An African-American friend describes the following scenario: “My son L. was invited to a neighbor’s seventh birthday party. When we arrived, the neighbor child introduced L. to the small circle of other children, all of whom were white; he did so in hushed tones, seemingly so that adults wouldn’t hear. ‘This is my friend L.,’ he whispered. ‘He’s Black!’ He said it with giddy pride, as though L. were an exotic prize, an unusual triumph, a trophy specimen.”
What struck my friend most was not that the children were marveling at Blackness as something they had seemingly never encountered, but that the young host whispered it. “He was self-conscious,” she said. “He lowered his voice as though he had learned that he shouldn’t say it aloud, that it was a kind of secret—if in plain sight.” He had somehow learned that race shouldn’t be seen, and that the conspicuity of Blackness imposed a burden of comportment.
My friend was caught short by it at the time, but after thought and discussion about what she might do in the future, she concluded that the situation required something simple, like an adult in the room who might have calmly intervened and told them that they didn’t have to whisper. Why were they acting as though it were a secret? The tougher question, of course, is for the other adults: Why might this have been the first time their children had seen a Black person? Children point at, whisper about, marvel at what they don’t know. But the point of an integrated education is to get to know one another in generally welcoming ways.
Here’s my grown-up tug of recognition about that birthday party: I graduated from law school in 1975. The movie The Paper Chase came out around that time, and if you’ve ever seen it, you’ve seen law school as it was when I attended Harvard: almost entirely white, almost entirely male. No tenure-track women on the faculty and only one recently hired Black man, Derrick Bell. Those numbers alone could account for why Bell is often hailed as the founder of critical race theory. Indeed, the very fact of minorities and women appearing in that space at that time often marked us as contrarian upstarts before we even opened our mouths. Our numbers would change for the better thanks to affirmative action, but even such relatively small gains in previously homogeneous cartographies make some people feel as though they are drowning among the unfamiliar and the undeserving.
Students in those days learned about the “reasonable man” standard in criminal law, under which the murder of one’s wandering wife could be mitigated by the “heat of passion” defense. In constitutional law, I learned everything there was to know about the commerce clause, but nary a word about the civil rights struggle to overturn Jim Crow laws and integrate workplaces, unions, schools, bathrooms, neighborhoods. That “extra” material was confined to optional elective classes. The few classes about minority interests were sifted out and segregated from the required courses.
When I started teaching, in 1980, I was one of eight women of color teaching law in the United States, including at historically Black colleges: six African-Americans, one Asian-American, and one Latina. In those early years, men in my various workplaces openly and routinely commented on my hair, clothes, weight, legs, waist, age, skin color, voice, accent, makeup or lack thereof, jewelry (no ring?!), and marital status. My body felt spitted and twirled over a fire of others’ curiosity.
Make no mistake, I understand being curious about what one has never seen. Humans settle into perceived orders, and as those orders shift, people who appear “out of place” may find themselves marked, remarked on, exoticized, or shunned. But those experiences made me think deeply about how to be a thoughtful adult in the room of that curiosity. How do we move past the surrealism of “alien” encounters and begin to address the social uneasiness festering from invisible history, bad manners, mutual ignorance, and unfettered, in-your-face curiosity?
The very presence of new faces during those early years of my career forged new connections, new ways of thinking. We began to speak across all kinds of boundaries: disciplinary, linguistic, ontological—what Kimberlé Crenshaw later called “intersectional” work. Professor Bell was an important progenitor of such conversation: He worked tirelessly to recenter dropped histories. He’d point out how disabling racially restrictive covenants were, not just as a topic for a separate course on “race law” but as integral to the power relations within foundational courses like property law. He invited everyone of that generation into an open circle of knowledge-seeking about how to deal with varied alignments of social power. Those diverse connections—I have always thought of what Bell started as a “critical race conversation”—were the origin of today’s grappling with the legal histories structuring complex theoretical arrangements. It is out of this grappling with the experience of structured marginalization that critical race theory was born.
Here’s another story, plucked from recent news, about what happens when anxiously whispering children grow up: In Traverse City, Mich., a community that is more than 90 percent white, a group of high school students formed a Snapchat group called “Slave Trade,” in which they ruminated that “all blacks should die” and suggested “let’s start another holocaust.” The contents of their online exchanges became public only after they’d held a slave auction, selling off their Black classmates for money. “I know how much I was sold for: $100,” said one girl who was “traded.” “And in the end I was given away for free.”
