Reclaiming CRT: How Regressive Laws Can Advance Progressive Ends
By
By
Jonathan P. Feingold[1]*
Since the fall of 2020, rightwing forces have targeted Critical Race Theory (“CRT”) through a sustained disinformation campaign. This offensive has deployed anti-CRT rhetoric to justify a host of “Backlash Bills” designed to chill conversations about race and racism in the classroom. Concerned stakeholders have assailed these laws as morally bankrupt and legally suspect. These responses are natural and appropriate. But challenging a bill’s moral or legal mooring is insufficient to counter a primary purpose of this legislative onslaught: to further erode, within our public discourse and collective consciousness, the ability to distinguish between racism and antiracism. To meet this threat, advocates should reappropriate these regressive laws, and the language of equality they harness, for progressive ends. More concretely, stakeholders should wield Backlash Bills to defend CRT in schools. Albeit counterintuitive, many “anti-CRT” laws—if we take seriously their text—support this rhetorical and legal turn.
Critical Race Theory (“CRT”) is an academic framework that interrogates the relationship between race, racism, and the law.[2] For decades, CRT existed in relative obscurity. Everything changed in the fall of 2020, when the GOP launched a sustained anti-CRT disinformation campaign.[3] This well-funded offensive, which brought “CRT” into the mainstream, has occurred across two primary fronts: one discursive, the other legislative.[4]
On the discrusive front, right-wing think tanks, media, and politicians have deployed a coordinated communications campaign to discredit CRT (and antiracism more broadly) as the new, anti-White racism.[5] The goal was straightforward but multifaceted: through calculated caricature and distortion,[6] weaponize an unfamiliar term to sow racial division, galvanize voters, undermine public education, and shield economic and political elites—and the systems that benefit them—from critique.[7] Early indicators suggest that anti-CRT messaging is working.[8]
On the legislative front, Republican officials have employed the same anti-CRT rhetoric to justify over 180 “Backlash Bills”[9] that regulate how educators—among others—may discuss topics such as race and racism in the classroom.[10] At least sixteen Backlash Bills are now law.[11]
With minor exception, the media has described these bills as “CRT Bans.”[12] This portrayal is understandable. Bill proponents identify CRT as the supposed ill that necessitates a legislative cure.[13] Moreover, the bills buttress broader efforts to defuse and discredit the multiracial embrace of antiracism that emerged during 2020’s global uprisings for racial justice.[14] In this regard, the bills complement longstanding rightwing campaigns to control how (or, more precisely, limit what) students learn about race and racism in school.[15]
Even if undestandable, the standard framing—that these “anti-CRT” bills constitute “CRT Bans”—is problematic. Above all, this framing misrepresents the actual text of many Backlash Bills. Many bills—if we take seriously their actual text—call for more CRT in the classroom, not less. Put differently, anti-CRT lawmakers are passing pro-CRT laws.[16]
I unpack this counter-intuitive dynamic in Part IV. For now, consider a brief example. Multiple Backlash Bills prohibit “race stereotyping,” often defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race . . . or to an individual because of his or her race.”[17] Now, imagine a high school class explores education in America. To enhance the lesson, the teacher shares statistics about racial disparities across educational domains.[18] Once exposed to the bare facts, many students will wonder what causes those disparities.
The question, then, is how the “race stereotyping” ban shapes the teacher’s response. Could they attribute disparities to “culture”—that is, supposed differences in work ethic or values across racial groups? The short answer is no. On its face, the “race stereotyping” provision bans explanations that “ascribe character traits” or “values” to “a race.”
In contrast, the same language invites explanations that tether disparate outcomes to structural forces that, inter alia, unevenly distribute social, political, and economic resources. In other words, text common to Backlash Bills (a) invites an explanation (structural racism) inseparable from CRT and (b) prohibits an explanation (cultural difference) that CRT proponents would denounce as predicated on unfounded racist tropes.[19] This insight is key. But it never has a chance to surface when the media and public reflexively characterize these bills as “CRT Bans.”
My concern with the prevailing characterization, however, transcends questions of descriptive accuracy. As the above example reflects, Backlash Bills often include standard antidiscrimination mandates. This is by design, and consistent with broader efforts to delegitimize antiracism as an unAmerican “racist” project that contravenes our nation’s core equality commitments. By conceding that such laws prohibit CRT (or other antiracist projects), racial justice advocates enable this narrative and cede a critical site of discursive resistance. This dynamic has already shaped (and constrained) counter efforts.[20] In the past year, resistance to Backlash Bills has taken one of two primary forms: (1) contestation (e.g., challenging a law as unlawful or immoral) or (2) evasion (e.g., claiming that: “We do not teach CRT in our schools.”).[21] Advocates have been slow, in contrast, to wield Backlash Bills—and the ever-intederminate language of equality[22] they employ—to make the affirmative case for CRT. One might think of this as a counter-offensive that reclaims the language of equality by appropriating regressive bills for progessive ends.[23] But to get there, advocates must resist the instinct to equate Backlash Bills with “CRT bans” or to distance themselves from CRT altogether.
To be clear, a principled textual analysis does not guarantee more CRT in the classroom.[24] Nor does it insulate well-meaning students, teachers, or adminstrators from targeted harassment, intimidation, or discipline.[25] Nonetheless, it would be a mistake to leave uncontested the prevailing presumption that Backlash Bills ban CRT. Doing so forfeits a potent site of resistance necessary to counter a campaign designed to defuse the nation’s appetite to reckon with racism in America.
