Fighting the Good Fight

In November 2021, during a special legislative session to address redistricting and infrastructure, the North Dakota Legislative Assembly passed House Bill 1508 banning the teaching of critical race theory in public schools.

Commenting on this new law, a local public school district superintendent described racism as “the project of the godless Democrat party that has rejected god, family, faith and America.” He added, “We will not teach institutionalized bigotry promoted by the left.”

This is but one example of the wave of anti-CRT legislation that Ellen Schrecker, a professor emeritus of history at Yeshiva University, has called “the new McCarthyism.”

As a concerned private citizen and mother of a preschooler, I have written emails to legislators and published letters to the editor in The Forum, the major regional newspaper in Fargo, N.D., opposing the legislation.

As a faculty member at North Dakota State University, I have been interviewed about the law’s implications for academic freedom.

As part of the Faculty Senate executive team, I collaborated on our Faculty Senate’s Resolution on Defending Academic Freedom to Teach About Race and Gender Justice, and Critical Race Theory, which passed overwhelmingly in February 2022. This resolution was based on a very helpful template resolution developed by Valerie Johnson (of DePaul University), Jennifer Ruth (of Portland State University) and Emily Houh (of the University of Cincinnati), which reiterates the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure and affirms the Joint Statement on Legislative Efforts to Restrict Education about Racism.

Finally, as a teacher of cultural theory, I stress the importance of learning about systemic racism to my English education students, many of whom are training to become public school teachers and will be directly impacted by HB 1508.

The anti-CRT legislation, “relating to prohibiting the teaching of critical race theory in public schools,” was hastily added to the North Dakota Century Code and made effective immediately. It tasks each school district and public school to “ensure instruction of its curriculum is factual, [and] objective” and mandates that there can be no “instruction relating to critical race theory” in the curriculum.

CRT is defined in the legislation as “the theory that racism is not merely the product of learned individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality.” This definition conveniently leaves out the fact that CRT, as any critical theory, means to expose injustice in order to effect change, being, as per the American Bar Association, “a practice of interrogating the role of race and racism in society” (my emphasis).

HB 1508 passed along party lines in a state with a Republican supermajority; only two House Republicans voted against it (one of them died a month later). During the debate over the bill, legislators variously admitted that public schools “may not” have been teaching CRT and that the fear and outrage “was manufactured”—but they still voted to ban it, to ensure that it continues not to be taught. Senator Erin Oban, a Democrat, spoke against the bill, calling it “not serious policy” and also asserting, “It’s a red herring. It’s the definition of culture wars.”

The state teachers’ union, North Dakota United, argued that critical race theory is not being taught in public schools; in a July 2021 blog post, the union’s president characterized CRT as “a construct of higher education, specifically law schools.” But this approach to opposing anti-CRT legislation by claiming it is only taught in law schools has not proven effective. I would also argue that it’s just plain gaslighting.

Critical race theory informs antiracist pedagogy and is part of the National Council of Teachers of English’s 2021 guidelines for the teaching of English Language Arts to secondary school students. According to Standard 1 of these revised guidelines for initial licensure, candidates must “foster inclusive learning environments that support coherent, relevant, standards-aligned, differentiated, and antiracist/antibias instruction to engage grade 7-12 learners in ELA.”

“Antiracist/antibias ELA” is featured in Standard 2, pertaining to content knowledge; in Standard 3, pertaining to instruction and assessment; and in Standard 4, pertaining to motivating and engaging learners. Moreover, the standards note that “the term antibias is added to antiracist to make clear … that discrimination in any form is the concern of future English teachers and those who work to prepare them.”

According to the NCTE’s statement on antiracism, originally written in 2007 and revised in 2018, “Racism in America is the systematic mistreatment and disenfranchisement of people of color who currently and historically possess less power and privilege than white Americans … Racism, then, and other forms of discrimination continue to be a part of American society, continuing to affect all students and their education.”

