Are anti-CRT laws unconstitutional? Probably, but then again there is this Supreme Court...

 

In an episode I mentioned once or twice before, I recall in a college classroom, completely out of the blue, a very pale, a very blonde white female student suddenly blurt out that although she wasn’t a racist, she would never marry a black man, and then insisted again she wasn’t a racist. She must have been thinking about this for some time and it disturbed her “conscience.” The other people in the class just sat there in bemused silence, like WTF was that about? This was in a southern state, with a “culture” in which anti-miscegenation laws may be illegal, but you knew that certain societal norms were not to be taken lightly.

This white female student should have taken “comfort” in the fact that she existed in a culture that gave her “cover” and kept her silly mouth shut and people would never even question why she would only marry a white man. But now, she had to introduce the question of where that fine line is crossed between making decisions based on race, and racism. Now, if someone in “liberal” Seattle had made the same commentary, that line would likely be assumed to be “crossed.”

Does this kind of thing figure into that white bogeyman "critical race theory"? I imagine it does, since white folks may say one thing but think another. Of course there are some people who think nothing of being openly insensitive and egotistical, such as the lone Asian-American student in the same class who "one-upped" the other student by suggesting that "smart" students like himself were more deserving to be allowed an education, which elicited a noticeable amount of hisses from even some white students. 

So what is bringing about this memory? I purchased this book last week, which was published in 2017 but has found new life since the movie based on it came out:

 

Now, I came upon this little tidbit from a recent article in Vanity Fair:

In at least one Oklahoma high school, copies of Killers were purchased for an 11th-grade English class, only to sit unread after HB 1775 became law. An English teacher at the school, Debra Thoreson, felt it would be a professional risk to introduce discussions about race that are central to the story. “As soon as that passed,” she told The Oklahoman, “I realized I would be setting myself up for House Bill 1775 to take away my license.”

Is she serious? What the hell is this HB 1775? Vanity Fair goes on

The broad language in the law, adopted in 2021 and similar to other CRT-type bills around the country, decrees that it is illegal in Oklahoma—the site of the 1920s Osage Indian murders chronicled in Killers—to “make part of any Course offered in a public school…discriminatory principles” such as, for instance, the notion that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously”; or the idea that “any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”

I suspect that there will be an unspoken "exception" for "women's studies" courses in schools, because those are designed to make males feel like violent, worthless sexist pigs.

Anyways,  perhaps it is not “coincidental” that this law was passed the year the documentary Tulsa Burning: The 1921 Race Massacre came out, which chronicles the destruction of the Greenwood district and murder of hundreds of black men in Tulsa, a segregated by relatively prosperous black community, which clearly excited the envy of some whites. The violence was touched off when a 17-year-old white female elevator operator "explained" that the reason she was alone in an elevator with 19-year-old black male was because he had accosted her.  After this…

 

…left this…

 

…more than 10,000 residents were left homeless and their businesses destroyed. It was decades later that the city of Tulsa decided to make “amends,” providing “reparations” for the survivors that were still alive, and making the incident required study in schools in 2002. But in the wake of HB 1775 we learn that white nationalist groups like “Moms for Liberty”  protested its continued teaching. The Oklahoma website The Frontier tells us that one teacher, before teaching it, “sends parents an email a week in advance so they can access her lessons and opt to have their children sit out of parts they aren’t comfortable with.”

So what is the "point" of teaching the lesson if people choose to remain ignorant of the past and how it informs the present? The Frontier goes on to note that “Two years after the passage of HB 1775, educators say a chilling effect has fallen on classrooms in teaching on complicated subjects like the Tulsa Race Massacre. The law includes an exception for material in state educational standards like the massacre, but four teachers told The Frontier they avoid some topics because they fear punishment. Putnam City North High School government teacher Aaron Baker has the eight prohibited concepts printed and pasted on the wall of his classroom to help him avoid violating the law.” 

Baker thought the law had no “teeth” until the State Board of Education “downgraded the accreditation status of Tulsa and Mustang Public Schools for violating the law”—leaving teachers “petrified to teach complex historical topics.”

Lawmakers responsible for the law have been remarkably “reticent” about suggesting racism was a motivating factor in the Tulsa riot: “Oklahoma State Superintendent Ryan Walters drew international backlash when he said he supports instruction on the Tulsa Race Massacre, but he doesn’t think students should learn that the event is linked to inherent racism."

Rep. Sherrie Conley, who is also one of the authors of HB 1775, asserted that “if there’s a historical consensus that the Tulsa Race Massacre was caused by racism, then teachers should feel safe to teach it without violating the law. She said students should be able to feel upset about what they learn regarding the destruction of the Greenwood district, but teachers shouldn’t tell white students to feel guilty about it.”

Conley goes on to give her opinion on that matter thus: “Conley told The Frontier she thinks the Tulsa Race Massacre was motivated by race but hesitates to say the perpetrators were racist. It’s just a terrible tragedy in our state, and whether or not it was actually racism that caused the thoughts of the people that started it — we can try to speculate but to know for sure, I don’t think that we can.” Some people can live with their hypocrisy, and let's remember what "ignited" the incident in the first place.

One former student recognized what was really behind all of this: “If we don’t learn about history, we are doomed to repeat it. Some people are out there spouting some nasty, hateful rhetoric, and maybe they want it repeated. But most of us don’t.” Like Donald Trump and his MAGAmainiacs, anyone?

