Issue Update: Critical Race Theory Legislation Across the States

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This webinar will explore issues raised by the raft of state and federal initiatives on Critical Race Theory and related topics.  Issues will include the scope of state authority over the content of education, with special attention to differences between K-12 and public universities.  Varying features of state-level CRT bills will be discussed, as well as the characterization of their content from supporters and detractors. 

On the state level, state education standards, "book banning", and legislation pertaining to curriculum transparency, “action civics,” and “diversity statements” will be discussed.  Moves to control educational content at the federal level through grantmaking will also be covered. 

 

Featuring:

 Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Ryan Lacey:  Welcome to this Federalist Society’s virtual event.  This afternoon, June 1, 2022, we have an "Issue Update on Critical Race Theory Legislation across the States." My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our expert on today’s call. Today we are fortunate to have an expert speaker in Stanley Kurtz, whom I will introduce very briefly. Stanley Kurtz is a Senior Fellow at the Ethics and Public Policy Center, where he focuses on a wide range of issues, including K-12 and higher education reform, the challenges of democratization abroad, and urban-suburban policies.

 

Mr. Kurtz has written on these and other issues for various journals, in particularly, the National Review Online, where he is a contributing editor. Mr. Kurtz received his undergraduate degree from Haverford College and his Ph.D. in social anthropology from Harvard University. He later taught at Harvard, winning several teaching awards for his work in the Great Books Program. He also -- he was also a Dewey Prize Lecturer in Psychology at the University of Chicago. After our speaker gives his remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program. With that, thank you for being with us today. Stanley, the floor is yours.

 

Stanley Kurtz:  Well, thanks so much, Ryan. And it’s a great honor to be here to address The Federalist Society. I want to hit the high points on a series of issues, and then, I think, and hope, we’ll have time for questions. So first I’m going to start with critical race theory proper. The state level critical race theory bills are all derived in some fashion from the original Executive Order issued by the Trump administration. That Executive Order was -- the purpose of it was to prevent employees of the federal government and federal contractors from being put through training based on the core concepts of critical race theory.

 

Now, the bills in the states are derived from that Executive Order, but they’re somewhat different in scope. You’ll get some bills, for example, that will only cover K-12, the content of the K-12 curriculum. Sometimes, they’ll have other K-12 issues mixed in. Sometimes, you’ll get a bill that is strictly about higher education. Sometimes, you’ll get a bill that is mostly about state employee training, covering all the different agencies and contractors. And, so, there is that point of variety.

 

But the scope of the bills relates to the content and to why we’re even able to have critical race theory bills to begin with. You will sometimes hear criticisms made of critical race theory bills. They’ll be described as inhibiting discussion in the classroom, putting a chill on what teachers are able to say, and those criticism have implicit in them the idea that K-12 teachers ought to have freedom of speech in the same way that, say, college professors do via academic freedom. But, in fact, K-12 teachers do not have free speech when they are in the process of conveying the approved curriculum, in other words, when they’re teaching. There are free speech issues about what -- whether what they say outside of a class can be held against them, so to speak, in their employment. But, when a teacher is in a classroom, they do not have free speech.

 

And this is actually a good thing. It’s entirely appropriate. And to understand this, we have to think about the difference between higher education and K-12. First of all, K-12 students are a captive audience. Of course, if a family is well -- sufficiently well-to-do, they can have their child go to a private school. But in the first instance, the child has to go to public school.

 

There’s no choice for them as opposed to a college student, who can decide whether they want to go to college at all, what college they want to go to, and, when they get to college, what courses they want to take. And of course, above all, K-12 students are minors. That means they’re highly susceptible to the authority of their teacher, the only adult in the room. And when you look at academia, free speech, academic freedom of the professor is also based on their professional subject expertise. They have a Ph.D. They’ve been selected for the job because they’re at the cutting edge. They’re trying to pursue truth.

 

So, when you take these differences into account, you see that actually it would be an abuse of a teacher’s authority over a captive audience of minors if we were to just say, “Well, you know, say whatever you want. Teach whatever you want.” No, it’s quite the opposite. A teacher is rightly responsible to convey the curriculum consist with state standards and consist with the curriculum approved by the local school board. And ultimately, this means that the public is in charge of setting the content of what gets taught in school. It is, rightly, a matter for the public to decide. And that is why we can have CRT laws for K-12 in the first place.

 

I’ll try to get to higher ed, which, as I’ve just been arguing, is a different kettle of fish. Now, what do the CRT laws do? The easy part is that they, like the Trump EO, they bar various -- the teaching of various forms of collective racial or sexual or ethnic guilt or responsibility. I won’t go into all the specific concepts that get listed. Instead, I want to focus on another, and lesser known, aspect of difference between these various bills. You can think of the state level bills on CRT as differing in three different ways.

 

Some of them focus on compulsion of speech. Some of them focus on promotion of the -- speech, certain kinds of speech. Some focus on discussion. Compulsion, promotion, or discussion. Now, what I mean by compulsion is that some of the bills block compelled speech. Now, of course, compelled speech is already illegal.

