The post-modern social science framework of “critical race theory” is well-known in certain academic circles and trending in corporate settings. CRT-inspired concepts and terminology-- such as “white privilege,” “intersectionality,” “implicit bias,” “microaggressions,” and “systemic racism”—are increasingly used in ethnic studies curricula in higher education. Robin DiAngelo’s NYT best-seller “White Fragility” (2018) brought mainstream attention to some CRT concepts and terminology. This year, the death of George Floyd served as the impetus for many institutions, including corporate employers, governmental entities, and some K-12 school systems, to adopt responsive training for employees and students. In some cases, existing EEO and diversity training programs were enhanced to target anti-racism issues. Critics have charged that CRT training itself contains racial stereotypes, assigns blame to individuals based solely on their race and sex, and imputes race discrimination as the reason for all disparate outcomes in society. Some employees have complained that being subjected to CRT training constitutes workplace harassment and/or discrimination. Proponents of CRT contend that disparate outcomes can only or best be explained by lingering, systemic racism. President Trump generated controversy in September when OMB Director Russell Vought released a memo instructing federal agencies to identify CRT training within federal agencies, with an eye to stop funding such programs. President Trump also issued an executive order forbidding such training by federal contractors. Our speakers will discuss the background and utilization of CRT, and explore whether the use of CRT (or similar theories) in workplace or K-12 contexts raises legal issues. They will grapple with the foundational question: Is CRT’s focus on race contrary to the traditional goal of a color blind society?
Mike Gonzalez, Senior Fellow, Douglas and Sarah Allison Center for Foreign Policy and Angeles T. Arredondo E Pluribus Unum Fellow, The Heritage Foundation
Peter N. Kirsanow, Partner, Benesch, Friedlander, Coplan & Aronoff LLP
Professor Daniel B. Rodriguez, Harold Washington Professor of Law, Northwestern University Pritzker School of Law
Professor Daria Roithmayr, Richard L. and Antoinette S. Kirtland Professor of Law, USC Gould School of Law
Moderator: Mark Pulliam, Contributing Editor, Law & Liberty
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society’s Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.
Dean Reuter: Welcome to The Federalist Society’s practice group teleforum conference call as today, November 19, 2020, we discuss “Critical Race Theory: Fighting Racism, or Racism Masquerading as Remedy?” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.
We’re very pleased to welcome today five guests to a teleforum conference call. A reminder that this is being recorded for use as a podcast and will be transcribed and posted on The Federalist Society’s website. Also, the opinions expressed are those of the experts.
With that, we have a special moderator for our program today. He’s going to introduce the other four panelists. We’re going to get opening remarks, but eventually, questions from the audience, so please have those in mind. I’m very pleased to welcome Mark Pulliam, Contributing Editor at Law & Liberty, as our moderator and one of the driving forces behind organizing today’s teleforum call. With that, Mark, the floor is yours.
Mark Pulliam: Thank you very much, Dean, for managing all of the technical aspects of this today. Like Dean said, my name is Mark Pulliam, and I am a Contributing Editor of Law & Liberty who also blogs at Misrule of Law. This is an important and timely topic, and I want to thank our speakers today for agreeing to participate.
Academia is an incubator for theoretical models, but in the social sciences few academic theories gain widespread traction in the outside world. Critical legal studies, for example, was quite influential in law schools during the late 20th century but never took root in American law or judicial decisions.
Critical race theory is different. Critical race theory has been in the news lately. Perhaps it is the zeitgeist, but CRT, once confined to the professoriate in certain academic disciplines, seems to be everywhere: in the workplace, public schools, corporate marketing, and on the best-seller lists. Some people claim that CRT is essential to eradicate racism from our society. Others object to some of the precepts of CRT as violative of civil rights law.
Our speakers today will address different aspects of CRT: what is it, where did it come from, what is it being used for, and what are the potential legal objections to it? Our speakers today, described in greater detail in the event notice, are Mike Gonzalez, a Senior Fellow with The Heritage Foundation, having previously worked for 20 years as a journalist for The Wall Street Journal and other papers. His latest book, The Plot to Change America, is a critique of identity politics.
Peter Kirsanow, the longest-serving member of the U.S. Commission on Civil Rights, a veteran employment law attorney, and a former member of the NLRB, is an outspoken critic of mandatory CRT training in the workplace.
Professor Daniel Rodriguez, in addition to teaching at many fine law schools, including my alma mater, the University of Texas, served as Dean at the University of San Diego and Northwestern, and in 2014 was President of the Association of American Law Schools.
Professor Daria Roithmayr from the University of Southern California Law School focuses her scholarship on structural racism and racial inequality. Her 2014 book, Reproducing Racism: How Everyday Choices Lock In White Advantage, was published by NYU Press.
All of the speakers have their full bios on The Federalist Society website. Each speaker will open with remarks lasting no more than five to seven minutes, speaking in the order they were introduced, followed by some responses among the speakers, and then some question and answers from the listeners, time permitting. So please feel free to think about what you’d like to ask our panelists. And with that, I will turn it over to our first speaker, Mike Gonzalez.
Mike Gonzalez: Well, thank you, Mark. As you said, critical race theory is the child of critical legal theory, and critical legal theory is the child of critical theory. So I’ll take the next six minutes or so to describe all three and why it’s important to understand them. That could make matters much simpler, just tell you that all three share the same goal of shattering society and all its norms, starting with reason, objectivity, etc., and of course, the capitalist system.