This Article proceeds as follows. In Part II, I catalogue existing Backlash Bills. This review highlights key points of commonality and divergence across a still-growing body of law.
In Part III, I locate Backlash Bills within an American tradition of racial backlash and retrenchment. This overview reveals that contestation and evasion are insufficient to counter the full force of ongoing legislative efforts.
In Part IV, I explain why many Backlash Bills promote, if not compel, more CRT in the classroom. By leaning into the (often vague) language embedded within many of these laws, this exercise reveals an under-utilized but crucial front in the battle over racial justice in America’s classrooms and beyond.
Over the past year, GOP officials have proposed nearly 200 bills designed to chill classroom discussion of race, racism and related topics.[26] At least sixteen are now law.[27] Although moored to a common political project, the bills diverge in various respects.[28] One distinction, which I highlight below, is the relative presence of “Critical Race Theory” within in a given bill. By this metric, one can divide the bills into three broad categories: (1) bills that expressly prohibit CRT (“Facial CRT Bans”); (2) bills that reference but do not explicitly prohibit CRT (“CRT Gestures”); and (3) bills that do not mention CRT (“CRT Silent” bills).
The argument that Backlash Bills permit, or even compel, CRT applies with greatest force to CRT Silent bills. Still, as I detail in Part IV, similar reasoning applies to many CRT Gestures and certain Facial CRT Bans.
Between January 2021 and April 2022, GOP lawmakers proposed at least fifteen bills that expressly prohibit “Critical Race Theory.”[29] Although many Facial CRT Bans died in session or were withdrawn,[30] at least two have become law.[31]
One example is North Dakota House Bill 1508, which Governor Doug Burgum signed into law on November 12, 2021.[32] The Bill, which regulates K-12 instruction, includes the following mandate under the heading “Curriculum – Critical race theory – Prohibited”:
Each school district and public school shall ensure instruction of its curriculum is factual, objective, and aligned to the kindergarten through grade twelve state content standards. A school . . . may not include instruction relating to critical race theory in any . . . curriculum offered by the district or school. For purposes of this section, “critical race theory” means the theory that racism is not merely the product of learned individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality.[33]
A second example is Michigan Senate Bill 460.[34] The Bill would require schools to “ensure that the curriculum provided to all pupils . . . does not include coverage of the [sic] critical race theory, the 1619 project, or any of the following anti-American and racist theories.”[35]
One final example warrants mention. In May 2021, Florida’s Department of Education issued a rule that prohibits instruction that “suppress[es] or distort[s] significant historical events, such as . . . slavery, the Civil War and Reconstruction, the Civil Rights Movement and the contributions of women, African American and Hispanic people to our country.”[36] The Rule proceeds to identify “the teaching of Critical Race Theory”[37] as instruction that would distort history, and thereby violate the preceding mandate.[38]
The foregoing captures a selection of Facial CRT Bans. Three broad observations are warranted. First, these explicit bans perform regulatory functions (e.g., regulating what may be discussed in the classroom) and discursive functions (e.g., communicating descriptive claims and moral values). Consider North Dakota’s Bill, which (accurately) associates “critical race theory” with “the theory . . . that racism is systemically embedded in American society.”[39] The legislation regulates speech by prohibiting instruction that brings a “systemic” lens to questions of racial inequality. But the legislation does more than regulate speech. It also communicates that structural theories of racism are inappropriate because they (purportedly) lack a “factual” or “objective” basis—criteria that the law simultaneously requires.
Second, and reflected in the above, Facial CRT Bans often suffer from internal contradiction. Consider Florida’s recent rule. If CRT actually “suppress[ed] or distort[ed]”[40] history—as Florida’s Department of Education claims—it would be consistent to (a) prohibit instruction that distorted the past and (b) ban CRT. But CRT neither “suppress[es]” nor “distorts” the past. To the contrary, CRT seeks a more layered and comprehensive historical accounting that counters traditions of erasure, suppression, and distortion.[41] Accordingly, if we value facts over sloganeering, a rule that demands historical accuracy cannot also prohibit CRT.
Third, textual ambiguity and internal contradiction is a common feature of Backlash Bills—including Facial CRT Bans. As noted above, a primary purpose of this legislative assault is to erode—within our national discourse—our ability to distinguish between racism and antiracism. This project is neither based on, nor bound by, fact. To the contrary, it requires abandoning any principled distinction between a history of legalized racial subordination and race-conscious efforts to undo that legacy. Facial CRT Bans advance that goal because of their internal tension, not in spite of it.
