Excerpted From: Caroline Mala Corbin, A Critical Race Theory Analysis of Critical Race Theory Bans, 14 UC Irvine L. Rev. 57 (January, 2024) (290 Footnotes) (Full Document)


CarolineMalaCorbinAccording to many state legislatures, U.S. public schools are in thrall to “woke” extremists who are bent on indoctrinating the youth of America with critical race theory and who are determined to make innocent white schoolchildren feel guilty for simply being white. Florida Governor Ron DeSantis, for example, has warned that “critical race theory is basically teaching people to hate our country, hate each other. It's divisive, and it's basically an identity politics version of Marxism.”

In response, a majority of states have proposed laws barring their vision of critical race theory (CRT) in the public-school classroom. These bills forbid “divisive concepts” that lawmakers believe constitute the core tenets of critical race theory. At least fifteen states have enacted these bans, with many more lined up to follow suit. Most do not use the exact term “critical race theory.” Indeed, most legislators have no clear idea of what the legal theory actually entails, such as its focus on structural racism. Nevertheless, in a quest to protect the white children of America from indoctrination and discomfort, public school teachers' ability to teach students about race in America is being severely restricted.

Although the “divisive concepts” run the gamut, most banned ideas are not espoused by critical race theory. Whereas anti-CRT legislatures imagine teachers browbeating white students, critical race theory actually agrees that no race is inherently superior or racist or deserves to suffer from discrimination. And given that critical race theory emphasizes systemic rather than individualracism, its goals do not include imposing blame, guilt, or other forms of psychological distress on individuals--never mind young children. At the same time, a few banned “divisive concepts” come closer to important CRT tenets, including the views that racism is widespread and that the United States is not a meritocracy.

Examining the bans through a CRT lens reveals that they reflect white privilege and especially its companion, white fragility, both concepts from critical race theory. White privilege describes the unearned advantages white people enjoy, often without even realizing it, such as the benefit of having the white experience as the default. This privilege produces further ones, such as the privilege of disregarding nonwhite culture--including its legal scholarship the privilege of ignoring how raced the world actually is. The CRT bans illustrate both of these privileges.

The bans also embody white fragility, the term used to describe a constellation of defensive behaviors many white people exhibit when their racial advantages are pointed out. These behaviors include overreacting; prioritizing white people's wellbeing; casting white people as the true victims; and ultimately asserting false equivalencies, such as arguing that critical race theory--a theory meant to analyze systemic discrimination against racial minorities in the United States--is as racist and bigoted against white people as any racism in our history. The CRT bans exemplify all these to provide a textbook example of white fragility.

Ultimately, these bans reinscribe the racial status quo. Rather than ban actual racism, states ban information and discussion about racism, as though ignorance will make racial problems disappear. By failing to teach those who will hold power about how racial hierarchies manifest and are maintained, they leave unaddressed all the structural issues that critical race theory aims to uncover. It is a perfect vicious circle.

Part I explains the basic tenets of critical race theory and how the classroom bans regularly misapprehend the legal theory. Part II undertakes a critical race theory analysis of the critical race theory bans and finds that they provide a paradigmatic example of white privilege and especially white fragility in action.

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The critical race theory bans illustrate and embody many of the characteristics of white privilege, and especially white fragility. Indeed, both the legislative history and the laws themselves provide a textbook example of white people's obliviousness to issues of racial inequality, and their fragility when confronted with teaching that exposes it. The result is a mandate that perpetuates both racial ignorance and racial inequality.

Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law; B.A., Harvard University; J.D., Columbia Law School.