In this excerpt from my recent conversation with Richard Epstein, we begin and end by addressing a key claim of the critical race theory paradigm: That an entire system can be racist even without the active participation of racist individuals. Richard outlines what he believes to be the strategy behind this claim, and I find it quite convincing.
In between our bookend discussions of CRT, Richard provides a compact legal history of the enormous gains made on behalf of racial equality in the twentieth century. It’s an enlightening and invigorating tour through some cases that might not be familiar even to people who are well-informed on these matters. I hope you enjoy it as much as I did. And, as always, I welcome your comments below!
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GLENN LOURY: I want to stay on critical race theory. And I think you said something that I thought was really important, which is that the claim of systemic racism generalizes the parties who are responsible for the injury such that you no longer have a specific individual who's been accused of an act. You have a society that's been accused of some ether, some atmospheric wrong. That means that there's no way really to effectively respond to the charge. It means that people are going to be making claims at law based upon non-rebuttable assertions of injury, something like that. Can you elaborate on that a little bit? Because I haven't heard that before.
Richard Epstein: I've seen this in particular contexts. For example, discrimination based on race in the provision of organ donors through the the organizations that provide it in the United States. Well, I mean, the answer is probably no, because there are technical grounds, but you could raise that. And I've been in many a medical injury meeting in which this claim is started to be given. And you look around, every doctor in the room is essentially a liberal Democrat. None of them are guilty, but they're all prepared to say that the system is willing to do this.
The reason that you never attack individuals is they will defend themselves. And if you hear enough individual defenses coming up, you'll realize that this charge is completely bogus. And so what happens is if you make it ethereal, then all the people who essentially are liberal can join in the attack because they're not attacking themselves individually. So it's a very, very clever strategy.
Now, what happens is some people are willing to step up. There's that battle that is taking place between the teachers unions on the one hand and that black woman, I think, was trying to say, bring 'em on, I'll fight 'em. Joseph Epstein just this morning—he's no relation of mine—wrote this piece about the culture war saying this is so terrible. We have no choice but to continue to fight on the pages of the Wall Street Journal. So what's happened is, I think, in fact the effort to take over the curriculum has brought forth a charge of overreach. And you now see the 1776 movement coming abroad.
Of which I'm a part.
We understand there's a lot of things that are wrong with the history of the United States. But there are also a lot of things that are nice. You mentioned before the show that I wrote a book called Forbidden Grounds on the anti-discrimination laws back in the early 1990s, in which I trace at some painful length some of the history of segregation that existed.
But you start with that, and then you know what, starting around 1915 the iceberg starts to melt. And it's a bunch of white conservative guys who are basically breaking it down. So the grandfather clauses, which said you can only vote if your grandfather could vote, all of a sudden those are declared unconstitutional. Then the checkerboard map in a case called Buchanan v. Warley, which says blacks can live on the black squares and whites can live on the white squares. That's struck down at that particular year. Then, 1930, you get the Scottsboro Boys, right? A case called Powell v Alabama. And all of a sudden these convictions are reversed. The poor kids' lives are ruined, but it starts to change things.
The ACLU comes along, and it turns out you now have very effective litigation and it forms an alliance with the NAACP, which was formed in 1910. To give you an idea of what the climate was, Wilson had segregated the civil service in 1913 or '14, because he was a kind of a Southerner from Virginia and New Jersey. And the NAACP, two years before, said we can't challenge this in court, because there would've been no way they could've won after Plessy v. Ferguson. I mean, they knew this. But by the time you start getting to the 1930s, all of this is beginning to unravel, thank God. And the first of the blows, in many ways, to give you a 1946 case—I'm sure you've never heard of the dormant commerce clause as a working doctrine.
Dormant commerce clause. No, I have not heard of it. But I want everybody to know that this litany on which you are embarked is in the service of establishing that, notwithstanding a history of slavery and racism and Jim Crow, the legal institutions and the political orientation of the United States of America has been able effectively, in the fullness of time, to address and redress those injuries. And hence, the Fourth of July is something that we should be celebrating, all things considered, not being unaware of the historical problems that you have identified.
So essentially what happens is, you used to run trains on interstate railroads. And in the Northern states you'd integrate, and then you go down to Virginia, you'd have to separate. This slows down commerce. The dormant commerce clause says that if there is an impediment to the free flow of people on trains and buses and so forth, you have to have a strong justification to let it go. The Southerners put forward segregation, and the Supreme Court struck it down. So the first blow on the transportation stuff comes out of the commerce clause, not out of the equal protection clause.
You know, four years later, there's a case called Sweatt v. Painter in which there was “separate but equal.” What does that mean? There was a black school, which was put in some unheated room with 16 books as a substitute for the white school at the University of Texas law school. And the Supreme Court, in what was actually a dicey case, struck that down as well. And all the major deans of the law schools, Irving Griswold, Edward Levi, and so forth, they basically signed the brief saying that this is not allowed to stand. So for the first time you start seeing the establishment inside the institutions weighing in.
I keep reminding people, it's not all that easy to weigh in when the dominant culture runs the other way. These were guys who took some personal risk and they prevailed. Brown comes along, of course it's a very controversial decision. They backslide a little bit in Brown II and so forth. But then what you do is you have Cooper v. Aaron, there's another case in which it turns out that with a little bit of dicing and maneuvering, what is said is that the Supreme Court can tell the world what is in fact constitutional. The branches are not equal and coordinate, and they gotta do something about this, and so when Eisenhower did it, essentially, they gave him cover. And you then start to see the movement and all the rest of this stuff.