 

The First Amendment does not allow you to force someone else to say something. So, say, the Idaho CRT bill, which was one of the first, blocks compelled speech. What does it mean? It means that the teacher can’t say, “Johnny, I want you to confess to the class that you have white privilege. Confess that you have white privilege. Declare that it is so.” That is compelled speech. Actually, a bill that bars compelled speech is very weak.

 

It doesn’t do much. As I noted, compelled speech is already illegal. But perhaps, more importantly, the teacher may not be able to say, “Johnny, declare your white privilege.” But the teacher can, nonetheless, say, under a compelled speech bill, “Johnny, you have white privilege. You must understand and accept that you have white privilege.” So you can preach. You just can’t force a student to say something.

 

So the stronger bill actually bars the promotion of critical race theory ideas. That mean -- those bills tend to say things like, “You cannot promote these ideas. Or you cannot inculcate these ideas.” The strongest bills, the -- actually, bills that are too strong block all discussion of critical race theory. Few bills do this now. But originally, there were some bills that said -- had phrases like, “You shall not make these concepts part of a course.” Well, if you can’t them part of a course, that means you can’t discuss the concepts.

 

So, if Johnny raises his hand and asks about one of the critical race theory concepts, instead of answering him, the teacher has to say, “Well, I’m sorry. I can’t talk about that.” And that really pushes things too far. So the sweet spot is blocking promotion. And that’s what the best bills do. Now, there are many, many misrepresentations of what these critical race theory bills actually do. And probably the most widespread and pernicious misrepresentation is -- and this is very frequent in places like the Washington Post and the New York Times -- people will say, “These bills say that you cannot make a student feel guilt or discomfort.”

 

No, that is not what the bills do. What the bills actually do is they say, “You cannot tell students that they should feel guilt or discomfort because of their race or their ethnicity or their sex.” And that is very different. So, for example, let’s say you have an ethnically Japanese American student in your class. If he might feel guilty because you teach about Pearl Harbor, that doesn't mean you can’t teach about Pearl Harbor. Similarly, if a student feels bad if you teach about slavery, that does not mean you can’t teach about slavery.

 

What you cannot do is say, “You ought to feel guilty about Pearl Harbor because you’re ethnically Japanese.” That’s what’s prohibited, very different than simply leaving it up to the entirely subjective standard of the students’ feelings. So that is probably the most frequent misrepresentation. Now, some of the bills have nothing to say apropos of the 1619 Project and various conceptions of history. Others do.

 

I have a model bill. My model bill is called The Partisanship Out of Civics Act. The Partisanship Out of Civics Act, it’s published with the National Association of Scholars. And that helped to inspire the Texas critical race theory bill. My model bill does talk about the core ideas of the 1619 Project. And, so, it says, “When you teach about slavery and racism, you’ve -- you should present these as betrayals or deviations from or contradictions to America’s core founding principles of liberty and equality.” What is prohibited here is that you say, “Slavery and racism are of the essence of America’s founding,” which is what the 1619 Project says.

 

So it’s very often misrepresented that critical race theory bills prevent you from teaching about slavery and racism, either because it might make a student feel guilty or because there’s something in there about how slavery and racism should be taught. But in fact, there’s no bar on teaching about the very worst instances of slavery and racism in America’s history in any of these bills, that I know of. What there is, sometimes, is direction on how that should be taught, namely not accepting the core and most controversial ascertain of the 1619 Project, which is that slavery and racism are the real founding of the United States. And some bills actually do bar, by name, anything from the 1619 Project. I personally think that’s a mistake. I think that goes too far.

 

The 1619 Project includes a harmless article about black jazz. You might find other things put out that are perfectly fine under the 1619 Project, imprimatur. I think it’s a mistake to bar it by name. I would prefer to bar these more problematic concepts. Okay. So there are problems with these bills. Initially, I actually did not favor critical race theory bills.

 

Why? Because I was concerned, for example, about local control. I thought, “We shouldn’t be doing this at the state level. We should focus on local control.” I was concerned about getting into messy enforcement issues. He said, she said controversies, where a parent, relying on what their child says that the teacher did x in class, and the teacher said, “No, I didn’t.”

 

And that will get messy, create martyrs. Well, these things are all problems, real problems. But here’s what changed my mind, several things. First, ultimately, I think it’s simply intolerable to teach young children that they bear guilt and shame because of the color of their skin or their ethnicity. That has to be barred. That is an extreme problem, and we can’t wait for that to be fixed.

 

We’ve got -- in some other way, we’ve got to fix it now. Furthermore, I was pushed in the direction of model legislation by seeing what happened in Illinois. I followed very closely a new set of teaching standards in Illinois. These were statewide standards for teaching. They were actually not done legislatively. They were done by bureaucratic fiat.

