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Blindspots in the CRT Wars

Maxwell Stearns

Critical race theory, or CRT, has become the right’s latest anti-“woke” bogeyman. Likewise, criticizing CRT has become a left go-to-proof of racial insensitivity. Taken to extremes, both sides are prone to blindspots arising, at least in part, from failing to understand what CRT is and what it is and isn’t capable of demonstrating. The hard right has gone so far as to propose banning teaching concepts associated with CRT in public schools and state universities. At the college level, at the very least, this almost certainly violates the First Amendment.

Part of the confusion surrounding CRT emerges from its being mislabeled. Despite the name, CRT isn’t a theory. It’s a perspective, or more precisely a basket of interrelated perspectives. This isn’t just semantics, and such mislabeling isn’t unique to the left. To the extent they are associated with the right, the same is true of game theory, public choice theory, and the Coase theorem.*

Labels matter substantively. For a field of inquiry to be a theory, it must comprise testable hypotheses, meaning propositions that with proper tools are capable of falsification. Each failed attempt at falsification enhances a theory’s presumptive validity, and after a time, the process justifies shifting the burden to those seeking to discredit the theory. Some CRT claims thwart this distinction. Positing that absent lived experience, one cannot question assertions of those who have it contradicts the claim to theory at the very same time that that it emphasizes the importance of a valued perspective. Those without lived experience might miss or fail to internalize something important, and likewise, persons with lived experience are not immune to embracing false hypotheses.

A brilliant colleague who happens to be a law and economics skeptic once told me that Jim Crow laws, which systematically incapacitated African-American participation in myriad marketplaces throughout The South, proved the tendency of markets to discriminate based on race. My colleague conceded the analytical problem when I rejoined that the same data might support the opposite inference. Such laws might demonstrate the need for coercive force, either at the hands of the government or of thinly veiled vigilantes willing to enforce racist norms, to avoid non-discriminatory market results. The point isn’t to prove or disprove either thesis; rather it is to illustrate the value in interrogating hypotheses informed by competing perspectives.

An academic discipline needn’t embrace a singular theory to be highly valued. Such disciplines as history, psychology, and economics are each valuable despite disputed methodologies even among well-respected practitioners. A disciplinary approach can be valuable for, among other reasons, forcing inquiries, sometimes rising to the level of testable hypotheses, that other disciplines or researchers with specific backgrounds might tend to overlook.

In Shelby County v. Holder (2013), the Supreme Court struck down a section of the Voting Rights Act of 1965 that embedded a formula, focused on southern states with a history of racial discrimination, for determining which jurisdictions were subject to a process called administrative preclearance. For covered jurisdictions, administrative preclearance had been a precondition to enacting laws that risked reducing the voting influence of racial minorities. Shelby County’s critics feared a reassertion of racially restrictive voting laws. Informed by a Critical Race perspective, the concern suggests that those empowered to do so will use governmental power to entrench their authority to the detriment of historically marginalized groups, with a particular burden on African-American communities.

The subsequent history bears out the concern, poignantly forecast in Justice Ruth Bader Ginsburg’s Shelby County dissent. Ginsburg observed that invalidating the law on the ground that blatant discriminatory practices are no longer regularly observed is akin to tossing one’s umbrella away in a storm because standing beneath it you are no longer getting wet. Voter ID laws and laws that make balloting access difficult have a demonstrably different impact on the capacity of historically excluded minorities to vote as compared with other groups.

Conservatives defend such voting restrictions on race-neutral grounds, claiming the need to avoid voter fraud. But this claim ultimately amplifies CRT skepticism. Because the incidence of documented voter fraud is minuscule, whereas such laws predictably disproportionately burden African-Americans and other historically marginalized groups, the claimed justification overwhelmingly screams pretext. The same held true for earlier generations of voting laws, for example, demanding home ownership to prove community commitment, poll taxes to ensure genuinely caring about balloted issues, or literacy tests to ensure comprehension of underlying issues. In each instance the claimed justification was a thinly veiled effort to entrench those in power, and to fence out those who were not.

One of CRT’s critical benefits arises from a deep knowledge of history, informed by experience often conveyed through the generations, demanding recasting nominally neutral justifications of these sorts of laws. CRT can provide a basis for testable hypotheses that force questioning dubious pretextual accounts. Legislators commonly proffer facially neutral justifications for laws whose genuine motivations, when properly interrogated, reveal themselves as less benign. This doesn’t imply that every claim of racial motivation, any more than every non-racial defense of a law with a differential racial impact, should be taken at face value. Careful analysis is hard work, and no methodology or perspective holds all the answers.

In Constitutional Law, stated and actual motivations routinely diverge. Part of teaching involves motivating students to see this on their own. This is especially true in cases implicating equal protection and fundamental rights. A CRT perspective encourages questioning the actual bases behind laws that are too often defended with flimsy pretext.

Banning CRT, especially on college campuses, isn’t merely unconstitutional. It is fundamentally a bad idea. Conveying to college students that they are incapable of entertaining competing theories about history, society, and law because such theories are divisive is antithetical to the very meaning of a liberal arts education. It is also profoundly unwise to mandate against such ideas in public schools. As they mature, students are increasingly well equipped to engage with competing perspectives and to explore uncomfortable truths about our nation's complex and often troubled history.

Instead of insisting against exposure to challenging, even offensive, ideas, smart educators must insist upon opening the doors wide. Doing otherwise merely reaffirms the need for a CRT perspective.

I welcome your comments.

*Game theory and public choice aren’t theories, and the Coase theorem isn’t a theorem. Game theory and public choice are bodies of literature that include a variety of analytical tools, including theorems that can be deployed to generate theories, or hypotheses. And because it does not apply in empty core bargaining games, the Coase theorem isn’t a theorem, at least unless one continuously redefines its terms, thereby rendering it a tautology.

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