Classrooms, Curricula, and the Law
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The 2021 National Lawyers Convention took place November 11-13, 2021, at the Mayflower Hotel in Washington, DC. The topic of the conference was “Public and Private Power: Preserving Freedom or Preventing Harm?”. This panel explored “Classrooms, Curricula, and the Law.”
Competing legal and cultural interests are at play in the push to implement critical race theory and diversity, equity, and inclusion-based curricula at all levels, from elementary school through higher education. Some argue that state bans are necessary to combat a divisive, stigmatizing, and arguably unlawful set of educational practices. Others take a libertarian approach, casting classrooms as marketplaces of ideas and criticizing proponents of CRT-bans as opponents of free speech. Still, others praise these educational practices for raising greater awareness of America’s historical injustices, arguing that this is a necessary step towards a more equitable and inclusive society. In the tradition of the First Amendment, this convergence of issues leaves much room for a lively debate.
- Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
- Mr. Josh Hammer, Opinion Editor, Newsweek; Research Fellow, Edmund Burke Foundation
- Ms. Kimberly Hermann, General Counsel, Southeastern Legal Foundation
- Ms. Letitia Todd Kim, Managing Director, Foundation Against Intolerance & Racism
- Mr. Greg Lukianoff, President and CEO, Foundation for Individual Rights in Education
- Moderator: Hon. Kyle Duncan, U.S. Court of Appeals, Fifth Circuit
Kenneth Marcus: Hello, everyone. Welcome to The Civil Rights Practice Groups Panel. I’m Kenneth Marcus. I chaired the Executive Committee of this practice group, and on behalf of the committee, I want to welcome you. Whether you have been here before or not, by virtue of being here today, you are all now members of the Civil Rights Practice Group and disqualified for confirmation to any position that you might otherwise have been appointed to.
This is, I might point out, a blessing in disguise. Believe me. For those of you who’ve been here before, we do offer annual panels of this sort, as well as webinars, on a fairly regular basis on civil rights issues. As members of the Civil Rights Practice Group, I would say this, if you simply come to these events, that’s great, but we would hope that you might consider being more actively engaged in the work of the Civil Rights Practice Group over the course of the year, although we are somewhat baffled about how we will keep you busy if you all choose to do so. I would say that there are opportunities for our blog, for the various publications of The Federalist Society, and in helping the Executive Committee to come up with ideas for future events. So for all of you, we welcome you not only to this event and to the practice group, but we suggest that if you are interested in getting more involved, you speak with me or anyone in The Federalist Society staff.
I’ve been asked to say the following: for the attendees seeking CLE credit, you are required to sign in each day to receive credit. If you have not already done so, use the QR code on the CLE card provided. If you don’t have that card, there are volunteers with extra cards in the room. The QR code is also posted outside the room and on the easel. Be advised, some states require signing out as well.
Now I’ve also been asked to do something else. Apparently, there was some discussion at The Federalist Society about what kind of fool would wade into this group of freedom-loving conservatives and libertarians and tell them they need to wear a mask. And apparently, the decision was made that any such person might also be willing to be the chairman of the practice group.
Well played, Federalist Society, well played. And I would point out that the lunch and coffee stations, while always enjoyable, are now also a legal loophole.
I have not been charged with the responsibility to introduce the panel, and probably for good reason. If I were to introduce the panel, I might say something inappropriate like the following: this panel features a prior president, the founding president, of the University of Chicago Chapter of the Louis D. Brandeis Center for Human Rights, Josh Hammer, and other people who I’m sure have done interesting things as well.
It is to avoid that embarrassment to The Federalist Society that I have been asked not to introduce the panel and, instead, we have gotten a proper moderator, Judge Kyle Duncan. Judge Duncan was appointed to the United States Court of Appeals for Fifth Circuit on May 1, 2018, by President Donald Trump. Previously, Judge Duncan was the founding partner of Schaerr Duncan, LLP, General Counsel at the Becket Fund for Religious Liberty, and he taught at the University of Mississippi School of Law. This honorable court is now in session, Your Honor.
Hon. Kyle Duncan: Thank you, Ken. Wonderful to be here with all of you and to moderate this august panel. Let me give you a quick rundown of the general subject matter we’re going to talk about. I’ll introduce the panel members and then turn it over to them.
Competing legal and cultural interests are at play in the push to implement critical race theory and diversity, equity, and inclusion-based curricula at all levels, from elementary school through higher education. Some argue that state bans are necessary to combat a divisive, stigmatizing, and arguably, unlawful set of educational practices. Others take a libertarian approach, casting classrooms as marketplaces of ideas and criticizing proponents of CRT bans as opponents of free speech. Still, others praise these educational practices for raising greater awareness of America’s historical injustices, arguing that this is a necessary step towards a more equitable and inclusive society.
And I have to add that this is, obviously, a timely topic. When we were planning this panel, the Virginia elections had not happened, and some think that issues of this nature were important in that election. Others I’ve seen have suggested that issues like this are phony issues, and even the existence of CRT-based curricula are being debated. So I think this is a very timely topic, and I know our panelists will have lots to say about them and about how the First Amendment rights of teachers and students interact on these issues.
So let me introduce the panel which is well equipped to discuss these issues. First, to my immediate left, Josh Hammer is an opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project, a syndicated columnist through Creators, and a contributing editor for Anchoring Truths. Josh is a constitutional attorney by training and the co-host of two podcasts: Newsweek’s “The Debate” and the Edmund Burke Foundation’s “NatCon Squad,” and I first got to know Josh when he clerked for my colleague, Jim Ho, on the Fifth Circuit.
Next, Letitia Todd Kim is the managing director of the Legal Network at the Foundation Against Intolerance and Racism, a non-profit civil rights organization which advocates for the rights of parents, students, and employees by creating model legislation and litigating under Title VI, Title VII, the Equal Protection Clause, and the First Amendment. Letitia was formerly an Assistant United States Attorney in the Civil Division of the Northern District of California, and previously practiced at Sonnenschein, Nath and Rosenthal, now Dentons.
Next, Professor Akhil Amar is Sterling Professor of Law and Political Science at Yale University. Amar joined the Yale teaching faculty at age 26. He has been cited by Supreme Court justices across the spectrum in more than 40 cases, top in his generation, and indeed among all active scholars. He is Yale’s only currently active professor to have won the university’s unofficial triple crown, the Sterling Chair for Scholarship, the DeVane Medal for Teaching, and Lamar Award for Alumni Service. I’ve read many of Professor Amar’s books, and they’re always illuminating and enlightening to me.
Next, Kimberly Hermann serves as General Counsel for Southeastern Legal Foundation, is an active member of The Federalist Society, where she serves as an expert on The Federalist Society’s Regulatory Transparency Project State and Local Working Group.
And finally, Greg Lukianoff is the president and CEO of the Foundation for Individual Rights in Education or FIRE. He is a widely published author. Most recently, he co-authored The Coddling of The American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure, with Jonathan Haidt, and I can personally recommend that book to you. I’ve been reading it as I contemplate sending my 17-year-old off to college. And after having read only two-thirds of the book, I’ve decided that he’s not going to college.
He’s going to be a farmer.
Greg is also an Executive Producer of Mighty IRA, a civil liberties story, a recent feature-length film about the career of former ACLU Executive Director Ira Glasser. And having said all that, I look forward to our panel’s discussion of this timely and important topic, and I hand it over to Josh.
Josh Hammer: Okay. Well, thank you so much, Judge Duncan. Thank you to The Federalist Society for having me here. I think there’s a perception out there that I can be a little critical of the conservative establishment, in general––by some token, perhaps, this organization at times as well––but let the record reflect that I turned down being on Dave Rubin’s show at this very hour to be here with you all right now; love this organization. I’m a card-carrying member and just delighted. It’s my first time being on a panel here at NLC, so very, very happy to be here.
It’s particularly cool to be on a panel with Judge Duncan who, as he just said, I got to know when he became a Fifth Circuit judge. And, to this day, actually, the number one piece of writing — and I have a pretty voluminous public written record at this point — the number one piece of writing, to this day, that I get most pushback on was a National Review piece that I wrote entitled, “The Fifth Circuit Rejects the Lie of Transgender Pronouns.” That was a piece from January 2020. I was protested at Northwestern Law School into giving a FedSoc talk there last month, in part, due to this article. The author of the underlying opinion, of course, was the esteemed gentlemen sitting to my right.
Hon. Kyle Duncan: Thanks for bringing that up, Josh.
Josh Hammer: I do not apologize for any words in that article. It was 100 percent true, and it was an admirable thing to put into the F. 3d.Hon. Kyle Duncan: You and three out of five of my children are the only people in America who like that opinion.
Josh Hammer: Well, hopefully, that counts for something.
Questioner 1: Three-fifths is a compromise.
Josh Hammer: All right. So getting on to the actual topic of the day here, we’re talking about critical race theory, the First Amendment, what do we do about this, what do we not do about this? So look, my basic take on this is not very difficult. Okay? And my take on this can probably be, I guess, encapsulated by the fact that last Tuesday, when the aforementioned Virginia gubernatorial results started to trickle in, I was celebrating at the bar, getting drinks with Chris Rufo. We were down together at the National Conservative Conference in Orlando. Chris is a buddy of mine. He’s done yeoman’s work on this issue, obviously, across the country, as have many others, by the way.