But it’d be helpful to understand why they arrive there. They don’t really see themselves as theories. They say that this is a body of work produced by a network of like-minded individuals. They started with critical theory. It owes its start to the manifesto of the Institute for Social Research in Frankfurt, which is colloquially known as the Frankfurt School. It was written by Max Horkheimer, and it was titled “Traditional and Critical Theory.”
Traditional theory, Horkheimer said, fetishized knowledge, seeing truth as empirical. Critical theory, on the other hand, held that men could not be objective, that there were no universal truths. Critical theory was, from the start, that nothing left an unrelenting attack on the institutions of the West. Even though the manifesto was written at the height of the purges in the Soviet Union, critical theory in the Frankfurt School were very silent on Stalin and the U.S.S.R.
Critical theorists became very influential in the U.S. After moving here in 1935, setting up camp at Columbia University’s Teachers College, Horkheimer came with his assistant and the other scholars. They left to go back to Germany after the war, but they left behind Herbert Marcuse, Horkheimer’s main assistant, who became a leading spokesman and explainer of the new left in the ‘60s and ‘70s.
This is a good pivot to critical legal theory, which emerges at the first Conference on Legal Studies held at the University of Wisconsin at Madison in ’77, main theories of people like Duncan Kennedy, Roberto Unger, and Robert Gordon. As you said, it never really took off in jurisprudence, but it was influential, nonetheless. The CLT proponents were very proud of their intellectual debt to critical theory and to the Marxist rules.
I don’t have to spend too much time explaining critical legal theory to a group such as yours that has so many lawyers and legal experts in it, so I’ll limit myself to their goals, which flowed neatly from their intellectual sources. The Cornell Law School Legal Information Institute actually neatly summarizes what CLT believed. The proponents believed that law supports the interest of those who create the law. As such, CLS states that “the law is a power dynamic which favors the historically privileged and disadvantages the historically underprivileged. CLS finds that the wealthy and the powerful used the law as instruments of oppression to maintain their place in the hierarchy.” So that’s what the legal theory believed.
Duncan Kennedy was very open about the debt to critical theory. He added postmodernism. He said that critical legal theory was a mixture of Marxism and postmodernism. And he said the main enemies of postmodernism was “the central ethical concept of bourgeois culture, including God, the autonomous individual choosing self, conventional morality, the family, manhood, and the nation-state.”
And this brings us back to critical race theory. The thing with critical race theory is it makes everything about race. It is the most American of the three. We’re a country obsessed with race, probably for good reasons, and probably as a result of the Marxist project that critical theory actually represents. So it also starts in Madison. It starts in ’89 at a Benedictine center, the first annual Workshop on Critical Race Theory. One of the founders, Richard Delgado, says it’s a mixture of CLP and feminism. Another founder, Angela Harris, says it’s a mixture of CLP and civil rights scholarship.
But it what CRT is is a much less intellectual exercise. It uses short, fictional vignettes to get its point across to the main audience, the American people, just as Jesus Christ used parables. It is much more practicable. It has an even greater political commitment that the other two schools.
They may have recognized that the founder of CRT, Derrick Bell, was very clear about what he meant to do with it. He said, “As I see it, critical race theory recognizes that revolutionizing a culture begins with the radical assessment of it.” So CRTs critical race theory is self-consciously radically egalitarian, much more openly rejects liberal notions such as freedom of speech, of conscience, of property rights. Derrick Bell wrote that blacks had never fully believed in the concept of constitutional rights. The radical assessment is pervasive. Critical race theory is not supposed to stay within campus. Bell also wrote, “It is our hope that scholarly resistance will lay the groundwork for widescale resistance.”
We saw that this year. We saw that in 2020 with the protests and the riots and the violence. CRT found its expression in all of these. The leaders of the Black Lives Matter organizations were really influenced by CRT. But it was not just that. The trainings that we see in the workplace are also a result of CRT. These trainings which pretend that traits such as punctuality, hard work, the use of reason, linear thinking are the product of something called whiteness, something supposedly to be expunged from the workplace. These are all the products of CRT.
So I just want to end by saying that if Horkheimer or Nietzsche or Marx were to wake up in the year 2020, they would be very happy to see what critical theory has begotten in critical race theory.
And now, I think I’m supposed to hand it over to the Commissioner. Hi, Commissioner. Off you go, now.
Peter Kirsanow: Hi, Mike. How are you? Thanks very much. Mike just gave you a history, the intellectual history, possibly, of critical race theory. I’ve encountered it numerous times at the Commission on Civil Rights over the last nearly twenty years, but more frequently in my employment law practice, especially in the last, say, two years or so.
It really is difficult to overstate the perniciousness of critical race theory in practice. Along with its more euphemistic cousins, diversity and inclusion training and the 1619 Project instruction, it abandons the philosophy of judging people on the basis of the content of their character versus the color of their skin.
The trainings have grown exponentially over the last fifteen years, maybe twenty years. I think I first encountered it back in the mid-‘90s, but there was no appellation to it. It was simply a form of human resources training that was kind of new, and it raised certain issues for clients. Thousands of businesses, academic institutions, public employers subject their employees and students to critical race training every year now. And over the years, they’ve become more aggressively anti-white and, to a lesser extent, anti-male.
Many also violate Title VII of the 1964 Civil Rights Act as well as Title VI by segregating employees on the basis of race. That happens with great frequency, if not invariably, subjecting employees to different terms and conditions on the basis of race and also subjecting employees to racial harassment by making racist and pejorative statements about white employees. Sometimes, it’s not just white employees, but it’s predominantly about white employees.
