Thread by @ytbutler

Both houses of the #msleg have passed SB 2113 the “anti-CRT” bill, I’m going to have to teach all of my undergraduate and law students the main points of #CRT so that they understand what the bill is about and how what I teach them does not in fact run afoul of the bill. A🧵

I will not be calling it the “anti-CRT” bill, but instead, SB 2113. Why? Because it doesn’t actually prohibit Critical Race Theory. We should all know that by now.

“But,” you might ask, “isn’t the title of the bill” ‘Critical Race Theory; prohibited’? Does the fact that the title of the bill says that CRT is prohibited mean that CRT is prohibited?” Not according to the case law.

The title of a bill cannot do something that the text of the bill does not. Generally, titles can only help clear up ambiguities in the text. But the text unambiguously has nothing to do with Critical Race Theory. Why?

CRT is opposed to the belief that any race is inherently inferior or superior, if by “inherent” we mean “biological,” “unchangeable,” or “essential.” But we actually don’t know what “inherent” means in the bill because the legislature didn’t tell us, so we use the dictionary.

That’s the same problem that other states, like New Hampshire, had when passing bills like this. The New Hampshire Attorney General Opinion and Dept of Ed guidance both define inherent as “natural, biological, or innate.”

The NH AG Opinion actually makes reference to implicit bias training and, according to the New Hampshire Attorney General, such training would not run afoul of the NH law. (Also FYI implicit bias training isn't CRT, but CRT often makes use of the science around implicit bias)

We all know CRT talks about superiority/inferiority, but what does it actually say? It says that race is a social construct. It says that the law played a role in creating and perpetuating racial hierarchies and attaching value judgements and legal benefits/burdens to race...

Ex of value judgements by "race": black criminality, ugliness, stupidity; Hispanic/Latine people as parasites, lazy, rapists; AAPI as model minorities, unclean, untrustworthy; Indigenous peoples as lazy, alcoholics, or invisible; whiteness with intelligence, entrepreneurship

Racial hierarchy in the law leads to legal benefits. In 1790 Congress passed a law that only “free white persons” could be naturalized citizens. Courts then issued a number of decisions attempting to use “common knowledge," to argue that certain people were/weren't “white”

It was a hilarious, maddening mess with some groups being “white” one year and “not white” just a few years from then and vice versa. Check out this complaint (where I used to work!) robinhoodesq.com/docs/marriage/…

Again, these socially constructed hierarchies were built into the law. Hierarchy arose as justification for banning mixed race marriage too, in the words of a Virginia court and statute, protect the “racial integrity” of its citizens. (1924 Racial Integrity Act; Naim v Naim)

In the words of the U.S. Supreme Court, these laws were meant to protect “White Supremacy.” Loving v. Virginia, 388 U.S. 11 (1967). Again, it was legislatures and courts who the used those words of “racial integrity” and “White Supremacy.”

The law has been written and enforced to maintain socially constructed (not inherent) hierarchies. More examples: to determine how much black blood someone needs to have in order to no longer be white enough to marry another white person...

...or stripping citizenship from white women who marry nonwhite, noncitizen men; or the decision to intern Japanese Americans at a rate not seen for German Americans during WWII; or associating people of Middle Eastern descent with terrorism while not doing the same for the Klan.

Now, we’re stuck in a world in which these hierarchies used to be clearly stated. Sure, we don’t have the Black Codes anymore (literally a set of laws to govern what black people specifically could not do) but that doesn’t mean that we are magically removed from that time.

Why is SB 2113 such a big deal? The bill is broad, vague and allows the State to strip funding from schools for violating it. Educators need to teach about the past and the present. Students are perceptive. They see things like melanated kids wearing hoodies being pushed against

..walls by teachers. They see a high police presence in BIPOC neighborhoods. They experience generational poverty because their family has always lived in a segregated neighborhood where the Federal Housing Administration refused to insure mortgages

(For more on “redlining” check out the Color of Law by Richard Rothstein). How do you teach about the present without teaching about the past? How do you explain the "why" when they ask? We don’t live in some sort of bizarre time vacuum where the past doesn’t impact the present.

But the history isn’t all bad. Progress wasn’t made by black people alone. There are stories to be told about collaboration and allyship and resilience and joy. But we cannot sanitize the story just because it makes people uncomfortable.

I often have the musical @hadestown in my head when I think about this – “It’s a sad tale, it’s a tragedy. It’s a sad song, but we sing it anyway. Cause here’s the thing: to know how it ends and still to sing it again, as if it might turn out this time.”

So how might it turn out this time? By being honest about where we came from, how we are still impacted by the past, how it took more than just one (often out of context) line in one speech by MLK to get us to where we are, and by acknowledging that we have more work to do.

As a result of SB 2113, I’m going to have to teach all of my undergraduate and law students the main points of CRT so that they understand 1. what the bill is about, 2. how what I teach them does not in fact run afoul of the bill, and 3. isn't even CRT (unless they're in CRT)

In fact, I’ll probably include a discussion of several different types of legal thought (including CRT and Feminist Legal Theory) as a part of my syllabi, just to prove that I’m not violating SB 2113 or even teaching CRT every time I happen to discuss race or gender.

If you're exhausted reading this, just imagine how exhausted your average educator is at this point.