 

The legislature had a chance to block them, but they chose not to. And, so, they imposed critical race theory, in effect, on teacher training for the entire state, including conservative districts. And you’re seeing similar moves in places like California, Minnesota, New York State. This is very important. Most of what we read in the newspaper is about conservative red states pushing back on CRT. What we don’t tend to read nearly as much about are the moves to institutionalize CRT at the state level in blue states.

 

And note that state education bureaucrats, even in the reddest of red states, tend to be very left leaning and pro-CRT. So, unless we take action through legislatures at the state level, that there is a grave danger that this is going to imposed on all states, blue states and red states, by the education bureaucracy. And then, finally, I was moved by the great danger that the federal government could impose critical race theory — and something I’ll talk about shortly called, Action Civics — on the states. And the only defense the states have against that is their own laws. So those are the reasons why I think, despite problems, something has to be done. Now, you’re all lawyers, or most of you are attorneys.

 

Presumably, you’re thinking, “Well, Stanley, why not fight this with lawsuits?” And that can work. I’m not against it. Arguably, some of the things being taught here are in violation of Civil Rights law. But I would note that, in the case of campus free speech, we have continual lawsuits against campus free speech zones, against restrictive campus speech codes. And almost inevitably, those lawsuits are successful. And yet, after three decades -- well, the number of these speech codes and speech zones have been pared back.

 

They still exist. Schools just shift their regulation. They pay their penalties. They write it off as a cost of doing business. And, so, I don’t think a litigation strategy alone is going to be adequate to work. And again, we’re doing with young children here, who are being taught now that they bear guilt or responsibility or shame for their skin color or ethnicity or gender or whatever.

 

Now, with regard to higher education, I don’t believe it does have to be different. There we have to wall off the classroom. And South Dakota just passed a higher education critical race theory bill that walled off the classroom, for example. Now, that doesn’t mean we can’t do some things with higher ed. Legislature, as in South Dakota, can block CRT from student orientation. They can block it from mandatory employee training. I think you have to wall off the classroom.

 

Some of the bills don’t do that. Usually, those provisions get struck out before the bill is passed. Occasionally, I think, a few slip through. If that slips through, I think the Supreme Court’s going to strike it down as a violation of academic freedom. Some of the bills propose to allow the teachers in college to discuss CRT-based ideas, as long as they do so objectively. Well, you can’t do that.

 

Academic freedom allows a teacher to advocate as well as discuss objectively. You can’t tell a teacher, “You can’t advocate.” You can’t say a teacher can’t advocate for socialism. You can’t say a teacher can’t advocate for America’s Constitution. You can’t block advocacy through the law.  That is a violation, ultimately, of the First Amendment because the Supreme Court considers academic freedom to be a kind of emanation of the First Amendment.

 

That’s a real emanation and not a bogus emanation. All right. Now, there’s also something called action civics. This is much less well known but just as pernicious as CRT. It tends to be supported by the same people. It goes under different names. I like to use the term, protest civics, because that explains a little more what it’s all about.

 

This is where students are encouraged to take political action, often protest, in class but, more often, even outside of class as a kind of extracurricular activity, but that’s made a condition of passing the course. It’s sometimes called project-based civics. This is a euphemism. The project is the protest. The project is the political activism. Sometimes, it goes by a name like civic engagement.

 

Sounds nice. Sounds like something we ought to be encouraging in students, but, very often, this is a euphemism for what, in my view, is illegitimate student political activism for course credit. Now, Illinois and Massachusetts have already passed laws requiring action civics. So you have to complete a “project” in 8th grade and, again, in high school. The project, again, is almost always some kind of political protest, most often, outside of class. Action civics also includes something called service learning.

 

Again, that’s a euphemism. Service learning, in this case, means that the student, as part of his coursework, required coursework, most often, has to intern with a political organization. And almost inevitably, these are left leaning, often, Alinsky-style community organizations. This is a way of getting students recruited and indoctrinated into politics when they’re still young. Overwhelmingly, the projects are leftist. And, even if they were more evenly divided in terms of politics, it would be illegitimate, in my view.

 

A school ought to be politically neutral. A school hosts students from across the political spectrum and whose families are across the political spectrum. And what we see is that the teacher or the peer group or the nonprofit organization, almost always leftist, that partners with the school to promote action civics puts a kind of pressure on students who either may not be political at all or may not be particularly left leaning. And, because they don’t be want to be left out or made to seem silly or wrong or liable to criticism, they go along with the larger group’s protest. So my Partisanship Out of Civics Act not only bars critical race theory, it bars action civics. A bill on this model -- this helped inspire the Texas bill, which helps to bar action civics, although those provisions were slightly weakened at the end, but many of them are still excellent.

 

You can also slip action civics in through state standards. Louisiana had action civics in its state standards, but, after a public protest, that was recently taken out. So keep in mind action civics as well as critical race theory. It’s quite closely related. Now, let’s get to the federal level. All of this, critical race theory and action civics, can imposed from the federal level.

