Arkansas HB1218 And HB1231: Flawed, Possibly Unconstitutional, But A Necessary Discussion

 I first became aware of Arkansas House Bills HB1218 and HB1231 when Arkansas Council for the Social Studies (ACSS) President Olivia Lewis posted an open letter to the state legislature regarding those bills:

(Sorry about the formatting, but I don't see an easy way to fix this at the moment.) Bill sponsor Mark Lowery (R-Maumelle) has said

“The intention is - so that students, especially K-12 that are captive, are not subjected to humiliation in terms of trying to make a statement about whether there is inequality or inequity and that's been happening in some of these programs using critical race theory,” said Lowery.

He added, the inspiration behind the bill is a certain classroom activity he claims is being taught in some Arkansas schools.

"One of the specific examples is what is called the privilege walk - where all the students start in one line and a number of questions are asked,” said Lowery. “Do you have two parents, do you parents own their home, take steps forward and what it does then - it gives this definition of showing which students are supposedly privileged and which ones are not."

So there's really two things going on here: the first is the use of the 1619 Project materials in classrooms (HB1231), and the second is teaching of the "social justice" approach to race relations (HB1218).

The Flawed, Tendentious 1619 Project

The 1619 Project has drawn numerous criticisms for its shoddy, motivated scholarship. In Cathy Young's able essay at The Bulwark, she wrote that despite "includ[ing] some indisputably excellent material" it amounts to "bad history and misrepresented facts". She goes on to attack central author and promoter Nikole Hannah-Jones for

...mak[ing] several claims that radically disparage the rest of the American narrative. She asserts, for instance, that “for the most part, black Americans fought back alone,” a casual erasure of decades of abolitionist activism. The problem isn’t that white people aren’t getting enough credit; it’s that Hannah-Jones’s assertion is simply not true (“for the most part” is doing some very heavy work in that sentence) and that it strips the history of black America of its legacy of interracial solidarity. Dismissing it in one throwaway sentence is both inaccurate and unconstructive.

The central flaw of 1619, though, is in Hannah-Jones' claim that the colonies principally fought for independence in order to continue the institution of slavery. Young systematically dismantles all of this, citing approving correspondence from Benjamin Franklin of "antislavery sentiment as far south as Virginia" (quoting historian David Waldstreicher), and the "monumental ruling by the Massachusetts Supreme Court in the Quock Walker cases." It's clear that Hannah-Jones rewrote history to fit her narrative, omitting inconvenient facts.

But perhaps more stinging — coming as it did from a New York Times colleague — is Bret Stephens' October 9 rebuke in the Opinion section. Journalists, he wrote, "are best when we try to tell truths with a lowercase t, following evidence in directions unseen, not the capital-T truth of a pre-established narrative in which inconvenient facts get discarded." Hannah-Jones went on a tweet-discarding rampage shortly before his essay was published, with the Times rewriting embarrassing online materials containing blatantly indefensible claims. Stephens declared Hannah-Jones' embrace of "[m]onocausality" a central flaw of the project:

The 1619 Project is a thesis in search of evidence, not the other way around. Nor was this fire from the right: Both [Princeton historian Sean] Wilentz and [Northwestern historian Leslie M.] Harris were at pains to emphasize their sympathy with the project’s moral aims.

Yet, aside from a one-word “clarification” issued in March — after months of public pressure, The Times conceded that only “some” colonists fought for independence primarily to defend slavery — the response of the magazine has been, in effect, “nothing to see here.” In a pair of lengthy editor’s notes, [NYT Magazine editor Jake] Silverstein has defended much of the scholarship in the project by citing another slate of historians to back him up. That’s one way of justifying the final product.

The larger problem is that The Times’s editors, however much background reading they might have done, are not in a position to adjudicate historical disputes. That should have been an additional reason for the 1619 Project to seek input from, and include contributions by, an intellectually diverse range of scholarly voices. Yet not only does the project choose a side, it also brooks no doubt.

All of which is to say, the 1619 Project is, in the end, mainly a piece of agitprop rather than a sober reflection of the causes of the American Revolution and the founding of our nation. How did we get to this point?

Critical Race Theory, Social Justice, And The Academy

The answer, of course, is the overwhelming influence of Critical Race Theory (CRT hereafter) on the 1619 Project, something James Lindsay wrote about in his review at New Discourses. This is part of the larger project of academic historical revisionism under the aegis of CRT, described in Lindsay's and Helen Pluckrose's 2020 book, Cynical Theories. Their chapter on CRT outlines the history of the intellectual movement, with postmodernist theory predominating from the mid-1990s onward.

For the applied postmodernists … the focus on discourses is primarily concerned with positionality — the idea that one's position within society, as determined by group identity, dictates how one understands the world and will be understood in it. …

[The] core tenets [as advocated in Critical Race Theory by Richard Delgado and Jean Stefancic] unambiguously assert what is going on in critical race Theory — racism is present everywhere and always, and persistently works against people of color, who are aware of this, and for the benefit of white people, who tend not to be, as is their privilege.