One example that’s been in the news in the last few months has been the training conducted, for example, by the City of Seattle. It’s not unusual, and in fact, in some cases, in some respects, it’s milder than some of the trainings that I’ve seen in my practice. And among the things they do is they segregate employees on the basis of race — clear Title VII violation right there — but then they go ahead and engage in a series of instructions and tests for white employees.
Among the questions, for example, in addition to saying that whites are inherently racist — this is, as I said, it’s part of the instruction — they ask, “How are you,” meaning the white employee, “aware of the ways that your family benefits economically from the system of white supremacy, even as it directly and violently harms black people, non-black people of color, and indigenous people?” Again, they have this kind of “When did you stop beating your wife?” quality to them.
Another question is, “How are you aware of your ‘white silence,’ which is not naming race, racism, or the system of white supremacy, or taking action to end it, when it comes to comments and actions that cause harm to black people? How has your white fragility shown up at work?” And then it helpfully explains white fragility is a reflexive, defensive, and sometimes deflecting response that white people experience when feeling challenged about the relationship to race, racism, and the system of white supremacy.
And this isn’t limited just to the workplace. A number of school districts have something very similar if not the same. You could look at, for example, Loudoun County Public Schools conducts certain types of trainings that, frankly, they’re questionable in terms of the manner in which they address the race of individual students and certain presumptions about race. The State of Ohio, for example, just passed a resolution where they’re going to be introducing these types of concepts, or at least they set the framework for introducing these kinds of concepts.
Most employees and students, they dutifully go along with the training because they’re afraid of losing their jobs or getting bad grades, getting canceled, or they’re simply not aware of their rights. Some are simply cowed into submission by the prevailing zeitgeist.
The trainings in practice, the ones that I’ve seen, the documents that I’ve seen, are nothing less than toxic. They foster racial resentment and division. Then the other thing is they paper over, to some extent, the failures of society and institutions to address the actual reasons for racial disparities by implicating a belief — and I think Mike kind of talked about this — by implicating a belief that America is essentially racist and irredeemable and is suffused with systemic racism. It presents a justification for eradicating or tearing down current institutions and replacing them with supposedly non-racist utopian institutions that lean one way ideologically.
At the beginning, I noted it’s difficult to overstate how pernicious CRT is in practice. It’s also not an overstatement to say that for those of us who either fled or have family members who escaped true totalitarian regimes, this in practice is a version of the ideological indoctrination to which those family members were subject and instructed repeatedly that it’s best to be -- at best, it’s impolite and at worst outrageous to call something un-American. My position is this training deserves that label.
Thanks very much. I’ll hand it over to Dan.
Prof. Daniel Rodriguez: Thank you, Peter and Mike. I hope you can all hear me okay. Let me begin by saying how much of a pleasure it is to be here with The Federalist Society, or I should say back at The Federalist Society. I’m not sure they got exactly what they ordered in putting together this panel, but I’ll say with great pride that I’m a card-carrying member of FedSoc, and actually, although it dates me, goes back to almost the beginning as a student at the Harvard Law School in the mid-‘80s, and in fact, had the good pleasure to be the advisor to The Federalist Society student chapter at Berkeley, although that was many years ago.
So I hope it goes without saying, but I’ll say it anyway. Critical race theory is neither my expertise nor my jam, to use a phrase of the kids to explain. I had exposure to critical legal studies, some of the folks who Mike mentioned in his description, and also over the years to critical race theory. And I wouldn’t say that it didn’t lay a glove on me, but I would say that it didn’t impact me in any substantial way in terms of my teaching and my scholarship. But nonetheless, I come at this issue, not surprisingly, from a rather different perspective than the two speakers, particularly Peter in his description, which, with all the most respect I have, strikes me as somewhat overheated and overblown.
Just quickly on Mike’s comments — and my colleague and good friend Daria will be able to speak more knowledgeably about critical race theory as a movement — but I was struck by one phrase that he used in his depiction, and that is the notion that what CRT does is makes everything about race. It strikes me that it is a paradigm about the use of critical theory to think about legal institutions and legal doctrines, just as he describes. So to say it makes everything about race seems to me equivalent to saying that the law and economics movement, which has also been quite influential, makes everything about economics. You see where I’m going.
The real impact to be measured and evaluated is not so much, seems to me, the internalist one of whether there’s a lot of folks in legal education thinking deeply and broadly about the impact of race on law and legal institutions. The question is how much of an impact it is on legal scholarship and on the practice of law. And there is where we get into somewhat more of a controversy of what impact it’s made out in society.
I also can’t help but note a little bit in passing something that Mike said late in his presentation that is the notion that CRT training devalues — I think I wrote it down — punctuality, hard work, and rational thinking. That’s not been my experience as an occupant of a lot of this training. I don’t mean to chuckle. I just think the notion that CRT is against punctuality and hard work would come as great surprise to folks in that movement.
But I really want to take just a couple minutes to focus in on Peter’s description. Both of the speakers have used the term zeitgeist, and I’d really like to press them a bit on what exactly they mean by that, the notion that it is -- in some sense has become part of the ordinary discourse and business as usual, again, is both provocative and strikes me as truly overblown.