OK, so we covered Native Americans and blacks. How about Asians? I suppose talking about the Japanese internment can be discussed as long as it is made “clear” that there was a perfectly “defensible” reason for it—that they were all potential spies and subversives. Muslims also more or less fall into that category of “potentiality” and “questionable allegiance.”

Meanwhile, in this country Hispanics are the group anyone can say anything negative about and feel “justified” in doing so. In states that would ban, for CRT purposes, historical discussions of the La Matanza period, when Texas Rangers were accused of murdering Hispanics into the thousands on any pretext, or the repatriation of U.S. citizens to Mexico during the Great Depression—it's all “justified” by the on-going stereotypes of “mestizos” and indigenous people because, well, they just looked “dirty,” “diseased” and “lazy” when they are not "stealing" jobs...

 

 

...when these people are doing the "dirty work" in this country. Frankly, when a teacher says anything about Hispanics in schools in anti-CRT states that the right-wing element feels perfectly free to say, they are probably violating the law.  After all, current immigration law is clearly motivated by racism...

 

 

...by ignorant people...

 

...who refuse to admit their culpability for the violence that is happening in Mexico and Central America...

 

...and even those legally in the country and/or are native-born citizens are being left off the boat both by society and the media:

We should be reminded of the laws that banned the teaching of evolution in schools, most famously the 1925 Tennessee law known as the Butler Act, which banned the teaching of “any theory that denies the story of the Divine Creation of man as taught in the Bible, and instead that man has descended from a lower order of animals.” It led to the famous Scopes Monkey Trial, which the ACLU hoped to test the law when a substitute teacher named John Scopes allowed himself to be the “test” subject. 

Famed attorney Clarence Darrow made star prosecution witness William Jennings Bryan look foolish with his fumbling efforts to explain the logic of creationism, and correctly argued that the law was an unconstitutional violation of the Establishment Clause. But then again, this was about "state's rights," not the rights of the individual.

Although Scopes was found “guilty” of teaching evolution and many states took this “victory” as license to pass similar laws, in 1968 the Supreme Court ruled in Epperson v. Arkansas that “evolution-banning statutes” were “products of fundamentalist sectarian conviction” and thus unconstitutional. Not to be deterred, religious zealots came up with “creation science” to teach as an “alternative” to evolution, but this was also ruled by the Supreme Court to be an unconstitutional promotion of religion in schools in the Edwards v. Aguillard case.

Are anti-CRT laws also unconstitutional? The American Bar Association suggests that they are. In defining CRT as “an analytic framework that illuminates the manner in which racism and inequality are embedded within society and its structures” the “anti-CRT legislative movement targets discussion of racism and bias in the public school system while chilling free speech in violation of the First Amendment.”

It is not coincidental that the anti-CRT laws emerged in the wake of the George Floyd protests; after all, it was hard to justify his killing by a white police officer and could only be “explained” by racism. This in effect gave protesters an “upper hand” in the morality of the case over the “law and order” crowd. Further, Republicans feared that cases like this would also energize voters against those politicians whose racial insensitivities were a matter of public record. 

This in turn led to laws (such as Florida's) banning large-scale protests to minimize publicity of such cases, and then to pass voter suppression laws directly targeting those "energized" Democratic voters, which were given additional support by the far-right Supreme Court’s Brnovich v. Democratic National Committee ruling.

Back in the 1950s during the “Red Scare,” the Smith Act—which made it unlawful to advocate for or organize the overthrow of the U.S. government—was used in California to convict members of the Communist Party of the United States. In taking the case to the Supreme Court, the accused argued that they only advocated “passive” resistance and change within the constitutional framework; they did not advocate an active “overthrow” of the government—such as what we saw on January 6 and from those who did advocate for violent overthrow (you know, Trump).

In 1957, in throwing out the convictions, Justice John Harlan’s majority opinion ruled that simple advocacy and teaching was not prohibited if it was “divorced from any effort to instigate action to that end (the forcible overthrow of the government).” The court decided if teaching was without “evil intent,” a simple abstract doctrine was not to be construed as advocating violence. 

Of course there was nothing “abstract” in the call to violence in the run-up to January 6, when a few Republican lawmakers and far-right activists actively called upon Trump supporters to march on the Capitol and take “action” as Trump himself pressed his allies in Congress to overturn the election (and most in the House did, like the current Speaker).  We are now learning that he was behaving like a rabid soccer fan cheering on the rioters as he was watched the “game” on television. The hypocrisy of the right is mind-numbing.

Anti-CRT laws should be taken to court because they are very likely unconstitutional. The problem, unfortunately, is that with the present makeup of the Supreme Court, what it deems “constitutional” or not is not necessarily what the “framers” wanted despite some of the justices devotion to "originalism," but rather their own cultural biases. The framers certainly did not desire to take away rights or free speech or inhibit an informed populace, as the anti-CRT laws seem designed to do. 

I personally believe that the best way to teach CRT is by not making it “gradable” in primary or high schools, just discussion periods where students can make moral judgments on their own, or not, just to keep "controversy" to a minimum. The past may be the "past," but some "kids" need more "learning" than what they are getting from their Fox News-watching parents. But this would likely go way over the heads of some of these justices.