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So to Speak podcast transcript: Banning critical race theory

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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast, where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino. You all have asked, I have listened: we are finally going to cover the critical race theory divisive concept bills that have been marching across the nation for the better part of last year and into this year.

And to do so, I’ve got a returning guest to the show. Many of you are hopefully familiar with him: Joe Cohn. He is, of course, FIRE’s legislative and policy director. A past guest. Joe, welcome back.

Joe Cohn: Thank you for having me, Nico.

Nico: And then, I also have, by popular request from one of our guests, who couldn’t join us today, unfortunately: Max Eden, who is a research fellow at the American Enterprise Institute and the director of its Conservative Education Reform Network.

Max, welcome onto the show for the first time.

Max Eden: Yes, thanks so much for having me, Joe. Great fan and admirer of the work of FIRE when it comes to trying to host unfiltered, uncensored conversations about sensitive issues.

Nico: Well, that’s what we’re hoping to do here today.

So, these divisive concepts – inherently divisive concepts – often more colloquially known as “critical race theory bills” have been propping up – popping up, I should say – across the country since early last year; maybe late 2020. I live here in Virginia, and Governor Glenn Youngkin was just sworn in this past weekend. And one of his first acts was to issue an executive order essentially taking the first step to “end the use of inherently divisive concepts, including critical race theory in K through 12 public education.”

Max, my understanding is you’re a supporter, broadly speaking, of these efforts and these executive orders. What’s the underlying problem you’re seeing that you think these bills address?

Max: Yeah. I might take a step back first and ask, “What’s the precipitating kind of legal cause for this state-level reaction, which is frequently kind of politically labelled a backlash?” Right? And the way that I see it is that this is a state-level reaction to the federal government refusing to equally enforce the equal protections inherent in the civil rights act, which was an attempt to shore up the equal production clause of the 14th Amendment, right? But we saw over the course of 100 years after that 14th Amendment was passed that states were not making good on the promise of equal protection.

And because we saw so eminently, plainly, and clearly that states were not equally protecting their citizens, the Civil Rights Act was passed to make that into a federally protected, federally enforced issue. Unfortunately, what we’ve seen over the past five years – an accelerating form over the past year – is that the federal government is no longer equally enforcing the Civil Rights Act.

Back in 2015, the Obama Department of Education’s Office for Civil Rights investigated a school district – it might’ve been Evanston. I’m not quite sure which, actually – and said, “Hey, you can’t segregate students by race. And you can’t send racially-coded messages of supremacy and inferiority by race. That’s plainly illegal under the Civil Rights Act.

Basically, the first thing that the Biden Office of Civil Rights did was to do what might’ve been…entirely historically unprecedented, which is they suspended a decision made by the previous OCR. And that decision that they suspended said, basically, you can’t segregate students by race, and you can’t broadcast messages of race essentialism as truth students. And so –


Nico: Was that the Trump Whitehouse’s executive order on combating race and sex stereotyping?

Max: It was downstream of that. There was an OCR decision that was kind of made in that spirit, which, to my mind – and it’s…interesting [inaudible] [00:04:26] the recording on Martin Luther King Day. To my mind, that’s the spirit of the Civil Rights Act. And the spirit of the 14th Amendment.

But it’s not the spirit of equity. The spirit of equity, as kind of implicitly declared by the Biden Department Office of Civil Rights, says that you kind of can and perhaps should discriminate by race as long as you’re engaging in anti-racist discrimination. Which, under the Kendian dispensation, is that the remedy to past discrimination is present discrimination; remedy to present discrimination is future discrimination until we get to equal outcomes.

So, when –


Nico: And when you say “Kendian,” you mean Ibrahim Kendi, author of…what was his famous book?


Max: Yes. “How to Be an Antiracist,” which has kind of…warmed over, popularized critical race theory that he denies is critical race theory even as he says that it’s foundational to his thought, which it is. And so, what we’re seeing from a legal perspective – and I’ll stop in a second; sorry for going out a little bit to set things up, but –


Nico: No, this is important background. I appreciate it, Max.

Max: …But what we’re seeing from a legal perspective is a sense that the Office for Civil Rights has been, essentially, colonized by the critical race theory project, which was to use the apparatus of civil rights to undermine the written rule of civil rights under the thesis that the Civil Rights Act itself was a tool of hegemonic disempowerment that would disempower black, brown, minority…people. And so, the way to attack that is to try to reconstruct race as a source of social power.

And the sense that there is a selective civil rights non-enforcement at best, civil rights anti-enforcement at worst…combined with the legacy of the so-called “racial reckoning of 2020" and the cultural shift that that has…put into academia has led states across the country to, in my view, try to reassert the spirit of the 14th amendment, the spirit of the Civil Rights Act, the spirit of Martin Luther King…within the context of a system where, for example, in Indiana, they broadcast a kind of three-part moral structure where, to my recollection, it’s kind of like…“white supremacist” at bottom, “assimilationist” in the middle. And “assimilationist” is where they put John F. Kennedy Jr. and where they put Martin Luther King Jr. – and “anti-racist” at the top.

And this is a strong moral message. And education is –


Nico: This is the Department of Education in the State of Indiana?

Max: Yes. And it’s not atypical for, kind of, how the education establishment blob has gone in terms of morality. But it’s very opposed to the moral concepts that parents want their public schools to…inculcate. And so, what we’re seeing –


Nico: Well, it just seems interesting because Indiana, you think of as a conservative state. Full disclosure, I went to…Indiana University. Excuse me. I almost called it “University of Indiana,” which…is a big faux pas. [Inaudible – crosstalk] [00:07:24]


Max: No, exactly. And it’s on the one hand astonishing when you see the kind of equity chief of Oklahoma public schools, to my recollection, favorably citing Mao Zedong in his education philosophy. But it’s also really not that surprising, given that most of the schools of higher education – their culture is basically established by Paolo Freire, who admired, and adored, and revered Mao Zedong – thought he had the greatest solution to the problem of conscientization, who was really the originator of the oppressor vs. oppressed dichotomy that is ascribed to critical race theory with varying degrees of…strict academic accuracy.

But we’re in a situation in our country where the people who teach our teachers are unconscious Maoists and parents are trying to play catch-up to “What do we do about this?” And state lawmakers are…haltingly, with greater or lesser prudence depending on the bill – I think it’s a building project – trying to figure out “How do we, as legislators, kind of reassert the moral order over schools that parents want?”

Nico: Joe, I wanna turn to you next. FIRE’s been called into these debates, and I know you’ve taken a look at a lot of these bills, especially those that potentially implicate higher education. So, I’m curious…your path – FIRE’s path to confronting these and how you think about them generally. This is, of course, the Free Speech Podcast, so there’s a free-speech nexus here that a lot of people are concerned about.

So, if you could speak to that, I think our listeners would be interested in hearing that perspective.

