Rufo v. French: Should Schools Ban Critical Race Theory?
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I'm Barry Weiss, and this is Honestly. Hello, my name is Linda Bosom, and I want to thank the governing school board for letting me speak today. My name's Ian Rice. I've got two children here at the Caledonia School District. My name is Keisha King. I'm a mom of two, one who's in the Duval County Public School System. Over the past month or so, I'm the mother of a high school senior. parents around the country have been showing up at school board meetings and speaking out against what they are calling critical race theory. Critical race theory is teaching that white people are bad.

That's not true. That would teach my daughter that her mother is evil. Just coming off of May 31st marking the 100 years of the Tulsa riots, it is sad that we are even contemplating something like critical race theory where children will be separated by their skin color and deemed permanently oppressors or oppressed in 2021. That is not teaching the truth unless you believe that whites are better than blacks. When you talk about critical race theory, which is pretty much gonna be teaching kids how to hate each other,

Now you might be thinking, critical what? Which, fair enough. Critical race theory, technically speaking, originated in the 1970s. It was coined by legal scholars to expose the way that racism was baked into the structures and systems of American life. It was absolutely a niche academic field.

And the reason that these parents are talking about it now isn't because they've all just discovered the writings of critical theorists like Derrick Bell or Kimberly Crenshaw. No, the reason they're talking about it is because the worldview of critical race theory, the

The concepts associated with critical race theory, concepts with names like systemic racism, white privilege, white fragility, anti-racism, the idea of racial affinity groups, all of those ideas that were once confined to elite classrooms at law schools and universities, they're now showing up, well, pretty much everywhere. They're showing up in mandatory race consciousness trainings at companies like Disney and Amazon.

They're showing up in newspapers. They're showing up on television. And most importantly, they're showing up in classrooms across the country where they are affecting what millions of American children are being taught about the country, about race, and about themselves. These parents, and they are rich and poor, black and white, public school, private school, you name it. They're worried that this ideology is not teaching their children to judge themselves and others by the content of their character.

but by the color of their skin. CRT is not racial sensitivity or simply teaching unfavorable American history or teaching Jim Crow history. CRT and it's outworking today is a teaching that there is a hierarchy in society where white, male, heterosexual, able-bodied people are deemed the oppressor and anyone else outside of that status is oppressed.

I don't know about you, but telling my child or any child that they are in a permanent oppressed status in America because they are black is racist. And saying that white people are automatically above me, my children, or any child is racist as well.

All of this is what's causing parents to come out and demand an end to it. Not only does it not promote justice, it does the opposite. It promotes racism. And you cannot cure racism with more racism. But rather than listening to the concerns of these parents and taking them seriously...

The talking heads on cable news have decided to play word games with the issue. And I'll give you three examples of critical race theory being taught in schools. Hold on one second. In Cupertino, California. These are in your talking points. Robin DiAngelo is not a critical race theorist. Elite media figures have spent most of their energy arguing that these parents are ignorant about what CRT really is. Deconstruct their racial identities and then rank themselves according to power and privilege. It's intersectionality theory.

Isn't the 1619 project critical crazy? No, it's not actually. It's absolutely not. No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no

Or in another one of their favorite moves, claiming that anyone opposed to these new programs is merely a racist that wants to protect their own privilege. That's the whole thing about what privilege is, is that people don't like to have their pleasure interrupted, their peace interrupted. And so people think that it should be the way that it should be because they have been taught that in this country. Of course, this has only made the parents coming out to these meetings more passionate than ever. Just because...

Because I do not want critical race theory taught to my children in school does not mean that I'm a racist, dammit. So yes, critical race theory, it's an imperfect and confusing term. Just like wokeness, just like social justice, just like intersectionality. It's also utterly and completely beside the point.

Those that are trying to play semantic games or pretend that you need to have a law degree or a PhD or even a college degree to talk about this subject, they're intentionally hiding the ball. And no, contrary to what you may have heard, this is not some right-wing attempt to stop public schools from talking about the history of slavery or the nature of racism in America. All of that, let me say this very clearly, is bullshit. Forget all of the jargon.

This is what you need to know. In schools across the country, not all schools, but a lot of schools, administrators and teachers are bringing this fringe, divisive, and yes, sometimes even racist ideology into the classroom. And they're bringing it into the classroom under the guise of progressivism.

More than that, they are using this worldview to undermine or get rid of core academic programs, programs like algebra and other basic parts of an American education.

And the reason they are doing that is because if those programs result in any difference in outcome between racial groups, then that in and of itself is seen as evidence of systemic racism. Even though there's no evidence that getting rid of these programs helps anyone of any race at all. Let me give you a few examples.

Grade school students in Indiana and Texas are being assigned to read a book about whiteness. And that book encourages them to confront the painful truth about their own family's participation in racism. This is a book for kids under the age of 10. Another example. Parents in Pennsylvania say that school administrators are instructing them about how to, quote, de-center whiteness at home.

What does that mean? Well, it includes tips on how to, quote, explicitly talk about the differences between races. Here's another example. A school district in Madison, Wisconsin, invited parents and students on two occasions to Zoom sessions segregated by race. In other words, there was one link for white students and one for students of color.

Now, of course, this is illegal under the Civil Rights Act, but it also sounds to me like the opposite of what you'd imagine progressives would want. Other schools in other states have segregated students for assemblies to talk about race and race consciousness. And the University of California school system has done away with the SAT and the ACT. Totally done away with them. While middle schools in San Francisco have announced that they will no longer be offering algebra to eighth graders.

Then there's the creeping presence of race essentialism coming from the very people who rightly insist that race is a social construct. What do I mean by race essentialism? Well, listen to this Columbia professor who spoke recently about how it's Western and European to, quote, dissect and analyze and take apart things.

And I think Black people, we are relational people. We are people of context. Like it's very Western and European to dissect and analyze and take apart things. Whereas Afrocentric schooling or Afrocentric spirituality or African epistemology or ways of knowing, everything is connected. So this is why education is not working for so many students of color because we are context.

This simplistic narrative about race leaves no room for discussions of class or economics, or that individuals inside of these groups live lives that vary dramatically, that there is no white experience or black experience. Take this one student in Indiana. I have been in counseling as long as I can remember because I was adopted from foster care at age four. The things I've learned along the way are being challenged now.

She recently shared the stories of hardship that she's lived through and what it feels like having lived through those things to be told that she herself is an example of white privilege. How can a child born in an abusive drug and alcohol abuse home who lost her entire biological family that has experienced all forms of abuse and neglect be privileged? If you found a child at 15 months in a home with holes in the floor eating cat poop, would you...

Consider them privileged? Lest you think that I am cherry picking or that these examples are just anecdotal, consider the fact that the nation's largest teachers union, it has 3 million members, it's called the National Education Association, that it just approved a plan to promote critical race theory in schools across all 50 states and to fight against things like cis-heteropatriarchy in all of these states, including in 14,000 local school districts.

The most amazing part about this is that as they are doing it, they are denying it. Critical race theory is not taught in elementary schools or middle schools or high schools. It's a method of examination taught in law school.

and in college that helps analyze whether systemic racism exists, and in particular, whether it has an effect on law and public policy. But cultural warriors are labeling any discussion of race, racism, or discrimination, SCRT, to try to make it toxic. They are bullying teachers and trying to stop us

from teaching students accurate history. So just to be clear, this is Randi Weingarten saying that critical race theory is a boogeyman. And yet the very same day, her union is sponsoring a talk with Ibram Kendi.

and openly talking about how they're going to spread critical race theory to schools across the country. All of this, just trust me when I tell you that it barely scratches the surface of this issue. And anyone who's actually taken the time to watch these videos from aggravated and worried parents, you can see that overwhelmingly, these aren't plants. They're not agitating right-wing trolls.

