CRT Is Not Ban-ible

Gavel, US Constitution, and US Flag

John Micek’s June 4, 2021 column in my local newspaper was, “Fight Over Critical Race Theory Hits the Statehouse.” 

My classical liberalism background tells me this is a form of First Amendment blasphemy.  At least it should be.

Because journalists are not getting enough constitutional law in their J-schools, those like Micek often step into some constitutional poo when rendering their stories.  A great many of the New Breed of journalists don’t give a damn about the constitution.  They are the dangerous ones.

The federal constitution is a restrictive document.  It starts from the premise in the Declaration of Independence that all the human rights are innate in the people themselves.  They cede some of their rights to government for the protection a government can provide.  Since Government’s natural tendency is to limit people’s rights, our constitution limits what the feds can do.  The right to free speech (for example) is not “given” to Americans by the government.  We have that right within our souls and ourselves.  The constitution tells the government stay away from limiting speech.  Private entities can.  But not government.  And not private entities acting on behalf of the government (i.e., Facebook, Twitter, etc.). 

Through the post-civil war 14th amendment, the federal amendments to the constitution are applied to the states as well.

Micek is upset that some red state legislatures (16 thus far) are introducing laws banning discussion in our schools of critical race theory.  He defines CRT as a “scholar’s view” and an “overdue attempt to educate public school students on how racial disparities are embedded in U. S. History.”  Well, that is Micek’s opinion.  Other folks look at CRT and have a much different opinion of what it will do to our culture and racial divides.

Both opinions are protected free speech.  That means government should neither ban protected speech nor promote it.  Where the rubber hits the road is not federal and state governments, but our local school boards.  THEY should decide what is in a school’s curriculum to be taught to children. 

I don’t know enough about the innards of CRT to take sides.  But the problem with Micek’s article is not CRT or federal or state legislative reactions to it.  Micek and both the advocates of CRT and its foes in state legislatures ignore the limits on governments imposed by the First and Fourteenth Amendments.

Government is prevented from regulating protected speech – promoting or opposing.  Like it or not, critical race theory is protected speech.  It’s an academic opinion on how our children should learn and deal with racism.   It’s a theory that has been taught mostly in law schools over the last twenty years, which means the theory might be okay for a 25-year-old law student but a little hard to digest for a third grader in a public school.  (Thankfully, my experience in law school was before CRT was bopping around the halls.)

Red states believe that their legislature can preempt the feds by outlawing the teaching of critical race theory in any part of the school system. Yes, they can enact laws on school policy and Kansas has a state school board.  They direct curricula.  Why?  Why should we have one set of rules for an opinion like CRT when there may be some districts (I can’t imagine where) that the patrons might want the schools teaching CRT?

Who are we to decide each other’s thoughts and opinions are wrong?

The problem is state legislatures can’t regulate protected speech any more than can the federal government.  If the state bans CRT, and a private school not funded by taxes wants to teach it, can the state say “no”?

The First Amendment can be its own punishment.  CRT is a form of speech code.  It’s an academic theory based on someone’s view of history mixed with the bad breath of sociology.  Thirty years ago, the radicals on our campuses ran out of buildings for the Weather Underground to bomb, so they went back to academics.  CRT was a result.  As theory its radical in what it wants done, but it is not inciting insurrection or riots.  It’s not pornography or obscenity, it’s not interfering with someone’s religious practices, and it’s not calling for the overthrow of the government.  Even hate speech is still protected speech as long as it doesn’t do those things.

CRT is perhaps an unwise opinion, but there are a lot of unwise government decisions based on opinions.  Nevertheless, it is an opinion with constitutional protection.

The government promotion of, or opposing of, protected speech like CRT, is censorship.  Any form of government censorship should not survive our court system.

However, if a local school board wants to teach critical race theory and they go through the give-and-take of making that decision at a local level including their patrons and federal and state governments are not involved, it might be possible to do so without constitutional entanglement. (e.g. what is occurring in Loudon County, Virginia’s public schools.)  The members of the school board are subject to recall.  Patrons and taxpayers who absolutely do not want CRT taught in their district classrooms can use old fashioned political power and defeat existing board members, or run for the office themselves.

That is democracy at work at the local level.  

Dean Halliday Smith

Dean Halliday Smith

Dean Halliday Smith is a fifth generation Kansan, a Vietnam vet, a lawyer, and grandfather several times over. His interests are Bleeding Kansas territorial days, the civil war, and post-war western novels.

One Response

  1. Most scholarly endeavors do not strive to divide the races and our country as CRT does. I do not think that trying to eliminate it as the sole historical curriculum in our schools would be bad. Something needs to be added to it to eliminate the word “Critical.” I am white and I am not going to believe that I have anything to apologize for to any one. Nor does any one have anything to apologize to me.

    Students should not be taught to hate themselves nor any one else.

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