it.
This is necessarily the weakest kind of argument out of the layers - as you can tell reading through, I’m mapping a lot of stuff onto Sully and French that they may not believe, even if their words seem to imply it. I think there’s a summary here that’s defensible - that Sully and French want you to think some elected officials with power over what schools teach should be able to exercise it, while others shouldn’t, and that they fail to defend it very well. But I can’t prove that; this layer is inherently open to attack as well, the subject of those attacks in this instance being my own bias and strawmen. So we need to go a bit deeper.
A phrase I use a lot is talking about someone’s “ask”, which I use to basically mean what they’d get if you gave them everything they wanted. The next layer deals with that, and it’s probably the most important layer, since we are now starting to get into the practical implications of their argument and the kind of things you’d have to deal with if you let their argument win you over.
Sully, McWhorter and French’s first ask has to do with specificity. In both cases they are saying these decisions are overbroad - French does the same thing here (paywalled):
Rather than view Trump’s unconstitutional order as a cautionary tale of government overreach, red states viewed it as a model—leadership by example. And thus the race to ban CRT was on. As I’ve written before, red state after red state (including my own state of Tennessee) is hustling to ban not just advocacy for “divisive concepts” or CRT (often poorly and imprecisely defined), but also even inclusion of such concepts in a course.
Recall too that above McWhorter called these laws overbroad and unnecessary; Sullivan agreed and said they spell the end of liberal democracy. Now go look to each them for more specific regulations that could work. Hear those crickets? None of them ever gets into anything close to specifics on what sort of bans would be specific enough to work - there’s just some handwaving in the direction of literally any other solution besides the one that is working from the perspective of people who don’t want CRT in schools.
If the proposed laws are overbroad, they could certainly (and will probably) be tightened as they go through the process of passage. But note that none of the three is asking for this - they don’t propose more specific laws or phrasings they’d accept. They say the broadness is the issue, but instead of proposing the broadness be corrected they just handwave vaguely towards other options as de facto better and leave it at that - this doesn’t mean they aren’t really concerned about the vagueness of the laws as much as other unstated things, but it sure as hell hints at it.
In effect, their ask to parents who oppose this as far as broadness goes is:
A. That they abandon the strategy that’s working
B. That they adopt the strategy of trying to convince school boards (which hasn’t been working), elect new school boards to make the bans instead of the legislature (which wouldn’t affect broadness), or to take it to court (require a huge amount of expense and likely a long amount of time, with very uncertain but ultimately semi-permanent results).
Another way to put this is that Sullivan, McWhorter and French are all three asking these people to stop winning and maybe lose. They are asking them to snatch defeat from the jaws of victory and retreat to a losing battlefield with no promised advantage to counterbalance their loss. One of my friends suggested that this is because they are inherently uncomfortable with conservative wins, that they think of victories from the right as an affront against nature. I can’t prove this is the case, but it’s sure as hell not inconsistent with that.
To put it into clearer perspective, think of it this way: pretend these laws were up for a popular vote instead of being decided on by state governments, and there were two competing forms. The first form was to ban CRT, and the second was to enshrine it. If McWhorter et al advised people who like CRT to not vote in their own interests and let the other side get their law passed just so they could later challenge it in court, you’d think they would be crazy - why would they let the other side steal a march like that?
But they are doing something similar here - note that they are putting all the responsibility of taking this to court on exactly one side. There’s no suggestion that other people should let it pass and then challenge it in court - after all, they might lose and the law might stand. Only CRT opponents are asked to accept a tactical disadvantage; one side is free to entrench perhaps for years in the meantime while leaving all the hard parts to the other team.
If the last couple sections were long, this last layer is blessedly short: I think it’s always a good idea to round these things off by looking for the most conspicuous thing the opponents are ignoring.
The basis of French’s arguments (and, to a lesser but still real degree McWhorter’s and Sullivan’s) is that by making these kind of overbroad laws, people end up giving the state a great deal of control over what their children learn, and that this power can be turned around on them just as easily.