A lot of people who are also doing great work on this—my pal Max Eden at America Enterprise Institute—don’t get quite the credit that Chris gets, but there’s a whole network of activists, now, across the country who are shining a spotlight on the just horrific racialist, abhorrent, indoctrination of our children into hating themselves and hating their nation. But Chris really has done amazing work on this.
So look, the arguments against bans on critical race theory amount to – really, they can fall into one of two buckets. The first is that you can––to borrow from a law school of jargon––you can fight the hypo. Okay? You can say, “Critical race theory doesn’t exist.” To quote Hillary Clinton, “It’s the vast right-wing conspiracy. It’s a figment of their imagination.” Total and complete garbage. And again, like Chris, if no one else, has singlehandedly demonstrated how garbage this talking point is. Literally, just go and read his articles. Okay? For the past two years now, his byline at City Journal––that’s a journal of the Manhattan Institute––is absolutely prolific on this, whether it’s boardroom to boardroom; AT&T, Google, CBS, basically, almost every single fortune 500 company it seems; school district to school district, whether it’s Seattle, San Diego, Buffalo, and New York, even small towns across the American heartland.
This crap––and it is crap, it is anti-American crap––is proliferating all over. And the argument that critical race theory is not real, it’s a fundamentally unserious argument. We can quibble as to what we mean, exactly, by critical race theory, of course, and I guess we can probably get into that in Q and A, I suppose, if we want to, here. I’m not going to spend too much time trying to properly define it, but it’s — broadly speaking, it is the idea that America was founded as a systemically racist country, that generations of white people carry on guilt from generation to generation, that they have to atone and expiate for the sins of the forefathers, and all of that, and that white people, to this day, have to apologize for being white. And not just white people, by the way. Okay? At Newsweek, where I run the op-ed page, this wonderful Chinese immigrant—my friend Helen Raleigh, who lives in Denver, Colorado — Helen talks all the time about how critical race theory is not just anti-white, it’s anti-Asian.
Critical race theory is just one way of understanding the left’s intersectional hierarchy of victimhood, of course, where, obviously, heterosexual, white, Christian males are at the very top. Those are your king oppressors these days, but there’s all sorts of other people there as well. My people, the Jews, have, for some reason, ended up in the oppressor class. It baffles me how you could possibly read Jewish history and come to this conclusion.
So let’s just stipulate, for now, that critical race theory does exist. So let’s go move on to the second argument here. The second argument here is that this is a “free speech issue.” To make this argument, you have to — in my particular remarks here, I’m going to stick to the K-12 classroom setting. To make this argument, you have to fundamentally believe that the public-school classroom is a Voltaire, classical liberal, enlightenment liberal, marketplace of ideas. You can tell by the mocking, sardonic tone that I’m saying this — this doesn’t pass the laugh test.
Public school education is a government-run monopoly. Okay? My mother is a third-grade public school teacher. My grandmother, actually, was a special-ed teacher. My great-grandmother, who I never met, was also a special-ed teacher. I come from a long pedigree of public-school teachers. Their classrooms are not a marketplace of ideas. I have literally seen the communication between my mother and her school district and, by extension, the union and the education bureaucracy. She does not, actually, have a whole lot of say in what she’s teaching there.
She had some unit, during the George Floyd 1619 riots, that New York––she’s in New York State––that they compelled her to teach on “social justice poetry.” I asked her if I could take a look––put on my editor’s hat for a second there, and I made many editorial suggestions. The point is, I’m not entirely sure how much leeway she had to implement those suggestions because, again, this is, fundamentally, not a marketplace of ideas.
The traditional understanding of education that conservatives have, I think, long intuited––and it should be, I would argue, quite obvious to us––that states have near plenary power to dictate the contents of state-level curricula. This seems to me so obvious, to go without saying here, that people that are saying that bans – so look, to take one example here, I’m just going to read, real briefly, off of an op-ed that my friend, Max Eden, from AEI wrote for me. Some of the model language of these state-level CRT bans basically say along the lines of the following: they ban teaching students that “one race or sex is inherently superior to another race or sex,” or “that an individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.” So holding aside the fact that these statutes, when they are properly written, are written in overtly and expressly into liberally race-neutral language here, we would immediately and intuitively understand that does not pose any particular First Amendment barrier.
If we were to just reverse the nature of the races here, if everything that was going on across the country was a throwback to the horrors of the Jim Crow era––to, obviously, say nothing of the antebellum era––and it was anti-black racism that was getting thrown down our innocent children’s throats in K-12 teachers, we wouldn’t be having this debate. We are literally only having this debate because what the left considers the intersectional oppressors have been told to bow at the knees of the people who are trying to tell us that we have to atone for our whiteness, our Jewishness, our Asian-ness, whatever, and this would just be so obvious if the races were reversed here.
I mean, the people who say that you have a free-speech right to say that if you are white, you are inherently an oppressor and have to apologize for the sins of your great-great-great-great-great-grandfather, that’s the same argument, basically, that’s saying you have a free-speech right to deny the holocaust. Okay? And that’s kind of like the First Amendment’s absolutist free speech to say-anything right of a public-school teacher taken to its logical conclusion. And we should, obviously, recognize that to be nonsense. In fact, these same people are deeply hypocritical to boot because the same people that are telling us, obviously, that bans on critical race theory pose some sort of First Amendment problem are the exact same people, obviously, that want to ban teaching creation, teaching the Bible, anything like that, at our schools in the first place. Well, you can’t have it both ways, guys. You really got to pick one here.
I read some model language there. We can talk a little bit more about that. The point here, and the broader conceptual point — and I can maybe just wind up my brief, introductory remarks at that. The point here is that the enemy, right now––and I do call it the enemy—in the year 2021 is, broadly speaking, the woke ideology. Ronald Reagan famously said the nine most terrifying words in the English language are, “I’m from the government, and I’m here to help.” Those are no longer, necessarily, the nine most terrifying words. They can be. But what’s happening here is a broader, ruling-class-inspired woke ideology that is seeping across all sorts of institutions across this country, whether it’s the government, whether it’s the deep state, whether it’s the fortune 500 corporate boardroom, whether its public-school education bureaucracies or things of that nature.
And the imperative of the hour demands that we not make appeals to purely values-neutral procedural, platonic ideals like free speech for all, marketplace of ideas. It necessarily demands that we sober up to the gravity of the lateness of the hour and prudentially, actually wield, in state legislative chambers, some degree of power to punish our enemies within the confines of the rule of law. And I submit to you that our enemies in this context are the Ibram X. Kendi woke ideology extremists who are trying to poison and rotten the minds of our children into hating themselves and hating their country, to boot.
So I’ll end my introductory remarks on that, but I’m sure we’ll pick up a various train of topic.
Hon. Kyle Duncan: Thank you, Josh. I remember that tone from some of the bench memos that got circulated when you were clerking.
It was always clear who they were from. Now, let me turn it over to, let’s see, sorry, Kim.
Letitia Todd Kim: No.
Hon. Kyle Duncan: Is that okay, or do you want to go next?
Letitia Todd Kim: Oh.
Hon. Kyle Duncan: I think we’re not sitting quite in the right order but let’s…
Kimberly Hermann: I think it was you.
Letitia Todd Kim: Yeah. I think it’s — yeah.
Hon. Kyle Duncan: Is it you?
Letitia Todd Kim: By last — yeah.
Hon. Kyle Duncan: My notes —
Letitia Todd Kim: There’s some confusion here. Yeah.
Hon. Kyle Duncan: — my notes are wrong. Letitia, take it away.
Letitia Todd Kim: Yeah. Despite my surname, I am not Korean. I am married to one, however. So people are very confused when I show up, and they say, “Oh, you’re not Korean.” I know that.
Letitia Todd Kim: In any event, thank you so much for that, Josh. I have a little bit of a different perspective on the anti-CRT legislation. I do broadly agree with Josh that the schools are not — public schools, at least, are not a marketplace of ideas. In fact, they are traditionally a place for the local community to pass down knowledge, tradition, and values that the community deems important.
Teachers really don’t have that many free-speech rights in public schools, particularly with respect to their official job duties. They cannot just teach whatever they want and say whatever they want. Even students’ First Amendment rights are not unlimited in public schools. However, I do think there is an argument to be made that by banning critical race theory from being taught or discussed in the schools, and there are — the laws in about nine or ten of them have been enacted in various states. They each differ from each other—some of them ban the teaching of critical race theory concepts, some of them ban inculcating the concepts into the students, and others ban compelling the students to affirm or adopt those concepts.
But I think whichever way you go, there’s a possible argument from the other side, let’s call it, that by singling out a particular belief and protecting certain students from exposure to that belief, and not other students from exposures to beliefs that they find offensive, that could potentially constitute a type of viewpoint discrimination under the First Amendment. And again, that’s a potential argument. I’m not saying it would win the day, but it’s just something to look out for.
My particular area on this panel is to speak about critical race theory concepts––which I often refer to as critical social justice––in private K-12s. So private K-12s are very — they have very different incentives, structures, and, of course, applicable laws than public K-12s, so they must be approached very differently. And private schools also have very different sensitivities than public schools, as you can imagine. But they are, make no mistake, in many cases, teaching a very aggressive form of critical social justice, and one has to ask, “Well, why? Why are they doing this?”
