As bills banning critical race theory swept through red state legislatures this summer, a common critique of the laws emerged: CRT bans may be legal, the argument went, but they aren’t liberal. Critics across the political spectrum said the bills would stifle speech, censor American history, and erode the country’s culture of classical, small-L liberalism, understood as a commitment to the free exchange of ideas.
Now proponents of such laws have devised model legislation that seeks to address these criticisms head on. Released on Thursday by the Manhattan Institute’s James Copland, the legislation isn’t just an attempt to ban CRT without undermining liberal values; it also shows how those values could be strengthened by well-drafted restrictions on CRT.
The legislation, which Copland details in a report titled "How To Regulate Critical Race Theory in Schools," avoids the broad language of many state statutes and takes to heart the suggestions of some of their critics. Copland’s template would bar public K-12 schools from endorsing, but not discussing, a narrow range of concepts associated with CRT and its popular derivatives. It would also bar schools from requiring students and faculty to affirm those concepts or attend diversity trainings based on them. And it would require schools to display all diversity-related materials online, a nod to both liberals and conservatives who have called for curricular transparency in lieu of CRT bans.
The animating philosophy of the template, according to Copland, is "educational pluralism." The goal isn’t to keep divisive ideas out of the classroom, but to prevent them from ossifying into official dogma.
At least one conservative critic of CRT bans has kind words for Copland’s template: David French, who in July coauthored a New York Times op-ed on the "danger of anti-critical race theory laws," said the proposal was "dramatically better" than the bills he’d opposed.
"The problem with the original laws was that they were clumsy and heavy-handed," French told the Washington Free Beacon. Copland’s legislation is "a definite improvement over what’s been adopted in red states."
Tennessee, for example, passed a law in May prohibiting schools from teaching any material that might foster "resentment" toward a particular "class of people." And Florida has banned schools from defining American history as "something other than the creation of a new nation based largely on universal principles," a prohibition that could make it illegal to assign historians who stress the country’s Anglo-Protestant roots.
That sort of overreach fueled much of the hand-wringing about the bills, even from conservative opponents of CRT. In an essay lambasting critical race theory as "an illiberal menace," Andrew Sullivan nonetheless cautioned that anti-CRT laws were "far too vague" and "could constrain speech in countless unforeseen ways." Greg Lukianoff, the president of the Foundation for Individual Rights in Education, echoed Sullivan’s concerns, as did the Atlantic’s Anne Applebaum and Princeton University's Keith Whittington.
By contrast, Copland’s legislation would focus less on controlling curricula and more on promoting pluralism—the very value CRT bans are said to threaten. Much as the First Amendment bans religious indoctrination but not classes on world religions, this bill would let schools teach critical race theory as long as they don’t preach it. The prohibitions on compelled speech would protect freedom of conscience, while the transparency requirement would help parents make informed choices about their children’s education, a provision French singled out for particular praise.
The idea that CRT bans can promote liberal values—free speech, liberty of conscience, and above all choice—puts a new spin on a debate French himself has participated in. As progressivism has consolidated its hold on culture-shaping institutions, some conservatives have counseled a more statist approach to the culture war, arguing that liberalism itself is to blame for the illiberal advances of the woke left. Others like French have maintained that classical liberalism is the right’s best bet for resisting these advances, and are skeptical of state efforts to halt them.
Copland’s legislation suggests this is a false dichotomy: Classical liberalism is often consistent with state action, and state action can be conducive to classical liberalism.
Conservative critics of liberalism often identify real problems, said the Manhattan Institute’s Christopher Rufo, who helped draft some of the early bills that French criticized. "[B]ut classical liberalism still has the resources to solve those problems, including resisting racial indoctrination."
A point of agreement between French and Rufo is the value of laws that reiterate First Amendment protections against compelled speech. Such compulsion is intrinsic to public education—otherwise homework would be unconstitutional—so laws clarifying what can’t be compelled are especially useful in a classroom context.
Those clarifications won’t always be sufficient, Copland acknowledged. Asked whether his bill would prohibit an assignment that requires students to identify an area of systemic racism in the United States today, Copland said he wasn’t sure. It might depend on whether the student would be punished for rejecting the premise of the assignment—or, he added, for pointing to Harvard’s admissions practices as an example of systemic racism against Asians.
But even if the legislation would permit such exercises, it would also make sure parents knew about them. The bill requires that all curricular materials related to race and sex be posted online, a provision Copland said would intensify the grassroots pressure that has already made critical race theory a national issue. One reason for the pressure, Copland’s report notes, is that "widespread online schooling afforded parents a window into their children’s classrooms." Transparency requirements would keep that window open even after COVID comes to a close.
The grassroots organizing the bill would buttress is itself conducive to classical liberalism as traditionally understood by the right. "The idea that local communities should run local schools has been a high priority of [American] conservatism, rightly so, for a long time," French said. Inasmuch as Copland’s legislation aims to foster communal engagement, it takes its cues from the same conservative tradition that some on the right have started to question.
One aspect of the bill does hint at the limits of liberalism: its distinction between K-12 and higher education. "K-12 is not a marketplace of ideas," Copland said. "There’s a difference between a college seminar and a third grade classroom." In the former, debating a teacher is expected and encouraged. In the latter, it is grounds for a time out. Kindergartners cannot engage in the sort of discourse that classical liberalism demands of adults; that’s why parents care so much about what their kindergartners are learning, and why Copland’s bill doesn’t apply to universities.
But this too is an insight with deep roots in the liberal tradition. The very term "liberal education"—which many have invoked to critique CRT bans—has never implied pedagogical neutrality or a curricular free-for-all. Rather, it has historically meant education that prepares students for liberty, including the liberties that critical race theory self-consciously attacks.
Laws promoting such education needn’t be illiberal, Copland’s report submits. If done well, they could bolster the foundations on which liberalism rests.
Update 09/10/21, 3:10 PM: An original version of this piece incorrectly identified Keith Whittington as a member of the Federalist Society.