A second subset of Backlash Bills mention CRT—often within introductory language or gestural clauses—but do not expressly prohibit educators or others from teaching it.[42] Idaho House Bill 377, which Governor Brad Little signed into law on April 28, 2021,[43] is illustrative. The relevant language reads as follows:
The Idaho legislature finds that [the prohibited] tenets outlined [below], often found in “critical race theory,” undermine the objectives outlined [above] and exacerbate and inflame divisions on the basis of sex, race, ethnicity, religion, color, national origin, or other criteria in ways contrary to the unity of the nation and the well-being of the state of Idaho and its citizens.[44]
Another example, which Alabama Representative Danny Crawford pre-filed ahead of the January 2022 session, contains near-identical language:
The Legislature finds that [the prohibited] tenets outlined [below], often found in critical race theory, undermine the objectives outlined [above] and exacerbate and inflame divisions on the basis of sex, race, ethnicity, religion, color, national origin, or other criteria in ways contrary to the unity of the nation and the well-being of this state and its residents.[45]
Similar to Facial CRT Bans, CRT Gestures perform regulatory and discursive functions. That is, they are designed to (a) chill conversation about race and racism in the classroom (the regulatory function) and (b) malign CRT as unAmerican and inconsistent with basic equality norms (the discursive function). As to the latter, the above examples marshal standard rightwing talking points that denounce CRT as divisive and “contrary to” national unity. This claim invokes the trope—common to projects of racial backlash—that talking about race and racism is the source of racial division (which, in turn, suggests that race and racism are not relevant until named and discussed).
Most Backlash Bills do not mention CRT.[46] This is not to say CRT is absent from the legislative process or public perception of the legislation. Even when bills are silent on CRT, bill proponents often center CRT and its supposed malevolence throughout the lawmaking process.[47] It is, accordingly, understandable that the media and public often view and portray these bills as“CRT Bans” or “anti-CRT.”[48]
Although CRT Silent bills vary, many share common elements. This includes language that prohibits educators from promoting[49] a series of “divisive concepts.”[50] The initial list of “divisive concepts,” enumerated below, first appeared in an Executive Order then-President Trump issued in September of 2020:
(1) one race or sex is inherently superior to another race or sex;
(2) the United States is fundamentally racist or sexist;
(3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
(4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
(5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
(6) an individual’s moral character is necessarily determined by his or her race or sex;
(7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
(8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
(9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.[51]
Trump’s Executive Order also referenced “race or sex stereotyping” and “race or sex scapegoating” as specific “divisive concepts” defined as follows:
“Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.[52]
“Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.[53]
Over the past year, GOP legislators have expanded upon, or otherwise modified, the initial “divisive concepts.” More recent bills, for example, include social categories beyond “race” and “sex.”[54] Indiana Senate Bill 167, which garnered national attention earlier this year, is illustrative. The Bill expanded upon President Trump’s language by prohibiting covered entities from promoting the concept that “any sex, race, ethnicity, religion, color, national origin, or political affiliation is inherently superior or inferior to another.”[55]
The foregoing, albeit brief, outlines three subsets of Backlash Bills. In the next Part, I locate this regressive lawmaking within a broader, multifaceted campaign to defuse and discredit moments of racial progress and possibility.
CRT might be the GOP’s current object of derision,[56] but calculated efforts to malign and rollback even modest antiracist endeavors are nothing new.[57] To the contrary, Backlash Bills follow a longstanding tradition of coordinated racial backlash and retrenchment.[58] Albeit somewhat reductionist, one can disaggregate the fight for racial justice, and the backlash that follows, into three sites of contestation: (1) the legislative (that is, whether we pass laws designed to ameliorate or entrench racial inequality), (2) the discursive (that is, the stories we tell to explain racial inequality), and (3) the interpretive (that is, how courts interpret our laws, based in part on the stories we tell).[59] I discuss each below.
The first site of contestation is the legislative—that is, whether public officials adopt laws (e.g., state laws, executive orders, agency rules) designed to remedy or entrench existing racial inequities. In this vein, Backlash Bills can be viewed as a modern manifestation of racially regressive lawmaking—a term I employ to describe legislative efforts intended to stymie, roll-back, or otherwise obstruct efforts to realize a more racially egalitarian society.
“Black Codes” offer a poignant historical example. The Civil War left southern states “physically and economically devastated.”[60] Beyond suffering massive casualties and military defeat, former Confederate states—and the political elites who governed them—lost their primary source of cheap (free) labor: enslaved people.[61] Black Codes, in turn, “provided an urgent legal solution to the demand for low[] or no-wage labor after the ratification of the Thirteenth Amendment.”[62] These laws, which varied by state, “declared a black person to be vagrant if unemployed and without permanent residence; a person so defined could be arrested, fined, and bound out for a term of [labor] if unable to pay the fine.”[63] In purpose and effect, Black Codes criminalized blackness itself—thereby enabling the South to “reimpos[e] slavery on the freeman in every way but in name.”[64]
Black Codes foreshadowed Jim Crow—an era of racially regressive lawmaking that proliferated across the South following Reconstruction.[65] Although varied, many Jim Crow laws regulated how Black Americans, among other individuals racialized as non-white, could travel through public and private space.[66] In a recent piece, Andrew Pegoda explains that segregationist laws were not principally designed to physically separate different racialized groups.[67] Rather, this regime facilitated and amplified a broader set of social norms, cultural expectations, and legal rules that re-inscribed racial hierarchy and white supremacy into American society.[68]
As a formal matter, Black Codes and Jim Crow now reside in an ignoble past.[69] But racially regressive lawmaking remains a present-day reality. Backlash Bills—alongside voter suppression laws, anti-trans laws, and book bans—offer the modern analogue. To be sure, twenty-first century regressive lawmaking differs from its twentieth century and nineteenth century antecedents. But common features unite these bodies of law. Just as lawmakers passed Black Codes and Jim Crow to reassert a pre-Civil War racial order, today’s Backlash Bills are designed, in part, to counter the appetite for antiracist reform that emerged following 2020’s summer of protest.[70]
Accordingly, when states pass racially regressive laws, it makes sense to challenge the laws’ validity (through strategies of contestation) and avoid their force (through strategies of evasion). For this reason, one can understand why contestation[71] and evasion[72] have constituted the primary counterstrategies stakeholders have deployed to resist Backlash Bills. Contestation and evasion are not without merit. But they are often ill-suited to address the laws’ discursive function. As noted above, the legislative process surrounding Backlash Bills offers a platform to seed and spread potent narratives that malign antiracism itself. To better appreciate this threat, and identify how stakeholders might meet it, I now turn to the second site of contestation: the narratives we tell about race, racism, racial inequality in America.