I think one of the reasons is that some or many, perhaps, of the private schools, it’s very important for them to have the best placement records possible for their students because when a parent is deciding on a private school, they often look at that: where do you place your students? And a lot of the more elite universities are specifically looking for schools—for high schools—to teach these types of concepts.
And many of you in this room may have heard of the reports of one of the — a head of school of a very tony private school on the East Coast who was looking at the placement records of the school that she headed and realized that one very prestigious Ivy League university had not admitted any students from her school in several years. So she trucked on over to that prestigious Ivy League institution and asked, “What gives?” They said, “Well, you’re not sufficiently establishing a commitment to equity and justice.” And they may also be separating the students into groups based on skin color and ancestry.
This client may also notice that these groups are not necessarily being treated the same way, although that probably shouldn’t matter. Some of them get to go to lunch early, some of them get ice cream first. They’re not even being — discussing the same topics. So one group might talk about their pride in their ancestry and heritage, and another group may very well talk about what they need to do to compensate for their skin color. Unfortunately, in the private school context, as you can imagine, the legal remedies in that situation are very, very limited. By and large, the relationship is governed by the enrollment contract, which, if there are any private K-12 parents here, you probably know that the enrollment contract imposes virtually no obligations on the private school other than to enroll your child. So that really won’t get you very far.
Some courts have held that the student handbook is a contract, and that typically contains some type of anti-discrimination promise on behalf of the school. However, ultimately, the issue comes down to damages. What are you going to get? And as every person here remembers from law school, specific performance is an extraordinary remedy that probably will not be granted, and that is what most parents want. They want the school to perform under the contract, be it the enrollment contract or the student handbook contract, and stop discriminating and stop separating students into skin color swatch groups. But you probably are not going to get that under a breach of contract cause of action against a private school. That’s just the reality of the situation.
And I think parents in private schools have to be aware that the enrollment contract may sometimes impose obligations on them, and one of those obligations is often that if they openly voice disagreement with the school’s objectives in a way that embarrasses the school, then the school can, in fact, expel their child. And we’ve seen that happen in more than one case. So parents do have to be careful, and I think that’s why we see a lot of schools very upset by what they call parent factions. And when they say, “factions,” they don’t necessarily mean people going on Tucker. They mean parents who are banding together and making it known publicly within the community that they’re not happy with where the school is going. So those are the limitations on a contract claim.
There are other related legal remedies that are available; maybe a breach of the implied covenant of good faith, if you’re in a state that applies that to enrollment contracts; a potential misrepresentation claim that probably isn’t going to get you far. Obviously, Title VI of the Civil Rights Act, which prohibits discrimination in any publicly — federally funded program, prohibits discrimination based on race and skin color. That, by and large, does not apply to private K-12s because almost none of them receive federal funding. And even if they do receive federal funding, Title VI requires there to be a nexus between the alleged discrimination and the federal funding. So, for example, if a private K-12 were to receive federal funding for a lunch program, you would be able to proceed on a Title VI claim only for discrimination in the lunch program.
Some states do have anti-discrimination laws that specifically apply to private K-12s, but very few, and they’re somewhat limited. New York human rights law prohibits harassment in private schools. It’s an open question as to whether some of these practices would be deemed harassment. Interestingly, and this is perhaps the most salient point I’m going to make, the State of California has a law, and it’s the only state in the country, I believe, that has one. But that statute gives high school students in both private and public high schools, essentially, the same free speech rights they would have if they were speaking in the public square.
And why is this relevant? It’s relevant because a lot of schools are instituting or announcing they are going to institute micro-aggressions policies. And everybody in this room knows what a microaggression is, or you know of an example of one. But it’s basically an anodyne statement that is almost certainly protected speech but which somebody perceives as offending them based on an immutable trait. So a statement that “Meritocracy is the best system,” or “They pulled themselves up by their bootstraps,” or “Where are you from?” those are all deemed microaggressions, literally. And I’m, obviously, not from Korea, but it would be a microaggression, nonetheless.
So, in any event, this California statute — and again, it’s the only one in the country––unfortunately or fortunately, depending on who you are––that applies in this context. And moreover, it applies as soon as the policy is instituted, so you don’t have to wait, necessarily, for it to be enforced. You can bring a claim upon adoption of the policy. I think, ultimately, though, my personal hope with respect to private schools is that there’s going to be some type of a spillover effect.
And there is a lawsuit pending—and I think there may be a few—but there’s one lawsuit, in particular, that’s pending in Nevada––in district court in Nevada––Clark v. Democracy Prep, and it’s challenging a curriculum very much like what Josh discussed on various grounds, including equal protection and Title VI. And I think if there is a judgment of some kind that, yes, what this school did is, in fact, a violation of one’s civil rights — if that’s the case, it might encourage private schools to think twice about what they’re doing because does a private school really want to be teaching students and doing things that would be unlawful and a violation of one’s civil rights if only it was done by a public school? That’s a question they will have to answer, hopefully. So with that, I wanted to pass it onto the professor, and he’s going to discuss these concepts as they exist in higher education.
Hon. Kyle Duncan: Thanks, Letitia.
Prof: Akhil Reed Amar: Josh Hammer described himself as a card-carrying member of The Federalist Society. I’m not a member of The Federalist Society. I have never been a member of The Federalist Society. I probably won’t ever be a member of The Federalist Society because I’m, truthfully, just not much of a joiner.
But I’m always so very honored to be invited to do events with my friends at The Federalist Society — and you are my friends. I’m going to come back to this point at the end of my remarks, but when I’m on the road, I often just bring some of my comfort clothes, and here’s one of my favorite t-shirts. It’s about Yale Law School Federalist Society. I’m going to come back to this because there’s a lesson here, actually, that connects to our topic. Now I am, actually, a member of the Democratic Party. I’m not sure if I’m a card-carrying member. I’m not sure I ever got a card. I’m not an affiliate of the socialist wing of the party.
I quite believe in free markets, and I’m going to tell you something about free markets, really dramatic fact, and then shift to private education, which is one component of free markets. You’ve heard a bit about government schools. I want to talk more about non-governmental schools—private schools.
I love free markets. They create a certain dynamism. Here is an extraordinary fact about the openness of the American economy, in general. You take, maybe, the five most successful companies today—Amazon, Apple, Facebook, Google, Microsoft—they didn’t even exist half-century ago. And the ones that were behemoths a century ago don’t exist today. That’s the dynamism of the American economy, in general.
But now let’s contrast it to education, which is a very unusual sphere of the nine — in education, older is better. It’s like money in Britain, or something—old money being far superior, obviously, to new money in an aristocratic society. So of the nine colleges that existed at the time of the founding, seven of them are still seven of the top 14 schools as rated by U.S. News & World Report. So very dynamic economy, generally lots of churn, no movement whatsoever almost in education, but I told you seven of the nine. The other interesting fact is that the seven of the nine that have done the best are the seven private schools. They’re the seven oldest Ivy’s, all except Cornell, which is a newer place. And the two old schools that were public schools––or are public schools now––have really been outperformed by their private competitors, William and Mary and Rutgers, formerly King’s College — excuse me, Queen’s College.
So the private educational sphere is really important in America, in the world. People come from all around the world to come to our schools, and many of America’s greatest universities, as I just told you, are private universities. Again, U.S. News & World Report is not the be-all and end-all, but I think all 20 of its top 20 schools are, actually, private universities, liberal arts universities. So this is an important sector. I happen to teach in one of those places. And law and the Constitution aren’t going to be the answer to all the problems there because they’re not governed, to the same extent, by the First Amendment, these institutions. But we are governed by our own standards, our own ambitions, and goals.
My school says that the most fundamental mission is not even the social justice mission, which I do believe in. It’s an important one. But that’s not our defining mission at the university; it’s lux et veritas—light and truth. Our job is to actually discover and disseminate knowledge to the world. That’s the mission, and my claim is that a certain kind of diversity can be helpful in that project, but it’s actually ideological diversity that’s at least as important as mere demographic diversity. People of different points of view can sharpen each other and produce and disseminate more light and truth.
And I’m not arguing for a lower standard for people who think differently than I do or that the majority does. I’m arguing that we need to recognize our implicit bias, that it’s natural to think, “Oh, I’m a smart fellow, so people who agree with me, they must be smart people. And the people who disagree with me, they must be the not smart people, and so I’m supposed to only hire the smart people.” And that can take ethnic forms, a certain kind of clannishness, but it can also be true — that’s an argument for a certain kind of demographic diversity commitment, but it’s also true, of course, of ideological diversity. And I think we have to take affirmative steps to try to counteract implicit bias and try to look out there for the smartest folks out there who think differently from how we do.
And this is why I am so very proud, every year, to co-teach with my friend, Steve Calabresi, co-founder and co-chairman of The Federalist Society. He thinks differently than I do politically. We vote differently on Election Day, I suspect, but we benefit from the other. I think our students benefit by hearing, actually, the exchange of views between people who actually have some ideological diversity between them.
So, yes, I’m going there. I’m talking about Yale and the recent unpleasantness and, as you know, unless you’ve been on a desert island, Yale Law School has not treated The Federalist Society or its members fairly and has yet to apologize for this and make amends for it. So my own view, on the basis of all sorts of information, some public, some yet to be made public, is that the law school is not living up to our highest commitments. Administration has been dilatory, duplicitous, disingenuous, downright deplorable. So there you have it.