I've been very alarmed about what's going on in our school. You are now teaching, training our children to be social justice warriors and to loathe our country and our history. Growing up in Mao's China, all this seemed very familiar.

The communist regime used the same critical theory to divide people. The only difference is they use class instead of race. One parent in particular that stood out to me was Xi Van Fleet. She's a mother and she lived through Mao's Cultural Revolution in China. And she said this at a school board meeting. During the Cultural Revolution, I witnessed students and teachers turn against each other. We changed school names to be politically correct.

We were taught to denounce our heritage. The Red Guards destroy anything that is not communist, old statues, books, and anything else. We are also encouraged to report on each other, just like the student equity ambassador program and the bias reporting system. This is indeed the American version of the Chinese Cultural Revolution. It should have no place in our schools. So the question then becomes, what should be done about all of this?

Some Republican lawmakers in states around the country think they've come up with the right solution, and that solution is a ban to legally ban critical race theory from public schools. As it stands, there are more than a dozen states that have proposed bills banning or restricting the teaching of this ideology or passed them.

Now, supporters of these bills say that that's a no-brainer. In the same way that we would ban phrenology or Holocaust denial or criticize teachers that teach astrology as a real science, of course we should ban racial essentialism. It's un-American.

But critics of these bills say the bills are un-American. And that includes some really prominent civil libertarians who fear that these laws, some of which are vague and seem to almost outlaw the use of certain books in the classroom, that they betray bedrock American principles and that the unintended consequences of the ban could be worse than the ideas themselves.

So a few weeks ago, I called up two of the most informed and engaged people that are arguing on opposite sides of this debate, Christopher Ruffo and David French. If you have heard of the phrase critical race theory, it is likely because of the work of Chris Ruffo. He has done the lion's share of reporting that has brought this issue into the mainstream. He's also been working with state lawmakers on many of these proposed bills.

David French has had a long career as a lawyer, and he specializes in the First Amendment. When I met him when I was 20 years old and a student at Columbia, he ran the Foundation for Individual Rights in Education, or FIRE. He has been outspoken in criticizing these bills, calling them, at worst, deeply un-American. Here is that debate in full. So, David French, Chris Ruffo. I wanted to start with a few headlines that I've come across recently.

The first one, an elementary school in Cupertino, California, is instructing third graders to rank themselves based on their power and their privilege. Here's a second one. San Diego's school district told white teachers that they are guilty of spirit murdering black children.

Here's another: in the name of equity, California's Department of Education is proposing to eliminate opportunities for accelerated math in the name of equity. So that means no algebra for eighth graders, no calculus for high schoolers. And those are just three examples from the state where I'm currently living in California. I could pull similar headlines from other cities, other towns, other states in America. So when I see all of this happening,

Probably like both of you, I'm disturbed by it. But I also feel torn between two virtues or two beliefs. On the one hand, it's a passionate commitment that I feel toward academic freedom, toward free speech, toward robust public debate, to the basic idea that the answer to bad ideas is better ideas, not censorship and not government intervention. And on the other hand, I feel...

this personal opposition to elements of this ideology, to these policies that just feel like, frankly, like plain old racism, that feel like segregation. And that feels morally wrong to me and feels like it needs some kind of public remedy. And I don't know how to square these two principles. I see really compelling arguments on both sides,

And one of the reasons that I want to talk to the two of you is because I think of everyone out there in the arena arguing about this. The two of you articulate those two pole positions most clearly, most passionately, and most convincingly. So I want to start with a super simple question, which is tie these headlines together for me. What is going on here? David, maybe we start with you.

It's hard to understand what is happening right now in the United States of America unless you have some understanding of fundamentalism. And that I think what is beginning to happen and what we're beginning to see happen is that in parts of the left and parts of the right, what we're essentially having is a kind of a fundamentalist religious awakening. And then when you're talking about these examples, you're talking about on the left, the far left.

And I like the way that John McWhorter described it in The Atlantic. He calls it a sort of, what, third wave anti-racism. And he calls it a profoundly religious movement in everything but terminology. It's an idea that whites are permanently stained by white privilege and

They are gaining moral absolution only by eternally attesting to it. That's like the original sin that sometime America will come to terms with race, and that's sort of like its judgment day. Explorations as to whether an opinion is problematic are equivalent to explorations of what might be considered blasphemous.

The social attacks on a person with problematic thoughts are parallels with excommunication. It's a very thoroughly religious movement with a religious zeal behind it at these sort of edges that these headlines are talking about. And a lot of this is connecting and it's appealing to people because it connects with sort of an underlying sense of virtuous purpose. And that underlying sense of virtuous purpose is to purge the effects of

of racism from American life. And so you've got this underlying virtuous purpose and that really animates people and gives them a sense that what they're doing, they're on the right side of something really important and really good.

But as with so many fundamentalisms, it is so entirely intolerant of dissent and so entirely intolerant of disagreement, it often ends up oppressing in the name of liberation. And in fact, in some ways, that's the entire point. I mean, this is something that we've seen from, for example, the beginning of the speech code movement in academia, which really launched in the 1980s.

the sort of idea that the best kind of tolerance was a form of intolerance, a form of intolerance of dissenting speech and speech that stands in front of the virtuous purpose. And that's sort of what we're dealing with in multiple sectors of American society right now. Chris, do you agree with that? Do you see it from the John McCorder lens of functioning like a kind of new religion?

Yes and no. I mean, I think there's certainly an argument that it could be interpreted as religious, but it's really a secular ideology. It's a totalizing ideology that stems not from a kind of wellspring of a transcendent vision of a spiritual order, but from kind of hardcore 1960s style neo-Marxist politics. And if you look at Herbert Marcuse, the critical theorist,

He talked specifically, we need to engage in intolerance in order to shift the balance of society towards a explicitly left-wing and Marxist political vision. And that it is essentially should be okay and actually encouraged to push any kind of conservative or right-wing beliefs, ideologies, practices out of the national conversation, out of positions of power.

And what's happening today is that our institutions are being devoured by this ideology that is intolerant at its heart, that is totalizing in its nature, and that is deeply destructive and explicitly antithetical to the American principles.

I think it's something that is much more akin to kind of the ferment of the 20th century Marxist movements. And I say that with, you know, with knowledge that it's not the same thing. But my reporting has shown me something really interesting. I've talked to a lot of parents who oppose this ideology are actually immigrants to the United States.

So I had people from the former Soviet Union that said, what my daughter is going through in public school in America right now reminds me of my education in the Soviet Union in the 1980s. I talked to people who are Chinese immigrants in California in that school in Cupertino that you mentioned in your intro. They said, this reminds us of that same feeling we had when we survived the Cultural Revolution under Chairman Mao.

And finally, I talked to an Iranian immigrant in Portland, Oregon, who leaked documents to me from the Portland public schools

and said, you know, I grew up in Iran chanting death to America before school every day as a small child. And I get that exact same horrific tingling up my neck when I look at what my child is learning in America. And the experience that I think they offer is an outside perspective. They understand the virtues of America. They immigrated here in pursuit of that vision.

But for some reason, I think we've gotten into this ideological fog where we don't understand these moral lines and we're equivocating and we're tolerating this deeply fatalistic, pessimistic, destructive ideology that is taking over our institutions when we should be very clear in drawing the line and figuring out how to push back.

So you're saying at its heart what this movement is really about, despite the language that it uses, social justice or equity or anti-racism, is about actually completely delegitimizing dissent? Is that what you're saying?