The second site of contestation is the discursive—that is, the competing stories we tell about contemporary inequality in America. Regressive racial projects, from enslavement through mass incarceration, have always involved a discursive—or narrative—dimension.[73] This often involves two distinct but reinforcing threads. From one end, anti-egalitarian forces coopt the language of equality to shield regressive projects from moral or historical critique.[74] From the other end, the Right deploys theories of race and racism that justify and rationalize racial inequality.[75] These converging narratives do more than insulate the status quo from critique. They also delegitimize—as “reverse racism,” “preferential treatment,” or “anti-[W]hite discrimination”— affirmative (and often race-conscious) efforts to ameliorate enduring inequality.[76]
The precise talking points that facilitate backlash narratives have evolved over time. A century ago, segregationists marshaled biological theories of racial inferiority/superiority to defend Jim Crow (among other facially discriminatory laws).[77] Today, biological arguments—now largely condemned as racist—have fallen out of favor.[78] In their place, status quo defenders often rationalize inequality by pointing to alleged cultural differences or individual deficits.[79] These narratives, albeit invoking different causal stories, serve a common purpose. Once one rationalizes the status quo as fair, just, and necessary—whether via biologal or cultural theories of race—it becomes easier to delegitimize efforts to redistribute social, political and economic resources.[80] Today, this causal story animates resurgent narratives that portray antiracism as racist, and caricature CRT as anti-White.[81]
The specific targets might be new, but the underlying script has anchored anti-reform efforts since at least the nineteenth century. The Civil Rights Cases offer a salient example.[82] In this set of consolidated cases from 1883, the Supreme Court struck down the Civil Rights Act of 1875.[83] The Act, which Congress passed a decade after the Civil War, comprised an early legislative attempt to prohibit racial discrimination in public accommodations—a modest but critical step toward equality for Black Americans.[84]
To appreciate how the Court coopted the language of equality to discredit Congress’s antiracist intervention, Justice Bradley’s language speaks for itself:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.[85]
In essence, Justice Bradley decried antidiscrimination law as an impermissible “racial preference” that elevated Black Americans above their White counterparts.[86] This “preference” framing implies that race is not relevant, and racism is not present, until the moment an actor (here Congress) makes it so. This narrative, which equates facial neutrality with racial neutrality, continues to anchor conservative attacks on a range of remedial efforts.[87]
Affirmative action is a notable example. In the mid-twentieth century, institutions across the United States (often spurred by grassroots mobilization, the Civil Rights Act of 1964, and judicial mandates) instituted a range of race- and gender-conscious practices to ameliorate legacies of racial and gender exclusion.[88] As soon as these initiatives took effect, they encountered resistance—often anchored to rhetorical attacks that denounced race- or gender-attentive policies as unlawful and immoral discrimination.[89] With echoes of Justice Bradley, regressive forces coopted the language of equality to reposition White men as innocent victims, the collateral damage of “reverse racism” and “preferences” that benefitted “unqualified” women and people of color.[90]
The Right’s ability to rebrand remedies (for past and present discrimination) as discrimination, or what I term discursive appropriation, is integral to projects of racial backlash. This narrative maneuvering shrouds regressive efforts under a veil of racial neutrality and renders racial reform—even antidiscrimination itself—a target of public scorn. The success of discursive appropriation continues to shape—and impoverish—our national affirmative action debates. From stark critics to staunch defenders, all sides tend to equate affirmative action with “racial preferences” that contravene an otherwise racially neutral baseline—a framing that invites predictable legal and moral critique.[91]
This “affirmative action-as-preference” framing is ubiquitous. But it is not inevitable. To the contrary, the Left could reclaim affirmative action as a modest countermeasure that mitigates racial, gender, and class (dis)advantages embedded within facially neutral selection regimes.[92] In practice, this rarely occurs.[93] Instead, advocates tend to defend affirmative action as justifiable discrimination—rather than, for instance, championing such policies as modest antidiscrimination measures necessary to promote a more racially neutral process.[94]
As a result, the Left fails to counter a conservative story that decouples existing racial stratification from racism past and present. This, in turn, invites false equivalencies between race-conscious policies designed to entrench racial hierarchy (e.g., Jim Crow) and those designed to undo that legacy (e.g., affirmative action). The Left, in short, is doing the Right’s work for it—by reifying a narrative that renders legible and accessible the potent claim that antiracism (because it sees and attends to race and racism) is the new racism, and that antiracists (because they see and attend to race and racism) are the new racists.
