Dissenting Opinions

Life of the Mind

Episode Summary

In episode 5 of Deep Dive into Critical Race Theory, Will and Khiara discuss the implications of critical race theory interacts on education. They start with critical race theory and K-12 education, including some surprising arguments about Brown v. Board of Education. Then they graduate to affirmative action in college admissions. They also discuss what makes CRT "radical" and what true educational "utopia" would look like.

Episode Transcription

[Dissenting Opinions theme]

Will: Welcome to Season 2 of Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Baude, and you're listening to a special series we're calling Deep Dive, where a guest and I will take a deep dive into a legal topic. This series will be me and Berkeley Law Professor, Khiara Bridges, talking about critical race theory. Without further ado, let's deep dive into critical race theory.

Okay, well, I'm so glad that you're back and we're going to continue our conversations. I feel so far, we've had a lot of more abstract conversations, which seem appropriate, because critical race theory is a theory, and we've talked about what that is and how it works, and I've already learned a lot. But I feel it'll help everybody, me maybe most of all, if we also talk about consequences and implications of what this means in the world.

Khiara: Great. Sounds fun. [laughs] 

Will: I'll say now, I'm assuming, I'll just grant you that, of course, there's not one critical race theory policy playbook for every policy topic we'll talk about.

Khiara: Right. [laughs] And also, I'll just say I'll do my best, because my expertise is in the realm of reproductive justice, constitutional law, antidiscrimination law. So, some of these topics that you might want to ask me about might be outside of my wheelhouse. So, I'll do my best in terms of thinking about what a critical race theoretical analysis of those issues might be.

Will: Yeah, totally fair. This is partly just getting a sense of the lay of the land. Maybe we'll start something, I don't know, how-- Well, I don't know anything about we're going to think about it. But I want everyone to start with one place that just comes up a lot, which is education. Higher education, elementary education, early education, I guess it's just a range of obvious hot button debates about race in college admissions and lower school admissions, and so on. What happens we think about this through our critical lens?

Khiara: I'll tell you that critical race theorists have spent a lot of time applying critical race theory to these questions. I can tell you what folks have written, what they thought about when thinking about the field of education, and what examining that would look like from a critical lens. Let's start K-12, shall we? I think [chuckles] the media attention that critical race theory has received in the last year, I think it's important just to reiterate, and I know the audience knows this already, but critical race theory is not taught [laughs] in K-12 schools simply because it is an advanced legal theory that the average 5- to what is that, 18-year-old wouldn't be ready to understand. 

That being said, critical race theorists have thought about K-12 schools. Critical race theory in education tends to mean what will it look like to apply critical race theory to thinking about our educational systems. And so, I guess, I'll begin just by saying-- Starting with Derrick Bell, we’ve talked about already that critical race theory is a response to the perceived limitations of your traditional civil rights discourse. And the traditional civil rights discourse, this traditional civil rights program was to integrate these schools, get black kids and white kids in the same classrooms, and then racial justice would be achieved. 

And so, Derrick Bell wrote against that received wisdom. He challenged that received wisdom by saying, “Maybe it wasn't the goal of the black parents to just have their kids sit next to white kids,” especially in light of the fact that the schools in which their black children will be learning were hostile environments. We've all seen images of kids having to run the gauntlet in order to just get into the school building. And so, Derrick Bell said, “Maybe the goal of integrating schools was not actually the goal of people on the ground, but rather, was the goal of the civil rights lawyers that were doing the litigating and the goal of the organizations that were funding the litigation.” And so, Derrick Bell wrote that. 

Perhaps, all black parents wanted was adequate schools. They wanted funding for their schools. They wanted teachers to have adequate wages so that they could teach their kids. And so, if that is the goal of the parents of these black children, then integration isn't like the be-all-and-end-all, but rather we might very controversially propose that racial justice might actually look like functionally segregated schools, but at least, they would be fiscally and physical plan-- like the equality. There will be equality in terms of funding as well as the quality of the physical schools and the quality of the education that was being provided inside of the school. So, that is what one critical race theorist has written about K-12 schools and what exactly racial justice looks like.