 

And Biden and the Democrats hope to do this. This is deeply dangerous. Now, you might say, “Well, Stanley, how can that be? The Constitution leaves powers over education to states, not to the federal government. There’s no constitutional basis for that.” And in fact, if you look at federal legislation on education, it often contains what’s called a Rule of Construction, saying, “Nothing in this law shall allow the Secretary of Education to impose curriculum on states or localities.” But the federal government doesn’t need that. And think of Common Core. Common Core is a kind of de facto national curriculum or, at minimum, a set of national education standards that is pushed by the federal government.

 

How did they do it? They did it by putting strings on federal grants. Obama passed something Race to the Top. This was part of his stimulus package. No one noticed it at the time. But what it did was set up a competition among states for lucrative education grants.

 

And essentially, if you wanted to win the competition, you had to effectively declare that you were going to adopt Common Core. And this is how Common Core was adopted by almost every state, really, originally, about 48 of the 50 states. Texas stayed out, but the governor took a lot of criticism -- Governor Rick Perry took a lot of criticism because he was losing out on the federal money. So there are bills, right now, federal bills, backed largely by Democrats, with a little bit of mix of Republican support, that are gravely in danger of forcing both critical race theory and action civics on the entire country through strings on grants. The most dangerous and, I believe, pernicious of these bills is called the Civics Secures Democracy Act. It would give about six billion dollars over six years.

 

The lion’s share of that money would go to competitive grants among the states, just what we saw with Common Core. A lot of it would go to these leftist nonprofits, predominantly leftist nonprofits, that partner with schools to promote action civics. A lot of it would go to Woke Ed schools. And there would be a lot of incentive for local and states getting the money to adopt curricula created by the Woke Ed schools. And then, there are a variety of other bills, the Civics Learning Act, the Inspire to Serve Act, the PREP Civics and Government Act. There might even be another.

 

It’s like Whac-a-Mole. They keep popping out. You can read about this in a number of articles I’ve written. You could google my -- one of my pieces called, “Bill to Federalize CRT Must be Stopped.” Then, I have these -- the talks about the multiplicity of bills, “How Biden and Dems Will Push Protest Civics and CRT on Schools.” Another bill -- another piece is called, “The Greatest Education Battle of Our Lifetimes.”

 

So there are all these bills. Now, you might say, “Well, how can Republicans co-sponsor these bills, if it’s filled with CRT and action civics.” Well, very few conservatives or Republicans even understand that civics has been co-opted by the left, which has reimagined it. And you go to the Republicans, and you say, “Will you join with us?” A Democrat goes to a Republican and says, “Will you join with us in cosponsoring a bill on civics?” Republican gets a warm, fuzzy feeling in their tummy and says, “Wow. This is fantastic. At last, I can do something bipartisan. You’re going to teach America’s children about the separation of powers and the federalist system and checks and balances. This is great. Sign me up.”

 

Little do they know that hidden in the language, filled with euphemism, are authorizations that will allow the Biden administration to give grants to states that promise to enact critical race theory and action civics. Here’s an example of how it happens. These bills often say that priority should be given to grants that helped the underserved, the underserved, meaning poor students or minority students or recent immigrants students. Now, in principle, that could be great. Most Republicans think, “Okay. There’s some districts that don’t have as much money, so they can’t learn civics as easily as the more well-funded districts. Let’s give them some money.” Okay. That might make sense.

 

But what underserved actually means nowadays and the new lingo is something entirely different. The theory is that the reason for students and minority students and recent immigrants don’t test as well in civics and American history is because civics and history themselves need to change to appeal to those students. They need to emphasize systemic racism in the United States. They need to recruit students into political activism against police brutality and so on and so forth. And, so, the theory is that, in order to lessen the gap between underserved students and others, you have to use CRT and action civics. And, of course, the readers who would judge the applications for these grants, brought on by the Biden administration, would all approve of that theory.

 

And we’ve seen many other indications from the Biden administration that they approve of CRT. So this is a grave danger that very few people know about. It could happen before the midterms, and that would actually federalize CRT. Now, transparency. Another huge issue that’s come up more recently — although it’s been around for a year or so, but it’s really gained steam lately — is transparency. The classroom really is largely a black box.

 

We don’t actually know what most teachers are teaching. What does that mean? How can parents, this new movement of parents, trying to change the curriculum or at least supervise and understand what’s in the curriculum, how can they do anything without finding out what’s actually being taught? Going back to the CRT bills, how can CRT bills be enforced unless there’s a mechanism for knowing what is actually taught in class? Most of the CRT bills that pass don’t have direct enforcement provisions. Sometimes after they pass, a state will add regulations, which involve enforcement.

 

Sometimes, there are enforcement provisions in the CRT bill, but they’re often cut out because they’re the ones that get the most opposition from the teachers’ unions, and even Republicans are afraid to ruffle those feathers, and they end up cutting out those provisions. A transparency bill is easier to pass, easier to include enforcement provisions in, and it’s actually the easiest and cleanest way to enforce other bills like a CRT bill or any education bill. So, for example, if a student has received a handout in class that is clearly a CRT handout, but the handout has not been put up on a website that is part of transparency legislation, then the teacher would clearly be guilty of not following state law on transparency on top of perhaps not following state law on CRT. So the new wave of transparency legislation is trying to encourage transparency, not just as they do now. Right now, you can ask to see material. Often, it’s during working hours, and parents who work during the day can’t take the time to go to school and ask for permission to look at whatever it is that they’re curious about.