Joe: Absolutely, Nico. And thank you, Max, for that helpful explanation of your perspective. I think it’s important when we discuss what’s happening to understand where all of the sides are coming from. One of the reasons why I say that is because, in addition to the policy, there’s also a tremendous amount of politics being played on both sides of this. And I don’t mean to single out one side or another, but I think it’s helpful as a backdrop to kind of think through both the policy and the political implications of what’s happening.

And…we approach it at FIRE from a legal, First Amendment, academic freedom perspective because we’re here on the frontlines defending free speech and academic freedom in higher education. So, the first thing I wanna emphasize is that there are bills that only target K-12 teaching, there are bills that only target higher ed, and then, there are bills that do both, sometimes in the same language – language that applies to both – and sometimes in duel sections – one section on K-12 and one section on higher ed.

And FIRE’s only interest is on the higher ed aspects. So, I’m gonna keep my commentary a bit limited when we talk about…how the issue is being debated and discussed in K-12. Happy to dive into that a little bit, but I’m gonna try to focus on the higher ed side.

On the higher ed side, academic freedom is particularly important. It’s not like K through 12 where there are minors who are a captive audience at public institutions and the teachers are departing the curriculum, which is the state government’s curriculum. And there’s lengthy case law about how generally speaking, states can set their own curriculum in K-12 because, again, it’s government speech when a teacher is speaking.

It’s not without limitations, though, and maybe we’ll get into some of that discussion as well. But on the higher ed side, there’s also decades, and decades, and decades of case law about academic freedom…and how, there, when you’re dealing with adults, you aren’t talking about government speech at all, really. You aren’t talking about a curriculum where the state is trying to depart a particular set of knowledge because higher ed is also designed for people to critically think about whether the world’s body of knowledge is, in fact, correct – to challenge our ways of thinking so that we’re never stuck in it.

And that’s why you have landmark cases like Sweezy versus New Hampshire in 1957, where the Supreme Court says that the essentiality of freedom in the community of American universities is almost self-evident. And we have a case law that builds on that concept – Keyishian versus the Board of Regents – a decade later, where they talk about the need to protect academia from governmental interference. And in that case, they identify academic freedom as a special concern of the First Amendment which doesn’t tolerate laws that cast a pall of orthodoxy over the classroom.

And, of course, there are more cases to build on from that. But the point there is that it is absolutely, completely, 100% established that the government can’t take ideas off of the table in higher ed. You cannot have bans in what is taught in the classroom, period, no matter how clever they are, how carefully-crafted they are, etc. – you cannot have bans in what can be taught in college classrooms.

So, the first thing that I look for when I’m looking at these bills is “Do they do that?” And that’s the primary thing that I am concerned about. Not that the rest is always going to be acceptable, but that is always going to be unacceptable. So, my starting point is “Does it have a ban in the classroom?” And we have bills that have contradictory language that would impose bans on the classroom, I’d say, but not if it’s part of a bigger conversation. And that just is insufficient – you just can’t have a ban at all in the classroom. Doesn’t have to be part of a broader conversation; professors are allowed to have a particular point of view…and express it – in classroom, as a classroom, as private citizens as well.

So, I’ll start there, and we can talk more about other aspects of this as the conversation unfolds.

Nico: Yeah. So, I just wanna start by laying the groundwork here a little bit, Joe: have any bills – any of these so-called divisive concept or CRT bills – extended to the higher education context?

Joe: Yes. There have been five that have been enacted that impact higher ed, and I’m pleased to report that none of the five have outright bans on what can be taught in the college classrooms. And you’re talking of bills in Iowa, and Idaho, and Oklahoma, and New Hampshire, and I’m having a brain freeze on the fifth…just out of the dumb luck of the camera being on me. And I’m sure it’s gonna come to me in a moment, but none of those bills had outright bans.

Now, some of them began with them in the individual text. So, I don’t wanna describe it as “It was the wisdom of the legislators upfront that prevented there from being outright bans.” It was sometimes the advocacy of opponents. And I’ll put myself in that category, at least for the limited context of opposing those provisions that have the bans.

Nico: Max, because Joe brought us to higher ed – and I do wanna return back to the K through 12 context – what’s your position on these bills to the extent that they reach to the higher education context?

Max: Absolutely. So, I wanna start by saying that I dispute none of Joe’s characterizations of the law and take no issue with FIRE’s position as trying to ensure that caselaw is understood and that state law doesn’t override it in a way that would yield just a waste of our court’s time and a waste of the justice system, frankly. But I think that the lapsing of distinctions is something that Joe kind of implicitly pointed out in his opening remarks and is also…really a key driver of this broader confusion between the respective roles of higher education and K-12 education that he so nicely articulated.

Part of that lapsing of distinction around these bills – and I would also oppose, at least on credential grounds and constitutional interpretive grounds, bills that do what Joe opposes, which is try to reach directly into the classroom and dictated what professors, who are legally recognized to have academic freedom, can teach in the classroom.

The interesting things – and this is something that I’ve written about, I’ve tried to publish reports about – something that fire’s taken an interest in, and frankly, Joe, I’d love to see, as time goes on, FIRE really lead on this issue. Is that…over and above, but what happens in the classroom is what’s happening on American universities through diversity equity and inclusion bureaucracies, right? And these are all highly ideologically-charged, very politically-valanced bureaucracies that…come masked in the most anodyne, positive name.

But what we’re seeing play out in higher education – something that AEI published a report on – is, to my recollection, now common on the order of, I think, 40% – might be 25% – my memory lapse camera on – of the university faculty hiring is done – or, promotion is done including a DEI or an anti-racist statement.

And this absolutely casts a pall of orthodoxy among the higher education professoriate writ large, right? It basically says in the same way that maybe back in the 1880’s, 1920’s – I’m not literate enough to know for sure, but maybe in the same way that we used to have certain kind of pro-American implicit litmus tests for becoming a professor at Harvard or professor at Yale – we now have a different litmus test for becoming a professor at Harvard, or professor at Yale, or a professor at Ohio State University.

And this is what’s casting a pall of orthodoxy over higher ed over and above any restriction in the classroom, and I think to a far more dangerous degree than any of these bills threaten to pose to the core value of academic freedom. It is in some ways making good on William F. Buckley’s original critique of academic freedom as he expressed in [inaudible] [00:18:23] at Yale, which the conservative movement has broadly forgotten the subtitle of.

The subtitle of was “The Superstition of Academic Freedom,” and Buckley’s argument – which had its strengths and its weaknesses – was that academic freedom is actually not a sustaining principle for a university. A university must have a moral mission, and that moral mission will be one thing, or it will become another thing. And so, we are seeing through the apparatus of the DEI bureaucracy, most particularly instantiated through these DEI statements that create hiring – a pall of a new orthodoxy descending on higher education even as it casts a shadow on K-12, and we can get back to that [inaudible - crosstalk]


Joe: If I can jump in for a moment – well, FIRE has been monitoring that for a while and engaging on that issue strategically.