Notice the word “systematic” in describing “maltreatment and disenfranchisement” of BIPOC communities, both current and historical. How can you teach history in a “factual, objective” way, to use the misleading language of HB 1508, without teaching the objective fact of systemic racism? That’s not history; that’s alternative facts. This is why, as someone who teaches English education students, I insist that we must not cower before legislative pressure and instead must double down on teaching CRT.

But how might we convince hostile legislators of CRT’s importance? The most obvious and commonly employed path is to defend academic freedom. When a reporter from the Fargo Forum reached out to me for an interview regarding the passing of HB 1508, I readily agreed because I saw this K-12 bill as laying the foundation for an imminent attack on academic freedom in higher education, opening the door to other topics legislators don’t like. If this law were expanded to colleges and universities, it could “adversely affect academic freedom,” I told the reporter. “If we do not have the freedom to do that [discuss and challenge ideas], we are effectively living in a police state.”

Academic freedom, the freedom to think critically and discuss “divisive” concepts, is not just limited to the classroom; it helps educate citizens who can then actively participate in democracy. This is why antiracist/antibias pedagogies are so integral and the insistence that CRT is not taught outside law schools is so blatantly false. Although “no public universities or colleges in the state have degree programs for critical race theory,” as that Forum article notes, and may not feature courses exclusively “dedicated to or mentioning critical race theory,” classes in the North Dakota university system do engage with race, systemic racism and the various ways in which race intersects with other forms of oppression.

Another strategy for opposing anti-CRT legislation—one which the ethnic studies scholar Timothy Messer-Kruse has argued for—is appealing to accreditation.

As Messer-Kruse outlined in an article in The Chronicle of Higher Education, the passage of Ohio’s House Bill 327 was apparently stalled when the Inter-University Council of Ohio, the lobbying arm of the state’s 14 public colleges and universities, sent a letter to the legislators warning that HB 327 could have “many unintended consequences” for accreditation by bodies like the Higher Learning Commission. HB 327 would have prohibited any “state institution of higher education” from “teaching … divisive concepts.”

Under Criterion 2, Integrity: Ethical and Responsible Conduct, the HLC requires that a university be “committed to academic freedom” and that its “governing board preserve its independence from undue influence on the part of donors, elected officials, ownership interests, or other external parties.”

The old adage—“it’s the economy, stupid” (or rather, “it’s accreditation, stupid”)—might work on legislators immune to appeals to free speech.

North Dakota lawmakers may or may not introduce an anti-CRT bill for higher ed when the state Legislature meets in 2023, but such efforts are well under way across the nation. In March 2022, South Dakota governor Kristi Noem signed a bill into law that bans CRT from orientation and training programs in colleges and universities. The original bill was meant to ban the teaching of CRT, as well, but it was heavily amended so as not to obviously violate academic freedom. However, preventing CRT from being part of trainings and orientation sessions may still have a chilling effect on the curriculum. The irony is lost on Noem, who stated, “College should remain a place where freedom of thought and expression are encouraged, not stifled by political agendas”—because banning ideas that do not uphold her political agenda somehow doesn’t amount to “stifling.”

The freedom to teach about gender, sexuality and critical race theory is under attack. I would say, “We’re not in Kansas anymore,” but at least the governor of Kansas had the foresight to veto Senate Bill 58, the controversial so-called parents’ bill of rights, which would have given parents the right to inspect and review curricula, allowing them to withdraw their children from activities that violate “their firmly held beliefs, values or principles.”

Here in North Dakota, Representative Jim Kasper, one of the lawmakers who sponsored HB 1508, recently commented—in a spectacular admission of ignorant and irresponsible lawmaking—“A lot of us don’t know what we don’t know. When I put the bill together I didn’t know a whole lot about critical race theory, I just knew what I heard on the radio and on TV.”

He added, “We have critical race theory all over our state, but it is hidden. I want to put some teeth into that bill.”

Is there anything we can do to stop this juggernaut? Yes. Will it change things? Probably not that much. But the bottom line is that we need to do what we do best: educate our students, their friends, parents, relatives and other members of our communities, as well as the individuals whom these communities have elected to represent their interests in state assemblies. Because what’s our other choice?