So what’s the solution? I would urge the administration to stand up for The Federalist Society and its members. And to repeat, I am not a member of The Federalist Society, never have been, probably never will be. If you look on my faculty webpage, which I composed––and it’s very self-serving––the second sentence, I actually mentioned that I’ve received an award from this society. I’m proud of my friendship with this society, but I am not a member. But I think the administration has to stand up for The Federalist Society and its members and needs to take immediate steps to diversify the faculty ideologically, which brings me back to the t-shirt.
I’m a little bit over, but if you give me one more minute, I hope I can connect the dots —
Hon. Kyle Duncan: Take your time.
Prof: Akhil Reed Amar: — because although Yale Law School isn’t living up to its highest standards now, I want you to understand, actually, where this very organization began and where the roots of its best traditions lie. So, when I’m — and they are at Yale, at a great private university. I’m an undergraduate at Yale. I’m a chair of the liberal party of the Political Union, and I want to be president of the Yale Political Union because that’s what all of the chairs of the local party wanted to be. But there was this other fellow, and he wanted to be president of the Yale Political Union, and he actually had a better idea for the union. His name is Steve Calabresi.
So we were rivals, and I underestimated him. This is the problem with implicit bias, you see.
And here was his better idea. And he became president of the Yale Political Union. His idea was let’s get not one speaker to come talk to the students, let’s get two on the same topic who disagree with each other, and they can have a debate, and then the students can jump in — inspired by Bill Buckley’s Firing Line. And Buckley, himself, was a Yaley, you will all remember. Let’s get Bill Buckley to debate George McGovern on the Vietnam War, and the students can jump in. That’s Steve Calabresi’s brainchild, the Yale Political Union, along with people here, like, Lee Liberman Otis. And that idea — which is really a brilliant idea to actually have different perspectives and debate and ideological diversity. My college roommate is, I think, still here, Paul Johnson. He watched all this going on. He always voted for Reagan. I never did. But we learned from each other, you see.
So that’s Steve’s idea, in part, and that becomes, actually, The Federalist Society. When Steve and Lee Liberman Otis and Dave McIntosh and others, Peter Keisler, all Yaleys go to law school — that’s where The Federalist Society is born; different people who disagree with each other, talking to each other. And I went to all their meetings because — and I was not a member, but I liked listening to them and talking with them and pushing back.
So I need to show you the backside of the t-shirt, you see, which was made for me. They even gave me an unofficial title, —
— “The original Devil’s Advocate.” See? So we could be friends, and we don’t have to agree on everything, but we learn from each other. That’s where The Federalist Society began. That’s why you have ideologically diverse panels today, and at every FedSoc event I have ever attended. They’re the best conversations in town.
And, so finally, where did Steve get all that? I think, possibly, he got from his liberal uncle, Guido Calabresi—great professor at Yale Law School, eventual dean of Yale Law School. Guido Calabresi would talk all the time with Robert Bork. They were friends. They disagreed. Steve, eventually, would clerk for Bork. So out of these ideologically diverse conversations, Guido Calabresi and Robert Bork––today, Akhil Amar and Steve Calabresi––co-teaching. That’s actually the tradition that in one form becomes The Federalist Society.
I don’t think it’s what we’re seeing at Yale today — Yale Law School. So I’m, today, using this platform to call upon the Yale Law School administration to be true to the best traditions of Yale University and Yale Law School, this light and truth tradition, this ideological tradition, the tradition embodied, epitomized, championed by my very dear friends Guido Calabresi and Steve Calabresi. Thank you very much.
Hon. Kyle Duncan: Thank you. Kim?
Kimberly Hermann: Okay. Well, I’m going to bring us back to K-12 schools a little bit and talk some about litigation in this area, the nitty-gritty of what’s actually happening in the schools, and give you guys some examples. But I want to start out by mentioning that for almost 50 years, at Southeastern Legal Foundation, we’ve been working to rebuild the American republic. And we’ve been standing with courageous Americans to fight for individual liberty and for free speech. And never before in the history of our foundation have we seen all levels of government so blatantly disregarding the Constitution and our civil rights laws and at such a furious pace.
In America, as all of you know––because that’s why you’re here today––you know that the government can’t treat people differently because of their skin color and that they can’t compel individuals to self-censor or to affirm ideas that they just simply don’t believe in. But our K-12 schools, our colleges, and our federal government are doing just that. They’re implementing race-based programming into all of our schools, and they’re codifying it into our laws in the name of equity.
But everyone says, “What does equity mean?” In this sense, what I’m talking about is when they’re conditioning individuals to see only skin color, they’re putting everyone into a hierarchy of racial privilege, and then they pit racial groups against each other. Then we have those at the highest level of our government, as we’ve seen in the last few weeks, coming in and trying to intimidate and silence people who don’t agree with this hateful ideology. This is totalitarian tyranny, make no mistake about it. It is not a democratic republic.
So let me give you a few actual examples from cases that we’re litigating and that some of our friends are litigating about how the schools are doing this. Up in Illinois, we have a school district that is mandating racial segregation. We’re not talking about voluntary affinity groups. We’re not talking about after-school programs. We’re talking about requiring whites to go into one room, non-whites to go into another room, and giving them different teacher trainings and different lessons. This is blatantly and egregiously unconstitutional, and it is morally wrong.
We have that same school district, along with hundreds of others in this country, celebrating Black Live’s Matter Week. It’s a week where every single subject and every lesson and every grade focuses on the ideas that whites are oppressors, blacks are victims and oppressed, and it actually teaches kids lessons on how to become social justice protestors. This is in the actual documents that we have from many school districts across the country. Some of these kids are then even asked to make and take anti-racist pledges and then pledge allegiance to a BLM flag that their teachers keep in the classroom. Okay? This is actually happening.
We have other schools where kids as young as four years old are required to engage and read a book called, Not My Idea: A Book About Whiteness. It’s a book where you take a journey with a young child who’s teaching her mom that white people are bad, that they hurt black people, and that they are not punished for that by the law. In the back of the book, there’s an activity page. And you guys may have seen it; it’s gone viral on Twitter. But on one page, it says whiteness is a bad deal, and on the opposing page, it has white man dressed as the devil holding up a contract. The contract binds you to whiteness, where it says that you get to mess endlessly with the lives of your friends, loved ones, neighbors, and all fellow humans of color. Some of these kids are asked or required to then sign this contract. They can’t even begin to understand the concepts that are put forth in this, let alone recognize whether or not they agree with this or not.
We have every single school district—and I am not overstating that—every single school district throughout this country is requiring teachers to take some sort of equity training. It could be a DEI training; it could be an anti-racism training. They’re all named different things, and they all do look differently. But in the heartland of America, we have one case where we have teachers who are required to go and pick up signs before they went to this because it was done over Zoom. So you had to pick up “agree, strongly agree, disagree, strongly disagree” signs and bring them to your Zoom training. They were then read prompts, prompts like, “Parents are oppressors of their children. All teachers should vote for socialist politicians and teach their kids that socialism is a good thing.” These are direct quotes. Another one––I’ve got them right here––was that “Showing pride in America’s history is harmful.” They were then told that if you don’t hold up the “agree” sign, you are disrespecting everyone in the room, and those that did not were publicly reprimanded.
Okay. This is the bad news. These are just a few examples of — as Josh mentioned, he’s documented a lot of this. Chris Rufo has documented a lot. Max Eden has documented a lot. All the examples are out there. So this is the bad news.
The good news is that parents have had enough, and we saw that last week when they went to the polls in Virginia. And we’re hearing that every day when we have parents defending education, getting out all of these tips that they’re getting, and when we’re bringing cases. We are all recognizing that the people that are putting this into place in our schools are doing this to create a generation of social justice warriors. They are doing this so that we don’t have diversity of thought when they get to college. So that idea, the idea that Professor brought up, can’t even happen because the kids are only seeing things in one way.
The outrage over what kids are being taught, and now, the plain attempt by those in the White House and Department of Justice in trying to silence parents, many are now considering lawsuits—lawsuits like the ones that we have brought and that some of our friends have brought. I’m hoping that many of you in this room, as you hear these examples, are also inspired to bring lawsuits or to speak up or to team up with groups like us so that we can bring more of these so we can actually bring about precedential change.
But we do need to be strategic in our cases. We have to be strategic in how we’re selecting our cases. We need to get the documents, we need increased transparency laws, and we need to FOIA everything. We need to be strategic in the remedies that we seek and how we message these cases. If we focus on the most egregious cases where we have a full evidentiary record and can set precedent, then we can get to the cause of this, so you’re not just playing Whack-a-mole with one lesson in one class, or you’re not infringing on the free speech rights of teachers or other students, and you’re not banning ideas. That’s not what this is about. It’s about stopping things when you have a hostile learning environment that violates Title VI, or it violates the Equal Protection Clause, or you’re compelling teachers to actually agree with egregious statements like, “Socialism is a good thing,” or that parents are oppressors of their children.
Right now, all of us––I would assume that everyone in this room, just like Americans across the country––feel like everything in the government’s stacked against them. But we have those courageous parents, we have the brave teachers, we have Federalist Society lawyers who know that there’s a place where we can all be heard, and that place is the courtroom. And so, I would just encourage all of you to take a really close look at what’s going on in your kids’ schools, and if lawsuits need to be brought, to think about actually bringing them and using all three branches of the government so that we can get this hateful ideology out of our kids’ classroom, and actually fight for the Constitution and their future. So with that, I’ll pass it over to Greg.