 

What if you had a website that had the content of what was going on in class publicly displayed, and you could just go to it on the web? And what if that was continuously updated? What if it included not just the textbook but the teacher’s lesson plan and any handouts given out by the teacher? This is what the new generation of transparency bills is trying to accomplish. Now, you can find what I consider the best model, and I have -- I’m a co-author of the model, not at all the primary author, but I have an article called, “Will Teacher Transparency Sink the Democrats? -- “Will Teacher Transparency Sink the Democrats?” And in there, there’s a link to the Sunlight in Learning Act, which is published by the Goldwater Institute.

 

This is a collaborative project of the Goldwater Institute, the Manhattan Institute, and myself. And I think it’s the state of the art in transparency bills, and it would do the sort of things I’ve told you. Yes, it respects copyright. You can’t show full text of something that’s copyrighted, but it ensures that you can copy up to fair use. It prevents the district from making contracts with providers that don’t give at least some kind of basic access to the content. So you can look at that, if you’re interested in.

 

Another issue, I’ll cover quickly, is diversity statements. Diversity statements are going increasingly popular in higher education, and they’re beginning to move into K-12 as well. What is a diversity statement? Well, if you want to be hired as a college professor or, now, even a K-12 teacher, if you want promotion, if you want tenure, you are often asked to submit a statement, indicating your opinion of diversity, equity, and inclusion; indicating what past actions you’ve taken in support of diversity, equity, and inclusion; and indicating your future plans to support diversity, equity, and inclusion should you get the job that you’re applying for or the promotion that you’re seeking. Now, this is a, in the view of myself and many others, a political litmus test and entirely inappropriate to force teachers to do as a condition of getting a job or promotion. It is, in effect, the equivalent of the 1950’s loyalty oaths.

 

And around 20 percent now of schools are requiring diversity statements. Again, it’s moving into K-12. More schools are probably going to follow. You’re more likely to have a diversity statement if you’re in a prestigious school, which is a sure sign that it’s likely to spread to other schools. Now, the schools say, “Well, this is not a political test. This is just -- we’re just trying to find out that -- what your teaching philosophy is. And since teaching is important to your job, naturally, it’s legitimate for us to ask you these questions.” So, in response to this, once again, the Goldwater Institute -- but this time, in partnership with North Carolina’s Martin Center and myself, we’ve all partnered to create model state-level legislation to block diversity statements. You can find a link to this in an article of mine, that explains it, called, “How to End Political Litmus Tests in Education.”

 

And, if you read it, you’ll see that it bars political litmus tests in general, but, because the schools might or might not succeed in wiggling out of that, there are more specific provisions that prevent schools from promoting differential treatment by race or ethnicity or by requiring any statements pertinent to diversity, equity, and inclusion that go beyond the principles of equal protection under the Fourteenth Amendment. And, so, this is a way of fighting diversity statements. And now, lastly, which will still leave us about 20 minutes for questions, I want to talk briefly about book banning. Now, I do think book banning does take place, but the extent of it is greatly exaggerated. It’s true. If you remove a book from a school library, I think it’s fair you can say you’ve banned that book.

 

But removing a book from the curriculum is not book banning. Deciding what goes into the curriculum changes all the time. When the left takes a book out of the curriculum and puts in something else, they say they’re decolonizing the curriculum. They don’t say they’re banning a book. Or they say they’re disrupting the curriculum. There’s a whole movement called, Disrupt Texts.

 

This is a leftist movement that wants to replace things like Homer’s Odyssey with woke books. Well, that would be book banning under the definition that’s often used. So what you’ll often see is an article in mainstream press headlined, “Book banning.” But, when you look at what most of the examples are, they’re actually about removing a book from the curriculum to substitute something else, which, again, is by no means a ban. Now, there has a significant movement to bar certain books from the library. The vast, vast majority of these are done on grounds of explicit sexual content.

 

And often they are books on gay themes or transgender themes. But, if you look at the content, it is very, very explicit. And if you want to see exactly what a lot of these passages are, there’s an article from National Review by a writer named Nate Hochman, H-O-C-H-M-A-N. It’s called, “The Graphic, Obscene Material Sparking a Paternal Revolt in the Schools.” Now, some of this may be barred under obscenity law, but there are other concepts that come into play. A school has scope to bar material that is not age appropriate.

 

So you might have something that doesn’t need the -- a bar for strict -- obscenity, strictly speaking, but it is not age appropriate. You can also consider community standards, and, of course, that varies from district to district. I don’t think the law has been fully tested all of these issues. There’s a helpful article that came out in the Washington Post recently on one aspect of this. An -- it was written by Hannah Natanson, N-A-T-A-N-S-O-N, called, “States Aim to Limit Book Titles Students Can Search For.” That gets into some of the legal background, things like the Children’s Internet Protection Act. But it doesn’t begin to probe.