There are organizations — Peter’s exactly right — that have adopted modalities of training for their employees. I can’t question that. And I suppose you could cherry-pick some of the more extreme forms of those orientation and training and regard them as squalid. I suspect we might agree that some of these trainings are sort of -- not only miss the mark but are really kind of extreme. I would say that about a lot of orientation.
One of the consequences of being dean for so many years is I’ve seen it all, sexual harassment training, onboarding training. We now have training for folks returning to campus in the midst of COVID. And there are good, bad, and ugly trainings in orientation, and I suspect that’s true of CRT. The notion, though, that, as the administration has, there should be an omnibus executive order banning the consideration of critical race theory and exactly whatever that means in training strikes me as really over the top.
Peter makes a provocative and striking point when he says that these programs violate Title VII and Title VI. I should mention the obvious, which is that we don’t have court decisions that indicate that there is a violation of the Civil Rights Act of 1964. Maybe he would suggest that we will down the road, but the mere segregating folks in the context of particular trainings strikes me as no more of a violation of Title VII and Title VI than having, say, sexual harassment training where there are breakout groups, some of which involve women and some of which involve men. So I’d certainly hope that we would hear a little bit more about the legal basis of the notion that this is a violation of the Civil Rights Act, apart from it being just a bad idea.
I want to say that the notion that diversity training is just a Trojan horse from the left is a little odd when one considers the calls for various forms of diversity training from various points along the political spectrum. I’m looking right now at President Trump’s Platinum Plan and the race-conscious pillars of it that range a wide spectrum from a declaration that we should make Juneteenth a national holiday, make lynching a hate crime, have diversity training for police. So the focus on racial issues and racism in the context of training runs across the spectrum.
I’m not making the claim that the Platinum Plan is infused with critical race theory, but I’m simply making the claim that folks from the middle, from the left, and from the right are encountering the reality that surfacing issues of, yes, systemic racism and implicit bias are, generally speaking, valuable to a variety of organizations, whether we’re talking about police, schools, and education. And where the rubber hits the road, of course, is how to design training programs that reveal and effectuate those particular goals.
So when Peter says that these programs aspire to a non-racist, utopian institution, I’m going to agree with him and others that the goal of utopia is Panglossian, which is to say is outside the scope of what we can aspire to. But I am going to push back hard on the notion that training that helps us reach a non-racist world, that if not eradicate then reduce significantly race and racism, racist impact, and implicit bias is positive and indeed is virtuous. And the goal should be figuring out what kinds of training, what kinds of programs can get us to that particular goal.
And with that, I’m going to pass the baton to my friend and colleague, Daria Roithmayr.
Prof. Daria Roithmayr: Thanks so much, Dan. And I’ll note that as the only non-card-carrying Federalist Society member here, I look forward to the conversation but am feeling as though the deck is stacked, although not quite, given what Dan just had to say.
So let me just start by saying that my job is really to spend some time looking at what critical race theory really says on a number of subjects, on bias, on merit, on colorblindness. Mike focuses on intellectual history. I must say, the intellectual history that he describes isn’t one that I would recognize. If he were my student, I might give him a C-. In particular, he cherry-picks a number of thinkers and tries to draw a line back to Horkheimer, Marcuse, and Marx, neglecting the idea that a number of the thinkers he mentions are anti-Marxist, that critical race theory rejects as much as it inherits from critical legal studies, and then, as Dan mentioned, the overheated rhetoric about the end of American civilization.
Pete, in turn, cherry-picks some training which he objects to, but in other writings and appearances of his, it turns out that he objects to all kinds of identity politics, that he doesn’t believe in systemic racism. And I would say that for both him and Mike, Trump and his Platinum Plan, in some sense, take an even more reasonable position on race than they do because the Platinum Plan acknowledges that identity politics are important, that systemic racism is an issue, and that these problems need a remedy and need to be addressed.
And so in another world, we would spend some time with that as our basis of agreement, talking about what are the best ways to approach those problems. But instead, even after a Biden victory and the end of this ban, I’m sure, rendering this conversation somewhat moot, we’re talking instead about a version of critical race theory that I do not recognize.
There are four versions of critical race theory that float around conversations like this. There is the critical race theory that is developed by academics in conversation with other academics, and there is an intellectual history to that that does not resemble, unfortunately, Mike’s intellectual history. And I can recommend my syllabus to you, Mike, for some additional training without being patronizing.
There is the critical race theory for academics that gets interpreted by activists and adapted to activists’ needs. There is the critical race theory for academics as interpreted by consultants. And this is often a separate development as consultants choose to focus on some things and not others, just as happens in the business world where business consultants who do executive management translate and sometimes mistranslate the research. But we don’t usually indict business management research on the basis of what the consultants say.
And then there’s critical race theory for academics and activists and consultants as interpreted by the conservatives. And given the potential for mistranslation as well as motivated reasoning, given the ideology of our at least first two speakers, I would have been surprised if Mike and Pete had gotten critical race theory right. And it turns out that they haven’t.
I am an expert in critical race theory for academics. I’m going to spend a little time going through some of what the executive order that Rufo inspired had targeted and some of the arguments that Mike and Pete have raised to explain what critical race theory does not endorse and what it does.
So the executive order that Christopher Rufo helped to inspire and probably also wrote did not prohibit all diversity training. Instead, it prohibited training in which one race was held to be inherently superior to another race; in which individuals by virtue of their race or sex are inherently racist, sexist, or oppressive; in which individuals should be discriminated against or receive adverse treatment solely because of their race; in which their moral characters are determined by their race, and so on. And I’m happy to say that critical race theory for academics would certainly meet and satisfy all of those prohibitions because they do none of those things.