Hon. Kyle Duncan: Thank you.
Greg Lukianoff: Thank you, everybody. And thanks for having me. I, like all lawyers, am a creature of great concision. So for my actual opinion on what’s going on with the CRT controversy on K-12 and in higher education, I wrote a very pithy little 5,000-word article with three other authors over the summer, which had the commendable attribute of being dragged by both the right and the left, depending on which week you’re talking about. One of the things that we’re very clear about, and there’s no disagreement here, is that the principles around higher ed and K-12 are just completely different. The meaningful free speech actor when it comes to K-12, are the students themselves, to a lesser extent, their parents, not so much the teachers. I do think that Garcetti v. Ceballos limited the rights of public employees to too great of a degree, but that’s neither here nor there.
I am somewhat critical of some of the CRT legislation in a variety of different ways. I think that it was a big mistake to have any of them deal with higher education at all. I think it got a movement against something that I think people should be very critical of, off to, very much, the wrong foot. It means that my organization, FIRE, had to oppose these laws because if you’re saying — if you’re applying some of these laws that would be perfectly constitutional as applied to K-12, to higher education, since the law is completely different, they suddenly become very problematic. And FIRE never backs down from targeting—we never play favorites. So we’ve ended up having to oppose them.
I also think that one of the problems with the existing CRT laws is they create what I call a negative curriculum. They say what you can’t teach but not so much what you can. And I do think that when you’re in a position of saying, “Not this. Not this. Not this,” it ends up getting, one, interpreted poorly. David French does make the point, my friend, that the poor wording of some of these laws is problematic. To be clear, some of them are much more defensible than others. North Carolina’s version of it, I think, is––which only focuses on compelled speech––is almost certainly constitutional.
But one of the things that I tried to do was to create something, sort of a riff on my book with John Heidt, The Coddling of the American Mind — I created something called The Empowering of The American Mind, which tried to take positive principles about things like, God forbid, believing in individuality and believing that you shouldn’t be compelling people’s speech and that you should treat people without labels, but also ideas from The Coddling the American Mind like, we should teach students to avoid cognitive distortions, which I could explain in questions if people really want to hear and, what we call in The Coddling of the American Mind, the three great untruths, which are — one of the points that we make in the book is it’s as if we’re teaching a generation three terrible ideas, one of which is, what doesn’t kill you makes you weaker, always trust your feelings, and life is a battle between good people and evil people. And we point out that this doesn’t agree with ancient wisdom traditions or modern psychology.
So we tried to offer a positive vision in [The Empowering of the American Mind]. I think I have the final version of it, and we’re going to be cooperating with parents to see if we can actually ask principles like, “Can you sign onto these principles that all Americans should agree on, or can’t you?” And if they refuse to, then we seriously have to ask why.
Now, you may be surprised that we’re doing anything at all on this because people who know FIRE know that we focus on higher education. Well, unfortunately — and one of the things that I realized from writing [The Coddling of the American Mind], is that — and there’s actually an article in the Atlantic about this today — is students were showing up on campus by 2013-2014 already believing in a lot of this ideology. So it’s clear it wasn’t necessarily coming from higher education, although, to a degree, it was because it was coming through ed schools indirectly into K-12 education, and it was very clear that they were showing up already believing these things.
And one thing that I think we did get wrong in Coddling is we underestimated the role of ed schools. I also believe that a lot of these ideas got a real advantage by poorly thought-out legislation in 2010, which was in response to some of these claims of cyberbullying that allowed for the introduction of highly ideological anti-bullying programs to be introduced in K-12, an exception that led to a lot of the kind of programming that Kimberly’s talking about. So I think we’ve made mistakes with overregulating in the past.
So I’m going to shift over, quickly, to higher education. And one of the things that I really want to stress, and I’ve been doing this for 20 years as of October. I’ve been at FIRE for 20 years, and it’s unfortunate that I’ve had to say this almost every year for several years now, but I can say it this way; last year was the worst year I’d ever seen. It was terrifying. And we now have a scholar database where we try to go on and figure out what’s going on on-campus, where we try to find out, for lack of a better word, how many attempts by, usually, students there was to cancel professors. And we found 120 examples of this just in 2020, and that’s a big increase from what we saw in 2015. Now, to put that in perspective, I think there was 18 attempts at Stanford, my alma mater. There was nine or ten, I think, for Harvard and Yale, somewhere around there. The numbers get brought down for the top 10 schools, in part, because of MIT and Caltech, but as you might have seen, MIT is trying to catch up with its peers.
So things are bad. I’m extremely worried. 2020 was also a year where we saw just a huge increase in the number of case submissions to FIRE. One of the things we’re trying to do to contribute to this positively is to rank — and that’s, as you can tell, that’s a theme of what we’re trying to do. What can we actually do to fix this? Lawsuits are appropriate, but as Letitia points out, lawsuits aren’t going to work against private schools, at least not most private schools. And without a culture that values individuality and values freedom of speech and conscience, and a culture that positively thinks in a group rights framework, as opposed to an individual right framework, we’re going to ultimately lose, and we’re going to lose something very precious.
And one of the things that we were able to see from the rankings was not just that students are telling you, very clearly, that they feel chilled in the classroom, is that they’re also saying that they increasingly approve of violence in response to speech, which was kind of a terrifying thing to see. And I do think — I have this list of — I like lists, and I have this list of five things every person should do. Why don’t I ask you to do this? Ask your alma maters to drop their speech codes, to stand up for faculty and students when they get in trouble, to pass a recommitment to freedom of speech on their campus. “The Chicago Statement,” for example, is a great example. The two, in some ways, more interesting thing is, teach students about freedom of inquiry and free speech when they show up the very first day in orientation. Preferably, don’t teach them that those things are bad.
You’d probably want this to be run by faculty who actually understand that and also poll. We’re able to poll, indirectly, what schools are doing through a group called, College Pulse. We’re able to get really interesting data about what students actually think, but nothing would compare to schools doing this themselves. And believe me, if they did this themselves, they would start seeing that professors are terrified, students are really scared. There is that percentage who thinks everything’s fine, but they tend to agree with everything the university believes in the first place.
So I have that list of five things, but in the last year, one thing that I’ve gotten even more adamant about is that when you have institutions that are as wealthy as Croesus––when they’re as powerful as Harvard and Yale, who have sitting to the side, the amount of money that’s the GDP to Lithuania and getting bigger every day––they don’t have any real incentive to change all that much. They disproportionately pick our ruling class, flat out, and they get tons of money for it, so what’s the incentive to change? And that’s why I do think in order — you do have to accept that the Harvard and Yales and Stanfords aren’t going to go away. We have to do our best to make those schools better, but I don’t think things are going to move forward, either in K-12 or in higher education, without meaningful, large-scale experimentation in how we do all of the above.
I think that even Sal Khan has interesting ideas about how we could rethink K-12, but the frustrating thing, this week, in particular, is that you want to try a bunch of different approaches, particularly for higher education, but University of Austin — hopefully, you heard about this. This is an experiment that I’ve been talking to Pano Kanelos, who is the former president of St. John’s, to start an entirely new higher educational institution with lots of really big names attached to it. And I think that that’s partially the way forward.
And I think employers are having major issues with the students that they’re getting from some of these very elite schools. As the authors of The Coddling of The American Mind, we’re hearing this all the time. So I do think there’s an opportunity for some really high-quality, rigorous upstarts coming out there. But I will say, it was really kind of heartbreaking to watch the reaction to the announcement of University of Austin, which was after years of people, “Oh, you don’t like it? Start your own university.” And then as soon as someone started their own university, it’s like, “Oh, not that one.”
And it was one of these things where I think it’s a worthwhile experiment. I think we should try a lot more different approaches, and I think that that’s the only way you’re going to save higher education and K-12. You can’t do it just through litigation. You need experimentation in this field to save freedom of speech, both on and off campus. Anyway, thank you.
Hon. Kyle Duncan: Thank you, Greg. Thank you for everyone’s comments. I think, at this point, what I want to do is give each of you the opportunity to either respond to something you heard that you may agree or disagree with, add to your comments, and we’ll go down the line again. And I apologize for getting the order wrong. You’d think the moderator could do that, but, you know.
So if you all would respond, and then we can — if any questions occur to me, I’ll ask some questions, but then we’ll open it up to questions from the audience. I’m sure they have many. Josh, you want to —
Josh Hammer: Yeah. Sure
Hon. Kyle Duncan: — start off again?
Josh Hammer: This is great. For sake of time, I’ll just ask, I guess, only one question. So, Professor Amar, I was deeply heartened by your very passionate condemnation of what happened at Yale Law School, which I think deserves the attention that it’s getting. I wrote in my weekly column about it a few weeks ago. It really does deserve our scorn, for lack of a better term here. I guess, beyond rhetorical condemnation, though, I would be curious what kind of actual remedial forms of punishment you might want to see happen to the administrators who are at the heart of this scandal or mini-scandal? And specifically, here’s what Princeton’s Robby George said. Robby said, “When things like this happen, there should be a formal investigation and disciplinary proceedings. If, after a full and fair hearing, administrators are found guilty of violating free speech or other academic freedom rights of students or faculty, they should be dismissed. Until this begins to happen, you can expect more of this.” So I would just be curious whether you agree with what Robby said there or if you have an alternative view of that.
Hon. Kyle Duncan: Professor, feel free to respond if you like.
