Editor’s note: The following article was originally published at Legal Insurrection on August 8, 2021.
On July 29, 2021, I gave a presentation on “Fighting Smart Against Critical Race Theory In Education” to over 100 state legislators at the American Legislative Exchange Council annual meeting in Salt Lake City.
The invitation to speak grew out of the publicity generated by CriticalRace.Org, launched by the Legal Insurrection Foundation in early February 2021, as well as my many interviews and comments on the subject. This was my second appearance at an ALEC annual meeting, the first being in 2015 on the topic of Freedom of Thought in Higher Education (that 2015 meeting had much more drama with large protests outside the venue).
I spoke at the Education Task Force session, in a room filled with state legislators and also some representatives of various think tanks. Based on the reactions after I spoke, it is likely I’ll be invited to speak at one or more state legislative committees.
Thank you. And thank you for having me here. I appreciate the invitation from ALEC. My name is William Jacobson. I am a Clinical Professor of Law at Cornell Law School in Ithaca, New York. I am also the founder of the Legal Insurrection Foundation, which also runs CriticalRace.org that you see on your screen.
I only have 15 minutes today. I can talk about this subject for hours. I have spoken about the subject for hours, and I’m happy to appear before any legislative committees to testify as needed. The main focus that I’m going to talk about now is one of the hottest issues, if not the hottest issue, which is what’s loosely called critical race theory and the role that state legislators can have in helping on that issue.
I’m speaking to a group, although I only have 15 minutes, in many ways, you are the most important group I’ve ever spoken to. Because you can actually make a difference. You are really at the center of what this fight is about, and you can help change the trajectory of the country.
Now, I know you probably thought you were coming to a meeting to talk about educational policy, not how you’re going to save the nation. But I want to talk about how you can save the nation.
The ideology of critical race theory puts, at its core, in its center, that race is the most important thing in a student’s life. That skin color is the most important thing in how their life is going to develop. It’s an extremely pernicious ideology. If you wanted to think of a way to tear this country apart, it’s hard to think of a way better than what they are doing.
You are pitting students against each other based on skin color.
You are pitting students against their parents. There was that horrible incident that just happened where a little girl testified how at school they told her, don’t tell your parents about what you’re being taught. And she had testified before the school committee that that made her uncomfortable but her mom told her that you can tell me anything, but at school they were telling her not to tell about critical race theory. And if people have something to hide, there’s usually a reason for that.
It pits students against our economic system of capitalism. As a prior speaker just noted, it’s not surprising that students have this rosy view of socialism and communism because capitalism is demonized almost every day in classrooms across the country.
It pits children against the concept of meritocracy, of working hard. That somehow, showing your proof in math is a symbol of white supremacy, which is absurd. There is not a single parent of any racial or ethnic group who does not want their children to actually learn math the proper way.
It ultimately turns children against their own country. A lot of polling shows that the younger the person is in this country, the less proud they are to be an American.
The fight over critical race theory in education is a fight in many ways for our national survival. And you are on the front lines of that fight.
The national alarm has been sounded. You’ve all heard about this. You’re probably getting calls from people and unsolicited emails. This is not a partisan issue. If you read what’s written, even in the mainstream media, Politico just had an article about how a lot of Democrat politicians were scared because their own constituents are very upset about this. So this is not a partisan issue. This is a parental rights issue.
And this alarm is being sounded by parents and moms across the country, like Nicole Solas, who will be speaking right after I do, in Rhode Island. CriticalRace.org, to show you the interest, when we turned that live in early February, within 24 hours, we got a million views on the website. That’s how powerful the interest in this subject is.
So what I want to talk about is what role you as legislators can play. And what’s most important is you understand that this started in higher education, on our website, that map you see there, you can click on your state. You can click on your university. [The site] tracks, for over 350 universities, what the status is. Some have a lot of critical race theory programs. Some have very few. But it has now migrated into K-12. The questions we get most frequently are K-12.
And that’s why you are so important because the government traditionally has a role in regulating K-12 curriculum, unlike higher education curriculum. And that’s why you’re so important.
What it’s called, don’t get into word games about, “Well, this is not critical race theory. That’s a legal doctrine taught only in law schools.” No, if they are centering race as the center of everything, then it is critical race theory. When I say “centering race,” I’m not talking about the union talking points of, “Oh, you don’t want us to teach history.” No, the history of slavery, the history of discrimination, are all certainly appropriate topics and should be taught. And I don’t know a single person pushing back against critical race theory who says you should not teach those things.
If the curriculum though says that the United States is systemically and irredeemably racist, that it is baked into our system, then that’s critical race theory, no matter what they call it. If they use shaming practices for children or for teachers based on the color of their skin, that’s critical race theory, no matter how they dress it up. If they separate teachers and students into racial affinity groups, that is critical race theory, whether they call it that or not.