Here’s what critical race theory actually says with regard to bias and material advantage. Critical race theory holds that some whites and blacks and Latinos and Asians harbor implicit biases, not all. You can, in fact, take a test to see whether or not you suffer from implicit bias. And I would encourage Mike and Peter to take such a test. In fact, it turns out that many people of color show implicit bias against other people of color. Many African Americans and Latinos harbor implicit bias against African Americans, and that’s because this is a product of the messages that we all internalize.
It turns out that critical race theory makes arguments about material advantage, sometimes called privilege, but the argument is a much more sophisticated one than the one that you would take from Mike’s description. Critical race theory argues that whites on average, but not all whites, enjoy a material advantage in terms of wealth, employment, housing, education, financing, healthcare — the COVID epidemic lays those contours quite devastatingly clear —and that those material gaps can be traced to ongoing discrimination like racial steering by real estate brokers and a structural advantage that reinforces itself over time — this is a topic that I’m an expert in — like the way in which local schools in wealthy white neighborhoods produce graduates who can afford to move into wealthy white neighborhoods.
Critical race theory argues that we should acknowledge those material differences and the role that current and historical racism play in producing them and attempt to remedy them. And President Trump agrees. The Platinum Plan acknowledges these material differences in minority-owned businesses, in police brutality, in educational opportunity, in lynching.
Another target of the order is to prohibit any training that says meritocracy or traits such as hard work are racist or sexist or were created by a particular race. What critical race theory actually says about race, which does not violate this prohibition, is that what gets counted as merit structurally favors whites. So standardized tests, which we all are acknowledging now, are terrible at predicting someone’s success in college, are excluding blacks and Latinos. Colleges are abandoning those, not just because they exclude blacks and Latinos but because they are terrible at predicting future grades. In fact, they’re better at predicting a student’s family wealth than they are at predicting performance in college. And that’s why schools are dumping them now.
Last but not least, the order prohibits training in which members of one race or sex cannot and should not attempt to treat others without respect to race or sex; in other words, training that suggests we cannot be colorblind. But what critical race theory actually says about colorblind is that colorblindness as a goal leaves way too much unaddressed in the way of structural racism.
So white flight, for example, could be described as something that is not intentional discrimination, that families flee because they’re in search of better schools and because they are able to afford to move to the suburbs. We could argue that there is no intent to discriminate on the basis of race in white flight, so that is colorblind. And yet, white flight has resegregated our geographical space, leaving poor black and brown neighborhoods with too little in the way of property taxes to finance a school good enough to get their kids into a wealthier neighborhood.
Colorblindness might be a start, but it doesn’t go far enough. And a legal standard that adopts colorblindness as the sum total of racism leaves way too much on the table unaddressed by law. The Platinum Plan acknowledged this. President Trump’s own campaign adopts programs to try to remedy these gaps, like providing tax breaks for minority-owned businesses, making the Minority Business Development Office permanent.
To close, we can politically disagree about how to address these gaps, and I think this would have been a much more interesting and productive conversation. But the argument is really hobbled if people misrepresent what critical race theory says, if people cherry-pick from training programs in order to push a particular ideological vision, and if the speakers, as they unfortunately have, and I say this with all respect, provide an incoherent vision of critical race theory, a stalking horse that bears very little resemblance to the real thing. I would encourage us to have the conversation that I described earlier, and to move on from the mistranslation of critical race theory that our speakers have provided.
And with that, I will hand it off to Mark.
Mark Pulliam: Thank you. So the listeners can tell that we have quite a difference of opinion on this topic, and I’m sure that you may have questions that you want to ask. But since there seems to be a disagreement about what critical race theory is and what does it stand for, one of the best-selling authors who has popularized this topic lately, Ibram Kendi, has written a book. And in that book, he claims that colorblindness, which used to be considered the goal of the civil rights movement, that colorblindness is not sufficient, that, in fact, in order to be -- that it may even be racist. And in order to be anti-racist, one must take results into account and not just neutrality of treatment.
This seems to be a pretty significant shift in the vision of civil rights and may underly some of the contentions that CRT in certain applications violates civil rights laws. Could any of the speakers choose to talk about this redefinition of what it means to be racist, and how do we combat racism?
Prof. Daria Roithmayr: I can certainly take that on as the resident critical race theorist on this panel. So I think what Ibram writes is directly following up on what I just said about colorblindness, that colorblindness as a goal is not sufficient.
For example, if you look only at colorblindness, you can’t address the resegregation of our public schools and their underfinancing. And the argument that colorblindness is racist follows from the idea that if you leave resegregated schools on the table, the underfinancing of segregated schools in poor districts where property taxes are too low to properly finance, then you really do in some sense consign the country to self-reinforcing racial inequality that takes place even in the absence of any intentional discrimination. If intentional discrimination were to end tomorrow, we would still have segregated schools. We would still have undereducation for segregated neighborhoods.
And as a result, the argument that Kendi makes and that I’ve made in my own book, and that President Trump seems to acknowledge as well in the Platinum Plan, is that we need to address structural racism. Now, I want to acknowledge that structural racism doesn’t look like intentional racism in the sense that it doesn’t require an intentional perpetrator. Rather, the structural conditions in which segregation reproduces itself as poor schools produce poor graduates who move into poor neighborhoods that have poor schools. This is a racialized process in the United States.