Yeah. And I mean, it's not me saying it. You can go look at the original writings that inspired this movement from critical theory of the 1960s. You can look at the critical race theory of the 1990s. You could look at this whole intellectual lineage that, um,

calls either explicitly in the past for a moral, economic, and political revolution. That was the language they used in the 1960s, liberation, revolution. What they did though, was they repackaged a lot of those same core concepts, realizing that, you know,

Neo-Marxist revolution is going to be a hard sell to, you know, public school parents in a suburb of, you know, Cincinnati. But equity, diversity, inclusion, anti-racism, all things that are anodyne, soft, persuasive,

and a rebranding of these very intense ideas. And what I've tried to do is to show under the cloak of this very soft language, what are the actual documents? What are the actual principles? What is the actual literature? What are the actual practices within our institutions? And what are the actual principles

What does this really mean? Because these are propaganda words, very explicitly. And what I've tried to do is take it away from a theoretical debate and actually say, what is happening concretely, tangibly within our institutions? I would love to unpack a phrase that I think a lot of Americans have been encountering for the first time in really the past few months.

And that phrase is critical race theory. But people seem to have all kinds of understandings of what this means, what critical race theory is, what it is in ideology or theory versus what it is in practice. So, David, let's start with you. What the hell is critical race theory? Yeah.

Well, you know, this is something, I mean, first, it's not new. I got to law school in 1991, and critical theory, critical race theory, gender theory, was the dominant intellectual movement in the law school at that time. I think of my professors, of sort of the major professors that I had, of the six major professors I had in my first year of law school, five of the six were what we called crits at the time. Right.

And one of the things that you quickly learned was that there wasn't a single definition of critical race theory. People can try to quickly define it, and there are a lot of sort of shorthand versions of critical race theory, but there's a lot of argument within the field about what it is.

And to the extent that you're going to really going to be able to define it, I would say there's multiple components of it that are kind of common. One is this idea that racism is

ingrained in the fabric and system of American society, so much so that you don't have to be an individual racist, for example, to be a part of a racially oppressive system that in many ways often intent or individual intent is irrelevant to sort of the virtue of the system itself. That if you're going to look at sort of the root and branch of American society, it's just it's steeped in racism.

The other thing that you often have, not always, but you often have is a rejection of traditions, for example, of small L liberalism. So,

You're going to reject the free, you know, you're again going back to the speech code movement in the 1980s and early 1990s. You're going to reject free speech as a value, as an independent value. Liberating tolerance is a term for intolerance, intolerance of, in particular, status quo right-leaning ideas. And so you're going to have a big, you're going to not, again, not always, but sometimes you're going to have a rejection of liberalism and

And then, you know, one of the things is that you're also going to have a rejection of sort of this notion of what you might call meritocracy. If you see, for example, a racial disparity in hiring or you see a racial disparity in

in achievement. What you're seeing is sort of proof of a failure of equity, and that proof of failure of equity has to be remedied often by blunt force, blunt governmental force that will often override liberalism. And I keep going back to this because it's such a perfect example of sort of when you take critical race theory with these sort of three key concepts of

inherent structural racism combined with a rejection of liberalism, combined with a rejection of meritocracy,

The first real wave of how this manifested itself in public policy was the university speech code. This was something where beginning in the late 80s, going into the early 90s, you're talking about a wave of policymaking and public institutions designed to redress a lot of inequities in small L liberalism.

So again, lots of critical race theorists who would listen to what I just said would say, well, you're missing this or you're missing that. And we haven't talked about sort of the intersectionality subcomponent, but that's basically how I would define it. Most strands of it contain those concepts. What is dangerous about liberal values like free speech to this ideology? Well, that's a great question. And this goes to sort of the root and branch thesis. So

If the Bill of Rights is coming from a structure, it's coming from a system that was also constructed at the same time through systems and mechanisms of oppression. And so if this constitutional structure is part of, is sort of the fruit of that same poisonous tree, then it has to be critiqued, it has to be interrogated, it has to be, many elements of it should be discarded.

You know, let's put it this way. So, for example, my view of American history could be boiled down like this at the risk of dramatic oversimplification. 1619 versus 1776. So...

1619, when the first slaves come to the American shore, was sort of a symbol that this new world was going to be a lot like the old world. It was going to be suffering from the same oppressions. It was going to have the same kinds of exploitations. It was going to be a continuation of what had gone before. 1776 was a philosophical break from 1619.

And so what is the history of America in blunt terms is this battle between 1619, the reality of 1619 and the principles of 1776.

A critical race theorist might say, that's completely wrong, David. 1776 was an extension of 1619. It was how the ruling class granted itself liberty at the expense of everyone else. Whereas I would say that's how America's leaders created a irreconcilable tension with 1619 that we then had to deal with. And we dealt with it in the Civil War. We kept dealing with it through the Civil Rights Acts, for example. We've been dealing with that tension.

That's how Martin Luther King Jr., for example, is able to talk about America's promissory note. You made us a promise in 1776 when you said all men are created equal. And the critical race theorists in many ways just flat out would disagree with that and would say that 1776 is an extension of 1619 rather than an opposition to 1619.

Well, you bring up Martin Luther King. I'm curious, Chris, how would a critical race theorist or someone that believes broadly in that ideology, whether or not they use that language, how would they understand someone like Martin Luther King and his ideas? Well, my reading of it is that you can look at two strains of thought in the 1950s and 1960s within black intellectual circles.

community where you had the Malcolm X, Angela Davis, Black Panther Party, Black Power movement that was much more militant in its ideology, explicitly communist in the case of Angela Davis. And then you had the civil rights movement that had a

very different philosophical approach. And I think that looking at the intellectual lineage of those approaches is really instructive, where Angela Davis was actually Herbert Marcuse's doctoral student. She was a member of the Communist Party, believed in the overthrow of the United States, form of government, the overthrow of capitalism. And it was an explicitly Marxist and explicitly atheist and explicitly anti-American worldview. Whereas the civil rights leaders,

like Martin Luther King, what we're talking about now. Um, it was, uh,

David's idea is, I think, exactly right. That promissory note, he actually appealed to the founders and the founding of the country, I think in a rhetorically and strategically brilliant way, and also a true way, to say, this is what was promised. This is what was fought for in the Civil War. We have to take that next step towards fulfilling the idea and the American principle of equality. And you can't also underestimate that it was explicitly, especially in the South,

Christian movement, where that was another main element. So critical race theorists find them in this very strange tension. And I think that they want to have it both ways in their rhetoric. They want to say that we are the new civil rights movement, even though their ideology is derived from the black radical movement of that time that frankly lost out, was vanquished and overshadowed by the nonviolent civil rights movement. So the critical race theorists

they have to reckon with this. And I think up until now that we've actually been pushing back, they've been able to basically use the cover of the civil rights movement, use the halo effect of Martin Luther King to claim the mantle. But

I think if you look at the specifics, if you look at the facts, if you look at the literature, if you look at the practice, if you look at the investigative reporting, they're practicing something underneath that is much more pernicious, much more militant, much more radical, that is being subsidized by public dollars.

I guess I want to ask, it's striking to me to hear you talk about Angela Davis, you know, who's, I think, a few months ago in the pages of Vogue magazine, which gives you a sense of the cultural, I mean, the way that her ideas in a way have moved into the cultural mainstream, at least, let's say, in elite America. What do you guys think the goal of this ideological movement is?