Above, I outlined legislative and discursive fronts in the enduring fight for racial justice. Both interact with the third front, which I term the interpretive—that is, the space where jurists debate the meaning and mandate of existing law. In this space, racial retrenchment has long depended on judicial capture, a term that reflects the infusion of conservative racial ideologies into antidiscrimination law.[95] This process has enabled rightwing forces to appropriate racially progressive laws for racially regressive ends.[96]
One can think of judicial capture as a tactical backstop when regressive lawmaking is unviable. That is, when legislatures are unable to pass regressive laws, or when legislatures pass racially progressive laws, courts offer a potential backstop to strike down, dilute, or even invert the law’s remedial potential.[97] To rationalize such action, jurists often engage in discursive appropriation themselves.
Judicial capture has always accompanied racial retrenchment. The Civil Rights Cases, discussed above, offers an early example. This decision, less than two decades after the Civil War, obstructed a key congressional effort to remedy racial hierarchy through antidiscrimination law.[98]
Roughly a decade later, the Supreme Court further undermined the 14th Amendment’s liberatory potential in Plessy v. Ferguson.[99] Among other questions, the Plessy Court asked whether de jure racial segregation violated the Fourteenth Amendment’s Equal Protection Clause.[100] Justice Brown, writing for the majority, concluded it did not.[101] Rather, the Court enshrined the now-infamous “separate-but-equal” doctrine into constitutional law.[102] As Professors Tendayi Achiume and Devon Carbado recently observed, Plessy “constitutionalized Jim Crow and ensured that Black people would be included into citizenship on racially subordinating terms.”[103] Through Supreme Court intervention, one might say the federal judiciary accomplished what a Confederacy could not: “amend” the Constitution to legalize an “afterlife [for] slavery.”[104]
Judicial capture reemerged in the twentieth century. In the 1950s and 1960s, the Supreme Court struck down “separate but equal” and Congress passed a suite of antidiscrimination legislation.[105] This period marked the most meaningful federal intervention to promote racial equality since Emancipation and the Civil War Amendments.[106] And, as before, racial reform spurred racial backlash. This backlash facilitated Richard Nixon’s rise to the White House in 1968.[107] Nixon, in turn, appointed four Justices—thereby reshaping the court’s ideological composition and opening the door for a new era of judicial capture.[108]
Over the subsequent five decades, an enduring conservative majority has systematically inverted antidiscrimination law’s animating principle and purpose.[109] Across domains spanning public education, employment, and voting rights, the Supreme Court has either diluted the force and effect of progressive laws or coopted those laws for regressive ends.[110] Laws intended to spur integration and inclusion now incentivize segregation and exclusion,[111] while laws designed to break down racial barriers now proscribe race-conscious remedies.[112] Paralleling the Supreme Court’s post-Civil War interventions, in the years following the Civil Rights Movement, the judiciary did what stalwart segregationists could not: “enshrine” into law the right to maintain racially segregated schools and communities.[113]
Judicial capture is, in part, a story of raw power. For half-a-century, right-of-center Justices have enjoyed a Supreme Court majority. And with that majority, conservative jurists have the power to declare what the law means.
It is important to note, however, that judicial capture has never turned on raw power alone.[114] A range of considerations from institutional legitimacy to public opinion often incentivize Justices—or other actors—to shroud ideologically-driven outcomes under a veil of neutrality and objectivity.[115] To this end, Justices routinely trade on the language of equality and neutrality—often employing phrases such as “originalism,” “colorblindness,” “localism,” and “merit” to mask what are, in essence, political projects.[116] It is here that discursive appropriation and judicial capture meet. When racially regressive narratives dominate public discourse, they provide a vocabulary and framework to rationalize interpretive and adjudicative practices that defang or invert the promise and potential of racially progressive laws.
In the next year, decades of judicial capture will reach a new milestone. Specifically, the Supreme Court is poised to prohibit race-conscious admissions in higher education.[117] As recently as 2016, the Supreme Court reaffirmed the right of universities to consider applicant race—even as the Court has otherwise eroded the rights of public and private actors to employ race-conscious practices.[118]
When the conservative majority declares affirmative action unlawful, the Justices will point to two legal sources: the Fourteenth Amendment and Title VI of the Civil Rights Act. To justify how these laws—controversial at their inception for threatening a racial order defined by legalized white supremacy—could command this result, the majority will harness a well-worn script that equates race-conscious remedies with the discriminatory regimes they are meant to undo. We can, for example, expect the Court to locate its holding in the spirit and legacy of Martin Luther King, Jr.—“a process [of appropriation] that has been underway since the first” federal MLK holiday.[119] This distortion of MLK’s legacy mirrors the rhetoric of anti-CRT and anti-antiracist proponents across the country.[120] When those same talking points enter Supreme Court caselaw striking down affirmative action, we will witness how discursive appropriation and judicial capture produce and reinforce, and are produced and reinforced by, the other.
Before proceeding to the final Part, it is worth observing how the three fronts of racial retrenchment are currently converging. First, Backlash Bills represent a new manifestation of racially regressive lawmaking. Second, the underlying legislative process offers a platform to seed and reify narratives that malign remedial projects attentive to race and racism. Third, this coordinated communications campaign renders more legible and accessible a vocabulary that conservative judges can employ to further erode, if not invert, existing antidiscrimination laws.[121] In other words, the proliferation of Backlash Bills represents more than regressive lawmaking. It also comprises a site of potent discourse productive and discursive appropriation—both of which facilitate judicial capture.