Now, I could easily point to the fact that the state already has a great deal of power. For instance, the state demands that you pay for schools that they then demand you send your kids to on threat of significant punishments - jail, fines, or in extreme cases the loss of the children themselves.. I could further point to the fact that no new powers are being established here - that legislatures have always had this power and could have always exercised it in this way. These things matter, because to some extent McWhorter and crew are cautioning people away from these laws because they grant states power, without noting that the states already have the specific powers discussed.
Those would be pretty conspicuous things that are either being ignored entirely or handwaved. They are not, however, the biggest thing they are ignoring.
There’s a bit in the movie I am Legend where Nanny McPhee is on television explaining a great new medicine she’s developed to cure cancer by hijacking the measles virus. She says unaltered, measles is like a very fast car being driven by a very bad man; it could cause a lot of damage. But if you put in a cop in it, it could do a lot of good. I reverse this concept sometimes and describe building an invincible tank - it’s very nice to have an invincible tank if you are the one who gets to drive, and not so good if your enemies end up stealing it.
The French/Sully/McWhorter trio all warn against something similar - that CRT-in-schools opponents might be building an unstoppable weapon that might be used against them. Which sounds great - until you realize the audience they are trying to convince are people who are already in the sights of the big guns of a tank that’s already forcing them into a situation identical to what they warn about. Essentially they are saying “Are you crazy? If you pass laws like this, you run the risk of the state having the power to force you to give them your kids and brainwash them with an enemy ideology!”. Well, yes, guys. That’s sort of what this whole thing is about; pretending you don’t know that is too cute by half.
Ignoring that these people are fighting back against a school system they are compelled to pay for and send their kids to that has already been subverted by an enemy ideology is a bit crazy. Asking them to do it while stating that the big advantage is that they they might avoid the very situation they already find themselves in from occurring is insane - it speaks of motivations that knowingly or unknowingly are very much not in the interests of the people they are trying to convince.
At this point you have probably zeroed in on the fact that I’m not a big fan of CRT in schools; this is the correct impression to have. It doesn’t affect me as much as you’d think (we homeschool), but I still don’t love the idea that schools are being weaponized by a super-minority of crazies to push some ultra-extreme racial guilt quasi-religion on kids.
The crazier part is that this article isn’t about that at all; I really have no goal of getting you to decide one way or the other on CRT here. The last paragraph’s description is how I feel, but I understand you might not view it to be as much of a threat as I do, and I don’t expect any of this to change that. One of the difficulties of making a very narrow argument is convincing people that you aren’t going for something broader, but in this case it’s true.
If French, Sullivan and McWhorter were say that CRT shouldn’t be opposed in this way because conservative wins give them the willies I wouldn’t have an article to write, even though I’d still disagree with their stance. It’s the fake bill of goods I don’t like - the part where they tell you you can get everything you want by abandoning the best chance of getting anything at all I object to. I don’t live in their hearts, so I can’t confirm their motivations absolutely, but it’s pretty clear “get CRT out of schools” isn’t all that high on it - otherwise, they’d push for a narrower but equally insured win instead of an uncertain one.
I’m not asking that you agree with me on CRT, or even that you support my preferred solution to the problem (honestly, I’m not sure I even know what that solution is). And I want to reiterate that I like two out of three of these authors a great deal - I agree with them on a lot, and there’s a lot they are right about. To his credit, Sully in particular actually courts the kind of pushback I’m giving here - he has a long history of maintaining dialogue with his readers so he can correct and improve himself as he goes. McWhorter is a genius who I think is remarkably principled in a lot of ways I really admire. David French deserves to exist.
I honestly think here they just got carried away - I’m not immune to the same effect. But at the same time, we deserve better arguments - arguments that acknowledge downsides, arguments that honestly represent the goals of the arguers, and arguments that stand up to more than a few second’s scrutiny before you realize the arguer was asking for something else entirely than what he initially represented. I think we can get better arguments, but the only way to make that happen is to push back on the worse ones. And to push back, we have to do the work of looking close.