Even if intentional discrimination were to end tomorrow, structural racism wouldn’t be addressed. And that’s a distinction that I think people have to take into account when they think about the definition of racism. Intentional racism looks like what we conventionally consider intentional stereotyping on the basis of race. But structural racism, like the segregation of our neighborhoods and schools, is also a form of racism that needs to be addressed.
Mark Pulliam: Okay, thank you. So do any of the other speakers wish to respond to that before we turn to questions from the audience?
Mike Gonzalez: Yeah, I can take that on very briefly. Actually, I want to say to Daria, we can -- I’m very happy we’re having this exchange. I’d love to have an exchange with you offline. I’d love to see your syllabus. It’s very nice of you to send it to me. I try to read only the left.
But Ibram Kendi is a very good place to start because, Daniel, I take your point very well that obviously critical race theory makes everything about race. I wasn’t accusing you of that. I was just saying that it extracts from critical legal theory and just focuses on race. But what I want to say about Kendi is that I’ve been accused of cherry-picking thinkers and ideas. I don't think I do, actually.
I think Kendi’s book is a great example. Kendi says all the things that I’ve said that were supposedly cherry-picked. Kendi wants to create a department of hate speech, a department that would not have political appointees, a department that would scrutinize old statutes for supposed racism or -- he breaks down everything into a binary racist or anti-racist, which is -- and wants to suppress speech. This is not me cherry-picking Kendi, Ibram Kendi. This is Kendi saying that.
So with that, I just want to address this issue that I’ve cherry-picked or that I have portrayed critical theory or critical legal theory or critical race theory in a harsh light. I’m just quoting them.
But I’m very happy we’re having this exchange, Daria, and I’d love to get your syllabus, again.
Prof. Daria Roithmayr: I’m happy to send it to you.
Peter Kirsanow: If I could make a quick comment with respect to it, I’m perfectly happy to concede to Daria that I may not be an expert on critical race theory. What I’m an expert at is how that theory has been applied. I am an expert at that because I have seen it. I see it all the time before the Civil Rights Commission, but also my practice.
And however innocuous critical race theory may be, or whatever preferred version of that may be, it’s not so in practice. And in practice, it is pernicious. To simply say, for example, that colorblindness is not enough — maybe it isn’t enough — but to say that colorblindness is not enough opens the door for untold amount of mischief that’s currently being visited upon employees and students, both in the workplace and in academia because where do you set the limits, then, as to how much you may tweak or nudge or how much you make provision for the failures of society. And I don’t necessarily concur that we’ve got these broad structural failures that necessarily result in racist outcomes or racialist outcomes.
But the question is how much do you tweak, and who gets to do the tweaking, and how much of that is permissible, how much of that is lawful? Colorblindness at least gives us a standard to which everyone can maybe at least aspire, maybe not completely achieve it, but you can aspire toward it, and you have a measure. It is dangerous in my estimation because I’ve seen it in practice when you permit somebody to tweak things slightly here on the basis of race, who sets the standard, who does the tweaking, is a real problem, and it evinces itself in the practices that we see in the workplace.
We have so many employees, so many students, who come back and say -- maybe they haven’t filed a Title VII charge, but they feel as if they have been browbeaten, and they’re afraid of speaking up. I’ve been hearing from so many employees, as have other labor employment lawyers. And understand, I usually represent companies. When you talk to plaintiffs counsel, they’re getting inundated, especially since the George Floyd incident, with these trainings of employees who’ve said that they’ve been subjected to this type of racialist training, and it is really overt.
It makes them seem as if they have, in fact, engaged in some egregious form of discrimination. And when you talk to students and their parents, students coming home crying, saying, “Why do Hispanics hate me?” or “Why do blacks hate me?” and “What did I do wrong?” Again, the theory may be fine, and I’m not going to dispute that at this particular point. I’m not sure I’m qualified to. I’m not an expert like Daria is. But nonetheless, what I am an expert on is the consequences of it. They are serious, they are profound, and they’re doing untold damage, I think, to our social fabric.
And one other point in terms of social fabric, and I’m not going to allege that this outcome was solely the result of critical race theory or anything of the trainings related to that, but there’s been a significant decline in the public perception of race relations just in the last 15 years or so. I had the stats somewhere at one point, but I think it’s pretty significant that back in, I think it was 2001, 75 percent of blacks said race relations were good or very good.
Fast-forward to 2015, and I specifically want to exclude the era of 2016 to 2020 because we’ve heard constantly that Donald Trump is a racist, anybody who supports him is a racist, and we have an explosion of racism throughout the country. So let’s exclude that. Let’s exclude that period of time when we’ve been so suffused with racism. It’s gone from 75 percent among blacks to 41 percent between those two periods of time. A similar type of dynamic occurred with whites where I believe it was 75 percent of white adults said the relations between blacks and whites were very good or good, but then fell to 45 percent in 2015.
Again, I don't know -- I’m not alleging that that’s attributable totally or even a substantial part to systemic racism -- strike that, critical race theory or the practice of critical race theory. But it does show that this obsession with counting by race has a deleterious impact. And in practice, critical race theory, however pure it may be in theory, has had a profound effect on students and the workplace.
Prof. Daria Roithmayr: If I could just take ten seconds to answer that, just to say that I think Peter’s slip was unintentionally right on the money, that race relations have deteriorated because of systemic racism. And President Trump’s campaign acknowledges that, that police brutality is an issue and that we need race-conscious diversity training. I think it would be a far more productive conversation to have about what that training should look like, but not to take race-conscious diversity training, such as President Trump has suggested, off the table.