The prospect that federal courts will further coopt antidiscrimination laws for regressive ends is not far-fetched. To the contrary, public officials and interest groups have broadcast this very plan.[122] For example, a coalition of rightwing think tanks and advocacy groups has argued that antiracist pedagogy violates the Civil Rights Act of 1964[123]—a talking point that has now entered Republican stump speeches.[124] In a similar vein, a district court in Virginia struck down a school admissions policy because the district considered the plan’s racial impact—even though the school did not consider the race of individual students.[125] Multiple attorneys general have also foreshadowed a desire to repurpose Title VI as a tool to prohibit antiracist pedagogy and instruction.[126] And within Congress, Senator Marco Rubio has authored a bill that would revitalize Title VI’s racially-hostile environment provision for similar ends.[127]
Were such an Act to pass—and enshrine legal protection for White students who experience discomfort discussing race—the law would do more than enlist a progressive law (Title VI) in a regressive project. It would accomplish this feat by appropriating a theory of harm (disparate impact) that racial justice advocates have long championed and conservative judges have long dismissed.
This recursive dynamic that binds legislative, discursive, and interpretive battles suggests that strategies of contestation and evasion, even if useful, are incomplete. They are incomplete, in large part, because they leave uncontested regressive efforts to appropriate the language of equality. To reclaim antiracism’s moral authority, stakeholders should invoke Backlash Bills to unapologetically champion CRT (as an ingredient necessary to realize our highest egalitarian aspirations) and challenge mainstream curriculum that privileges the comfort, experience, and perspectives of white-identifying students. The Right has long recognized the power narratives hold to justify or discredit competing racial projects in America.[128] It is no surprise, therefore, that recent backlash has deployed the language of equality to stigmatize even modest antiracist efforts. Here, stakeholders on the Left might learn from the Right and reappropriate racially regressive laws for racially progressive ends. This begins, but does not end, with the argument that Backlash Bills support, if not compel, more CRT in the classroom.
Above, I surveyed existing Backlash Bills and located regressive lawmaking within a broader campaign of racial retrenchment. Below, I explore how stakeholders could harness Backlash Bills for racially progressive causes. To do so, I suggest that students, parents, or advocates might invoke such laws to challenge the absence, or justify the presence, of CRT in the classroom.
We can begin with Assembly Bill 411, a CRT Silent bill that Wisconsin’s Republican-dominated Assembly passed in September 2021.[129] Among other provisions, the bill prohibits “teach[ing]” a series of banned “concepts.”[130] These concepts include the proposition that “[o]ne race or sex is inherently superior to another race or sex.”[131]
Wisconsin Democrats denounced the bill.[132] Gordon Hinz, the Assembly’s Democratic minority leader, criticized the Bill as part of “a national movement to create a new boogeyman in the culture wars to use fear and resentment to motivate base voters.”[133] LaKeshia Myers, a Democratic assembly member from Milwaukee, added that the Bill buttressed broader efforts to “defund education” and “sow seeds of division.”[134] She also emphasized that CRT was not taught in Wisconsin’s public K-12 schools.[135]
The Democrats are not wrong. But they could expand upon this strategy of contestation and evasion. Building on their own remarks, Hinz and Myers could have concluded as follows:
Everyone knows the bill is meant to intimidate teachers who want to teach the truth—albeit uncomfortable—about our country and our state. Everyone knows the bill is part of a well-funded effort to defund public schools. Everyone knows our colleagues caricature Critical Race Theory to divide regular Wisconsinites. And they know that CRT is rarely, if ever, taught in our schools. But what they don’t appreciate is that their own bill—because it lauds core American commitments to antidiscrimination and racial equality—calls for more CRT in our schools, not less. And this is an outcome we should celebrate—because it will empower all of our students to improve the world in which they live and move use closer to the aspirations we, as Americans and Wisconsinites, hold most dear.[136]
This rhetorical turn departs from common accounts that characterized the Wisconsin bill as a “CRT Ban.” The Associated Press (AP) exemplifies this standard portrayal. In an article titled “Wisconsin Assembly passes critical race theory ban,” the AP stated that AB411 would prohibit public schools “from teaching students and training employees about concepts such as systemic racism and implicit bias.”[137] The Bill’s proponents might embrace this framing and outcome. The Bill’s opponents might concede it. But it betrays AB411’s actual text.[138]
Consider, for example, a high school social studies class that begins a unit on corporate America.[139] The teacher provides basic facts about Fortune 500 CEOs: 92.6% are white, 1% are Black, 3.4% are Latinx, and 2.4% are Asian.[140] These disparities exist against a backdrop in which roughly 60% of the U.S. population is white, 14.2% is Black, 18.7% is Latinx and 7.2% is Asian.[141]
The teacher shares two additional facts. First, white men—roughly 35% of the population—hold 85.8% of CEO posts.[142] Second, of the eighty-three women who have become CEOs since 2000, seventy-two were white, thereby comprising 86% of all female CEOs this century.[143] As in our opening example, the statistics invite an inescapable question: Why do such glaring disparities exist?