The point of all this is the rejection of Martin Luther King, Jr.'s "I have a dream" speech centered on character rather than identity. Instead, "[i]dentity politics restores the social significance of identity categories in order to valorize them as sources of empowerment and community". Influential Theorist Kimberlé Crenshaw "explicitly rejected universality in favor of group identity, at least in the political context in which she wrote…." The related concept of intersectionality binds up people in racial, sexual, sexual preference, immigration status, and religious categories (among others!) into a binary caste system of oppressed and oppressors based on (mainly) properties of birth. "Social Justice", Pluckrose and Lindsay continue, "in the contemporary sense is therefore markedly different from the activism for universal human rights that characterized the civil rights movements."

These movements arose in the academy, but have gained terrifying traction outside it. Propagated with every government "diversity" edict and department, university assistant dean, and corporate diversity officer, CRT is widespread, and expanding rapidly outwards. Journalist Christopher Rufo has documented a Bay Area elementary school forcing students to rank themselves according to "power and privilege", instances in San Diego and Seattle of browbeating white pupils for "spirit murdering" black and/or native American people, and a Springfield, Missouri middle school where teachers were required to "locate themselves on an 'oppression matrix'”. It's clear that CRT practitioners "see racism as omnipresent and eternal, which grants it a mythological status, like sin or depravity", according to Cynical Theories.

The Problem With HB1218 And HB1231

So to the supposed solutions, HB1218 and HB1231. Both are crude bans, which the courts largely have not supported in legislation. Julie Underwood's piece in The Phi Delta Kappan on the state of curriculum jurisprudence catalogs a number of cases:

States have some authority over curriculum as well, insofar as they often set minimum curricular requirements for school districts. However, the courts have ruled that this authority is bounded by the constraints set by both the federal and the given state’s constitution. For example: 

In Meyer v. Nebraska (U.S. 1923), the U.S. Supreme Court found a state law prohibiting foreign language instruction in any school to be unconstitutional under the Due Process Clause as it was against the interest of private school foreign language teachers’ need for employment and parents’ desire for their children to learn foreign languages. 

In Epperson v. Arkansas (U.S. 1968), an Arkansas statute that made the teaching of evolution in public schools illegal was held to be a violation of the Establishment Clause.  

Similarly, in Edwards v. Aguillard (U.S. 1987), the U.S. Supreme Court found a Louisiana statute, which required the “equal treatment” of evolution and creation science in state classrooms, to be unconstitutional.  

And in Gonzalez v. Douglas (D. Ariz. 2017), a federal District Court ruled that two Arizona curricular statutes banning ethnic studies courses were unconstitutional. The court found an Equal Protection violation in that there was evidence of racial animus in the creation of the statute, and it found Free Speech violations in that there was no legitimate pedagogical rationale behind the statute. 

Underwood concludes that "courts generally defer to educational decision makers, while preferring to expand, rather than contract, the body of knowledge presented within schools." This makes both proposed bills look vulnerable to a First Amendment challenge.

The Timing Problem, And The Discussion We Need To Have

Remember #GamerGate? It seems a century ago. Ken White wrote a very good piece on the subject, with much wider applicability. Particularly, his point about timing resonates:

If, immediately after the shooting of Michael Brown, I started a vigorous campaign calling on society to protect convenience-store clerks from assault, people would reasonably suspect that I had a political agenda related to the shooting, not a sincere concern for the welfare of convenience store clerks.

The ACSS open letter mainly talks in generalities: the importance of "exposure to different cultures, groups, and viewpoints while in a school setting", or concerns that "secondary interpretations of history from different perspectives" will suddenly be eliminated. What's missing from all of this is an explanation of the Critical Race Theory animating much of 1619, and some of the more disturbing aspects of CRT pedagogy in the news. It is as if the Council is not particularly interested in answering any of the real objections parents might have about why public schools would want to use such divisive, biased, and politically charged materials.

The First Amendment case against HB1218 and HB1231 would seem fairly clear, but it gets murkier once you start to look more closely at CRT. John McWhorter in 2015 wrote a fine piece about the religious nature of CRT, loaded as it is with unfalsifiable first principles, carrying "clergy, creed, and also even a conception of Original Sin". But unlike Christianity, CRT offers neither grace nor atonement. Instead, "Ritual 'acknowledgment' of White Privilege is, ultimately, for white people to feel less guilty." The point is to think the right things and say the right words  — in other words, indoctrination. As Epperson v. Arkansas ironically makes clear, religious instruction in the public schools is a no-no.

But even if the courts ruled against both bills, we cannot escape the cynical, malign intent of CRT and its progeny, antiracism. Dogmatic and intolerant, the stories of Maoist struggle sessions in even elementary schools make for disturbing reading. Even if you legitimately wanted to end racism — yes, it still exists — antiracist instruction will have the opposite effect. Bullying of this sort has no place in the schools, least of all by those charged with teaching.