Rico: Yeah. FIRE’s written a number of letters [inaudible – crosstalk]


Max: Yes, I was not trying to dismiss. I think it’s fair to –


Rico: No, just for this. [Inaudible – crosstalk] [00:19:27] our listeners. Yeah.


Joe: For example, one of the ways that we’ve seen the – I’m gonna use your terminology – the diversity apparatus sometimes go awry – we saw at Rutger’s University, where a student government said that it would only approve funding if peoples’ events proceeded through the lens of critical race theory. So, while we wouldn’t accept bans, we also won’t accept the compelled speech requirement that people make those particular arguments. And we’ve also been involved in the faculty side, where faculty members were compelled to agree with particular points of view as conditions of their remaining employment.

I don’t know if we’ve gotten involved at the hiring stage, but in either event, I don’t disagree there are serious implications to academic freedom in the ways that there are sometimes abuses here. But one of the things, at least, that I found interesting about what you said was about the distinction between law versus the cultural norms. And one of the reason why I lean very heavily in the other direction about leaning towards law is because the cultural norms is always somewhat of a battle of just…the majority. Who can impose their will upon the other through the norms. And that’s obviously tremendously important.

But you have con law – constitutional law – there to be the guardrail against that kind of majoritarian rule in academic freedom is really about making sure the unpopular professor can still speak their mind, that students are still exposed to those views, and that the world still gets to be challenged.

So, I think about it in those terms in higher ed about how to maximize academic freedom not because I think that there aren’t threats about how things are happening outside of the classroom, but I hate to boil things down to the question of “Which is a bigger threat?” To me, both are real problems when there are abuses, and I’m happy to be on the frontlines working on either one.

Rico: Max, you brought up William F. Buckley Jr. and his “Superstition of Academic Freedom.” But I have to wonder – “If universities don’t commit to being one thing, they can be another thing,” ultimately just puts universities in the position of a culture war, right? To speak to Joe’s point about majoritarianism, whichever majority happens to be in power – ideological majority, that is – at a college or university, their norms will prevail.

So, I don’t see how attacking the legal concepts or the principle of academic freedom actually achieves any success for conservatives concerned about critical race theory because if you eliminate those guardrails of academic freedom, you’re just gonna get critical race theory, given all the data we know about how liberals or progressive predominate within the university environment, but I also see the point as well – and Joe’s concern about legal standards – well, one of the precepts of critical race theory, according to Richard Delgado, is the idea that unlike traditional civil rights discourse – and I’m partially quoting from him here – he says critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, enlightenment rationalism, and neutral principles of constitutional law.

So, one could argue that then to let critical race theory predominate within the higher education environment is to allow for a suicide pact, essentially, that would eliminate the legal undergirding of academic freedom.

Max: Yes. Those are all extremely astute points – and points that I think I’ve considered, and I think have been considered broadly amongst conservative intellectuals, and the reality that the guardrail of academic freedom would not be to the broader conservative benefit, as you pointed out, is part of the reason why even bringing up this question is something that’s frankly better reserved for a podcast such as this than for Twitter battles back and forth in the political realm because there’s always a question of political prudence when trying to think through first philosophy.

But the first philosophy question that you articulated, which was basically the intuition that Buckley wrote on – in many ways, very unsuccessfully, in retrospect – was that “Is it really a good – with a capital “G” – constitutional order if the constitutional order allows for the apparatus of education to become effectively, if not necessarily legally, dedicated to the undermining of the regime…which gets to, kind of, much deeper political, philosophical questions about the real nature of liberal democracy, how our understanding of that has evolved over time…

So, we could spend five hours talking about that, but I just wanted to affirm that you put your finger on some very important threads there.

Joe: I was just gonna say that one of the things that I think about it is “Why are we here?” and I draw back at your opening…kinda remarks, Max, where you were talking about the Biden administration’s handling of the segregation complaint and the deep distrust that there has been amongst conservatives about whether or not anti-discrimination law will be evenly enforced. And what I would say is I don’t think that that’s an imaginary concern.

But when I compare that to the harm that’s created with the ideas that have been legislatively introduced to try to even that playing field, when they include these bans, it’s such a strong overreaction, in my view, that has these tremendous unintended consequences that Nico and I have been describing about protecting oneself against that majoritarian concern.

So, I guess when I think about it, my proposed solution would be – these anti-discrimination laws also have private rights of action. You don’t have to only file your complaint with the Federal Department of Education. And a lot of states have equivalent almost identical language and state law that’s anti-discrimination in terms of Title VI corollaries.

I don’t understand why we aren’t just pursuing complaints at the state level there…because I’ve always thought redundancy in protections is a good thing when you don’t think that one branch, or one state, or the feds are doing their job. I mean, that’s why you have individual states have state-level EEOC’s, for example. And why the feds have one in case a state doesn’t do their job.

Rico: Can I just chime in here to help kinda frame the question and then turn it back over to you, Max? So, you have some of these bills. For example, there’s one in North Carolina – I don’t know where it stands in the legislative process or with their legislative calendar that, for example, says that it should prohibit public K through 12 schools from promoting concepts such as an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race, or that one race or sex is inherently superior to another race or sex.

Concerns that may or may not implicate Title VI and are probably less controversial than what you’re seeing in some other bills, such as ones in Arkansas, Oklahoma, Tennessee that prohibit making part of any course anything that an individual should resultly feel discomfort, or guilt, or anguish, or any other form of psychological distress on account of his or her race or sex. One seems acutely discriminatory, or at least the concepts being taught are acutely discriminatory.

One seems fairly vague, right? I mean, people can feel discomfort at a lot of topics that are taught within the course of any K through 12 education, or guilt. And these are all subjective feelings that are not clearly defined, and might, as a result, have a chilling effect on how teachers approach even the topic of slavery, for example, in their classrooms.

Max: Yes. Absolutely. So, I’d like to hit on one theme that we were discussing before I jumped straight into that, which is, in many ways, this can be understood from a primary first philosophy perspective on the battle over what the Civil Rights Act actually meant. And the first critical theory of the Civil Rights Act was critical race theory, which was – it kind of meant disempowerment, disillusion, a new hegemonic order of white supremacy but a subtler one, and therefore, in some ways, a more insidious one. That was the Kimberly Crenshaw…argument, basically, [inaudible] [00:29:01] in 1988.

There’s a new argument that is gaining traction in right intellectual circles that’s best articulated by Chris Caldwell in his “Age of Entitlement.” And that’s kinda the inverted Kimberly Crenshaw argument, in some ways. The old argument that the conservatives preferred to you two was that the Civil Rights Act was a good and just fulfillment of the 14th Amendment, and then it was hijacked by activist bureaucrats and critical race theorists.

And the Caldwell argument – and I’m not endorsing it by bringing it up; I’m simply articulating it for everybody’s reference – is that that’s wrong and that the Civil Rights Act is a second constitution that’s inherently at war with the first, and everything that we have seen been done to it was inherent in its inner logic.