One answer assumes that today’s CEOs are the product of fair and unbiased systems that reward talent and hard work. Per this account, white men (relative to everyone else) and white women (relative to women of color) are over-represented as CEOs because they happen to possess more talent and work harder. This story, in other words, attributes the near-absence of CEOs of color to group-based differences. Some groups have what it takes; others do not.[144]
This explanation, albeit common to public discourse,[145] would concern many students and parents. Why? Because it implies that white men are inherently superior to all other groups (and white women inherently superior to women of color). Put differently, the message trades on racial and gender-based stereotypes to explain—and thereby legitimize—the status quo. This message also contravenes AB411, which prohibits educators from “teach[ing]” that “[o]ne race or sex is inherently superior to another race or sex.”[146]
A question, therefore, is how the teacher could explain CEO demographics without violating the Republican bill. One path runs through CRT, an analytical framework that has long asked a similar question: why do profound racial disparities persist even when the law prohibits racial discrimination? Our teacher, in other words, could supplement the statistics with CRT scholarship that illuminates the myriad racial and gender (dis)advantages that render the CEO “tournament” far from fair and unbiased. Doing so would satisfy AB411 and, importantly, enrich the students’ learning and enhance their ability to design a fairer and less-biased system.
More concretely, our teacher could assign Professor Cheryl Harris’s seminal writings on the “whiteness of property”—work that exposes the often-invisible benefits whiteness confers, even to poor White people.[147] Professor Harris provides a useful point of entry, in part, because she identifies the benefits and limitations of whiteness.[148] Our teacher can surface white racial advantage without obscuring the structural barriers that prevent most Americans, regardless of their racial identity, from ever dreaming about a corner office.
From here, our teacher could invoke professor Kimberlé Crenshaw’s pathbreaking work on intersectionality.[149] In so doing, she could invite her students to consider how racism interacts with sexism, classism and homophobia—among other structures of oppression.[150] She might also turn to Jerry Kang’s work on implicit biases.[151] By folding in this scholarship, the teacher and students can explore how individuals and institutions often engage in race- and gender-based disparate treatment—even when they hold earnest egalitarian commitments.[152]
In short, AB411’s text invites CRT into the classroom. And CRT’s presence would empower our teacher to disrupt a causal story that assumes CEO white/male overrepresentation derives from some inherent white/male superiority. This includes introducing “concepts such as systemic racism and implicit bias”—the specific content that mainstream media suggests AB411 would ban.
In June 2021, New Hampshire’s Republican-controlled legislature embedded a Backlash Bill within its annual budget bill (“HB2”).[153] The backlash provisions, contained in sections titled “Right to Freedom From Discrimination in Public Workplaces and Education”[154] and “Prohibition on Teaching Discrimination”[155] do not explicitly mention CRT. Rather, as with other CRT Silent legislation, the text mandates that no public school student “shall be taught, instructed, inculcated or compelled to express belief in, or support for” four banned concepts.[156] To bolster these mandates, the legislature created private rights of action to enforce the prohibitions and attached severe penalties to violations.[157]
Even if the budget did not name CRT, bill proponents made clear that CRT was on trial.[158] Concerned stakeholders responded in kind. James Morse, Sr., a school superintendent, countered with a combination of contestation and evasion.[159] He denied New Hampshire teachers teach CRT,[160] he flagged the bill’s chilling effect,[161] and he suggested the bill “forbids teaching about discrimination.”[162]
Other stakeholders took legal action. A coalition of educators, advocacy groups, and law firms reiterated similar concerns in a December 2021 lawsuit.[163] On the law, the complaint alleges that HB2 is unconstitutionally vague.[164] To support the claim, the plaintiffs contend that the banned concepts language “fails to provide fair notice of what educators can and cannot include in their course, and . . . invites arbitrary and discriminatory enforcement.”[165] This characterization is not wrong. In all likelihood, the indeterminate text is by design. Since its enactment, private and public actors in New Hampshire have weaponized the bill to dissuade teachers from even basic conversations about race and racism.[166]
Still, the complaint could go further. Specifically, the plaintiffs could emphasize that their concern is not just that GOP officials will engage in arbitrary or discriminatory enforcement that targets disfavored speech. Beyond abandoning norms of neutral enforcement, GOP officials are likely to target the precise type of instruction that HB2, per its text, requires.
To appreciate this dynamic, consider New Hampshire’s third banned concept, which mandates that “[n]o pupil . . . shall be taught . . . that an individual should be discriminated against or receive adverse treatment solely or partly because of his or her . . . sex, gender identity, . . . race . . . religion, or national origin.”[167]
The plaintiffs predict this provision will chill educators from teaching about reparations and affirmative action.[168] They also argue that this “concept may demand race neutrality and colorblindness.”[169] The latter proposition is debatable.[170] But if one accepts that HB2 demands race neutrality and colorblindness, there is no apparent reason why that command would not cover all “discriminat[ion]” and “adverse treatment”—including forms of discrimination and adverse treatment that conservative lawmakers might support.[171] This would include, for example, racial or religious profiling, national origin discrimination, and anti-trans policies—that is, a range of policies that rightwing politicians tend to endorse. To get more concrete, HB2 appears to prohibit our social studies teacher from instructing that (a) it is appropriate for the police to profile Black men; (b) President Trump was right to target Muslim majority countries in his travel ban; or (c) sports teams should exclude trans athletes.
