David French and Conservative Opposition to Anti-CRT Legislation
French is the most outspoken conservative critic of the new bills. Do his arguments hold water?
In a recent article for The Dispatch, David French claims that “the conservative legal movement … is on a collision course with the ‘new right.’” Whereas the former has waged a decades-long battle against the expansion of government power, the latter
is vigorously proposing, supporting, and passing bills that contradict decades of conservative thought and violate volumes of hard-fought conservative precedent by seeking to strengthen government control over speech in the context of government employment, funding, and contracting.
The bills in question prohibit public primary and secondary schools from teaching a host of racist ideas (e.g., that one race or ethnicity is inherently morally superior or inferior to another) derived from or inspired by “critical race theory” (CRT) in its trickle-down from academia into the worlds of progressive activism and consultancy. Thus far, three states have enacted such laws, and at least another 16 legislatures are considering them.
French opposes these bills on the grounds that they will, as he sees it, “degrade the First Amendment” and ultimately backfire on conservatives. For such bills to succeed, he reasons, important precedents must be unraveled, which will leave conservatives with fewer defenses against government coercion in states controlled by progressives.
French is obviously correct about what will happen if free speech protections are nullified; the left’s assault on the marketplace of ideas has been, and will continue to be, relentless. But is he correct that these bills will unravel precedent?
So far, he has provided no reason for us to believe so. In the article, ostensibly a broadside against legislation attempting to ban CRT in schools, French examines Donald Trump’s Executive Order 13950, which prohibited “race and sex stereotyping” and “race and sex scapegoating” in personnel training at federal agencies and contractors, and he scrutinizes the recent ham-fisted measures taken by the Florida board of education against CRT-derived curricula. But he never engages the actual language of the bills he opposes.
The day after his article ran, French expanded his critique in a Twitter thread. “The bills are typically crafted in such a way that they’re both over-inclusive and under-inclusive,” he wrote. “For example, is this TN provision ‘banning CRT’? Nope. Its prohibition would sweep up even a teacher critiquing communism (a ‘creed’).”
French is right that the provision, which prohibits “Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people” is problematically vague. Moreover, in my view, it’s the bill’s framing that causes the most trouble. The amendment
prohibits any LEA or public charter school from including or promoting the following concepts as part of a course of instruction or in a curriculum or instructional program, or allowing teachers or other employees of the LEA or public charter school to use supplemental instructional materials that include or promote the following concepts…
The problem is with the word “include.” On a literalistic interpretation, the amendment would prohibit teaching, for example, that historically many people have believed that “One race or sex is inherently superior to another race or sex.” This is radically different from prohibiting teachers from “promoting” that notion of superiority, or banning teachers from compelling assent to such an idea.
Several of the proposed bills employ similarly imprecise language, and could easily, as French notes, “leave teachers, parents, and students deeply confused about their scope.” Take, for example, the language of H. 6070, recently proposed in Rhode Island:
This act would prohibit the teaching of divisive concepts and would mandate that any contract, grant or training program entered into by the state or any municipality include provisions prohibiting teaching divisive concepts and prohibit making any individual feel discomfort, guilty, anguish, or any distress on account of their race or sex.
Were this unrelated to the culture wars, the phrase “the teaching of x concept” would naturally be taken by a reasonable reader to mean something to the effect of “the teaching of x concept as if it were true or normative.” But the language of the prohibition is just vague enough to invite misreading.
However valuable criticism of this sort may be, it tells us nothing about the constitutionality of these provisions. A provision can be asinine or nigh-on illiterate and yet pose no threat to the First Amendment.
In his article, French offers the following as examples of precedents he fears must be unwound in order for the “new right” to have its way: the reinstatement of Tanner Cross, a gym teacher who was suspended by the Loudoun County school board for speaking publicly against left-orthodoxy on transgenderism; a federal court of appeals ruling that professors at public universities could not be compelled to use preferred personal pronouns; and the U.S. Supreme Court’s ruling in favor of Catholic Charities’ inclusion in state-run foster care systems (which, alas, forsook the opportunity to overturn Antonin Scalia’s odious ruling in Employment Division v. Smith (1990)). These are precedents worthy of celebration. They also have no bearing whatsoever on the limits of a state legislature’s authority over public school curricula.