So, with this bigger confusion playing out in, kind of…intellectual and political circles on the right in a way that I find that the question has been more settled for a longer time on the left. Then, there’s the question of “Well, what exactly do we do about it?” And it’s a very confusing question because there’s a lot of confusion that you need to work through in better or less productive ways to reach the point of legislation. And that process did not play out instantly, and effectively, and…25 state legislators all at once.

To Joe’s point, on the one hand, there should be a private right of recourse, and there kind of is a private right of recourse. But my understanding is that in some states, that is a right that has to picked up kind of at the point of exhaustion of other remedy seeking rather than something that’s immediately accessible to citizens. I’m not 100% confident that I’m correct in that, but it’s my understanding –


Joe: In employment, but not in other civil liberties things like you would have in an educational discriminatory context.

Max: Right.

Nico: And can we just explain that quickly for our listeners? What is a private right of action; how is that exercised?

Joe: So, private right of action would be your ability to sue and your rights under either the constitution or a particular statute [inaudible] [00:31:12], and some rights to sue require you to go whatever state agency has authority over it. A state agency may have a process of doing an investigation, issuing a ruling, etc., and that you have to do that first. And that’s the case in, say, an employment discrimination case. You go to your EEOC first, and eventually they issue a right to sue letter.

Either way, whether or not they resolve it because the responsibility of the EEOC is about giving them a crack at trying to resolve it through mediation or less expensive means. So, there are aspects of civil rights law that require exhaustion, but not in this education context.

Max: Yes, thank you. That’s very clarifying, and I’ll try to pick up and run with that further understanding, which I appreciate, Joe. And that is to say that although there are laws on the books that could be appealed to, there is functionally a vast asymmetry in recourse to these laws.

Not that it’s within the laws themselves, but kind of on the left side of the argument, you have the ACLU, the NAACP – who has the “sue and settle” – basically – tacit agreement with the Department of Education’s Office of Civil Rights. And on an issue that I’ve studied extensively – school discipline – they kind of say, “Hey, you have disparate numbers in discipline. We think this this is discrimination.” Office of Civil Rights comes in and says, “Now you have to do everything this way rather than that way,” whereas, if you are a teacher, and it’s an employment issue, you have to follow that kind of difficult path laid out.

If you’re a parent, then probably, A, you don’t have full knowledge of the laws already on the books because it’s a big knowledge problem that we can’t expect parents to have full and ready access to. But even beyond full and ready access to the understanding of the law, there is a secondary recourse problem, which is that there’s a pretty high barrier to a mom suing a school – if not legally, then certainly sociologically.

And so, I see the redundancy points out, and I think that from a strictly legal perspective, he’s correct to point out – and perhaps from a legal perspective, correct to lament – can be best understood as kind of a signaling mechanism to parents, and the community, and frankly, also to school districts that these things kind of are already illegal, and that signaling mechanism will be done either more or less intelligently depending on the precise words of the bill.

Joe, do you wanna jump in?

Joe: Yeah, I just wanna jump in real quickly because what I find to be really compelling is that there are examples that we can look at that are egregious that people want there to be action on. And I’m gonna just give a K-12 example from just this weekend, where a New York school [inaudible] [00:34:11] a Spanish teacher telling their elementary school students they had to translate sentences from English into Spanish. “You’re Mexican and ugly,” “You’re American and –,” and I tell you, it was “beautiful” or something along those lines, and people are legitimately upset.

And then, there are other situations – my colleague, Bonnie Snyder, wrote a book called “Undoctrinate” where she catalogued some of the examples across the country that are probably some of the more egregious examples of the anti-discrimination rationales gone too far.

And I think what conservatives are saying is what you’re making the argument on, which is it’s a lot to ask for individual parents to fight these one at a time through litigation. And that they should just be able to rely on their government to not do it in the first place, and we’re passing law to say, “Don’t do it.” And while I understand and appreciate that instinct, when the legislative [inaudible] [00:35:15] don’t do it is as broadly written as these bills tend to be.

The amount of conversation that it stifles that’s even close to the legal lines is also pretty large because bans are rarely as narrow as people think they are. And in a pluralistic society where we really are confronting deep divisions and wounds over race, and sex, and other things, I lean towards us being off with better and deeper conversations and dealing with those abusive examples after the fact. That’s where we lean at FIRE, generally speaking, specifically in the higher-ed side.

But it’s worth, I think, conservatives thinking about as well because of the very culture-war-y nature of dealing with it through these bans of “No, no, no. Your side is doing this capture. Your side is doing this capture,” that leads itself to the us vs. them mentality that just doesn’t ever get us across that finish line.

Nico: Can I frame this up with a question, here? So, it seems like, to me – someone who doesn’t work on this everyday but is very much aware of the conversations, especially within the First Amendment community – we’re talking about two things. There are the parents in North Carolina who say that their kids were forced to stand up in class and apologize for their privilege. There’s schools in Buffalo that are apparently teaching students that all white people are racist and are guilty of an implicit racist bias.

I was told by my colleague Bonnie about a former FIRE intern whose sibling objected to some sort of class performance or class walkout – I think it was a walkout – for race or gun control. And the school’s solution to that objection because the student didn’t wanna participate in the walkout was to have them stand in the middle of the football field as the rest of the students walked around the track during their protest – almost kind of singling someone out; isolating that.

That seems to me to be discriminatory – whether it’s Title VI or whatnot. But then, there’s this other conversation about critical race theory, and if you look at Glenn Youngkin’s executive order, it’s pretty explicit. It says that “end the use of inherently divisive concepts,” – concepts being ideas – “including critical race theory.” Can the idea that America has systems that come from a racist past or might have disparate racial impacts not be taught in these classes? Why are we banning the discussion of ideas rather than how those ideas might manifest themselves in teaching or in school actions?

Max: Yes. I might kinda pick up on that and what Joe was saying, which is Joe kind of brought up the extralegal question of, kinda, the balance of power, and how to affect the balance of cultural power within public schools, and…in the example of New York City, where the bureaucracy is training its top staff that the nuclear family, and being on time, and objectivity, and worship for – which can also be read as “respect for” the written word – are all manifestations of white supremacy.

It’s not clear that anything short of kind of overwhelming legal force can jar that bureaucracy out of its kind of path-dependent, inertial, ideological state. Then, there is the question that you brought up directly – and what Joe was trying to figure out – “What’s the best balancing act?” And Joe’s expressing concern that we are kinda overreaching in the attempt to balance. Which, I’m sympathetic to that concern.

And that kinda comes down to the letter of the laws themselves. I have done a report for [inaudible] [00:39:09], which was…kind of self-consciously tongue-in-cheekily titled, “The Best Way to Ban Critical Race Theory,” where I read all of the proposals that had been there, and I…grouped them into three categories: bills that ban compulsion, bills that ban inclusion, and bills that ban promotion.