Will: I taught some of these articles by him-- well, it's really the first time I read them more than extremely casually or naïvely. I guess [laughs] I was shocked. Yeah, I knew vaguely what Derrick Bell was about and the kinds of critiques he had, but I was shocked to see him so forthrightly in a way criticizing, I guess, what uncritical race theory takes, that's just like the crowning jewel of the fight for racial justice like school desegregation.

Khiara: Yeah. When people say critical race theory, it's radical. [laughs] That's what they're talking about. It's radical in the sense that in some cases, it rejects the standard liberal position on things.

Will: Yeah. It's not that Derrick Bell or people who share that argument think, it's not they thought segregation was good. They're not pro-racial segregation.

Khiara: [laughs] 

Will: The point is just that the desegregation movement was not really going to solve the real problem and maybe going to misleadingly focus on something that wasn't where people should focus. Is that--?

Khiara: Yeah, I think that's more accurate. I've never read Derrick Bell or anyone who agrees with him to argue in favor of segregated schools, like black kids are just better off being around black kids and white kids are just better off. That's not what his argument was at all. Instead, the argument was, "Let's look at this thing on the ground. [chuckles] Let's look at what integration looks like on the ground." On the ground, it looks like a whole bunch of hostile white parents, who don't want their kids to be bused outside of their neighborhood. It looks like a whole bunch of hostility when these formally white schools, white by law schools were integrated with black children are now being asked to attend these schools. It looks like hostility from teachers, who don't want to teach these black kids.

And then, if we look at educational outcomes, we know what to expect. When you are in an environment that is hostile, you don't do your best and so, the learning outcomes of black children trying to get an education in these formerly segregated white schools, they're just lamentable. And so, on the ground, in theory, integration is awesome, according to Derrick Bell. But on the ground, it looks like black kids might be better off if we did not attempt to move them into these white schools. Perhaps, we might have redirected our focus to just making sure that the schools that black kids attended were adequate. And more than adequate, they were equal to the schools that their white counterparts were attending.

Will: Yeah. Is there a theory for why there would be this mismatch? Thurgood Marshall, is the theory that he doesn't actually have the best interests of other black people at heart or is the theory just that he's misguided, because he doesn't live on the ground or that he's making some trade off like this is going to help something else?

Khiara: Yeah, what's the theory behind it? I think there's definitely a sense that there was a disconnect between the lawyers representing the families and the families themselves in the sense that the lawyers-- The families weren't paying the lawyers. [chuckles] The lawyers were being funded by the funders, the wealthy funders, be they white or black, who did not have a real sense of what black folks' lives look like on the ground. And so, the idea is that those wealthy funders wanted integration, because integration sounds great. It looks great on paper. But on the ground, they did not know what was happening. And so, if they had been a little bit more in tune to what was happening, then they might have redirected their focus and reimagined their goals.

Will: Yeah, I guess, now that you say all this, of course, I remember also these stories about the Cold War imperative for disintegration, all these kind of arguments from, I guess, white elites about why they supported desegregation that weren't even necessarily about the welfare of the black people being desegregated.

Khiara: Right. I think it's more than the Cold War. This is also Derrick Bell's scholarship, where he writes that we achieved formal equality and integration nominally of schools and public spaces not because elites had a change of heart, they engaged in some moral education and decided that segregation was wrong. But rather, it was in the interest of the US to abandon its formal caste system in light of the conflict we were having on the world stage with the USSR and battling for world dominance. And so, you had these formerly colonized nations in Africa and elsewhere having to pick a side. Do we side with the USSR on one hand, or do we side with it with the US? The integration imperative developed because it's good publicity. It was good PR to abandon a formal caste system and achieve what our constitution has always promised, which is liberty, and equality, and justice for all. [chuckles]

Will: Or, at least, I guess, appeared to achieve it would be the worry. 

Khiara: Right. It's an aspiration. Aspirationally contained in our founding documents.