What's the most generous read of what they're trying to do? I would say if you're going to do what? What's the term from Twitter? Steelmanning it? Yes. So if you're going to steelman it, I think the goal is to end...

the negative consequences of what was it, 365 years of legally enforced racial discrimination protected by violence. So if you look at American history and this is something that we haven't yet talked too much about is that from 1619 to 1964, we had some form

of legally mandated malicious discrimination in this country. And the things that I have benefited from, from some scholars in critical race theory is that they have showed me how deeply that 365 years, if I'm doing my math correctly, has impacted the

various systems of American life in such a way that this sort of straight ahead view of everything's okay if we just sort of change the law and we create a quote unquote level playing field and everything's going to be okay. So I would say the steel manning is that there was 365 years of malicious racial discrimination defended by violence. You don't get rid of

of 365 years of oppression in the years from 1964 to 2021. And sometimes government power has to be used to do that. And so that's sort of the steel manning view, I would say. It's a desire to create an equitable society that is cleansed of that 365 year stain. That's how I would sort of steel man that position. Chris, would you agree with that?

Well, I mean, I would personally agree with that. That sounds like a noble and a good and a true goal for our society, right? We should also acknowledge anyone that looks at American history would acknowledge a history of slavery, racism, segregation, discrimination. That was pervasive. It was deeply destructive. And

I directed a film for PBS where I spent three years in a Memphis, Tennessee public housing project and the surrounding neighborhood. And you can see it. I mean, this is at, Memphis is famously the kind of Northern tip of the Mississippi Delta. And you can see the legacy and the residual effect of historical racism everywhere in that community.

I think that that's correct and true and should be remedied and we should all be invested emotionally, financially, intellectually in every way in trying to figure out how can we right this wrong? How can we make sure that once we have a regime of equal rights and a legal system, we actually have a regime of equal dignity for all human beings, including those have been historically discriminated against. But I think that's actually a majority position. And I don't think that's what actually...

distinguishes critical race theory from a majority position that I think spans the ideological spectrum. I think critical race theory is unique because it argues in a very pessimistic way that actually the constitution, the legal order, the economy, the American state itself are irredeemably racist. And it argues in some places, and even in the pages of the New York Times with Charles Blow recently, he said,

Racism has been as pervasive and destructive and deeply embedded today as it was a hundred years ago or 200 years ago or 300 years ago.

Critical race theory, you know, rejects rationalism, individualism, capitalism, enlightenment values, constitutionalism. And it's a much more radical critique than just saying we want to, you know, fix the legacy of historical racism. And this is documented everywhere. If you look at someone like Cheryl Harris writing in the Harvard Law Review in a founding paper, she argues

that private property rights were created to maintain white supremacy and therefore we should suspend private property rights and redistribute land and wealth on a racial basis. I mean, that's like land reform and basic Marxism 101 as we saw historically. And if you look at today's kind of latest critical race guru, Ibram Kendi, he's written pieces where he says we need to create a federal department of anti-racism that is unaccountable to any other branch of government. So a new branch of government

And it should have the power to regulate the speech of political leaders. If it's not deemed anti-racist, we should have the power to censor it. There goes your First Amendment. And it should also have the power to veto, nullify, or abolish any law at any level of government that doesn't lead to anti-racist outcomes. So there's the end of your system of federalism. There's the end of your system of a balance of power. And there's the end of your democratic system.

democratic system fundamentally. If voters cannot change the policy of this hoped for department of anti-racism, it is undemocratic. And because it can use power, anything that is statistically deemed not anti-racist, which you can make an argument through statistical manipulation that almost anything could be deemed so, you have, in essence, an end of the American regime and the beginning of a

near omnipotent or totalitarian regime. And so I think when you actually break down and you ask critical race theorists, they get very uncomfortable. What do you want? What do you recommend? You see revealed an ideology that, again, is very little different than the kind of cultural revolutionary policies that you saw in the 20th century. And I think it's almost certain that when you abandon individual rights, when you abandon free speech, when you abandon balance of power, when you abandon federalism,

you're going to get the same results as those 20th century regimes did. And so I think we should not fall for the Mott and Bailey trick that this is just about understanding racism. This is just about teaching the real history of the United States. When you actually read the literature, when you listen closely, and when you do some very basic analysis, tracing this ideology into the past,

A picture emerges that is very different. And I think you could steel man that argument as well. But I think to take the Mott & Bailey as the real ideology, I think, is a mistake. Let's define Mott & Bailey just for a minute. I imagine it's the chasm between what the slogan or the language or the rhetoric that something hides behind and that the content of it is actually different.

That's right. It's defending a position that's easy to defend when your actual position is something that's more difficult to defend So it's a rhetorical strategy to create distance from what you're saying and what you really mean You know one of the interesting things that I think we're seeing right now is we're seeing a an attack on again We're gonna go back to this term small l liberalism so

I think a lot of critical race theorists, again, not all, not all, but a lot of critical race theorists are exactly in alignment with what Chris is talking about in the sense that to achieve the ends that they want to achieve...

liberalism has to be discarded to a greater or lesser degree, sometimes entirely. Classical liberalism has to be discarded. It's interesting. We're seeing a lot of that happening on the right. That's a very big intellectual argument on the right now that instead of social justice, the words are common good. And that too, that liberalism itself is

is incompatible ultimately with human flourishing, that liberalism itself is at odds with human flourishing and justice. And so it's really interesting to me, and this is something that I encountered 30 years ago. It's something I litigated over for years and years and years and years was that

in the preservation of this classical liberal American system of government that says, no, liberalism is not incompatible with justice. Liberalism, small l liberalism, is indispensable to justice. Free speech is not incompatible with justice. To quote Frederick Douglass, it's the great moral renovator of society and government.

And so what we often end up having is a situation where, you know, the Mott and Bailey is often, well, I'm for racial justice, okay? I am too. Then the ends means argument. Okay, so therefore we need to radically restrict free speech, for example, or we need to suppress dissent, or we need to engage the government in X, Y, and Z. And I say, whoa, whoa, I don't wanna do that. Wait, I thought you were for racial justice. Yeah.

And that's kind of like the Mott & Bailey. And so what we're beginning to see and we've seen from the far left is this attack on liberalism. We're also seeing it from the far right. You know, I can throw down quotes from Adrian Vermeule, Harvard law professor, that would, you'd think, wait, that's the right? Hold on. So I think one of the central projects of our time is

is this defense of small-L liberalism and the persuasion to the American people, including people who want to see social justice, who want to see the common good, that liberalism is indispensable to that, not an obstacle to it. And I think that's one of my biggest beefs with critical race theory is an argument that the small-L liberalism is an obstacle

to eliminating the legacy of explicit racial discrimination, rather than indispensable to eliminating the legacy of malicious racial discrimination. I think David really gets it right when he is describing the assault on the liberal project from the right and the left.

And for me, this goes beyond the headlines. I see, you know, in the sort of intellectual trajectory of a lot of people that I admire who not five years ago maybe would have identified as neoconservatives or neoliberals, although we didn't really use that word then, as liberals, who are sort of being –

pulled to where I see the great energy sources in politics right now. I don't see it in the center right and the center left. I don't see it in small L liberalism. I see the energy really on the extremes. And I'm wondering if you guys can reflect, maybe Chris starting with you, in why you think that is. Why are people turning against small L liberalism? Why does that seem like the

the weak position, frankly, right now to so many people. I think it's a bit of a false equivalence to say, well, there is the illiberal left and the illiberal right, and they're both threatening to destroy or overthrow the liberal order. You know, there's people on maybe what I would call the post-liberal right, like Harvard professor Adrian Vermeule, like Patrick Deneen at Notre Dame,

I find them all to be important voices that offer a critique of liberalism from the right that I think in many regards offers insight to the weak points of neoliberal, neoconservative rule. But personally, I'm not persuaded by their arguments. I think they're best used as a way to find the problems with liberalism and then fix them within this liberal, democratic American system.