And so, a bill that bans compulsion would not allow a teacher to directly compel a student to believe one of these concepts that they try to define through this kind of laundry list of things that they inherited through the Trump executive order. And so, that would stop would you pointed out of the track meet thing. Right? Because you’re compelling students physically into an ideology.

That wouldn’t stop a teacher from saying to a student that “You need to disrupt and dismantle your whiteness, and your whiteness is the cause of massive social problems.” It would only prevent a teacher from having a student answer that on a test and be graded based on the accuracy of that answer through the ideological lens of equity.

So, my assessment of these bans on compulsion is that they are too weak to address this. The bans on inclusion are, I think, what Joe is most concerned about – and concerned that they will become overbroad. And Oklahoma and Tennessee are both examples of bills that have banned the inclusion of divisive concepts in a way that could be read as dramatically stifling speech.

Now, there’s both a legal and a philosophical question. At the beginning of our discussion, we talked about the distinction between higher education and K-12, and…you can’t compel a professor to say or not say a certain thing. You actually largely – I kinda put asterisks by it to avoid a landmine here – you can kinda largely compel the speech of a teacher because they are government workers; they are government employees. It’s government speech in a way that I think the teaching profession has failed to understand by understanding themselves as effectively professors.

So, this concept of banning inclusion does run a real risk in however you weigh the merit or the flaw of that risk of compelling the speech of teachers in a way that would be distinctly limiting. Which, there are different views on that. How those bills are then interpreted past the point where they are implemented is really where the rub lies. Oklahoma interpreted their bill very aggressively. Tennessee, frankly, interpreted their bill through regulation pretty passively and in a way that I don’t anticipate as having that many practical problematic implementations from a free speech perspective.

The kind of bill that I’m most sympathetic to is the bill that you had referenced in North Carolina, which banned the promotion of these concepts. And it had a tripartite definition of “promotion” that I thought was quite astute. Part of it was compulsion. Part of it was contracting for professional development services, wherein you don’t really run into this question. There are plenty of policy-reasonable reasons to ban DEI consultants from training teachers without getting into this question of “Are you banning a teacher from saying something?”

But then, the real interesting thing and what I thought was a great innovation was that it defined “promotion” as kind of displaying, telegraphing, teaching these concepts to students as though they were true or in a way that would give a reasonable person rise to the belief that the institution of the school believes them to be true.

And so, this kind of language, which I saw more reflected than not in the Youngkin executive order. There was some variation and it can’t be pinned down precisely, but I saw more of the promotion than the inclusion language in the Youngkin executive order, which would have the practical effect of saying, basically, that you’re allowed to assign Ibram X. Kendi or Robin DiAngelo as a reading in a class, but as long as the teacher does not broadcast it as though what Kendi says is true, then you can retain the spirit of debate, spirit of inquiry, free conversation – a learning environment – without running too far afoul of the concerns that Joe has.

Joe: There are parts of what Max has said that I’ve liked and I’ve supported. I mean, for example, the bans on compelling agreement, I think, are constitutional in either the higher ed or in the K-12 space if they’re written carefully. I’ve had some, I’d say, relatively minor or, more precisely, targeted disagreements with the grammar of the sentences in some of those compelled speech lines in the bills, but don’t disagree with what they’re trying to do.

With respect to the distinction about the promotion…when you get to the K-12 side, again, there’s very different First Amendment implications, and there really usually is not a straightforward First Amendment analysis because of the government speech angle. But there are other constitutional concerns: whether or not you can have a due process, vagueness problem, if a faculty member can be punished for doing something that would run afoul of it – it needs to be clear – sufficiently clear – what’s on and off the table. As just one example.

And they need to make sure that it’s evenly enforced and not arbitrarily and capriciously targeting particular political points of view. The problem with words like “promote” in those efforts is “promote” very strongly implies that it is a viewpoint-based consideration, which cuts against – not definitely – but does kinda cut against a government actor when it comes to thinking about the arbitrary and capriciousness of the particular lines being drawn.

And when you think about it, it’s because when you’re allowed to criticize but not promote something, that is very straightforward viewpoint-based distinctions, and we’re generally skeptical when you’re doing the First Amendment analysis of it, and I think that that gets kinda…ancillary pulled into that are the lines being drawn arbitrary and capricious when a court evaluates that.

So, I’m not convinced that the language they’re using makes quite as careful a distinction that Max is trying to get at. I wanna give some good faith considerations here, which I think that those who are promoting it – at least, many of the proponents – wanna still have good conversations around race and sex.

And I think at the end of the day, that’s what I’m most concerned about even on the K-12 side: is…how do we have a world in which students can have age-appropriate, complex discussions where they’re being asked to think through historical and contemporary issues of race and sex through a critical lens.

So, I think that some of this has been boogeymanning from both sides. From proponents, I think they’re giving harsher criticisms of critical race theory itself that aren’t warranted with the actual critical race theory – divorcing, for a moment, from the offshoots of what’s happened and come from it.

And on the other side, I think that there is some…boogeymanning of how broad some of these bans are. Some of them are much, much narrower to just the parts that Nico, you were describing earlier as being more clearly outright discriminatory in their behaviors. So, I think both sides of this debate would benefit from hearing each other and trying to think through softer middle ground.

Nico: Max, did you have something you wanted to add there? I’m gonna move on to the next one.


Max: Yeah. I wanted to pick up on the really important key words that Joe dropped in his very thoughtful response, which are age appropriateness. This is something that has become totally lost in the political conversation because it’s an inherently partisan conversation, as Joe has pointed out, and he’s trying to stick to a kind of a legal, philosophical frame of a very culturally-charged national conversation that’s playing out into law.

And so, the charge from kind of the left side – the critical race theory side, however broadly or narrowly you wanna define it – is that these bills are about banning teaching about slavery or are even, in the most widely publicized example, banning teaching children about Ruby Bridges and her story. And I’ve looked into both of these things to try to understand “Well, there’s this partisan battle taking place in the headlines and on Twitter, but what’s the deeper story behind these concerns? Are they valid? What’s going on?”

And the Ruby Bridges example from Tennessee – which, it’s worth noting that the Tennessee superintendent, to my recollection, dismissed under these legal grounds as not fitting, kind of, the form for complaints under them, was a question of age appropriateness. These parents were not fundamentally concerned that their kids were learning that Ruby Bridges was a brave young woman who was discriminated against. They were concerned about a book shown to second graders that had, frankly, very violent, and strong, and just…intense imagery and discussion.

And to an extent where the Moms for Liberty chapter had – if I may represent her views, which I think I’ll do accurately – her point was not that “I don’t want my kids to ever hear this,” it was “I don’t want second graders to hear this.” And the age appropriateness question is kind of where I hope that over the course of broader democratic deliberative debate, we could ultimately come out to a mutual understanding of.