Prof. Daniel Rodriguez: Can I jump in on this quickly? On the first point that Peter raised, I find this notion a little curious. I’m a believer in -- let me put it the other way. I’m not a big believer in safe spaces. I’m actually a strong believer, and I suspect the first two -- well, I won’t characterize the speakers on the call, but I’ll say I believe that I’m sort of anti-special snowflakes. I think that our students and employees should be in environments in which there is free speech and free speech is not chilled.
So forgive me if I’m a little less sympathetic to these reports of folks, employees feeling that they’re browbeaten and coming home crying and all of that. I understand that they may feel very uncomfortable, just as folks from the left of the political spectrum might feel very uncomfortable when a super conservative, hard core speaker comes to their campus. But I’m an equal opportunity guy in that respect.
I think that I haven’t heard any reports from what Peter has described that folks are chilled in their speech. They may feel embarrassed to speak on behalf of their point of view. But as long as they’re not being prohibited from engaging in open conversation, this snowflake-ish idea that we should feel that it’s illegal or irredeemable because folks feel very uncomfortable strikes me as what’s good for the goose is good for the gander, to coin a phrase.
Mark Pulliam: Okay. All right, well, thank you. That was a spirited exchange. So I’m going to turn things over to Dean in the expectation that some of the people in the audience might have questions.
Dean Reuter: Yes. Thank you so much. It’s hard to believe with this many callers and a topic like this, Mark, we don’t have any questions just yet.
Mark Pulliam: Okay. I have a second question while we’re waiting for people in the queue, and that is it’s sort of apropos, given this topic, that I think we would all agree that California is one of our most progressive-thinking states, yet earlier this month, California voters decisively rejected a ballot measure that would have repealed Prop. 209, the anti-race-based affirmative action initiative. What do the speakers think is the rationale in a majority minority state that would choose to stick with meritocratic selection in the higher education?
Prof. Daria Roithmayr: Well, being from California, I have just a couple of suspicions, and I’ll make this very brief. I’ve looked at some of the exit polls in terms of who voted against Proposition 16. It’s a quite wide-ranging pattern of voters, including, surprisingly, Latino voters in the Central Valley. I think often, affirmative action is framed in black/white terms. Some Latinos feel as though, according to some exit poll surveys, as though they would not benefit from such programs and instead would be losing jobs. And this is a GOP message that you heard, and anti-affirmative action message that you heard in the campaign about Proposition 16.
But voters in California have been arguing about affirmative action for years, and research shows that how you frame the description of affirmative action makes a big difference in terms of how people see it. Most folks don’t recognize that affirmative action has benefited white women more than any other group. And to the extent that that message gets effectively communicated, voters tend to change their vote. So I think this was a messaging question as well as a perception of whose wagon you want to hitch your star to. And a number of folks thought affirmative action wasn’t going to benefit them.
Prof. Daniel Rodriquez: Maybe there’s widespread voter fraud. Rudy needs to get on this.
Prof. Daria Roithmayr: [Laughter]
Peter Kirsanow: No, I think what it shows is that this is particularly complicated. I think most Americans do not like discrimination on the basis of identity, of protected classes. They don’t. They do not like that. And it’s not simply a function of, well, whose ox gets gored and who benefits? People essentially do not like the idea that someone gets a privilege, a benefit, or a detriment on the basis of an immutable characteristic.
In terms of messaging, the pro-Prop. 16 forces, that is, the pro-discrimination forces or continuance of or resumption of discrimination forces, outspent the equal treatment forces by a couple orders of magnitude, I think, maybe even three or four orders of magnitude. It wasn’t a messaging problem. The message has been lived over the last 25 years after Prop. 209, and that is equal treatment is the way to go.
Asian Americans, for example, were really harmed by the whole idea, or would have been really harmed by the whole idea of people being able to pick and choose. As I say, theory may be nice, but in practice, what you have is it is sometimes up to 500 times easier for a black applicant to a university, similarly situated in all respects, grade point average, LSATs or SATs, whatever it may be, extracurricular activities, to be admitted to a school. We see it in Students for Fair Admissions v. Harvard. No matter what, after you do all the alchemy, Asian students were profoundly discriminated against. And that harms society, but it also harms black and Hispanic students for this reason.
The much derided mismatch effect is real. If you take somebody who may be a very outstanding student but nonetheless is not necessarily equipped to compete at a certain level — he may be able to compete at another level — he is going to be much more likely to get lower grades and/or flunk out than a student who is better prepared. And we have seen that dynamic happen across the country, and people are sick of it. People prefer to be judged on merit and not color of skin.
Mike Gonzalez: I don’t think it was a messaging issue at all. I think that what Daria referred to is that the more specific you get in asking the question, the more people actually reject racial preferences. The American people don’t want this. It’s happening -- I looked at the map. Only small pockets around San Francisco and L.A. voted for Proposition 16. And so I think this 12 point rejection of racial preferences in the deep blue state of California is a message that I think our elites need to receive. Racial preferences is rejected by the American people.
Prof. Daniel Rodriguez: Well, look, first of all on the mismatch theory, there’s wide literature on that, and I’d just invite the listeners who haven’t dug in to it to dig in to it.
And as to the public opinion, if Peter and Mike are right about public opinion, then we’ll see widespread state legislation in the 49 other states, not to mention acts of Congress. So if public opinion is really so squarely on the side they have identified, then we’ll see legislation be enacted by popular initiative where that’s possible or by state legislation.