When all this came to light, the school quickly drafted a resolution to create a social equity task force committed to “recognizing that the actions needed to combat discrimination and racism depend on new knowledge and community progress.” But the draft resolution became the object of fierce resistance from some parents, who, as of this writing, have succeeded in editing out language encouraging a “social equity and diversity lens” for the curriculum; taking out a promise to add books by “marginalized” authors to school libraries; cutting mention of teaching about “diversity, equity, inclusion and belonging issues”; removing language condemning “racism,” “racial violence,” “hate speech,” and “bigotry”; and removing the statement “racism and hate have no place in our schools or in our society.” The largely parent-driven backlash has led to the excising of the very vocabulary that would enable speakers of the English language to say that slave-trading one’s Black classmates on Snapchat is wrong.
This story illustrates all the unfortunate dynamics of how not to talk about race—indeed, how not to talk about anything at all. It demonstrates the degree to which some parents view race as though it were akin to sex in the 1960s: taboo, prurient, something to keep hidden because it’ll give the children fevers and make the parents squirm. As with sex, ignorance about race becomes a secret excitement; racial disparagement becomes an indulgent exercise, a species of cathartic emphasis, like swear words. For many children who are socialized as not-different, and for the normatively comfortable adults they become, discussion of race remains stunted and infantile, too much like assigning “cooties”—loosely undefined yet cruelly specific. So you ban sex education in the name of chastity, purity, innocence. You ban talk about race that is inherently “divisive.” But when Americans of different races greet each other as though they had just stepped off a ship in 1492, let’s just say that the division is glaringly already-there. It begs to be addressed.
At the school board meetings in Traverse City, the very notion of an equity resolution was, as one parent put it, “interlaced with critical race theory.” Parents held signs and testified that they considered the resolution “Marxist,” “anti-Christian,” “divisive,” and “anti-white.” I have read the resolution in both its original and edited form; there is nothing in either that hints of Marxism or of the Antichrist. Indeed, it’s quite a mystery why fear of the “divisive” would require eliminating antonyms like “inclusion and belonging.” It is a sign of the confusion of this moment that condemning racist language or bullying behavior is seen as the automatic and specific equivalent of being “anti-white.”
At the public hearings, most parents seemed to minimize the fact that many of their kids—many more, by all accounts, than an isolated Snapchat group—saw fit to disparage, humiliate, dehumanize, and even call for the killing of their nonwhite classmates. Instead, the greater sin, according to the parental pushback, was that “race” was ever mentioned at all. Darcie Pickren, one of the most-quoted parent leaders, maintained: “We don’t, not even for a second, think about race. We never would. And I think that this is opening a can of worms and we are not going to be able to go back.” Most intriguingly, Pickren feared that “schools have been revising their curriculums…and basically saying we’re going to cancel math and English to bring in these social justice studies instead. It sounds like we’re going to be teaching our kids our country is founded on racism and show them that if they’re white, they’re privileged and they’re part of the problem. I find that mind-boggling.” I would find that mind-boggling too—if it were remotely true. But it’s not.
As of this writing, there are eight states that have passed anti–critical race theory laws, and around 20 more have bills pending. As in Traverse City, school boards around the country have exploded in painful, community-destroying bouts of antagonism. The language of the laws is almost identical, having been drafted not at the local level but by a team coordinated and funded by an array of conservative think tanks, including the Manhattan Institute, the American Enterprise Institute, and the Heritage Foundation. That template starts off by mandating that there shall be no stereotyping by race or sex; no instruction that teaches that any one race or sex is inherently superior to another; no teaching that any individual is intrinsically racist, sexist, or oppressive; no teaching that anyone bears automatic responsibility for actions committed in the past by members of the same race. So far, so good. Indeed, my only concern is that this much is billed as “anti–critical race theory.” By this rubric, such laws strongly—and wrongly—imply that critical race theory is nothing more than crude biological determinism.
But the bills and the laws go further. Most bar “mandatory gender or sexual diversity training” and discussion of “controversial” topics; some ban teaching The New York Times’ 1619 Project. Others, like Alabama’s, propose to ban critical race theory “outright”—and then define it as any belief that America is inherently racist or sexist, “whether consciously or unconsciously.” Nearly all versions prohibit teaching in which “any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”
This last is perhaps the most troubling of all the provisions: The discomfort of public school students—from kindergarten through college—becomes, per se, a violation that may invoke monetary fines for teachers, risk their being fired, or result in withholding funds from individual schools or whole districts. In effect, the emotions of young children and immature youth become a metric for disciplining teachers and educational institutions. If students become upset about difficult dialogues, heads will roll.
So what are we really talking about when we talk about this newly corrupted fantasy of critical race theory? While the culture wars have plagued us for the past 30 years, the particular bitterness of this iteration began only last September with former president Donald Trump’s now-rescinded executive order banning critical race theory and diversity training in all federal programs. It’s worth looking back at the language of that order, which was jaw-dropping in its powerful linkage of critical race theory to both hate and contagion. As Trump wrote in a follow-up tweet: “This is a sickness that cannot be allowed to continue. Please report any sightings so we can quickly extinguish!”