And the question that we face, and that you face is, will we allow this country to slide backwards into a time when race was the singular focus as a society, to slide backwards into a society that viewed race as most important? Are we going to sacrifice the enormous gains of the American civil rights movement in order to re-racialize the society? And that’s what it’s about.
One thing you have to understand, and that parents understand, is that the money and the power in society are backing this push for critical race theory. And that’s again, why you are so important because you’re in a position to push back against that. We’ve tracked this at our website. We’ve tracked this in our research at the Legal Insurrection Foundation. There are hundreds of millions of dollars flowing into groups; hundreds, and in some cases, thousands of groups that are pushing this. The National Education Association and the American Federation of Teachers, having first denied that this is being taught, now have announced that it’s a good thing, and it should be in every school, and that they will use their lawyers to defend any teacher who’s sanctioned in any way for teaching it.
So, what I want to talk about is what is in some of the things, and there’s a brochure on your table that I prepared. But I want you to listen to me, not read the brochure. But you don’t have to take notes because we gave you the notes. And certainly I will be around after the session today to speak with anybody who has any questions.
So the first thing you need to keep in mind is this is a marathon, not a sprint, that the current state of education, particularly as regards race education, has been a couple of generations in the making. This did not just happen in 2020 and 2021. You have to go back to the early eighties, maybe earlier, some people would say earlier, but I view it as the early eighties when this began to happen. This has been a long time coming.
What you can do is you can enable systems that will outlive your legislative session. And I’ve heard some of the things that have taken place in other states on other issues. You can put in place systems that will help avoid this problem, so it doesn’t come up every year.
You have to focus on the concept of equality. That’s the word you should be using over and over and over again, because equality of each individual, without regard to race or skin color, is our highest national ideal. And it’s something we should be striving for as opposed to some of the euphemisms that get used like “equity” and other things like that. Make that the center of your fight. Whatever you are doing, it is to achieve equality. And that is extremely important.
In terms of these durable systems, probably the single best thing you could do now is transparency in education. There are tens of thousands, hundreds of thousands, of parents out there who cannot find out what is being taught in their schools. They have to serve public records requests, which take time. And then you get told, you’ve got to pay thousands of dollars to find out what’s being taught in the school. And that is something that you can do.
And there are model legislations out there, I know, that have to do with transparency. I know the one that you’re going to be talking about later today has some transparency provisions in that. That is the thing, because this movement against critical race theory, contrary to what Media Matters and union talking points will say, is not an astroturf movement. It is an on-the-ground grassroots movement. You don’t need to manage that information, but you need to empower it.
There are, like I said, hundreds of thousands, maybe millions of parents who want this information. And if they knew what was being taught in the schools, you would see an uprising bigger than anything you can imagine. I would urge you to consider those transparency legislations, those transparency provisions, because this fight is going to be fought school district by school district.
Focus on K-12, not higher education. Like I said, K-12 has always been subject to state regulation. Students are forced to be there by force of law. You have a captive audience. You can much more easily make the case for regulating K-12.
For higher education, I would say, put that aside for the time being. It’s a much tougher issue. The concept of academic freedom and free speech has a much greater basis in higher ed than it does in K-12.
For higher ed, one thing I think you need to start looking at is clarifying, if need be, your existing anti-discrimination laws. Because a lot of what goes on in higher ed, I believe actually violates existing anti-discrimination laws. And that is something that you might want to take a look at, your anti-discrimination laws, and make clear what sort of practices in education violated it.
And go positive. You can’t just be against something. There are model curriculums out there that are available on teaching the positive aspects of history. The good and the bad. We don’t want to whitewash anything, but a more positive view of history, than this very dead-end ideology that we’re doomed as a society, that’s baked into our future.
And then last, but not least, you have to be happy warriors. I was trying to think of the greatest analogy I can give you, to inspire you when you leave here today, go out and get something done.
And I was thinking of that scene, for some reason, in the first Rocky movie, when the music is playing, and he’s running through the streets. And he ends up running up the steps to the Philadelphia Art Museum, and he raises his hands in the air. That’s how you have to be because your fight is critical. Your role as legislators in fighting this is so critical.
I think I’m probably out of time. I’m going to be around afterwards. Like I said, I am very happy to appear at a state committee, before a group, before another conference. Like I said, I can talk for hours, and I’m happy to debate anybody about it, but nobody ever seems to want to debate me. Maybe that will change. Thank you very much.
William A. Jacobson, Esq., is a Clinical Professor of Law at Cornell Law School, where he founded and runs the Cornell Securities Law Clinic. He also is President of the Legal Insurrection Foundation, and founder of the Legal Insurrection website.