Prof: Akhil Reed Amar: I think the first item of business is truth and reconciliation. We need to have an open, transparent identification of what actually happened. And Judge Stephanos Bibas, at the Yale breakfast this morning, talked about apology. I believe in apology. So does he. He talked about various religious and philosophical traditions. So the most important thing, I think, that I called for was an apology to those who were wronged—The Federalist Society and some of its members. That’s the most important thing. And, in the course of that, it’s not just that mistakes were made, people were wronged, some — they were agents, actors, who did the wrong, so they should do the apologizing. And then after that, I’m not going to take a position because I — and by the way, it’s a form of punishment of a sort to actually have to admit that you were wrong. What else should happen to them, I think, will depend a lot on the specific facts as they are adjudicated to have come out.
I do have my own ideas, but I also am a big believer in due process. And when we are thinking about punishing people as opposed to apologizing to people, more — we have special rules — the more severe the punishment, the more careful the process needs to be. I think we’ve had enough process to know that The Federalist Society members are owed an apology. Punishment, we’d need more process before, actually, individuals are punished, and so, let’s first have an apology, and let’s get procedures in place so this will not ever happen again. And let’s have more immediate steps taken toward the ideological diversification of the law school faculty.
Hon. Kyle Duncan: Thank you. Anything else, Josh?
Josh Hammer: I’m good with the one question.
Hon. Kyle Duncan: Okay. Letitia?
Letitia Todd Kim: Thank you. I actually have a question for Josh, Kim, and Greg, whoever wants to answer it, any or none. As Greg said, Harvard, Yale, and Stanford aren’t going anywhere. I also think diversity, equity, and inclusion aren’t going anywhere, at least not in our lifetimes. But the question, I think, is — and I think those can be a good thing, depending on how they’re interpreted and implemented, but I would love to hear from my co-panelists as to whether they agree with that. Do they think that there are productive, positive ways that diversity, equity, and inclusion can be implemented, whether it’s in our schools or in our corporations, and if so, what would that look like?
Greg Lukianoff: Oh, I’d definitely like to take that because one of the things that FIRE’s been doing — and FIRE always has, I said, experiment a lot, but we always have sort of an experimental bucket of things that we try that are kind of bold and maybe even strange, like writing a book about free speech that’s actually about psychology. But we’ve been incubating a diversity trainer named Karith Foster, trying to start an organization called Inversity—and it’s just about to go off on its own—which is an attempt to take — I’ve always found that absolutely ludicrous that we — the way diversity inclusion is taught on campuses is extremely conformist. It’s not multi-cultural; it’s actually about, frankly, in many cases, adopting upper-class American, academic norms and that it’s couched as saying, “This is what you should really think, and this is what good people think.” Diversity—real diversity—requires freedom of speech.
I’m a first-generation American. I grew up in a neighborhood with a lot of other immigrant kids and first-generation. The one rule that you have, in that circumstance, is that everybody’s entitled to their freedom of speech. Sometimes they get punished for it, but you’re entitled to it. So I don’t think that, properly understood, there needs to be, as such, great tension between diversity and inclusion and freedom of speech and multi-culturalism. Chloe Valdary––I’m going to say her name wrong––is trying something called enchantment theory. She’s another experimental approach to diversity inclusion that focuses a lot more on individuality and actually talking across lines of difference.
But the first thing you have to see––and this is one of my concerns about the potential for reform at Yale––is, I think, in a lot of cases, these aren’t people who think they’ve done anything wrong. I think too many of them think DEI is just fine how it is, even though, like I said, I think it’s actually maintaining privilege to a degree. And actually, the research on DEI is that it doesn’t improve things and, actually, there’s a good argument to say that it makes people more alienated from each other. So I think that we’re so far away from the truth and reconciliation problem because I think that people still don’t think they did anything wrong — like Nicholas Christakis, at Yale, for goodness’ sake. So we would love for this world to exist, but I think we’re so far away from it. You know, we need very small steps towards there and big innovative ideas like creating a new DEI industry for actual people for actual diversity.
Hon. Kyle Duncan: Thank you. Did anyone else want to respond to that, or, Professor Amar, did you want to criticize Yale anymore?
Prof: Akhil Reed Amar: The night is young.
Josh Hammer: I mean, I’ll chime in, real quick, just on the higher education components, not so much on the DEI components here. Look, one thing that I also love from Professor Amar’s remarks––we actually had a whole Newsweek debate podcast on this a few months ago––is what is the purpose of the university? What is the purpose of higher education? And I love, love the fact that Professor Amar is talking about lux et veritas because seeking truth, seeking the dissemination of knowledge and, ultimately, seeking truth, literally is the purpose, obviously, of the dialect going back, obviously, to the Greeks but in the modern European and North African history of the modern university, that was always the understanding of what the university is. The question, obviously––especially given the tax structures that the university endowments currently get and all that––is, are our current universities, in large part, as currently situated, actually doing that, let alone redounding to the national interest or the common good? And I think the short answer to that is quite clearly not. If anything, they are, in large part, destructive and rotting children’s minds — or, not children but teenagers’ minds. Obviously —
Greg Lukianoff: — Perhaps coddling them? Sorry.
Josh Hammer: So the question, obviously, then is what do we do about that? There was one great essay by my buddy, Arthur Milikh, at Claremont Institute — I linked to this essay all the time. It was a National Affairs essay. You can Google it. It was called — an essay, “Preventing Suicide by Higher Education”. So the title kind of gives away the conclusion a little bit there. But at the National Conservatism Conference that I mentioned earlier that I was at last week, JD Vance, when he gave his keynote address —and you know, FedSoc not a partisan organization so no comment, obviously, on the actual Ohio senate race.
But in JD Vance’s keynote address, he talked about how we have to think of the higher education apparatus in general now. He used the term “enemy” to borrow the same phraseology that I used earlier to refer to the woke ideology corrupting K-12 lower education. Whether or not you want to ascribe the word “enemy” to the higher education diversity “diversity-crats”––and I think it’s certainly appropriate in many cases, including what happened at Yale Law School—but regardless of whether you want to apply that particular word there, what we have to do is, ultimately, get ourselves comfortable––and even judge Duncan actually joked about this in his opening remarks––with getting us out of this mentality that a four-year education—kind of a Rumspringa for wealthy elites—is somehow a good rite of passage because the amount of fiscal and intellectual corruption––to say nothing of inflating costs of tuition and just the intellectual degradation––that takes place on most college campuses across America now really cannot be overstated. But it really — this does have to start culturally, and I think the people in this room have to start thinking of higher education as an intrinsic good, worthy of being pursued unto itself.
Hon. Kyle Duncan: Thank you.
Kimberly Hermann: Yeah.
Hon. Kyle Duncan: Who was next?
Kimberly Hermann: I was just going to respond –
Hon. Kyle Duncan: Please.
Kimberly Hermann: — to Letitia’s original question, which is, what is the place for DEI, specifically to K-12 schools — to not repeat what Greg said for colleges. But of course, there’s a place for true diversity. Right? We need diversity of thought. We talk about that all the time. It’s incredibly important. But equity, as these schools are using it, they’re using it as nothing more than a license to punish Americans because of their skin color. You’re taking away talented and gifted programs. Right? You want everyone to have an equal outcome, so an end result. And what that ends up doing is, it really does punish all the kids that are in the room because you’re not giving the kids that need the additional resources, those resources. You’re not giving the kids who are excelling the ability to continue to excel. You’re taking away that drive there.
And so, yeah, of course we want diversity of so many different levels, but we also want equality, which is what our Constitution demands. Right? It’s what we fought for in this country. It’s what’s enshrined in our Declaration of Independence. It’s very, very different than equity. And so, make no mistake about it, it’s a play on words here. And we have the White House coming out with an executive order a week/week-and-a-half ago creating an interagency working group so that we have equity in education. Why the EPA? Why the Department of Homeland Security? Why all these other agencies need to be involved in that baffles me. But it’s the same exact thing that we saw with environmental justice back in the ‘90s with Clinton. Right? It’s taking this concept of pitting people against each other. And so, just make no mistake about it, that’s what that is. We need diversity, but equity is not where this country needs to be going when it’s used in that way.
Hon. Kyle Duncan: Thank you. Would anybody else like to respond to anything because I can ask a broad question, and we can also invite people from the —
Greg Lukianoff: I would just like to –
Hon. Kyle Duncan: — go ahead.
Greg Lukianoff: — relay a personal experience. I lived in D.C. in the ‘90s, and I covered gun violence for my school newspaper, and I worked with inner-city high school kids for a program called The EnvironMentors Project, an environmental mentoring program for inner-city high school kids. And I got to meet some of the brightest students who are being horribly underserved by the D.C. public school system. They needed a place to go. They were almost exclusively black and brown kids, and they were extremely bright, and the idea that we’re doing something decent or kind by getting rid of the gifted and talented programs is such an insult to those children who will hide that they’re smart when they otherwise could be everything from productive to happy. It’s a very foolish way to go. And we talk about, in The Coddling of The American Mind — about the equal outcome mentality is disastrous.
Hon. Kyle Duncan: Thank you. I certainly invite questions from the audience. I’m sure we have many of them. Fine. I thought I’d have to wait for a line to form, but please, go ahead, introduce yourself. And please keep your question fairly brief, and make sure there’s a question mark at the end of it.
Josh (sp): I’ve actually got it drafted, so there’s a question mark.