The fact is that those are probably five or six people. It's a very, very small group of intellectuals on the right. While critical race theory and the related illiberal left ideologies...

dominate public school system, they dominate the university system, they dominate the media. They have a hegemonic position in all of our major institutions. So which one in the world of practical political power? Not in the world of theoretical ideas, you could extrapolate them that if they became the dominant regime would be a problem, but actually what's happening in the real world today.

I think it's almost astonishing to even compare them. I don't see how they could be viewed as a kind of equal balance on the fringes. I think we're way underestimating what's happening on the right. I'm a believer in Miles' Law, which is sort of this law of bureaucratic, a law of bureaucracy that actually I think applies in our lives, which is where we stand is based on where we sit. In other words,

Our personal experience, our direct experience in our lives dictates an awful lot about what we think about the world writ large. So there's this really interesting tool that the New York Times put out, which was find your bubble. What's your bubble like? So put in your address.

And then when you put in your address, you'll see what percent are independent, what percent are Republican, what percent are Democrat where you live. So my bubble, I'm in a bubble, y'all. 85% Republican in my neighborhood, 15% Democratic. I mean, I'm in the exact opposite ratio. Exact opposite. Exactly.

I've got a problem. I went and looked back at all of my previous addresses in my adult life, and I was either in a red or blue bubble for every one of them. But I'm in a bubble. And in this bubble, the dominant influence is what you would call anti-wokeness. And so there is very little tolerance at all. And there's a lot of cancel culture here.

around any sort of questions about race. You know, it's woke if you're questioning qualified immunity, for example, which is something that I have been writing a ton about, which is a doctrine, for those who don't know, that contradicts a federal civil rights statute from the 1870s that says that if an agent of the government violates your civil rights, they shall be liable to you.

And what qualified immunity does is it protects people who actually violate your civil rights from being liable to you. That's woke. And so we're in this red bubble where anything that's sort of raising, wait a minute, like these concepts that Chris and I agreed on about this legacy of

And the effects of racism that we're trying to deal with, oh, you're woke. I don't want to listen to you. And that's something that is endemic around here.

It's just endemic. And so, you know, and some of the challenges to small L liberalism, well, the people who took the Capitol on January 6th, they might say that, you know, they were patriots, that's what they called themselves. But I can, in my lifetime, it was one of the most tangible assaults on America's governmental structure I've seen. And so I think a lot of this is what world do you live in? Barry, for example,

You've been in the middle of the rise of illiberal leftism. And your personal experience in that, in many ways, is just chilling. It's just chilling, that rise and that fundamental intolerance.

liberalism is what it does, not what it says. And so cancel culture to me properly defined is illiberalism. Even if you say you're doing it for the sake of liberalism, sort of like burning the village to save the village, then what you're doing is it's a rise of it's actual illiberalism in practice. No matter if you're saying, you know, I'm going to suppress the First Amendment for the sake of free speech. I don't buy that.

If you're suppressing or impairing the First Amendment, it's an attack on liberalism. And so we have bubble ideologies in this country that are increasingly, viciously intolerant. And that's no matter what you say about your intentions—

The test of liberalism, small l liberalism, I think is often how do you deal with in-group dissent? How do you deal with in-group debate? And we got a real problem with that in this country. I imagine that the thing that Chris would respond to, David, is...

Yeah, I believe that you're in an intolerant red bubble, you know, where, you know, being David Frenchian is considered an insult as it sometimes is used on Twitter. And that, you know, you're viewed as a pushover or a coward or a squish or whatever derogatory word they would use. And that's bad and that's wrong. But David, come on.

The people in your town in Tennessee aren't the people actually in power. If we look at the people actually in power that control newspapers and publishing houses and museums and Hollywood and big tech and corporations, they're all ascribing to this other kind of illiberalism, the kind that comes from the left.

Well, they're in power in Tennessee. They're in power in churches. I mean, so what are the institutions that people actually live in here? And, you know, so that's one of my issues with some of this anti-woke legislation is these are people in power who are proposing, not all of them, but the ones I've read by and large,

statutes that just flat out violate the Constitution. That's very meaningful. It's more meaningful than a diversity training problem in a local corporation. Yeah, we should absolutely get to some of the legislation. And I disagree strongly with that interpretation. But Barry, you anticipated my position correctly is that

The example that David used was the storming of the Capitol on January 6. I condemned it the day of as it was happening. I thought it was a disaster, a debacle, a disgrace, a truly awful moment perpetuated by the former president's worst instincts and worst character flaws and delusions. But I think that

The idea of comparing that moment to this vast institutional power of the illiberal left is, again, a comparison of something that is real and pervasive and dominant and hegemonic to something that was essentially a theater of the absurd spectacle, where you have the QAnon shaman, the guy with the pelts and the horns, you know, standing at the Senate. It's not a coup d'etat. He's not going to become the president. It actually revealed to me the

the impotence and the weakness of this kind of right movement where they assembled a mob, they stormed the Capitol, but it was an empty spectacle that was again a disgrace, but

to compare that to a ideological movement that controls universities, K-12 education, the federal bureaucracy, the largest media organizations, increasingly Fortune 500 companies, I think that those two things are categorically incomparable in my view. David, what do you think? I just dispute that this radical CRT controls all of these institutions.

I think for a lot of institutions, it's some window dressing that they put in, particularly when you're talking about sort of the diversity training world.

the idea that they control these institutions would be news to a lot of these critical race theorists. Well, I'm not saying that. I say that the institutions are being devoured by the ideology, which is different than to say the critical race theorists who are ensconced in academic positions, certainly they're not calling the shots. But this ideology is pervasive. In the closing moments of the Biden campaign, it was equity, equity, equity. Everything since then has been equity. You see...

you know, racial segregation, resegregating public institutions now happening all over the country. You see the idea of distributing medical services on the basis of race becoming policy in many states. You absolutely see some of these things, but what I, you know, you used a word like hegemonic. I think that's way overblown, way overblown to call it hegemonic, because if it was hegemonic,

We would have a real problem producing this podcast. We would have a real problem speaking. We would have a real problem standing against this. It's not hegemonic. It's certainly influential. There's no question about that. And the interesting thing is what I want people to be able to do is I want people to understand that within the structure that we have, we have the antibodies to resist the worst elements of this. So, for example, I wrote a long piece the other day about how federal civil rights law

is actually gonna be a bulwark against the worst elements of critical race theory. So for example, when you begin to see segregated employment practices, that's gonna violate Title VII, that's gonna violate Title VI. There's already a building wave of litigation against this. We have incredibly robust

legal system that can withstand these worst elements of it. So I guess what I often object to is this idea that it's some hegemonic, because what's happening is when you say that something is bigger than it is, it then creates a backlash that is disproportionate to the threat. And that, again, gets us to some of this anti-woke legislation, which

flat out is unconstitutional. I mean, it's just not going to survive a court challenge if they are passed in their present state. And what I'm consistently getting worried about on the right, and I never thought I would see this because I sort of came up on a right that was very much, very centered around the First Amendment. And, you know, I was part of a speech code litigation project that challenged speech codes from coast to coast. And

And consistently a basic thesis of the conservative movement was we're gonna defend the First Amendment, we're gonna defend academic freedom. And then now what we're beginning to see is it's almost like, well, the left is too powerful

for us to continue to defend the First Amendment in the same way. We have to degrade the First Amendment. And this is what we're getting at with a lot of proposals for big tech, regulation of big tech, what a lot of the proposals for regulating

the regulating ideas and the expression of ideas in academia. And to me, that is very dangerous. That is fundamentally illiberal and is ironically enough would create the very legal systems if it was successful, which it won't be. But if it was successful, it would create the very legal foundation for the ability of true ideological hegemony to take off in the United States by degrading the protections of classical liberalism in the First Amendment.