The relevant case law suggests French’s concerns are unfounded.
Take, for example, González v. Douglas (U.S. District Court for the District of Arizona, 2017), in which a Mexican-American Studies (MAS) program which utilized key texts in post-colonial theory and its academic offspring, critical race theory, ran afoul of Arizona lawmakers for allegedly inculcating in students a hatred for America and promoting anti-white racism. The lawmakers passed curricular statutes that prohibited public schools from offering courses that:
Promote the overthrow of the United States government.
Promote resentment toward a race or class of people.
Are designed primarily for pupils of a particular ethnic group.
Advocate ethnic solidarity instead of the treatment of pupils as individuals.
Students and teachers in the Tucson MAS program sued, claiming their rights under the First and 14th Amendments had been violated. “The stated policy of [the statutes] is to reduce racism in schools … which is a legitimate pedagogical objective,” wrote the court. “The theory of plaintiffs' First Amendment claim is that reducing racism is only a pretextual objective, and that the statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons.” The federal district court ruled in favor of the plaintiffs because there was evidence that the authors of the statutes were motivated by racial animus. However, the ruling makes clear that, absent evidence of animus, the statutes, which were facially neutral, would have been upheld. (This is a lesson every lawmaker working on similar legislation had better keep in mind.)
A strict textualist will have qualms with a court basing its judgment on the motivations of a statute’s authors rather than the actual content of the statute. But it is significant that even a progressive court has recently affirmed the legitimacy of curricular strictures aimed at reducing racism—which is precisely the aim of so-called anti-CRT bills. And González v. Douglas is only one of many rulings tacitly or explicitly affirming the right of states to determine curricular content.
“It’s absolutely true,” French concedes, “that states have broad authority over school curricula, and it’s also true that public school teachers, like most public employees, have scant free speech rights on the job.” One would expect French to follow this admission with an argument for why the anti-CRT bills exceed the purview of this “broad authority.” Instead, he shifts the goal posts: “But there is nonetheless a deep contrast between a movement that seeks to broaden the marketplace of ideas and another movement that seeks to ban the expression of disfavored concepts.”
Why does French abandon the specific, falsifiable claim that these bills directly threaten important First Amendment precedents for the claim that the “new right” has a general tendency to favor banning concepts it dislikes?
Such argumentation falls short of the rigor and incisiveness that characterizes so much of French’s writing. Not only that, his claims actually militate against positions he has previously held on analogous legislation.
As one of our nation’s fiercest defenders of religious freedom, especially in its fullest constitutional sense of “free exercise,” French has naturally advocated for state-level rearticulations of the Religious Freedom Restoration Act of 1993, which sought to reverse the damage done by Scalia’s ruling in Employment Division v. Smith. When Apple, Salesforce, Walmart, the NCAA, and a host of other major corporations and institutions coerced Indiana into watering down the language of its RFRA, French did not mince words:
While RFRAs protect people of all faiths, from peyote-smoking Native Americans to Bible-toting florists, the Left’s outrage is narrowly targeted—against the Christian people whose livelihoods they seek to ruin, whose consciences they seek to appropriate, and whose organizations they seek to disrupt. #BoycottIndiana isn’t a cry for freedom. It’s nothing more than an online mob, seeking to bully those it hates.
(As a Hoosier, I especially appreciated French’s philippic on behalf of my state, as well as his refusal to let Mike Pence off the hook for cravenly capitulating under pressure from the power elite.)