When I was raised in the early'60s, the way we did this history was so much different. We said we started in a bad place and we managed to work ourselves to a good faith. And what we tended to do at that time, at Columbia College, for example, was to praise the improvements rather than to damn the institutions for taking so long to improve.
And that would be your preference for pedagogy today.
I think so. I mean, do you remember Marian Anderson?
Oh yes! The opera singer.
Yes, the great singer. The Daughters of the American Revolution refused to let her do it in their hall. And you know what Eleanor Roosevelt did?
She invited her somewhere to sing.
She let her sing on the steps of the Washington Monument.1 And then I don't know if you remember about the Tuskegee Airmen.
Yeah, I remember that. But listen, I got to stop you because we're running out of time. And what you're doing now is, I think, giving voice to one idea, an idea which I would affirm about how we should be teaching our kids.
Yes.
What the critical race theory advocates want to do is teach them in a very different way. And you liken this to the creation science versus Darwinian evolution debate and how you manage it. A question I have is, how can we manage this? I mean, one thing you can do is get local school board meetings and parents coming in and demanding. What role is the law playing here? Because states are passing statutes that are trying to forbid the teaching of critical race theory, and defendants of critical race theory are saying that's violating the the free speech rights of the ...
Well, not when you're doing [it] in terms of running a school.
So you're okay with statutes banning [critical race theory]? Would you ban the teaching of Marxism, et cetera?
No. As I say, I would not even ban the teaching of critical race theory. But I would ban a situation in which the only thing you're allowed to teach is critical race theory and treat everything else as disinformation. They have to agree that they're at risk along with everybody else. And in fact, Glenn, the single most dangerous word in the entire lexicon these days is the assertion of too many people who ought to know better that the people whom they disagree with are spreading “disinformation.” And so therefore we should be able to ban them.
Yeah, some of those people are running huge platforms in Silicon Valley.
Yes! But I mean, we take eminent scientists, we ban them. We take conservative publications, we don't put them on Wikipedia and things like that. Now, it turns out that many of these are people with whom I agree on some issues. I am always at risk to being proved wrong in a debate. What I am not prepared to do is to have somebody who purports to be neutral say that I can determine who's allowed to participate in the debate. And since your views are misinformation, I can silence you on my platform and try to get other people to do that. I regard that as just defamation of people with whom you start to disagree.
Anderson actually sang on the steps of the Lincoln Memorial. - ed.
Several things:
First, one of my favourite examples of a white man being a force for desegregation is Edward R Murrow (the man who would expose McCarthy as a charlatan in the 1950s as well as being one of the pioneers of broadcasting news) in 1930 desegregates NSFA (National Student Federation of America) and does so at the Biltmore Hotel, Atlanta (a place which was segregated) -- unfortunately for the hotel management, Murrow was wise to the tricks and had several things written into the contract such as all delegates from the named colleges will be seated and able to participate fully. He interspersed names of HBCU between the names of better known organizations and the manager did not notice. He also had the Black delegates seated next to hand picked white women at the dinner -- knowing that the Black delegates who be refused service, he simply had the women pass their plates to Black delegates and thus they were served first. Apparently the waiters were in stitches about it. Murrow also arranged for a Southerner to be reporting on it for the NYT and that man was able to forestall problems from the Texan delegation. At the end of the conference, the Federation was desegregated with more than a dozen Black colleges and universities as full members. Prior to Murrow's intervention, only Howard was a member.
Second, in the UK, the UK government has warned on a number of occasions that CRT can only be taught if it is made known that it is a highly contentious theory where there is a lot of political disagreement rather than as absolute fact.
The real trouble with the praxis of CRT is that it attempts to impose a specific and dogmatic philosophical belief which runs contrary to many religious beliefs and therefore runs the risk of running contra to the Expression of Belief clause in the 1st Amendment. If parents are not allowed to teach their children, their religious/philosophical beliefs instead of a state imposed doctrine -- how can one say one has freedom of religion? Because of Engels v Vitale (USSC 1962) among other cases, the moral teaching of children to should be left to the parents and not imposed by the state.
It is about how do you teach about the problems of racism and legacy of segregation without visiting the sins of the past on the youngest generation. I do think there are ways to do it effectively without resorting to CRT praxis.
Finally, it is very hard to dismantle segregation, including soft segregation such as that which has existed in the romance genre of publishing, in particular Harlequin has been struggling with this since 2017 when they decided rather than having a series line devoted to African-American voices (they had purchased the publishing wing of BET back 2004 but had not undertaken the work to fully integrate), they would have African-American (and indeed underrepresented authors) writing for all the lines and being sold globally. The barriers have been unexpected and the work is ongoing, but they are pressing ahead and even historical (which was the most problematic in many ways) does now have African-American writers writing about successful Black heroes and heroines in a historical context.
On the controversy over banning critical race theory in schools, I find these points in Christopher Rufo's recent Quillette article important:
(1) Public schools do not have First Amendment rights. And the fact is that the status quo, the existing state of affairs, is that state legislatures get to decide what’s in the curriculum and what’s not in the curriculum. They get to decide what to include and what to exclude.
(2) Critical Race Theory practice in education . . . compels speech that violates the conscience of students, and it manipulates people as young as four and five years old into a racialist ideology that violates the sense of basic dignity. These are vulnerable kids who are compelled to be in these state institutions, and you have to offer them greater protections.
Parents who really want critical race theory can vote it in. There are, alas, some who do.