Chris, you have been a champion of a lot of the legislation that David has been referring to. These bills that are coming in more than a dozen states looking to limit the application of, especially in public schools, of the ability of critical race theory to be taught.

I'd love for you to explain why you support this legislation, why you think it's important and why you don't think it's, as I imagine you don't, in any way in conflict with liberalism and liberal values.

Yeah, I mean, it's such a strange argument. It's almost hard to decipher what it is. I mean, it's not a free speech question. In most of the states, we're talking about K-12 education, state government entities. And as David knows, free speech is designed to protect citizens from the state. The state doesn't have free speech rights. That's not what it was intended to do or how it's been interpreted by the Supreme Court. So what we're seeing is that the state is

where they have a captive audience, right? Students are legally required to attend school. 90% of students in the country attend public schools. So it is a state-run monopoly on primary and secondary education. They're being compelled to affirm the beliefs and tenets of critical race theory. You know, for example, students are being compelled in places like Cupertino, Springfield, Missouri, and New York and Philadelphia,

To say, you know, in essence, you know, I am so-and-so, I am a white male, I am a member of the oppressor class, and I must atone for these inherent sins of my existence through these kind of ritual mechanisms that have been devised by the Department of Equity and Inclusion. This isn't free speech. This is compelled speech.

The state is compelling children who are already being compelled to attend school to affirm a radical ideology that David even described in a column a number of years ago as racial poison. So it's this bizarre idea that, well, you know, the public school system should have an unlimited right to teach any ideology and even to require a kind of

affirmation of this ideology from five and six year olds, because if we don't do that, it is a violation of free speech. It's like K through 12 education is not a free market in ideas. It's a state run monopoly. And it's not only the right of legislatures, but it is the obligation of legislatures to make sure that the state run institutions that are funded by taxpayers reflect the values of those taxpayers. And by putting common sense limits on this,

I think it's well within the law and actually it's already being done. The state determines the curricula. The bill in Idaho, all it says is, "No public institution, school district or public school shall direct or otherwise compel students to personally affirm, adopt or adhere to any of the following tenets."

that any race is inherently superior or inferior, that individuals should be treated differently on the basis of race, or that individuals should be or are inherently responsible for actions committed historically by members of their racial group. This is basically saying public schools cannot force students to affirm race essentialism, they cannot force students to participate in racial discrimination, and cannot force students to accept the principles of collective guilt.

Those principles are themselves antithetical to the liberal tradition. It seems like actually you're maintaining a sense of liberalism by saying these are the guidelines, these are the guardrails, these are things that our public institutions funded by taxpayers should not be promoting in the classroom. David, how does that strike you?

little tiny bit of Mott and Bailey going on because the Idaho bill, for example, is one that is basically a ban on compelled speech, which is already banned. The First Amendment firewalls against compelled speech already. I mean, we have very robust constitutional protections against compelled speech.

Also, an awful lot of these bills are not limited to K through 12 education. And they're certainly not limited to bans on compelled speech in K through 12 education. So many of them include any kind of institution like public colleges and universities where

protections for academic freedom are incredibly well established in constitutional law. So they're going to be struck down when you're talking about public universities. If you're talking about bans, for example, that reach into grant making or private institutions that receive federal funding or state funding, anything like that, again, that's going to be struck down under a doctrine called unconstitutional conditions. In other words, that you're often not going to be able to place conditions on the receipt of state funds

that would dramatically limit the First Amendment rights of the entity receiving it. So this is something that's been a firewall for example, that allows private religious institutions to receive, for example, GI Bill and other kinds of state benefits without being required to moderate or change their religious instruction. And so a lot of these bills, you have to take in bill by bill by bill

And even if you're talking about K through 12 education, we need to be really careful there because right now it's kind of up in the air how much of a free speech right a K through 12 teacher has. There's gonna be a lot of litigation over this. As of right now, the general rule is they really don't have many free speech, if any at all. But still, you cannot pass a law that's unconstitutionally vague. And a lot of these divisive concept bills

are really interesting in that they are not easy to define what is being talked about as a divisive concept. And so a lot of those are going to be struck down. And so I think the issue you have here is, yeah, if you're going to pass a law that says that is a prohibition against compelled speech, I'm with you.

But the bottom line is, especially when you extend these to universities, they're just going to be struck down. I mean, they're incompatible with existing First Amendment jurisprudence. Now, Chris might take the view that that existing First Amendment jurisprudence should be altered, should be changed. The government should be able to put more strings on state funding or the government should be able to put more impositions and more control over state university professors. That

sure, make that argument. But what I would say is that when you're beginning to talk about fundamentally degrading these First Amendment protections, that's where I'm beginning to say, look, this is sort of aiming at some foundational principles of liberalism itself. And we've worked very long and hard in the face of an expanding government to create a set of legal doctrines that say, even though the government expands,

our rights of conscience and our rights of free speech are maintained, even as the government puts more of its tentacles into American life. And so that would be a rollback. That would place more government authority over your speech if you're a recipient of government funds. And I think that would be a very, very negative development. Well, yeah, again, I disagree. And I actually think that it's precisely the opposite. This is actually the protection of your right to conscience, right?

there's this kind of strain of naive libertarianism that says any meddling with the state is accepting a statist ideology. And therefore, we should unilaterally relinquish any authority or any guidance or any

shaping of state institutions, state schools, state grand making. But what this does in practice is that it doesn't go away. We haven't reduced the size of government. It just seeds all of that rulemaking, all of that authority to the most, the loudest and the most, uh,

the most determined ideologues that operate those institutions. So it's like you can't put any strings on grantmaking. Grantmaking in itself is a series of conditions and requirement and evaluative criteria. The idea that you can say, well, we really have to make this grantmaking available to all ideologies is absurd. What's the limiting principle on it?

So, Chris, is your position, for example, that the state of California should be able to tell religious colleges and universities that any receipt of federal funds must be conditioned on changing and altering their teaching on the morality and religious orthodoxy of human sexuality? No, I mean, I'm not even sure how that's related at all. We're talking specifically about public universities, public K-12 schools, public agencies. That's the domain that is addressed in these bills. And here's the thing, it's like,

if you have a conservative state that has people that have conservative values that are paying out of taxpayer money for these public institutions, those public institutions should reflect the value of the public that funds them. That seems to me a basic democratic truth. And what authority, in your view, does the government have to provide guardrails and guidelines for public instruction and public institutions?

So if I'm a public university professor at Berkeley, let's say I'm at Berkeley Law School, the state of California could require me under your formulation to teach CRT as truth. No, I mean, I didn't formulate that. No, I mean, that's the legal principle. The legal principle you're talking about is the government going to public universities and saying, you may not speak truth.

these ideas. You must oppose these ideas. No, none of the bills do that. Many of them deal with public universities. They deal with... But look at that, look at how they construct the language. A lot of the bills have a contextual teaching section in them where they say, you can teach these principles in a conceptual manner, you can teach them in a contextual way as competing theories, but what you can't do is force your students to believe X, Y, and Z. And those X, Ys and Zs are that

certain races are inherently superior to other races, that you are guilty for the historical injustices perpetrated by people who look like you, and that you should treat other people differently on the basis of their race, ethnicity, et cetera.

I mean, it's just saying, in essence, it's re-articulating those basic premises of the Civil Rights Act, saying you can't treat people differently. You can't say one race is superior to another as a not a contextual discussion of those ideas, which is allowed in all the bills, but

But as an official state dogma, which oftentimes that's what's happening. That's what I've seen in my reporting. And to kind of abstract these things, I think, is a huge mistake because we have to deal with concrete problems. And what is the solution to them? Guys, is there a historical precedent that is helpful here?

for me to understand this better or that would be helpful to look at here? Like, is it not illegal to teach Christianity in American public schools? Is it, David, explain to us where you're coming from a little bit more. - So for example, what we're talking about here is, so if you're talking about teaching Christianity as truth in public schools, well, you have an establishment clause, right?