But it’s not a question that we’re gonna get to a political understanding of because to take the key argument leveled against these bills that are trying to ban the teaching of slavery – well, why would one possibly want to ban the teaching of slavery? That’s really nothing that anybody thoughtful wants to do.

But then, you look at the Southern Poverty Law Center’s “Teaching Hard History” curriculum for kindergarteners, which is a very intense description of slavery. And then, after giving a very intense description of the evils of slavery prompts kindergarteners to ask, “What unfair power dynamics do they see around them?” when the only power dynamics that kindergarteners see around them is their parents’ authority over them.

The loss of an adequate understanding of the role of age appropriateness in this is a key feature to this dysfunctional national debate – a key feature that I just structurally don’t think can be adequately answered within the commentariat’s public battle, but it is a question that I hope over the course of extended state-level and local-level democratic deliberation, it’s something that there can come to a happy – a mutually satisfactory – kind of middle ground on.

Nico: I think this gets to a key question that I and a lot of listeners are gonna have. Which is: who is the appropriate person or institution to determine age appropriateness, right? When I watched Schindler’s List when I was in high school, I had to take a form home to my parents to get it signed before I could sit through Schindler’s List.

Now, it might have, and probably was appropriate for a high school junior or senior to watch Schindler’s List to understand the horrors of the Holocaust. Probably not appropriate if a school wants to show it to a fifth grader, right? But I think it was the teachers who determined the showing of that rather than, for example, the state legislature. They determined what was and wasn’t age appropriateness.

And the same question can be asked of “Who determines what gets taught within the curriculum in schools?” Now, there’s probably a very simple answer to this that I don’t know of because my child isn’t…school age yet. But for example, this isn’t a new debate, right? This goes all the way back to the Scopes Monkey Trial in 1920 when the State of Tennessee went after a teacher who taught evolutionary theory wherein the school curriculum was creationism.

So, to circle back, what’s the role of legislatures, what’s the role of schoolboards, and what’s the role of parents in determining what gets taught and at what age?

Joe: Well, none of those three actors – the legislatures, the schoolboards, or the parents -- should be cut entirely out of the process. And I think that’s important. But I would say is to some degree, I think the bulk of the responsibility should be with the schoolboards. And with some parental input where parents also have the guardrail of access to litigation if there really is one of those examples that in the curriculum, not a one-off comment from a teacher, but really crosses the line into discriminatory acts, there is that remedy available to parents as well. And just [inaudible – crosstalk] [00:52:39]


Nico: Well, Joe, what do you think about parents’ access to curriculum too? Because I remember that’s been a debate as well where some schools weren’t even turning over assignments that were taught in class. So, it’s hard to have that parental check or that parental input if they don’t know what’s going on, and I think part of the COVID-19 crisis was creating a sort of window for parents because of online learning to see what was taught in the schools and creating a backlash as a result.

Joe: Well, I think general transparency is a good idea. And I’d make the caveat of saying “general” because there’ve also been pushes that nothing – and I mean nothing – can be taught to students unless it’s pre-approved first and disclosed. And that just isn’t practical in a world in which teachers sometimes have to respond to current events etc. or students are bringing in news articles as part of assignments to discuss – all kinds of ways we can think about ways in which 100% transparency is either impractical or not an ideal outcome.

But general transparency’s, I think, a good thing because parents should be part of this equation, like I said, in terms of having some input here. But what I worry about – and what we also see with transparency – is there are pushes to just outright have bans on materials because of the political nature of it, and not just on age-appropriateness level. You have LGBT content that parents in particularly conservative areas of the country have tried to get banned either from school libraries, out of curriculum entirely, etc., and in some ways, the fostering a culture in which the parents have complete veto control over curriculums is unproductive as well.

So, we have to figure out a way to balance all of those particular interests in a sophisticated way that doesn’t lead to mob censorship but also doesn’t lead to concealing the kinds of abusive discriminatory practices, however common or rare they might be when they happen in the classroom.

Max: Yes. So, again, Nico, you put your finger directly on an extremely important question, and Joe you articulated a view that I mostly legally and structurally agree with, but that I come to with a particular understanding of the balance of power as it exists structurally at the moment.

In terms of who really controls curriculum, in my view, the truest answer is it’s the strange nexus between the National Education Association and Pearson, effectively. And what both of those entities represent, right? National Education Association has this thing called “Teachers Pay Teachers” where they access teacher-oriented curriculum. That’s kind of where a lot of curriculum comes from right now in the classroom – is teacher-generated stuff. And questions can be raised about the algorithmic promoting of certain kinds of content within that network. Hold on, I have a call I need to…

Nico: It’s okay.


Max: [Inaudible – crosstalk] [00:55:43] my thing on. Questions can be raised about the algorithmic promotion of certain things within that. I can’t speak to that directly. And then, you have Pearson, which is representative of another whole. I’m not trying to single them out as a particular institution but as kind of synecdoche, which are large-scale textbook publishers that will go with whatever seems to be more profitable given the power dynamics of their end consumer, which is schoolboards, but schoolboards that have been largely politically, structurally captured by teachers’ unions due to off-cycle nonpartisan elections.

So, the balance of power in terms of who sets curriculum right now is so profoundly skewed that I think it’s gonna take quite a bit of effort and possibly some lamentable overreach to get to where Joe wants it to be, at the end of the day. But when it comes to outright bans and a question of parental review, I’m very sympathetic to parents who just simply want an outright ban on a book that graphically depicts one young woman on her knees – if your listeners will excuse my French – performing fellatio on a wooden strap-on dildo of another young woman.

I’m quite comfortable banning that. I think that falls clearly under the prurience category of the original understand of the First Amendment. I think it should fall under the obscenity exception articulated by the Supreme Court, which is “you know it when you see it.” But of course, the inherent problem with “you know it when you see it” is that you can become sensitized to things so much that you can fail to recognize porn as porn. In fact, you can justify the displaying of porn to children on pedagogical grounds as the Fairfax County School District did when it reinstated that book, saying that it served an educational and not an erotic purpose.

And of course, it serves an educational purpose. I mean, it’s teaching kids something. And the inability to understanding the idea of prurience and apply the label of “porn” to materials is one part of a root of parental discontent, the other part being the feeling that they are being intentionally shut out of very socially important and frankly sexually important conversations that are being had with their children behind their backs. And this is at the crux of the concern over school surveys.

In – I think it was Fairfax; it mighta been Loudoun – parents were asked to sign a nondisclosure agreement in order to see what kind of sexual questions their children were being asked. And so, with that balance of power and that balance of information asymmetry structured at it is, I kind of view any effort to rebalance towards Joe’s ultimate goal as progress even if in the process there are some overreaches that occur.

Nico: Yeah. I wanna ask Joe, but let me frame with a question and turn it over to you: It’s not just books where one – and I’m not familiar with the actual book although I live in Fairfax County – where someone’s performing fellatio on someone else. I don’t know what library that was at – in a middle school, a high school library – but you’re also seeing potential overreach – I would argue definite overreach – with the banning of New York Times’ 1619 Project. While I might have personal quibbles with it, it does seem to be a historical debate that children should have access to.