If French is right that state-level RFRAs are effective and not merely redundant affirmations of federal law, shouldn’t the same reasoning apply to anti-CRT bills which provide focused applications of Title VI of the Civil Rights Act? After all, the left’s abusive curricula and school policies are “narrowly targeted” against white people (and non-white bearers of “multiracial whiteness” or whatever other nouveau coinage one substitutes for “race-traitor”), often ruin livelihoods, bully dissenters, and seek to appropriate the consciences of parents and children alike. To the extent that these bills reaffirm Title VI, French, if he aspires to consistency, should support them.
Regardless of the acrimony that exists between French and the “new right,” I believe that proponents of these bills would welcome his support and insight, and that of the conservative legal movement more broadly. Whatever collisions may occur in the future between the two camps, collision over anti-CRT bills in the present is not a collision of first principles but a consequence of tribalism. As Dan McLaughlin observes, these legislative initiatives are clearly consonant with classical liberalism. Not only that, this battle is inescapable:
In every government classroom, an agent of the government will either instruct children in a collective, racialist vision of America, or they will not. There is no neutrality, any more than flipping a coin results in neutrality between heads and tails when it reaches the ground. There is only passing the buck from one arm of the state government in which conservatives will be heard to another in which we will not be, and then washing our hands of the outcome. That’s not neutrality; it’s surrender.
Prior to the intra-conservative drama (and trauma) of the past five years, I believe French would have readily recognized this. He would also have recognized that legislative solutions—that is, democratic, representational solutions—are preferable to judicial solutions. For decades, conservatives have been forced into a defensive crouch, a learned helplessness, utterly dependent on the judiciary. By sheer necessity this precipitated a powerful conservative legal movement. But it has also meant that conservatives engage in a sort of photonegative of progressive judicial supremacy. Rearguard action is necessary but far from sufficient for securing liberty.
French’s preferred remedy, Title VI litigation, is a necessary element of a successful campaign against racist curricula in public schools. But it is neither sufficient nor efficient. Litigation is costly and takes time. In a worst case scenario, which is quite likely in blue states, a court battle would have to be fought in each of the hundreds (and potentially thousands) of school districts infected by CRT-inspired activism. Anti-CRT legislation in red and purple states will free up resources needed for litigation in blue states. Moreover, it will address aspects of the problem that cannot be solved by litigation, as Wokal Distance explains in this thread:
Because the left controls virtually every university’s school of education, which train future teachers to subvert their curricula towards dogmatic social justice ends by way of “critical pedagogy,” even conservative movements for curricular reform are inadequate. Conservative control of school boards is of limited value when the rot lies within our teachers’ education.
While the overall thrust of anti-CRT legislation is restrictive, in some instances it is being used to expand certain speech freedoms of teachers. For example, a provision of H.B. 3979, which just passed in the Texas Senate, protects teachers from compulsory engagement with current public controversies: “no teacher shall be compelled by a policy of any state agency, school district, campus, open-enrollment charter school, or school administration to discuss current events or widely debated and currently controversial issues of public policy or social affairs.” If teachers do engage such topics, they must “strive to explore such issues from diverse and contending perspectives without giving deference to any one perspective.” This is uncontroversial and commendable, unless one is committed to “critical pedagogy.”
Although much of the Texas bill is laudable, it also illustrates why the insight of legal thinkers like French is so necessary right now: it is riddled with flaws similar to those of the Tennessee bill, flaws which undermine its pedagogical utility and thus expose it to legal challenge.
So my request for French would be as follows:
Consider drafting legislative language that you believe is both precise enough to be pedagogically useful and more respectful of First Amendment precedent than the existing anti-CRT bills. Even if you believe these bills are destructive and should not exist at all, offering improved language will make your criticism more trenchant and, potentially, help to limit the damage you fear these bills will do.
As a writer loosely in the orbit of the “new right,” and with no official authority to speak for anyone other than myself, I would greatly welcome your help. Whatever we call the nascent “new right”—be it national or “common good” conservatism, or merely populism—it needs tempering by elements of procedural liberalism, just as establishment conservatism needs an infusion of self-awareness, energy, assertiveness, and a reorientation towards the pursuit of more consciously public goods. Each tendency on the right has much to gain from strategic cooperation with the other.