Hon. Kyle Duncan: Excellent.
Josh: My name is Josh, and I am with the Kansas Chapter. And my question is specific to K-12 public schools, and it has to do with the tension — or is there a tension between the principles supporting a legislative prescription of CRT curricula, basically, that K-12 public schools are not marketplaces of ideas and teachers should not get to teach what they want — I think someone said it’s more the local community passing on the tradition and it’s a confined space, unlike university setting. Is there a tension between and that and the proposed judicial remedies that would prevent teachers from being compelled into particular speech, for example, in being required to use student’s preferred pronouns?
Hon. Kyle Duncan: Okay. Well, that — so I certainly throw that open to anyone. That raises a number of different issues and it — one, in answering that, you might think about this, is if we’re going to talk about litigation and legal remedies, I think it would be helpful to specify who’s rights we’re talking about here. It strikes me that we have possible parental rights, we have student rights of various dimensions, whether it be to speak or, as Letitia mentioned, to receive information — I thought, maybe, you said that at some point. We have teachers’ rights. We just heard someone — a teacher against being compelled to speak. And yet, we’ve also heard panel members say that First Amendment rights are generally thought of as somewhat limited in this realm because, after all, I think Justice Alito said in a recent concurrence in the cheerleader case — he said, “In schools, children in a math class can be made to speak about math.” And that’s certainly practical truths. So anybody want to take any one of those?
Josh Hammer: I mean, I’ll hop in quickly. There’s a lot to unpack there, obviously, so I’ll try to be quick and then pass it on to my co-panelists. Look, from a fundamental perspective here, we need to remember what the First Amendment, in this context, is actually doing. Okay? To paraphrase something that Rufo has said himself, “The First Amendment does not exist to protect teachers’ ‘free speech rights’ from children and, by extension, their parents.” The First Amendment, in this context, exists to protect we, the people, the sovereign citizens of these United States, against the government, which, in this case, is the woke bureaucracies and, by extension, the individual teachers here. So, along those lines, to get to the other part of the question about proposed remedies — I mean, one thing that I was toying around with––again, I’m not involved in drafting model legislation or anything like that, but just to throw an idea, a very half-baked idea out there––you could do some sort of — a state legislature could create a private right of action along the lines of where there’s an alleged Title VI statutory violation for discriminating on the basis of race, and you could borrow from our dear friend, the “genius,” Jonathan Mitchell. You could borrow the expiate of Texas enforcement mechanism and rely upon individual parents to then file those private right of action lawsuits against school bureaucracies, to file those suits for appropriate damages. So just one possible idea about how I might think about these concepts.
Hon. Kyle Duncan: I think, Kim, you wanted to say something.
Kimberly Hermann: Yeah. I’m happy to chime in. I think that you have to look at it like Judge Duncan said, from whose rights are you talking about? So in the cases that we’ve filed, we’ve actually filed them on behalf of teachers. We have a compelled speech case on behalf of teachers in Missouri, dealing with the teacher training. So it’s not about the curriculum, but it’s about being compelled to opine and to agree with ideas that are very public ideas on a public topic. And there, we‘re talking about teachers’ rights.
In a case we brought in Evanston, we also brought it on behalf of a teacher. But there, it’s a Title VI case. It’s a hostile learning environment case, where the Department of Education has, actually, already found that the school district violated the Civil Rights Act because she filed an OCR complaint back in 2019. They investigated it for 18 months. They issued a letter of finding saying that, “Yes, when you segregate students and you segregate teachers, your, in fact, violating Title VI.” And when Biden took office, they withdrew that letter of finding in an unprecedented fashion that we’ve yet to find where they’ve ever done that before. Yeah. I mean, that’s what we’ve been told. That’s never happened. It’s got to be very fact-specific as to whose rights you’re talking about here. But in the classroom, you’re a teacher. You have a job to do, but you also can’t be forced to violate your students’ rights, their civil rights. And so, you may have a remedy in that context.
Hon. Kyle Duncan: Thank you. Anyone else want to chime in on that? Okay. Yes, sir.
Brian Bishop (sp): Brian Bishop, from the Stephen Hopkin’s Center for Civil Rights in Rhode Island. I just wanted to ask if there’s a proper level of government for these issues to be taken up. It seems that we see them splashed across — from very local iterations of the problem to a question of state policy and state intervention and then to a question of, perhaps, federal bureaucratic levers that are being pulled. And I haven’t really heard in the broad public debate, what I thought would have been the customary notion that these are matters for the local school board, and if the DEI crowd wins at one local school board, they’ll lose in the next, or we’re going to see these experiments going on beside each other and people are going to be able to pick from those very small laboratories of democracy. I’m just wondering why I haven’t heard that issue more focused on.
Hon. Kyle Duncan: Thank you. Anyone? Levels of response to this. I forget who I heard this from yesterday, but we’re essentially talking about the idea of localism or subsidiarity, where we’re saying, “Well, there’s a problem. We can talk all day about the problem, but who is best situated to address the problem?” Is it a school board? Is it a school principal? Is it a city council? Is it a state legislature? Is it a state court? Is it a federal court? So who is it? Who’s best positioned to address these issues? Feel free, please.
Letitia Todd Kim: Thank you. I do believe that when it comes to the public K-12s, it’s absolutely best handled by the local board of education and, historically, that’s how it’s been handled. I do agree that states have the — as Josh mentioned, have the authority to determine many things that are in the curriculum, at least affirmatively. And we’ve certainly seen that happen in my home state of California, where the state has come down with a mandatory ethnic studies requirement in order to graduate from a public high school in California. So the state does have the authority, and it is using that authority with increasing frequency.
And then you see, obviously, the flip side of that, which is the anti-CRT legislation, with states coming in and saying, “No, you’re, actually, not going to teach this.” Because it varies so much from one community to another, I do think it’s best to be handled locally, if at all possible. Obviously, if you’re at a point of litigation, then that possibility is foreclosed.
I also see an issue––and this has happened in some districts in the country––where you have a great disconnect between the residents in the district, i.e., the parents, and the people who are on the — elected to serve as trustees or on the local board of education. A lot of these people come in fresh from the university. They get on the board of education, and they start implementing policies that the underlying community is very strongly opposed to. It really does not work in their local community. Obviously, in such a case, we have to be satisfied with incremental changes, and maybe the community has to think about what they’re going to do when the next board of education comes up. But ideally, these are taken care of––and I think most effectively they’re taken care of––at a local level.
Brian Bishop: A very brief follow-up. I just —
Hon. Kyle Duncan: Okay, very brief.
Brian Bishop: — I recognize, when you say the next board of education, that that’s just what happened in the case of teaching creationism. I mean, the local school board did something, and they got deselected, so I really see much more potential for local effect here. Thank you.
Hon. Kyle Duncan: Thank you. Next question. Oh, did we — I’m sorry, did we have someone back there?
Rachel (sp): I’m a little short.
Hon. Kyle Duncan: Oh, that’s all right. I wasn’t attempting to micro aggress against your height.
I do that all the time.
Rachel: No offense taken. My name is Rachel, —
Hon. Kyle Duncan: Please.
Rachel: — and I want to address some of the things that were said at the end about being outcome-oriented. With no child left behind and federal testing mandates, education has become an outcome-oriented endeavor, and my question is, how do we balance accountability for our teachers and for education for our children without having the problems we’re having about being outcome-oriented? I think that there might be an obvious answer to that, but I would also love to hear some of the more intricate thoughts about — we’re moving – I think the underlying problem is we’re moving towards this outcome-oriented thought process because we want accountability, so I’d love to hear solutions from the panel.
Hon. Kyle Duncan: The question is about an outcome-oriented approach or mentality.
Josh Hammer: What is so inherently problematic about that?
Rachel: Oh. Well, my perspective of the comment that was given by the panel earlier was that equity is a problem because we’re outcome-oriented, and we’re using those outcomes to change the definition of equality and create different standards for people to get, “the same outcome,” and they’re not getting the same services in violation of equal opportunity. Right? And so, my question, basically, is, we’ve done that with testing, and now everything’s about the test, so we want accountability in our education, but now the outcome has shifted to this equity thing. What I’m hearing is, we want accountability for our teachers. How do we do that and maintain the First Amendment? How do we do that and maintain opportunities for students to learn with diversity, even though that’s going to be different?
Kimberly Hermann: Well, —
Hon. Kyle Duncan: Anyone, go ahead.
Kimberly Hermann: And maybe, I’ll just clarify because I think that’s in direct question to something that I said. An example that I like to give is, say, reading in an elementary school. Right? You’ve got — take a second-grade class. You’ve got kids that are reading across a very, very broad spectrum of levels. You’ve got kids starting — for anyone who has young kids, you’ve got kids that might be starting at a level D, which is a kindergarten reading level, all the way up to kids who are reading chapter books and working towards your Harry Potter books that are for Fifth graders. Basically, what we mean when I say, “equity in terms of equal outcome,” is that instead of pushing these kids, who are really excelling, ahead, you stop giving them those resources. But at the same time, you’re not giving these kids the actual help that they need. You’re not giving them the tutors. And so, you go along, you’re not giving these kids the extra help, you’re not giving these kids the extra help. Go to third grade, go to fourth grade, go to fifth grade, and eventually, you’re all the way down here. So instead of bringing these kids up by giving them an equal opportunity and giving them the extra tutoring and the extra help that they need, you’re basically dumbing everyone down, which then, at the end of the day, you can control everyone so maybe that’s a whole different discussion.