Will: Does this-- I guess we're thinking about just the Bell view, even still have implications today? All the time for every educational institution I know of, somewhere, I usually find the statistics, unless the school is really embarrassed by them, about the racial makeup of the people at the school and every school wants better statistics in some way or another. I guess the Bell thesis says this is still making the same mistake. What we really want to know is how much does your school involve how people from different colors are sitting in the same room, you want to know who's actually getting educational benefits from the school, who's getting a good education, whatever that is.

Khiara: I think the Bell view, what's happening today and say, well, it looks like your experiment with integrated didn’t work out so well in light of the fact that this statistic and this fact is trotted out that schools are about as segregated today as they were in 1954, when the decision of Brown v. Board was first handed down. It hasn't worked in terms of just physically moving bodies into the same classrooms. And then, second question would be precisely what you raised, which is-- In integrated schools or in schools where kids of different races are learning next to one another, who is really benefiting from that?

Again, this actually is not my area of expertise, but if you read some of the literature from critical race theorists and others, they will talk about how we have these separate tracks in schools. Kids of color tend to be just put on the low track, the slow learning track, while kids with privilege get to be on the fast track. They get to take the AP classes and the honors classes. And then, part of the literature talks about how kids with disabilities are identified in schools and the distinction between having a learning disability and an intellectual disability. Learning disability means that you're incredibly intelligent. It's just that you have some sort of obstacles to accessing information or maybe even retaining information. Meanwhile, intellectual disability means that, “Mm, you're not as intelligent. Your box is smaller.” Kids with learning disability have huge boxes. They just need to figure out how to put stuff in it. Meanwhile, kids with intellectual disabilities have small boxes. Their capabilities are fewer.

And then, if you look at the statistics, black kids tend to be identified as having intellectual disabilities at rates that outstrip white kids who tend to be identified as having learning disabilities. These are very subjective measures of determining whether somebody has an intellectual disability versus whether someone has a learning disability. You can't draw blood, and write an essay on the blood, and figure out whether there's a learning disability or intellectual disability. So, these are subjective determinations and it just so happens that black kids get deemed to have intellectual disabilities, while their white counterparts are identified as having learning disabilities. 

And so, the Bell view would say, “Ah, isn't that interesting? Could it be something about the environment than the people who are evaluating this kids that explains why black kids just are deemed to be less intelligent as their white counterparts?" Those are the questions that the Bell view, I think, would ask. The solutions is an opportunity for me to repeat, critical race theory is a heterogeneous bunch and some might propose a solution that is in stark disagreement with another critical race theorist's solution. But we're really good at identifying problems.


Khiara: We are less good at arriving at a consensus on how to solve this problem.

Will: Yeah. I don’t know, this part of the critique, obviously, again, heterogeneity and all that, is there an anti-Bell critical race theory view, not just the ordinary race theory view? But I would say, “No, no, no, Brown was good, desegregation was good, maybe it's still bad that we haven't lived up to it.” But getting those rooms not to be all black and all white, that's important in and of itself and Bell misses why that's important. Is that a view? 

Khiara: I tend to have that view. 

Will: Yeah.

Khiara: I both identify as a critical race theorist, and I tend to think that integration is the goal. And so, in my view, when I wear my critical race theory hat, and I put on my critical race theory glasses, and I use that lens to imagine solutions, the solution would be to make the environment less hostile and to remove the biases, the lenses, whatever it is that's causing teachers or others, who are evaluating kids, remove that bias that makes them think there's something about black kids that's just not as intelligent as white kids who have tons of potential.

I think that I understand why some would throw up their hands and say, “This experiment has failed and let's just get black kids into black environments with black teachers and black evaluators and makes sure we have lots of money," and I bet you that learning outcomes would improve. I understand why somebody might throw their hands up and say that. But a part of me feels sad about that solution. I feel really sad about it, and I would want to be invested in figuring out a way to make this experiment with integration work.

Will: Yeah. This goes to something we talked about earlier, which I'm struck by again. It seems there's a version of a sad critical race theory and an optimistic critical race theory. [laughs] 

Khiara: Right. [laughs] 

Will: This goes with the same insights but be spun in different directions.