So there is an actual constitutional prohibition against teaching Christianity as truthful in public schools. Now, of course, you can teach about Christianity in public schools. You can teach about Christianity in public universities, for example. But there's an establishment clause that's actually codified. But let's talk about, for example, in Rhode Island. I'm looking at a bill text from Rhode Island.

All state and municipal contracts, grants, and training programs entered into after the effective date of the section shall include provisions banning the teaching of divisive concepts and shall prohibit any individual feeling discomfort, guilt, anguish, or any form of psychological distress on account of their race or sex.

Sure. But again, I mean, that bill went nowhere. It's dead. If that were a law as it stands, I think you would be right. I think that is not well articulated. It's not well delineated. But look at the laws that are actually passing. I think those are a better test, right? It's Idaho only, right? No, it's...

been signed by both houses in Idaho, Tennessee. Tennessee House. Has it come through? Has it been signed by? Has it come through the Tennessee Senate? It's going to the governor's desk. Yeah. David, if you think that these laws are an overreach, if you think that these laws are unnecessary because these rights are already protected, what should be done instead? If you're a

concerned about the spread of CRT in your child's school? What would you recommend to that parent or that policymaker or that lawmaker? What's a better alternative solution than these bills that

overwhelmingly you think are unconstitutional or bad? Yeah. So, you know, I think there's a number of things that people can do. You know, local control of schools is one of the bulwarks of American life. And I think that we need to have more people, more families getting directly and courageously engaged in local school systems. Now, a top-down ban on divisive concepts, because that's what we're talking about. It's not

People say it's anti-CRT. The bills say what they say, and they have these very broad bands on divisive concepts that when you think through all of the implications, I think are extremely problematic. But deep engagement in your local school system does matter. Courageous engagement in your local school system does matter. And look, a lot of what you're seeing in major public universities outside of some of these elite institutions like Harvard and Yale is

you're not being steeped in critical race theory at the University of Tennessee. I mean, my two oldest kids are at the University of Tennessee. And the idea that they're subjected to hegemonic critical race theory teaching there is just not accurate. It's just not true. And so...

I think what you have is ample opportunity to use your voice to engage in opposition to ideas that you believe that are bad. You have ample opportunity to participate in your local schools and engage with local curriculum and

You've got a lot of opportunities in our republic to deal with all of these things through both your voice and your political engagement. But my issue is, as soon as we start talking about fundamentally beginning to shift and change First Amendment doctrine to attack an opposing idea is when I've got alarm bells going off. I agree with David 100% that it's imperative that parents get involved. But...

These are very common sense restrictions. If you had, let's say, a very conservative district in one of the southern state where the KKK developed a curriculum, they put it into the classroom and it said this race is superior to this race. This person should be held accountable for the historical injustices of that person's race.

I imagine that David would be very quickly saying, we have to get rid of this. This has to be outlawed. And in principle, it's the same thing. And this is what I think is really the beauty of these bills, is that they're ideologically neutral. These bills are not

are not partisan, they're not ideologically driven to favor the left or the right. They simply say you can't promote race essentialism, you can't promote collective guilt, and you can't promote racial discrimination and treatment of students. So if the KKK were to come up with a school program in a school district somewhere, it would ban that, but it would also ban these illiberal leftist education models. But I think the question is this,

Why is it that this is only being interpreted as a threat to the left-leaning ideology? Because that's where this illiberal problem lies within our institutions. And I'd be curious, I mean, if...

If a kind of Klan-sponsored curriculum were to make its way to a public school, David, would you defend their right to free speech? Would you defend their right to promote a curriculum of their choice? I would defend everybody's free speech rights, but I would not defend that curriculum in the schools. The bottom line is, and people talk to me about this all the time, every single American is entitled to the same rights under the First Amendment, even if their speech is repugnant. Even if their speech is repugnant. So the question here is not...

Are these ideas good? The question is, what are the limits of constitutional protection? And I agree with you on K through 12, the ability of the state is pretty near its max and its ability to restrict curriculum. However, it's still subjected to prohibitions against passing laws that are unconstitutionally vague. And some of these are sadly unconstitutionally vague. So if there's a question that says, wait, how as a parent would I try to shape the curriculum of the school?

Absolutely, I'm going to try to shape the curriculum of the school in a way that constitutionally advances particular values that I agree with. But the idea that says that the state – and again, you agree that these – many of these statutes should apply to higher education and to grantmaking?

I think there are different standards. I think that the area of intervention is much stronger in K through 12. Students are required to attend K through 12 at public schools and in many places. So I think the shaping power of the legislation has much more leeway there. I think it has less in the university system. I think that, you know, students choose to attend university, but it still is important that the public shapes the values of their public university system.

And then with grant making, absolutely. I mean, it's already illegal to provide grants to organizations that discriminate against racial groups. And this is really just a reiteration of that very basic principle that is already under law. But it's not. It's an argument about ideas and concepts. It's not. It's not. Divisive concepts is the name of the title.

title of most of the definition sections of these bills. It's divisive concepts. But what is the verb? Divisive concepts is a noun. The verb is you cannot promote them as truth. You cannot promote them as the official state ideology. You cannot promote them in an affirmative way. Even in the bills that I agree are the most, you know, have the most questions about them with the university system. I don't believe any of them have passed. But

They make a specific exemption for classroom teaching. This is really applied to the administration. Is a public university system funded by taxpayers allowed to tell students, you are a member of this race, you are inherently an oppressor, you must write a letter of apology for the historical crimes of your racial group? Should the university be allowed to do that? David French. As a classroom exercise?

No, as an administrative exercise, there's exemptions for classroom teaching. Should a public university administration- Okay, so that's already unlawful. That's already unlawful under the First Amendment. I've had cases like that. But they're doing it. They're doing it. States are simply saying, we're gonna create another legal recourse, another mechanism to fight back against this. I totally agree if you're saying that we wanna reaffirm prohibitions on compelled speech. Fine, that's the First Amendment.

But what you're talking about are, that's not these bills aside from Idaho. That's not the bills. So yeah, you can give me a hypo that says, hey, should I as a student be required to sort of publish a letter apologizing for my white privilege? The school right now under the constitution has no ability to make me do that, none. I've had cases like that. And yet I have a database of more than a thousand institutions that are currently forcing people to do exercises just like that. It's unconstitutional, file a lawsuit.

File a lawsuit. But your bill goes way beyond that. Your bills prohibit far more than that. They're banning more than compelled speech. They are.

But you're being – I think you're mistaking – the opposite argument is saying, well, this is going to ban – the things that I hear that I think in a way you're echoing is this is going to restrict the teaching of the real history or this is going to impinge on academic freedom. None of the bills do that. Not one of them. Under any classic definition of academic freedom, they all infringe upon academic freedom.

David, is there any bill that's being proposed? Maybe the answer is Idaho. You'll tell me that you'd approve of. Or is the idea, is your objection that basically, by and large, these bills are unnecessary because we already have the Constitution and we already have, you know, civil rights law. And so therefore they're unnecessary. I'm strongly I'm in favor of bills in state legislatures that have codified First Amendment protections.

sort of a belt and suspenders approach that we've seen. A number of state legislatures have passed free speech laws that essentially what they do is they get rid of things like speech codes.