Joe, I want you to address the point that Max makes, particularly on the subject of obscenity, which I don’t think that actually reaches the threshold of obscenity, but it might for different age groups. I don’t know.

Joe: Yeah. I have a strong preference to having all of the exceptions to the First Amendment be particularly narrow from a free-speech perspective. There are very few words and/or images that scar folks for life because they’ve come across it. And I do make a distinction between curriculum and what’s available in libraries where students themselves are seeking out the information.

And there are parents of all different levels of comfort of their kids having access to sexual ideas at all, from folks who want their kids to only be exposed to the concept of abstinence to folks that are broader about it, and I don’t think that it is a good idea or particularly constitutional idea to allow the most – and I say this with lowercase “c” conservative – parents, with respect to how sexuality is taught, to be the ones who dictate what’s available to all kids – their kids and others as well in libraries.

So, I get worried about that. But I think what really is important here is that perhaps we should all be skeptical of those who say, “There’s nothing to be seen here. Move along, move along,” and those who think the culture is so lost that the only way to fix this problem is through actual bans of either what’s in libraries or what’s on curriculums. Because there are examples that I find compelling that conservatives on this issue have put forward in terms of what’s happened in classrooms. They say, “That is not right,” “That should not happen,” “Put a stop to this immediately, and there should be consequences.”

And then, there are other times where I think it’s just complete overreach that go into conversations that are really important for us to be having. And I don’t know that legislation is a vehicle that hits that precision well in a way that I think will help versus harm the cause of bringing more consensus on these points. Because I would much rather the more egregious examples be fiercely debated and discussed. Not necessarily because they’re representative – they might not be. But because I think that illustrates well why we’re having these conversations to begin with.

Nico: I do wanna say that the discussion of which books to ban or which books to include in libraries is a cross-partisan effort, right? You see liberals have advocated for the banning of Huck Finn, or of Mice and Men, or have called for the banning of books because of dated racial epithets that they might’ve included or because of themes of white saviorism. I mean, this has happened on the left, but the same time, you have Texas State Representative Matt Crous, who’s emailing 850 books to superintendents that he wants reviewed included Margaret Atwood’s books and books Ta-Nehisi Coates and William Styron.

So, you see it on both sides, and I worry that it’s just gonna become a food fight that can never get resolved except for sort of legislative intervention, and that’s just gonna depend on who’s in the majority, right?

Max: I think some of my philosophical disagreements with Joe are coming to the forward at the end of this podcast, but it’s a food fight that I do think that state legislation, state law can enable to happen where it should happen, which is at the local level in a bargaining and negotiation between parents and schoolboards. And I think that just the balance-of-power asymmetry is such that state legislation is necessary to restore that.

I’d like to bring one argument for the listeners’ consideration – not challenging either of you for a response because it’s almost always a bad argument to bring up, and I do not intend it as a troll, and so I’m not putting either of you on the spot.

Nico: Now I wanna hear it. Let’s get to it.

Max: But there’s the argumentum ad Hitlerum, right? My school – growing up – I’m pretty confident did not have Mein Kampf in the library for kids to pick up and peruse at their disposal. And I’m very sympathetic to my school not having Mein Kampf around for kids to read because Mein Kampf proceeds from a fundamentally different philosophical basis that we know has led to horrifying conclusions.

And so, that is something that I don’t think was written into law. It might have been, but I don’t believe that “schools can’t carry Mein Kampf in their libraries” was a state law. I believe that that was a just natural decision made by the schoolboard and not even thoughtlessly made. I don’t even think it was particularly up for debate.

And so, when it comes to the 1619 Project, that also proceeds from a very different metaphysical basis, right? It inherently denies objectivity. The arguments that Nikole Hannah-Jones has made against her critics were actually truer arguments than any of her critics understood. The argument that she made against her liberal and conservative critics – distinct from her Marxist critics at the World Socialist website – was that you are engaging in the critiques, but you’re not engaging in the project because the project denies objectivity, and you are engaging in objective critiques of a project that denies objectivity, so your critiques are nonsense.

Which is not to make the direct comparison – I’m not trying to be that inflammatory, necessarily – but it is to say that I think that we as a society have an understanding that it is obviously something that is inappropriate to do – to put Mein Kampf in a school library – and we’re trying to work out other understandings of the proper balance for presenting other materials to children and how freely they should be presented given that instead of these decisions being made naturally between schoolboards and parents, they’re made more unnaturally between the strange nexus of the NEA, the New York Times, and textbook publishers.

Nico: Yeah. I’d wanna make a point here, and I think this gets to the crux of the problem. Because obviously, curatorial choices are made as to what is put into a library, right? And there is some sort of philosophy or thinking that goes behind it, and where you draw the line between what is age appropriate or what actually informs a student education – reasonable people can disagree about that, and I think you and I would disagree on the value of reading Mein Kampf. I mean, I’ve read it, and I think I learned more about Hitler, National Socialism, and the blind spot that the western world had to the evils of it from reading that book.

I mean, Hitler, more or less, lays out exactly what he’s gonna do. And I think more people in 1938 would’ve benefited from having read it. But that also gets to the question, “Well, can you not include excerpts of it in the curriculum?” A lot of the ideas in Mein Kampf can also be found displayed in a different manner in Schindler’s List. Should my school not have shown Schindler’s List either, under the same philosophical theory? I don’t know.

Reasonable people can disagree about it. I think the crux of the question is: what is age appropriate, how do you get to there, and do outright bans on certain subjects just neuter the ability for parents, schoolboards, and teachers to have that conversation altogether by saying, “No, we are the government; we are the ministry of truth; we’ve decided what’s valuable, and therefore, this conversation can’t happen.”

Joe: I wonder how technology may soon moot some of these questions. Even if you take things out of the school library, students have google. And young people can access all sorts of things. And to some people, that cuts in the direction of “So, what’s the problem with removing it from the library? They can get it elsewhere,” and to others, it points to the fact that it’s never gonna work taking it out of the library anyway.

So, it makes it more of a cultural wedge to just figure out what not gonna be here and what is gonna be here. I don’t know the answer to that question. I know that I’m inherently skeptical of book bans because I agree with you, Nico, from the perspective of I think we benefit from seeing the world as it is, including knowing the harshest and worst arguments that are out there. I don’t know that a school library that’s aimed towards pre-K through second graders needs more sophisticated books that are beyond the reading level, forgetting even the content of what’s in it and the arguments in it. They have only so many resources, so purchasing age-appropriate materials makes some sense to me.

But I don’t think of that through a content-type of lens, typically.

Max: Yeah. So, I think we’re, again, hitting on very important distinctions, and I really appreciate this conversation, because it’s rare for it to get to this level of understanding – and, I think, actually argumentative progress in mutual political understanding, right?