One could extend this argument even further. When read as a whole, HB2 invites a broad reading of discrimination that transcends the “intent” standard embedded in federal antidiscrimination law.[172] To begin, the relevant section opens by identifying “practices of discrimination” as a “matter of state concern.”[173] The law further states that HB2 does not “prohibit racial, sexual, religious, or other workplace sensitivity training on the inherent humanity and equality of all persons and the ideal that all persons are entitled to be treated with equality, dignity, and respect.”[174]
The plaintiffs contend this language adds ambiguity to the law.[175] On the one hand, HB2 appears ambiguous if one interprets it to ban instruction of unintentional discrimination. But if one interprets “discriminat[ion]” and “adverse treatment” to include all forms of disparate treatment (regardless of conscious intent), the preceding language bolsters the claim that New Hampshire is concerned with, and permits instruction of, discrimination regardless of its source. The GOP’s Backlash Bill, in other words, supports—if not requires—teaching students about implicit biases. In practice, this suggests that HB2 prohibits teachers from advocating for a range of practices that produce a racially disparate impact, even absent discriminatory intent.
To be clear, much of HB2’s language is subject to competing interpretations.[176] But ambiguity, even when present, is not a reason to forego the argument that bills like HB2 call for more CRT in the classroom. Nor does it render HB2’s text materially different than other antidiscrimination mandates that proscribe or require conduct (e.g., “discrimination” or “equal protection of the laws”[177]) subject to competing interpretations. In fact, ambiguity makes such arguments more important; doing so is necessary to counter rightwing attempts to narrowly define and coopt indeterminate—but critical—concepts like “racism” and “discrimination.” In other words, without asserting the textual and moral case for CRT, it becomes difficult to defuse the politically potent but factually unmoored claim that CRT (and antiracism more broadly) contravenes basic antidiscrimination norms.
Last, a comprehensive “legal” response requires more than adversarial litigation that challenges the law. To further weaponize HB2 (as a tool to chill antiracist speech), New Hampshire’s GOP erected an enforcement infrastructure to augment the law’s private right of action and penalties.[178] These provisions are meant for parents (among others) who would wield HB2 to intimidate and harass educators that teach about race and racism.[179] But the enforcement provisions are available to all—including advocates who believe schools should embrace antiracist and culturally competent instruction.[180] Concerned stakeholders, in turn, could invoke HB2 to challenge instruction, lesson plans, or curriculum that, inter alia, condones racial profiling, defends Muslim travel bans, or justifies anti-trans policies.
As a practical matter, there are downsides to such a strategy. Given New Hampshire’s political landscape, it is unclear whether credible claims (that advance progressive values) could even prevail.[181] Moreover, Backlash Bills—in New Hampshire and elsewhere—are part of a broader campaign to dismantle public education. Invoking HB2, even if done to promote a more inclusive classroom, could—in a perverse way—further a regressive educational agenda. Still, the current moment—defined by unrelenting attacks on antiracism itself—calls for an equally committed response. That response should include what might appear an unconventional strategy: wield “anti-CRT” laws for pro-CRT ends.
On January 19, 2022, multiple outlets published headlines stating that Florida might ban lessons that “make [W]hite students feel ‘discomfort.’”[182] The news went viral.[183] Most critical responses condemned the bill’s design and desired effect.[184] One reaction, from Nikole Hannah-Jones, took a different turn.[185] Specifically, Hannah-Jones tweeted the following:
The bill prohibits lessons that make kids feel ‘discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race.’ I imagine lessons that glorify enslavers and colonizers and downplay the contributions of POC would do just that. So, ok, sure![186]
To test how race-neutral the DeSantis bill and others like it are, Black, Latino[,] and Indigenous parents should flood these states with lawsuits about lessons that make their children feel discomfort, or that one race is superior to another and see how it goes.[187]
Hannah-Jones did not name it as such, but her Tweet advanced the same message I offer here. To meet this moment and counter the anti-antiracist onslaught, concerned stakeholders should take a page from the racial retrenchment playbook. Simply put, they should reappropriate racially regressive laws for racially progressive ends.[188]
ace Theorist Before There Was a Name for It, L.A. Times (Jan. 17. 2022, 4:15 AM), https://www.latimes.com/opinion/story/2022-01-17/critical-race-theory-martin-luther-king [https://perma.cc/273E-294W] (“The right has rebranded [CRT] as the new racism, as wokeness run amok, as a threat to innocent schoolchildren and as a stalking-horse for the demise of ‘Western civilization’ itself.”); Judd Legum & Tesnim Zekeria, The Obscure Foundation Funding “Critical Race Theory” Hysteria, Popular Info. (July 13, 2021), https://popular.info/p/the-obscure-foundation-funding-critical [https://perma.cc/VC8Q-226L]. As an example of anti-CRT disinformation, see Critical Race Theory, Heritage Found. (2022), https://www.heritage.org/crt [https://perma.cc/XYG5-KUA8] (creating an anti-CRT disinformation clearing house). ↑
Examples of theories that distort historical events and are inconsistent with State Board approved standards include the denial or minimization of the Holocaust, and the teaching of Critical Race Theory, meaning the theory that racism is not merely the product of prejudice, but that racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons.
Id. ↑
That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. ↑
The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take that rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained.
Id. at 61 (Harlan, J., dissenting). ↑
“I. That one’s age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin is inherently superior to people of another age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin;
II. That an individual, by virtue of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
III. That an individual should be discriminated against or receive adverse treatment solely or partly because of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin; or
IV. That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”
Id. ↑