Khiara: Yeah, I think so, I think so. I tend to be more optimistic than perhaps some folks who are writing within the critical race theory umbrella. But I'm optimistic, but also, I have my priors. There's something that makes me sad about segregation or something that makes me sad about thinking the solution to our race problem is to separate, or at least do it during the formative years. Yes, so I think I have my commitments, I have my assumptions, and those are based on my upbringing.

I went to incredibly hostile all-white schools K-12. Part of me wants to imagine an alternative that doesn't just concede or assume that white and black kids or white and nonwhite kids can ever be in an environment together and achieve equally.

Will: Yeah. the questions get different when we think about colleges and universities, and are they different for different kinds of colleges and universities.

Khiara: Yeah, no, I would say that the questions that critical race theory has asked, they have been different in the college and university space. When critical race theory had been applied to the issue of colleges and university, it tends to ask about affirmative action. There is a myriad of other questions that we might be asking about colleges and university, but that tends to be the one that's probably most salient to me, because I've actually written about it [laughs] [crosstalk] [laughs] 

Will: Yeah, and what do you say?

Khiara: Yeah, it's funny. Maybe because I have written about it, I just feel uncontestable [laughs] that we've made decisions about what qualifies as a qualification. We've made decisions around what merit looks like. The standards at which we have arrived are not all that great at identifying who will and will not succeed in these spaces and in colleges and universities and in elite colleges and universities. It just so happens that those standards or definitions of merit are such that people of color tend to be less meritorious than their white counterparts. And so, that seems to me like a great invitation to reimagine what qualifies as a qualification, what is identified as having merit [crosstalk] being not meritorious.

Will: Is this we're thinking about the LSAT and other abstract tests? We are thinking about the college essay, where you talk about going to Guatemala and how it taught you about love or whatever-- [crosstalk] 

Khiara: [laughs] Right. We are all-- [crosstalk] 

Will: I didn't go to Guatemala while was in high school. 

Khiara: [laughs] Yeah.

Will: My college essay was really dumb.

Khiara: That sort of stuff. The standardized testing, a lot of folks have written about that. There's pretty good evidence to show that. For example, we both know a lot of law schools, the LSAT is pretty good at identifying who's going to do well in their first year, when L grades are less good at identifying who's going to be a good lawyer, and what their career is going to look like, who's going to excel just in terms of the practice of law or whatever you decide to do with law. And then, beyond standardized testing, precisely what you've talked about, so being able to write an essay where you talk about how you've traveled to six continents and learned two other languages during your travel, and done all of this community service and volunteering, and all of that is awesome, but it's also a pretty good indication of privilege, class privilege specifically, because while kids who are wealthier don't have the necessity of working after high school. School ends for the day, or caring for siblings, or a parent, or a community member after school. Kids with privilege can go might be a cheerleader and then do the debate team, and then serve food at the local pantry. So, the things that we think of as merits tend to just be the trappings of class privilege. 

Actually, that reminds me to mention that there's a close correlation between the standardized test score that a student receives and their family's wealth. It's like the more wealth your family has, not even just like income, your parents' income is interesting and all that, but the wealth that your family has a positive relationship to your score on a standardized test. So, it appears that the way that we've defined merit does an amazing job of identifying who is privileged as opposed to who's actually going to succeed.

Will: I'm curious. We've talked about both race and class privilege, which is, of course, another one of these 50-year-old debates in college affirmative action. I don't know, how do you think about those separately? Because the one standard belief is that maybe the Supreme Court is going to say in the next few years or next year.

Khiara: Next term maybe? [laughs] 

Will: [unintelligible [00:23:23] engage in race-based affirmative action and so then there'll be this turn to, “Okay, well, we'll engage in class-based affirmative action”? Is that better because that's getting at the thing you're really talking about? Is that worse? Is that neither better nor worse?

Khiara: Yeah. I've actually written on this question. It was a long time ago. So, might be a little-- [laughs] 

Will: I will hold you to it. 