 

I know of no simple source that comprehensively lays out all the full legal background of everything that’s in play with this book issue. But it’s important to keep in mind that book banning, per say, is often not what is actually at stake. Okay. That’s it. Let’s have some questions.

 

Ryan Lacey:  Thank you so much, Stanley. As -- I’ll take moderator’s privilege, I think, and ask a few questions to start and let people get questions in the Q&A. As a reminder, if you have a question for Stanley, you can put it in the Q&A feature at the bottom of your screen. It’s separate from the Chat function. It says Q&A right there. So put your questions in there, and we’ll get to them.

 

One of things, that really resonated with me, you talked about was in the action civics and service learning, particularly. My mother happened to be a service-learning teacher for several years, and I saw -- I was able to see the benefit that her students got from those types of programs, nothing political, of course, but going and reading to local kids, volunteering at food banks, etc. and so forth. How do we -- in pursuit of stopping some of the politicization of those programs, how do we stop throwing the baby out with the bath water and -- so that students can still get the benefit of the good sides of those programs?

 

Stanley Kurtz:  That’s a great question, Ryan, and it’s definitely come up in legislative debate. I can’t -- I’m embarrassed to say that I can’t remember the precise language of my own model bill, but my model bill does have language that essentially says, “The organization can’t be involved in lobbying for legislation or that the student’s project can’t be involved in lobbying for legislation or trying to persuade legislators to go one way or another. So there is language there that specifies and, therefore, still permits students to say -- in turn, Florida recently passed a bill where the student can intern at a government agency. You can intern at a government agency. That’s not lobbying. That’s different. Or you can be a page in the legislature. That’s different than being part of an organization that is actively lobbying for legislation.

 

Ryan Lacey:  Yeah.  And in that same vein, just addressing some of the concerns from both the right and the left, there has been some concern about an overreaction from Republican governors and legislators and the states and at the federal level to doing something that would violate the First Amendment rights of teachers or school administrators or even, in some cases, students. How do we make sure that we don’t go too far in trying to combat some of this?

 

Stanley Kurtz:  Right. Well, I -- as I addressed free speech with regard to teachers when teachers are actually conveying their views -- but, remember, action civics, for the most part, is outside of class, and, in my view, students are perfectly free to engage in any political activity they want to outside of class. But it should be a private decision. The problem is when you declare this activity to be a requirement in order to pass your civics course, and then, the student is, in effect, pressured and drafted into a collective class protest project. That is not productive of free speech. It’s precisely by allowing the student to do anything they want in a genuinely voluntary and extracurricular activity outside of class, not for credit.

 

Classes should not be trying to control the political activity of children outside the classroom. That is not productive of freedom of speech. On the contrary, it pressures the students and pushes them into politics prematurely.

 

Ryan Lacey:  Yeah. And one last question before we get to some of our audience questions as they’re filling in. As far as -- with these model legislations, how do you plan to enforce them? Even before CRT, like when I was in school, there were always professors and teachers who you knew were politically motivated and would grade students differently based on what they said on, say, their government essay or their English project. So how do you enforce those when they have at least some layers of plausible deniability in teaching some of this -- these things?

 

Stanley Kurtz:  Right. Enforcement is a significant issue. I discussed it in a limited way during the presentation. Note, Oklahoma passed a regulation after it passed a CRT bill, and I -- again, I don’t recall all the specific details, but I believe there was a provision in there for a parent to complain, if the teacher violated something. But, of course, again, you have to know that the teacher did that. You either have the say-so of the child, or you have a state -- an obligation to report something in terms of transparency. Now, some people have suggested video in class.

 

But I find that problematic chiefly because it would interfere with the privacy of students. I don’t see how you can get the camera only to be on the teacher. And how many things have you said as a kid in class? Do you want that to be recorded and follow you for the rest of your days? So I don’t think we’re going to see video in class, although, that’s suggested. So enforcement is a problem, but it is not impossible.

 

We know that -- and by the way, teachers -- many teachers have pledged to violate CRT laws. They’ve actually signed collective pledges, saying, “We’re not going to follow this,” which is rather interesting. But you have had teachers who were called out, if -- certainly, if they pass out a handout. But children can say what they’ve -- what did you learn in classroom today? And at a certain point, it becomes tough to hide, and teachers know that. So it’s not easy to enforce, but it’s not easy for a teacher to keep something like that secret. By definition, if they’re teaching it, other people are going to know.

 

Ryan Lacey:  Perfect and moving on to audience questions. Our first one from Dan Mornoff (sp) asks, “Honing in on higher ed, and specifically state-run institutions, can states, in picking what education to subsidize as consistent with public interest, choose to abolish tenure and fire those professors using their positions to promote race essentialism and discrimination? If not, how can free speech emanation require the state to contain to subsidize such professors to work against the public interest?