So, you know, in Tennessee, we have a very robust free speech law that applies to college campuses. So what you're doing is sort of a belt and suspenders approach on the Constitution, on the First Amendment, because both the legislature and the courts have obligations to uphold and defend the Constitution. So the Idaho law is the closest thing that I have come to something that replicates constitutional protections, right?

These other laws do not do that. They do not replicate constitutional protections. What they do is they ban the expression of particular viewpoints. Now, in certain circumstances, that's going to be lawful because the relevant state employee doesn't have free speech rights in that context in the same way that other state employees do.

But when you're talking about most of these bills, what you're talking about is the ban of an expression of a particular viewpoint. And that is not what the Constitution requires. Do you guys see the debate over these particular bills as exemplifying the divide inside the

the world of the right, the Republican Party, the conservative movement between traditionalist, small L, liberal, libertarians like David, and maybe what some have called the new right, which to me, Chris, I see you as an emerging figure in that movement. Is that the right way to look at the debate over these bills? I mean, it depends on what the bill says. I mean, like that's critically important here, because if you're talking about

bill that all it does is codify the First Amendment or an element of the First Amendment then that's totally consistent with my long-standing approach to higher education and defending of free speech rights and higher education a long-standing approach to protecting the First Amendment and secondary education but if the bill is going beyond the First Amendment to ban and prohibit a

the teaching of particular viewpoints in institutions that enjoy First Amendment protection and with people who enjoy First Amendment protection, then that's where I'm absolutely gonna depart. You know, when I think if you had to nail down a big difference between Chris and I, it's I want to hear the ideas of critical race theorists. I wanna hear them. I have learned from critical race theorists. I disagree with a lot of what they have to say. I don't disagree with all of what they have to say.

But the bottom line is in a marketplace of ideas dealing with incredibly complex problems in American life, I want to hear from them. I want to. And the idea that we're going to go out of our way to ban people from expressing those ideas in a way that's designed to get people to adopt those ideas, yikes. I'm never going to be on board with that. Yeah, I mean, no.

Not again, not my belief. I obviously want to hear from them. I've studied a lot of the work. I'm working on this. And I think that don't reject every piece of critical race theory. But I think at heart, it's an ideology that should be rejected. And I don't want to ban or prohibit anyone from expressing any of their ideas. But I would like to make a distinction between someone exercising their First Amendment rights as an individual citizen to express their ideas.

which is quite different from the idea that you are entitled to have the state subsidize that ideology, which is a principle that I reject wholeheartedly. But maybe this is the crux of the disagreement. You know, you want to hear from them. Chris says, I'm willing to hear from them, but let's not...

mince words, let's not delude ourselves. A big part of what they are up to is trying to erase, David, your ideas and make it look like there isn't a debate and make it seem like theirs is the only truth and in fact, the only morality. And therefore it is something closer to

indoctrination than a real debate. Oh, there's no question that there are elements of critical race theory that want to not hear from me. Absolutely. I mean, this is again, let's go back to the rise of the speech code. And, you know, one of the things about my litigation career is we plowed down these speech codes time and time and time again. At one point, the Foundation for Individual Rights and Education announced

with its speech code database, that about 80% of leading colleges and universities had a speech code in place. And a speech code is any code that would prohibit speech that is otherwise protected by the Constitution. By their most recent database, it's down to about 25% of colleges and universities, the leading colleges and universities have a clearly unconstitutional policy. So yeah, you know, one of the things that is really important is, yes, I want to hear

But also I'm going to defend absolutely my right to disagree. And any ideology, whether it comes from the right or the left, that is going to be diving in to say that there are certain ideas that I'm going to try to ban people from urging their adoption. I'm going to resist that. I'm going to resist that just as vigorously as I'm going to resist any effort to ban the ideas that I hold and the beliefs that I hold. I'd love it if we could end with something a little bit more personal.

In this moment where a lot of people are trying to fit us all into neat political categories and also neat racial categories.

You both come from racially mixed families. Chris, your children are biracial. David, you have a few children, one of them an adopted daughter who is black. And I guess I'm wondering if you could talk about how you guys are communicating with your children, especially your younger children, about everything that's happening in this moment, how they should think about their identities and how they should think about what it means to be American.

I try to with my kids, they're still young, but I try to just develop their individual potential to the greatest extent possible. You know, my kids are half Asian American and critical race theory in the policies that they support are explicitly anti-Asian and discriminatory in a policy driven way throughout the education system and elsewhere. So I just try to basically teach them who are you as an individual human being?

What is the potential and gift that you have and how can we cultivate it to the maximum ability? And, you know, my wife grew up in a deeply poor and dysfunctional slum of Thailand. She immigrated to this country and has been an enormous success that would never have been offered to her anywhere else in the world.

And so we both have an enormous gratitude for this country. We can understand where there are problems and things that need to be fixed, but ultimately we're believers in this system. And I think that the reforms that we might need have to come from within the fundamental values and beliefs of this country. And those are the things that we try to pass on to our kids. So we have a kind of a unique issue in that

My daughter has been exposed to quite explicit racism that she's experienced in her own life that she understands as racism and experiences as racism, including, you know, just comments and actions that are really just way, way over the line. And so we've had to work with her through those experiences, and it's very deeply wounding to her. And we haven't even scratched the surface of

of the hurricane of hate that was sent her direction during 2015, 2016. And so there's going to be a point in time where we're going to have to cross that bridge and we're going to have to deal with that. And that this just giant hurricane of hatred that came towards our family and directed directly at her, a child, a child from the hardcore alt-right. So we've got a kind of a unique problem on our hands. And I'll be honest,

I don't know all the ways to how to cross that bridge. I don't have it all figured out. I do have an enormous amount of confidence that we can provide for her a, not just a loving home, but an incredible amount of opportunity to succeed and flourish in this country. And that she is flourishing right now in a way that we're incredibly blessed by.

And all of those, so my basic point of view is I'm trying to say, what are all of those things that are helping her flourish? I want to double down on that. What are all of those things that have created the hatred and the obstacles? And I want to stand against that. So that's where I am right now. And this is hard stuff. Like it's hard stuff. You know, one thing I want to end on with this in our discussion with Chris and I, all of this stuff that we're talking about is hard.

It's not easy. There's not easy, obvious answers for this really deep-seated cultural and political and social problems that we've had over the course of the United States. And that's why these kinds of conversations that we've had are, I think, really important. They give people an opportunity to hear two competing good faith answers about how to work through all of this. And I think that that's really, really important. And, you know, we're in process on all of this. You know, Chris talks about the anti-Asian bias that we've seen emerge recently.

And hopefully the Supreme Court will take a case pretty soon that will deal with that. You know, it seems to me that a lot of the anti-Asian bias that we're dealing with not only violates the Equal Protection Clause of the Constitution, it violates Title VI, it violates Title VII. There's a lot of legal provisions that it stands against. And so, yeah, I think the bottom line is all of those things that contribute to the human flourishing of Chris's kids, of my kids, my youngest daughter,

i want to figure that out i want to double down on that all of those forces that have been unleashed that have resulted in the kinds of discrimination and hatred that she's faced i stand opposed to it it's an easy formulation to make it's a hard formulation to figure out it's a hard to figure out what has caused this how we can deal with it that's very difficult david chris

I just want to thank you guys so much. You both approach these topics, these difficult topics, I think, with a happy warrior mentality and with a lot of good faith. And I agree with David that we need more good faith conversations like this. So thank you so much for taking the time. Thank you. Thanks, Barry. Thank you.

David French is a senior editor at The Dispatch, one of the smartest and most popular newsletters on Substack. Chris Ruffo is a writer, a filmmaker, and a researcher, and you can find more from him at his website, ChristopherRuffo.com. Thanks for listening. We'll be back soon.