Obviously, we’re not seeing that, so it raises an anomaly not so much about California but about most, not all, but most of the other states. Granted, some states have prohibited it. I get that. But the vast majority haven’t. So public opinion has not seeped into legislative action to quite the degree that I think Peter hopes for.
Mike Gonzalez: Well, I think the Harvard case is headed for the Supreme Court. And Sandra Day O’Connor in Bollinger in 2003 said, “We’ve had this for 25 years. We aren’t going to have it for another 25 years.” That day is coming up. This Harvard case --
Prof. Daniel Rodriguez: -- Separate point about public opinion. That’s not the same as public opinion, but --
Mike Gonzalez: -- I agree. I agree.
Mark Pulliam: All right. Well, in the limited time that we have left, let’s see if we can get at least one question if there is anybody in the queue. Dean?
Dean Reuter: Yeah, I think we’re having some technical difficulties here, Mark, but let me try and start the system again. I’m not seeing any questions, Mark, and that leads me to believe there’s some problem here because we’ve got well over 100 callers and this is a hot topic. So I’ll turn it back to you, Mark, for the wrap-up of the final three or four minutes here.
Mark Pulliam: Yes. So why don’t we -- each speaker in the same alphabetical order take a minute or so to just sum up final thoughts on this topic, and we’ll wrap up. And we’re trying to shoot for getting done in 60 minutes. So Mike, do you have a brief summary that you’d like to start with?
Mike Gonzalez: Yeah, I’ve been honored to have been invited to speak to The Federalist Society and to have -- to be on with these panelists.
I don't think that people who are complaining about the workplace harassment that critical race theory trainings constitute are snowflakes. We have the right to go to work and not be herded into auditoriums and be told that we should feel guilty or that we should bear grievances towards our fellow Americans. This is a right that we have, to work without being harassed in this fashion. It’s not a snowflake thing.
But having said that, I’m very happy to have been included in this. It was great to hear especially all of you, but I know that it’s hard for somebody who opposes -- who stands out to come on and speak. So I really want to -- I appreciate Daria and Daniel coming on. Thank you.
Mark Pulliam: Okay. Peter, briefly?
Peter Kirsanow: Yeah, thanks very much. I want to thank Daria, Mike, and Dan, and The Federalist Society, also.
As I said just a moment ago, I think this is pretty straightforward. I am generally averse to rule by experts. I think that we tinker with society, when it comes to race especially, at our peril. And I think that just hewing to — and I know this is now no longer in favor, it’s unfashionable — but I think hewing to the Martin Luther King ideal by judging people by the content of their character versus color of skin, I think that was the right model. And I don’t think that making little provisions here and there is going to help society at all. I think the evidence is clear that it’s not helping society and it’s causing greater division.
Mark Pulliam: Dan?
Prof. Daniel Rodriguez: Thank you. I, too, want to thank The Federalist Society and am honored to be on this program. I have a special shout-out to Peter. We may agree to disagree on a number of these issues, but I want to thank him for his service to the country as a member of the U.S. Civil Rights Commission.
First, thank you, Mike, for raising the issue. It gives me an opportunity to clarify it. I agree with you. No one has -- we do have a right not to be harassed. And I also concede that some of these CRT training that you and others have referred me to are, if not at the borderline, then even have crossed the line. And there are probably some really bad training, and I don’t regard it as being a snowflake to be able to be protected against being harassed.
Second, I want to just challenge Peter’s use of the term irredeemable. I don’t think that folks who have worked as activists in the civil rights -- in the CRT movement necessarily believe that U.S. society cannot be redeemed. I think, actually, it’s very different.
And the last point I’d quickly make is it’s an odd choice for me to think of the Trump administration, of all the decisions involving civil rights that they could tackle, that this executive order has prominence and priority. I agree with Daria that it’s likely to become a moot point. But in any event, that strikes me as an odd choice to spend their important political capital on.
Mark Pulliam: Daria?
Prof. Daria Roithmayr: Well, to close out the session, I want to thank everyone for inviting me and for having a quite productive conversation.
I think to summarize it in my view, first, we’ve conceded that critical race theory is not necessarily the problem, but that people might disagree about the need for race-conscious training. Second, even the Trump administration acknowledges the need for race-conscious training, diversity training for police officers. And third, I think this is where we would disagree, but I think those who recognize the problems that the Trump administration have recognized can see the need for training in the workplace about bias, about the insufficiency of colorblindness, about systemic racism.
And I hope that The Federalist Society can sponsor a conversation about the best kinds of training on that front. I suspect it won’t. it’s not as sexy a topic as beating up on critical race theory. But I would be happy to attend a panel on that topic if you all will have me.
Mark Pulliam: Okay. And to wrap up, I want to thank you all. Thank you to our listeners for joining us today. Thank you to Dean and The Federalist Society for hosting and moderating the call. I want to thank Karen Lugo for organizing this program on behalf of the Civil Rights Practice Group. And a special thanks to Mike, Peter, Dan, and Daria for their very insightful comments and for their time today. I think this has been a wonderful panel, and we really appreciate all of you joining us today.
Dean Reuter: Well, thank you, Mark. This is Dean Reuter again thanking all the panelists and our moderator, of course, and our listeners for dialing in. A reminder to our audience to check your emails and monitor The Federalist Society’s website for notices of upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you so much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.