 

Stanley Kurtz:  Well, I don’t think you can fire teachers because they’re teaching CRT. I understand that there are some legislators — and when I tell them, “You have to protect academic freedom.” And they say, “But we’re paying them the money,” which is essentially what your questioner is saying. But, in fact, the Supreme Court has declared that academic freedom is part of the First Amendment, and what that means is that you subsidize the university as a whole. You don’t do it course by course, precisely, so that you can allow the free flow of contradictory ideas within  the school. And teachers are supposed to be hired -- of course, much of this doesn’t really happen in reality.

 

And how to fix it is a problem. But, in theory, teachers are hired without regard to politics. They’re hired because they’re at the cutting edge of their intellectual discipline, and they must be free to explore their ideas wherever they lead, advocacy included. And, so, if you start picking and choosing which departments and which classes and which professors you want to support, you are violating academic freedom because academic freedom is protecting the system. In effect, the legislature subsidizes the school. The trustees are in charge of the school.

 

They have somewhat more scope. They can declare what programs to include or not include. In theory, they could say, “We’re not going to have Women’s Studies anymore or Ethnic Studies because those programs are too politicized and not important.” That can be done and is properly done through the trustees, not the legislature. This opens up a whole other area, which is the fact that trustees ought to be far more active in doing what they can do within universities because they have a lot of power that legislators do not. Unfortunately, governors tend to select as trustees their biggest donors.

 

It’s a little bit of a plum, like giving a big donor an ambassadorship to a small country, if you’re a president. And the trustees, I believe, ought to be -- I believe the candidates for governor ought to be challenged to endorse a reform plan for higher education, and part of that plan would be to only appoint trustees who will advance that plan of reform. But the trustees have somewhat more scope. But once you target specific professors for their ideas and not others, you’re violating academic freedom, and the Supreme Court will throw that out. Now, you can abolish tenure. That is an option, and I’m not entirely against it. In fact, I might be entirely for it.

 

But what I have found is, when I explored pushing this, is that conservatives are split on this. When I speak to many conservatives, they’ll say, “Well, I was taught by Professor So-and-so, who was conservative, and he’d be out there if he didn’t have tenure. And, so, I don’t agree with you, Stanley. We need to keep tenure.” And my sense is that going against tenure will split conservatives, but that is an option. There are signs that people are moving in that direction. Florida just passed a law, which in -- pares tenure in significant ways. The last two public universities in Florida don’t even have tenure. And, so, we may see different -- on the other hand, Scott Walker took some actions that really riled the left.

 

He took some actions against tenure that haven’t panned out to amount to much. That is a fertile field. You could eliminate tenure. But, if tenure exists and you fire people because they’re teaching CRT, I believe that that will be struck down.

 

Ryan Lacey:  Right. And our next question from Ken Masugee (sp) -- I apologize if I mispronounced that, Ken.  A very basic question, “Is there some legal way to separate public schools, K12 -- K-12 from government, that is distinguish between a third-grade teacher and the Secretary of the Treasury? Does this distinction help or hurt our case?”

 

Stanley Kurtz:  Boy, that’s interesting. I haven’t thought of that one. Of course, there are many proposals to expand school choice, to create -- and create alternate -- or homeschooling, create alternatives to public schools. But I haven’t thought of, I don’t know, making public schools somehow not public. If we did that, how could we compel people to attend them? How could we control their curriculum? I’m not sure. I’d to hear more, maybe, about how that proposal would work out. But it’s an interesting idea, that it hadn’t occurred to me.

 

Ryan Lacey:  Lou Davis asks, “I support your efforts in this area, but I’m also interested in book banning by conservatives. In your opinion and experience, how significant is this problem? Thank you.”

 

Stanley Kurtz:  Well, I -- first of all, I’ve actually written a couple pieces on this. Believe it or not — it’s a crazy story — I had an op-ed in the New York Times about this, and I also had an op-ed at National Review about this. My NRO piece is called, “Don’t Ban Woke School Library Books. Balance Them,” and that essentially argued -- it bracketed this issue of explicit sexual content because I do think there is a legitimate case for barring books with strong explicit sexual content, and, if you read that Nate Hochman piece, you will see that these are shockingly, shockingly explicit, particularly for young people. It really is over the line. But the danger, I think, is banning books from libraries for ideological reasons, which, again, in my view, actually doesn’t happen very much. But, to the extent that groups want it to happen, I think it shouldn’t.

 

And what I argued in my various pieces was, “You don’t want to throw Ibram X. Kendi’s critical race theory book out of the library. You want to make the library buy John McWhorter’s Woke Racism book. You want -- you don’t want to throw — what is it? — Michelle Alexander’s New Jim Crow book on incarceration out of the library. You want to make your school library buy Heather Mac Donald’s books on the war against cops.” In other words, I think -- I would encourage conservative groups concerned about libraries to focus on purchasing books that will put another point of view in there, but I don’t like the idea of getting rid of books from a library, with the exception of this very explicit and age-inappropriate sexual content, which is a whole other kettle of fish.