Extinguish, no less! This is a sentiment that far exceeds concern about bad pedagogy: It evacuates the meaning of critical race theory as an academic discussion, one that began decades ago in law schools. This definitional theft treats the mere discussion of race as a disease and a poison. It lifts the topic of race from the contentious to the deadly; it deploys an executive order to authorize censorship; it carries the imperative of a search-and-destroy surveillance mission with the express goal of quick extinction.
Christopher Rufo, a senior analyst at the Manhattan Institute, is widely credited with being the ideological picador behind Trump’s executive order. In a much-cited Twitter thread last March, Rufo stated that his goal was to “run a public persuasion campaign” that would conflate any number of topics and deposit them into a new bucket called critical race theory. “We have successfully frozen their brand—‘critical race theory’—into the public conversation and are steadily driving up negative perceptions,” he wrote. “We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category…. The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.”
Rufo is straightforward about his political ends: “I basically took that body of criticism, I paired it with breaking news stories that were shocking and explicit and horrifying, and made it political,” he said. “Turned it into a salient political issue with a clear villain.” This is what critical race theory has become: an effigy. It is whatever the world-creating powers of Tucker Carlson and the Conservative Political Action Committee and QAnon say it is. It is a million Willie Hortons dressed up as teachers hired to feast on the brains of kindergartners, killing their innocence.
The sudden proliferation of identically worded laws not only suppresses conversation about race in schools and workplaces but also “deputizes” citizen spies. (The Nevada Family Alliance, an advocacy group, has even urged that teachers be forced to wear body cameras, like police officers, to make sure that they aren’t “indoctrinating” students to “hate America.”) It is in keeping with the new law in Texas that narrows access to abortion and those that allow armed poll watchers in open-carry states.
This framing makes it impossible to do what I am requested to do a thousand times a day—to tell you what critical race theory is—for this is no longer a definitional or a factual dispute. Like all good propaganda, its object exists in the bleary eye of the beholder. Critical race theory has been positioned as that which cannot be defined because Rufo et al. have transformed it from an epistemic referent into an emotional repository: It is well-spun sorcery, a haze of hate. Like the powerfully formless mumbo-jumbo of “cooties,” it is a gestural assignment of social contagion that operates like magic.
What is pernicious about these new bills and laws is that they outlaw feelings, which transfers agency beyond negotiation or norm or law: They remove intentionality or mens rea from teachers and literally place that power with children. Fox News touts stories of mixed-up, mixed-race children who come home from school claiming to have been taught that their white daddy is the mean oppressor of their Asian/Latina/African American mommy. I’m sure that there are teachers who get things disastrously wrong, but honestly, it takes something less than a law to untangle that one—and less than a civil war. We have gotten our wires seriously crossed. But teaching hard histories to children really is simpler than a national emergency.
In a world of good faith, we work hard to bridge the distances between us. Skilled role models can teach us how not to shame and humiliate one another; it takes commitment to press through the freighted emotions that any controversial subject might evoke. I believe in teaching teachers how to broach difficult subjects—“diversity training,” for lack of a better term. Such teaching must include not only historical fact but analytical thought, methodologies of discernment, diplomacy, patience, listening skills, and creating enough trust to cry, get angry, and forgive.
Any law that bans specific books, pieces of journalism, or words from generalized classroom discussion is galloping down the path of a reductive fundamentalism. This is not to say that there shouldn’t be disciplinary processes to hear arguments about what constitutes a hostile learning or work environment, or what ought to be disciplined as un-collegial or anti-intellectual behavior. But unlike outright bans on speech, the disciplinary procedures already present in our jurisprudence judge the propriety of what is taught by putting individual cases and controversies in context. It’s what human resources departments negotiate, or tenure reviews investigate, or harassment rules hash out. In contrast, the new anti–critical race theory laws ban whole categories of speech not yet spoken.
It’s ironic: 10 years ago, absolutist “free speech” bullies like Rush Limbaugh fought endlessly to say whatever they damn well pleased, loudly and on the public airwaves. Now some of the very same blowhards are bullying legislatively to prevent words or concepts from being spoken or taught. At either extreme, it’s the same dangerous paradox: the manipulation of who can speak with unfettered impunity and who cannot.
We cannot legislate feelings about race into silence. Outlawing shame, guilt, and discomfort is not only silly and impossible; it positions race the same way blasphemy laws position speaking ill of God or the king. Looking at the difficult parts of our lives as Americans is not sacrilege; we do not live in a sacred order whose holiness is sullied by impingements of the impure. All those who teach—not just those who teach about race—worry about immature or anxious students yelling, crying, and reporting one another as a form of dispute resolution. That much is hardly a new challenge; it comes with the job.