Khiara: [laughs] Well, the first thing to observe is that we have to have a very nuanced definition of class if we engage in something called class-based affirmative action as an alternative to race-based affirmative action. What I mentioned before about wealth, black families have a fraction of the wealth that white families do, even when they have higher incomes. You look at a black family where the income of the household heads is $150,000 a year, you look at a white family, where the income of the household heads combined is $150,000 a year, the white family is going to have more wealth than the black family and that's because we have inherited disadvantage and advantage.

So, even if you do this class-based affirmative action thing, actually, the point of that was to say simply because a black person has some degree of class privilege, it doesn't mean that they have the same degree of class privilege as their white counterparts. And so, I think it's probably inaccurate to just draw this binary between privileged and unprivileged. If we reject the binary and say that there are degrees of privileged and unprivileged, is a class-privileged black person really privileged? Might they be unprivileged in some very important respects that your class-based affirmative action program might want to pick up on?

The second thing is that we can't collapse race unprivilege into class unprivilege in the sense of race operates independently of class in a lot of respects. And so, when you look at a poor white family and a poor black family, and let's just say, it's a pure class-based affirmative action program, the white family, the white kid is going to have higher standardized test scores. They're going to be much more likely to have the traditional indications of merit. They will be able to have volunteered somewhere, they will have some life experience that evaluators think is valuable. That's simply because even though they're unprivileged by virtue of class, they have privilege by virtue of race. All things being equal, you look at a poor white kid and a poor black kid, the poor white kid is going to actually have higher standardized test scores and higher grades than the poor black kid. Studies have established that.

Obscure class-based affirmative action program will not-- Unless it's very well done, and people have thought about this much more than I have, it's just going to have the effect of letting into these institutions for white kids and leaving out the poor kids of color. And so, it wouldn't actually achieve, racial integration. It will achieve socioeconomic status integration, which I think our institutions desperately need. Those things aren't mutually exclusive. I think that we can pursue both. We shouldn't be forced to choose one over the other.

Will: I guess, this brings us back around for a second to Derrick Bell and the reconceptualization of merit. One, the standard path these battles for integration and affirmative action take is Harvard and Yale, and then everybody else following their footsteps needs to let in more black applicants than they are now, and they need to realize that their conceptions of merit are wrong or whatever it is, and sort of reconceptualize everybody. The other version, of course, it'd be to say, who cares about Harvard?

Khiara: [laughs] 

Will: We just take this critique, recognize Harvard's admissions criteria are not necessarily reflecting the thing we really care about and that there are other schools that are. Maybe that looks more like recognizing that, “Yeah, we could solve the problem by taking as fixed, what are the best institutions and trying to make them do we want?” Or, we could just say, “Well, maybe those are not the best institutions, and we should recognize the value of other schools that are maybe admitting and educating in a different way.” 

Khiara: Yeah, I like it. The problem is that when we say, “Who cares about Harvard?”, many, many, many people care about Harvard.

Will: Right. 

Khiara: This is at the front of mind, Ketanji Brown Jackson's confirmation hearings are happening as we record this, this week. And so, with all of these debates rolling about, “Oh, Joe Biden said he wanted to appoint a black woman,” and “Oh, that's affirmative action,” and “Oh, she's not qualified.” So many times, I've seen people say, "But she went to Harvard. [chuckles] She went to Harvard undergrad and Harvard Law School. She's qualified." You and I, and I think we should definitely work towards a world in which, who cares about Harvard. Harvard is just one of about thousand institutions that are well regarded and are pathways to the hallways of power, and we should definitely work towards that world. But in the world that we're living now, Harvard is the trump card. You say you went to Harvard, and you've established your credentials.

It's so interesting when I think-- and I apologize if this is so ripped from the headlines, but I'm actually thinking about it a lot. Amy Coney Barrett went to Notre Dame, which is a phenomenal school. It's a phenomenal law school. I wonder what conversations we will be having about Ketanji Brown Jackson's qualifications if she went to Notre Dame. I just think that we have to-- To a certain extent, critical race theory is very interested in imagining the world that we want, but I think that we ought to pay attention to the world in which we live. When schools like Harvard, and Yale, and Stanford, and Chicago are pathways to positions of power in society, we can't just throw our hands up and say, “That's just the way those schools are going to do it. Let's work to make sure that every other school has different values around what's important in a student.”