 

Ryan Lacey:  Another question. Mark Doberteen (sp) asks, “Can you please discuss the current actions in Florida with CRT, books banning, etc., and discuss potential outcomes of litigation in Florida?”

 

Stanley Kurtz:  Florida passed the Stop Woke Act, and I’m embarrassed to say I simply can’t keep up with all the bills in all the states. I haven’t thoroughly read the Stop Woke Act. I’m a little worried that it might have something in there on higher education that goes a little bit too far. But, as a whole, I think it’s probably very solid. Unless the text has changed from what I looked at some time ago, it was consistently misrepresented as prohibiting books that make students feel uncomfortable when, as I said in the presentation, that’s not what it does, at least the last version I saw. Instead, it says you shouldn’t tell students that they ought to feel uncomfortable.

 

But Florida passed, I believe, a separate bill, paring back tenure, as I mentioned, and that also, I think, is a good thing. The problem is that the legislature is somewhat limited in what it can do on that, so was it really -- that was really a kind of signal to boards of trustees at the various schools to follow through. And, I think, within six months, they’re probably going to do that. And what it would do is to create a tenure-review process for -- a review process for tenured professors.

 

But exactly what that entails is unclear, but I’m guessing that it may entail things like, “Are you -- is there any evidence that you’re grading students based on their political view” -- things that would be over the line that would create a legitimate reason for even, perhaps, a tenured professor to loss their tenure. But that’s still not quite the same as eliminating tenure, which, as I note, has already been done for the two newer public universities in Florida. And maybe the questioner is also interested in the so-called Don’t Say Gay bill or whatever. I’m not aware of any litigation proposed on that. I think the school has the perfect right to say you shouldn’t teach about sexual orientation until a certain age, and after that, it ought to be age appropriate. Note, that bill, I think, also uses the phrase, “age appropriate,” which is an important phrase. As far as the special district of Disney, I have not expertise on the litigation issues there.

 

Ryan Lacey:  A couple more questions probably before we have to wrap up for the day. Jeffrey Wood asks, “To what extent can private individuals and organizations purchase books for contribution to public school libraries and compel them to accept and put them on their shelves?”

 

Stanley Kurtz:  Well, I actually -- I didn’t get to it, but, actually, my model legislation on CRT and action civics includes a provision that forbids curricular materials from being supplied by private organizations. And I know there’s some conservative groups that are disappointed by that because they do that, but, in practice, the left is exploiting these -- you see leftist foundations have practically taken over the entire states’ civics program in Illinois. They fund teacher-training seminars. They fund a massive website that is, in effect, the state-endorsed website, although it’s unofficial, for civics. And this a kind of -- this is something they call the McCormick Foundation, but it also runs a consortium of leftist foundations. Private groups creating curriculum is really a kind of end-run around public control.

 

And, if you want to have a more traditional form of education, our ace is the voters, is parents. The further away you get from parental and voter control, the more you get put into the hands of leftist ideologues.

 

Ryan Lacey:  And one last question, this one from Kurt Newman (sp). “Are there any organizations working to develop counterarguments to CRT? The discourse seems to be a lot about how bad CRT is, but there doesn’t seem to be a lot of principled attacks on the tenants of CRT.”

 

Stanley Kurtz:  Well, you have various opinion books and things like John McWhorter’s book. I would give a slightly answer by pointing to a slightly different phenomenon. You, for example, you can -- if you google this along with my name, you’ll see there’s a new nonprofit. We’re called, American Achievement Testing, working with Wilfred McClay, one of the best conservative, traditional American historian, to create an alternative curriculum that would be a kind of -- completely up to date, but in a certain sense, traditional “conservative” curriculum for American history. And if that worked, it could ultimately go into other areas. The National Association of Scholars is about to release a set of alternative state standards, which -- and Hillsdale College has a whole series of charter schools.

 

And, so, there are movements -- countermovements, not so much trying to answer CRT, per say -- although, you see, of course, pundits and authors doing that on an individual basis. But I think the more powerful riposte is to actually begin to develop curricula because, right now, all the textbooks — except, say, Wilfred McClay’s American history textbook, which is brand new — almost every textbook is a left-leaning textbook. Almost every ed school is a left leaning -- and not just left leaning but fully Woke, I mean, extreme left. The entire -- the commanding heights of the culture are truly in the control of the left, and what we badly need to do is to create institutions that push back, in effect, a kind of educational Federalist Society, so to speak, or a multiplicity of those things are what is needed. And then, we give local school districts the option of choosing those things. Right now, even if they want to have a good curriculum, it would be hard for them to find it. So that’s the solution.

 

Ryan Lacey:  Perfect, and I think that’s a great way to end off today. On behalf of The Federalist Society, I want to thank Stanley for the benefit of his valuable time and expertise today. And I want to thank our audience for joining us and for participating with those great questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcement about upcoming webinars. Thank you for all -- for joining us today. We are adjourned.