But I wanna pick up on one thing that each of you just said, which for Nico, to clarify my point further, it is not that I think that it should be outright banned from any part of the curriculum.

I don’t recall reading it in modern European history course, but I think it woulda been appropriate to present it in a context in modern European history course, even as I will maintain that it’s inappropriate to have multiple copies laying around the school library so kids can pick it up and just kinda explore it amongst themselves in an untutored way, and I think that the reaction that you saw on Twitter to a group of kids somewhere in California with swastikas drawn on themselves posing as pro-nazis – I mean, I think that’s something that schools have a role in trying to avoid as an outcome of academic freedom.

To Joe’s point about the role that technology has played in mooting, or modifying, or perhaps just generally scrambling these debates – that’s a very important point. And it’s a point that I frankly think we are moments if not years away from being able to have even a basic argumentative, non-productive partisan discussion on, much less a real kind of good policy conversation on because the old debate used to be about textbooks, right? The physical text books. School isn’t really about textbooks right now. It's just reading and media access isn’t really about school libraries anymore.

And parents have this sense – and it’s frankly a true sense – that the tablets to which their children are being glued throughout the day instead of looking at their human teacher trying to explain something to them in a human way is being algorithmically populated with content that they don’t understand and they don’t have control over. And on one example of a sex ed presentation that was given in a suburban Ohio district – content that’s two clicks away from menstrual porn. And parents don’t really like their kids being two clicks away from menstrual porn, and I’m pretty sympathetic to that as something that is obscene.

And so, everything has been further scrambled by the rise of information technology in our general political discourse and also inside the schoolhouse in a way that makes even the best, longest, most thoughtful conversations about this still, at least for the moment, almost necessarily fall short of grasping the real locus of argument and change that’s occurring.

Nico: All right. Well, I’ve kept you both longer than I intended to. I do have one kind of closing question. This is a concern that I have as a parent of a son who’ll be entering school here in the next couple years. I do have a concern – and this question’s probably directed mostly towards you, Max, as somewhat of an activist or thinker in this area is…COVID-19, these debates over critical race theory, divisive subjects – I fear that all of it is gonna drive teachers away from the profession and that you’re, as a result, gonna get more activist or ideological teachers who are willing to run that gauntlet that COVID-19 has become – that these debates at schoolboard meetings have become.

And so, I was wondering if you share that concern, and if so, how it gets addressed. I mean, we’re already seeing declining teacher roles – teachers who don’t wanna deal with any of the current climate. And then, you have an increased class size problem, which creates other downstream consequences. So, I was wondering how you think about all of that.

Max: Yeah, no. Again, really astute and, I think, important question, and I mean, there’s a conspiracy theory going around – and I used air quotes for the listeners because I’m saying conspiracy theory not in a real account of person A said this to person B and to the other. They decided to do D with person C, but just an alternative account of what’s happening that seems to have, if not a planned, at least an emergent order in it – which is that various cultural shifts in education, especially around discipline, the rise of driving out veteran teachers form the classroom. It is making teaching a much less just socially desirable and respected profession in general. And –


Nico: I know of one in particular. And they might be listening to this podcast. Who’s…done with it.


Max: Yeah. And so, then, with a half-conspiracy head-on – and again, I’m scare-quoting for the audience – you can kind of see this process as the “Teach-for-Americaization” of the American teaching profession, right? And the idea of Teach for America was originally “Let’s get some young, smart whippersnappers into the classroom for a couple of years. They’ll burn out fast. We’ll be able to keep on replenishing them.” And yeah, this comes at a cost to kind of the veteran teachers who are ensconced in their communities – who are respected – but this is all for the greater pedagogical good.

We’re seeing, I think, that play out in the broader American teaching profession even as we’re seeing the shift that took places from within TFA take place within the education establishment more broadly, which is a general surrender on academic excellence as a core value and a replacement of that with ideologically-valanced social and emotional learning being the core mission.

Social and emotional learning is probably the fight that will happen in American education in 2023. I think it’s gonna take a year of critical race theory argument before people really are prepared to or can understand what the social/emotional learning thing is all about. But it took a set of Aristotelian virtues, and it first it [inaudible] [01:15:10] them from their kind of telos-virtue content to make them vague competencies. It then replaced that with critical-race-theory-informed ideologies and has amounted to a situation where this used to be $300,000,000.00, now $700,000,000.00 a year and rising through the COVID-19 relief funding.

Industry is fundamentally interested in reshaping students identities, as they say. Shaping a child’s identity used to be the – if not exclusive –


Nico: As who say?

Max: I mean, the language of identity’s just everywhere. I can’t even –


Nico: Oh, okay.

Max: I mean, one can look to the website of CASEL, which is the Collaborative for Academic Social and Emotional Learning, and it takes two clicks to get to how CASEL is just soft anti-racism social/emotional manipulation incorporated. And CASEL sets the accreditation standards for basically the entire sector. And so, you risk having a education establishment that is interested in reshaping students’ identities along particularly partisan lines that denies doing so – that calls “conspiracy theorists” everybody who accuse it of doing what it basically plainly declares itself to being.

And the purpose of school changes from our original social-contract understanding that undergirds the constitution – undergirds the civil rights liberties that Joe is fighting to do, which understood the family to be the primary pre-political unit of society – that schools are there to partner with into one where there is an almost inherent attitude of subversion in the act of public education. We risk getting to that point, at least.

So, this is, I think, a concern that will only rise in the next couple of years. I fear that it can’t be adequately addressed by any debate that we’re having or almost any policy or forum on the table. And –


Joe: Sorry to interrupt there, but it speaks to a broader concern about the polarization of American society in general. And I don’t think it’s just the teaching profession. All sorts of professions are divided into conservative versus progressive professions, whether it's law enforcement, or education, etc. And it leads to all of these fights in legislatures that are being fought, again, on culture war grounds. Which is why I’m just so worried about the way it is playing out, while I think that both sides have important things to bring to the table here. I’m concerned about that the way that this is being done is opening up more wounds than it has so enclosed.

Nico: Well, Max, if you don’t mind, I think I’m gonna have to leave it there because now I’ve kept you way longer than I promised I would keep you, and I’ve got a meeting here in eight minutes. So, Max, thank you for coming on the show for the first time. Joe, thanks for coming again. And I hope we can maybe speak sometime in the future.

Max: Thank you.

Joe: Absolutely. Thanks for having me.

Nico: That was Max Eden. Max is a research fellow at the American Enterprise Institute and the director of its Conservative Education Reform Network. And my colleague, Joe Cohn, who is of course FIRE’s legislative and policy director. This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. You can learn more about So to Speak – the show – by following us on Twitter at by liking us on Facebook at We also take listener feedback at, and if you have a comment or question for Max or Joe, I’d be happy to forward it onto them if you email

And if you enjoyed this episode, the best thing you can do to encourage more listeners to the show is to leave us a review wherever you get your podcast. And until next time, I thank you all again for listening.