Will: This all sounds very practical, and I may even agree with it, but it doesn't sound as critical as-- You might have thought, “Okay. There are these seven places that are the gatekeepers to the halls of power, and they are in various ways insufficiently inclusive and maybe racist about getting access to the halls of power.”

Khiara: Right.

Will: What is the critical race approach? Is it to try to break into the halls of power and tried the same pipeline that other people have tried or is it to break down the wall, go around the door, find some other way to power? 

Khiara: Right. 

Will: It's interesting that everybody seems to pursue the first.

Khiara: Right. I think it's both ends. Again, I love your framing of it. I think that one can take a critical race theoretical lens and say, “Let's get some more folks inside of Harvard.” And also, let me be clear that critical race theorists, for as long as I have been alive, I remember being in law school and reading Charles Lawrence's article just talking about-- It makes him uncomfortable to be a champion of affirmative action, because he knows that being a champion of affirmative action means that we're giving legitimacy to the way that we've always done these things and we’re shoring up the legitimacy of these institutions that are still exclusive even when they let in 10 to 15 black students a year. 

I want to be clear that a lot of critical race theorists are very much aware of the irony involved in championing, making these institutions more inclusive as opposed to working on ways around the institutions. But I think that one can be a critical race theorist and believe that-- Harvard's been around longer than my grandparents. If this is a feature of our society, how can we work with it? And then, of course, there are other critical race theorists that are like, “Well, Harvard is stupid and actually, so is law school.” [laughs] Yeah, so, I don't think those things are mutually exclusive at all. 

I do want to mention though that one thing that has given me-- [laughs] that has made me feel less awkward in taking positions where I'm arguing that Harvard should become more heterogenous in terms of both class and race in its student body is that there is something that happens when people from groups that have been formally excluded or formerly excluded from these institutions gain access to these institutions. And so, it's less about diversity and inclusion, just including formally excluded people into these institutions, the people change the institutions. 

I'm thinking of all of the conversations and demands that we're having now around the curriculum in law school, the first-year curriculum. Why are we learning contracts, and torts, and civ pro, and property in our first year? What makes that so important that it needs to be the foundation of your legal education? It's like that curriculum was created during a time, again, of the formal and former exclusion of historically disadvantaged groups. So, when these kids get into these schools, they start unsettling the things that were once settled and that changes the institution.

If we think of it that way, Harvard today just wants to let in people with perfect SAT scores, and perfect GPAs, and also the debate team captain, and blah, blah, blah. And then, once those kids who are formally excluded kind of change the institution from the from the inside, then perhaps their criteria of what matters in a student will change as well.

Will: Yeah, and this seems like an empirical gamble again between will the people change institution, or the institution change the people?

Khiara: Right.

Will: Because I think you also see people who went to college thinking they were agents of change and then discovered that they just wanted to fit in and became investment bankers, or corporate lawyers, or whatever the mainstream path is.

Khiara: Yeah, institutional socialization is a real thing. I went to law school myself. I was like, “Man, healthcare's weird and it's weird that black people die earlier and are sicker, and I'm going to do something about healthcare, social justice, activist healthcare.” And my first job, [laughs] well, let's just say I had an offer from a big New York City law firm. I was headed there until somebody told me, “How about becoming a law professor?” So, yes, these institutions can change people and I think frequently they do change people. But I have seen so much agitation around-- Yeah, because the first-year curriculum that just was nonexistent when I was in law school a couple of decades ago and I would like to attribute that to just the fact of kids from historically marginalized groups being inside of these institutions and shaking them up from the inside, and I apologize I called them kids. 


Will: I feel old too.

Khiara: Yes. [laughs] 


Will: Thanks, Khiara. For updates on future episodes, follow us on Twitter @uchicagoconlaw. Make sure to subscribe, rate, and comment wherever you get your podcasts. This deep dive into Critical Race Theory was recorded in one big session. So, if the conversation jumps quickly, that's why. Stay tuned for new episodes out every Monday and Thursday.


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