Right? I’ve heard Greg explain this, so he may be able to take it another step further, but that’s what I mean by equal outcome. Yeah, you still have to look at the test scores, that’s inevitable, but you’re creating a world where the outcomes are so much lower than they could be.
Greg Lukianoff: We just talk about, in The Coddling of The American Mind, the equal outcome mindset because, unfortunately, it’s extremely difficult to have a situation where everybody’s going to perform at the highest level of the best student at any given place. It’s much easier to go in the opposite direction and try to bring as many people down. That’s one way that you — my family fled Russia because we were trying to avoid a system that, basically, achieved equality by making everyone poor.
Hon. Kyle Duncan: Thank you. Next question.
Art Macomber: Yes, sir. Thank you. Art Macomber, Coeur d’Alene, Idaho. After the invasion, we had the king and the church, which was really the law and equity, and we had —
Hon. Kyle Duncan: Which invasion?
Greg Lukianoff: Yeah, which invasion?
Art Macomber: The 1066.
Greg Lukianoff: Oh, yeah, yeah.
Hon. Kyle Duncan: Oh, that one. Okay.
Art Macomber: Yeah. Thank you. Thank you.
Greg Lukianoff: I remember that. Oh yeah, that was years –
Josh Hammer: Obviously.
Art Macomber: And so, —
Hon. Kyle Duncan: All right.
Art Macomber: — you have this law of the king, which is very harsh, and you have the law of the church, which is compassionate and accommodating. And if you brought a debt action, you were in the king’s court, but if the tithe was phrased as, “We’re saving your soul,” then it would go to the chancery, it would go to the church court. And so, we’ve had this traditional thing of law and equity, they merged them, now we have a civil action. Okay, I get it.
But this term today, equity, I don’t get what these people are talking about because it is not what I traditionally read in the books about equity and what equity is. It sounds like a leveling mechanism. And so, I’m wondering, maybe, with Professor Amar can give me a clue from the legal bridge to get me over to this new thing because it feels like we’re talking about, like I say, a leveling mechanism to level some people at the expense of others. And I don’t think the church ever did that. And I also don’t think, today, they’re really talking about saving souls when they talk about equity, so that doesn’t work either.
Hon. Kyle Duncan: Okay.
Art Macomber: So I’m confused.
Hon. Kyle Duncan: All right. Well, —
Art Macomber: And I’m just looking for definition.
Hon. Kyle Duncan: — so you’re asking about the definition of equity. I think that’s a good question.
Art Macomber: Thank you.
Hon. Kyle Duncan: I thought it always meant —
Art Macomber: — And I didn’t read Pomeroy yet, so I can’t tell you what he said.
Hon. Kyle Duncan: I thought equity meant injunction. We’re not talking about — when you say diversity, equity, and inclusion, you’re not talking about preliminary injunctions, I take it. So I’m a little confused. But why don’t you talk about this general — so the equity — instead of equality, what do we say about it? And I’ll add to that question, where did this come from? These are ideas, right? These didn’t just blossom out of nowhere. They’re ideas.
Greg Lukianoff: Yeah.
Hon. Kyle Duncan: Right? And so, where do they come from? How is this equity idea getting into the school boards or the teachers or the curricula, and why now?
Greg Lukianoff: That’s a curious question. But first of all, I wanted to say when you mentioned the invasion to a Russian, it’s like, “Oh, yes. Genghis Khan. Yes, it was very difficult.”
So the equity idea is as old as time, to a degree—like, hunter-gatherers had a strong idea of equity that, essentially — that there’s a sort of leveling down that everybody has to maintain equality. There’s a lot of — actually, they wouldn’t call it equality.
Hon. Kyle Duncan: Yeah.
Greg Lukianoff: It would be like that everybody has to be on the same level. So it’s an idea that has come in and out of fashion in intellectual circles for a very long time. The problem that I see with it is that when a lot of Americans hear equity, they go, “Oh, I totally believe in equality and equality of opportunity.” No. No, no, no. We’re talking about something very different, that everybody ends up in the same place, which is something that is also extremely difficult to achieve without disastrous results. But, Professor Amar, the question, I think, was directed at you.
Hon. Kyle Duncan: I was directing it generally, but I mean, that’s how I’ve understood it, that we’re talking about outcomes and not opportunities.
Greg Lukianoff: Yep.
Hon. Kyle Duncan: And so, although there are many of the vowels that are the same in the two words, equality and equity—they rhyme, kind of—but they’re actually quite different and as, sort of, translated into, say, an educational policy or goodness, a legal doctrine, they would be very, very different, maybe even the opposite. Anybody else.
Letitia Todd Kim: Thank you.
Hon. Kyle Duncan: Sure.
Letitia Todd Kim: I think that, at least as schools are using the term equity, what they seem to me to mean is––and this is very fuzzy––is giving each person what they need, giving each student what they need, giving each employee what they need to succeed. And that’s why I try to shy away from the phrase equality of opportunity because that can also be used in order to pursue equity as defined as equality of outcome because one can always say,” Well, this person does not have the same opportunity that everybody else has and shouldn’t they.” And in order to give them that same opportunity, we have to give them what is, in effect, equality of outcome.
So I think what we should be — independently, I think I would not define equity that way, personally. I think equity can be a useful concept when it’s used in its original sense, meaning basic fairness. But when discussing the topic of equity, what I find most useful is to focus not on equality of opportunity but on equality before the law, which is what I think most people think of when they talk about equality vs. equity. And on this general topic of leveling, a book that I read a couple years ago that I highly recommend on this general topic is The Great Leveler by Walter Scheidel, if any of you is interested in that book.
Hon. Kyle Duncan: Thank you.
Prof: Akhil Reed Amar: And just, generally, since you ask about English courts and the Norman Conquest and all of that — of course, words change meaning over time. My friend, Stanley Fish, is out there, so I can’t resist talking about Shakespeare and presidential eligibility. So a president has to be a natural-born and — now if this were a Shakespeare class, we’d talk about Macbeth. And the witches say, “Be bloody bold resolute for — laugh to scorn. The power of man, for none of woman born shall harm Macbeth.” And natural-born there is all about C-section because McDuff was from his mother’s womb untimely ripped. But that’s not quite what Article II really has in mind.
No C-section babies.
Hon. Kyle Duncan: Can you cite a case for that proposition?
Prof: Akhil Reed Amar: No, but I’ve actually written about it, so even better.
Hon. Kyle Duncan: Secondary authority.
Very persuasive. I did not mean to interrupt you.
Hon. Kyle Duncan: Go ahead.
Prof: Akhil Reed Amar: No, no, no, no, no. But I just want Stanley Fish to know that he’s persuaded me that Shakespeare should be read and should be part of the canon of every well-educated, liberally educated would-be lawyer.
Josh Hammer: Real quick, let me just throw in there before going on to the next question — from my perspective, when the left uses the terms equity and equitable, what they’re really talking about here is they want proportional, intersectional outcome based on the various intersectional subgroup’s percentage of the population of the whole. Right? So again, to take my people, the Jews — we’re 1.8 – 2% of the U.S. population. I don’t know what percentage Jews are in the CEO, C-suites, the Fortune 500. I would hazard a guess it’s probably slightly higher than our proportion of 1.8 – 2%, so the intersectional left looks at that and they see oppressor class, supremacism, whatever, here.
And to just give one very concrete example here––and it’s a somewhat provocative example, but I guess I’m good for nothing else if not that––is if you look at the percentage of unarmed black males who are shot and killed by law enforcement officers acting in the line of duty in a given year, out of the total proportion — if you take that percentage and you compare to it to the percentage of black males in America, it’s going to seem disproportionately way out of proportion here.
But I think, as Heather Mac Donald has pretty persuasively––at least from my perspective––demonstrated, if you compare — if you use a different denominator, if you use a different baseline, and you just look at the percentage of unarmed criminals who are engaging in reasonably suspicious––or whatever the relevant legal language would be––criminal activity at time, and then you compare that, I think, Heather has tried to argue that it’s actually whites who are disproportionately shot in that situation. Don’t quote me on that. But the point is here, the denominator is really what’s getting conflated here.
Hon. Kyle Duncan: On that note — yes, sir?
Dan Morenoff: Thank you, Your Honor. Dan Morenoff, from the American Civil Rights Project. So we, The Federalist Society, the people in this room, and our predecessors have a long history of focusing on things like structural constitution as the protector of rights. And with that as a conceptual background, I find myself wondering, specifically, about Yale, but more generally about all of the host of organizations that have been brought up and discussed. Is there a structural problem posed by the creation of self-interested diversity bureaucracies and the impact they have on the possibility of the pursuit of light and truth? And if there is, what might be done about that to restore a structure compatible with the end?
Prof: Akhil Reed Amar: In the Yale Daily News this week, there’s an article about the number of bureaucrats at Yale University compared to the number of professors at Yale University. And the bureaucrats now actually outnumber the professors. I’m actually quoted in that article. So one fundamental problem — since I had mentioned economics before, in almost the rest of the free economy, actually, prices go down and quality goes up. And every microchip, eventually, does more and more and more and sells for less and less and less. It’s just amazing. But education costs have gone up and up and up. This is Baumol’s cost disease, and there’ve been many possible explanations for it, but bureaucratic bloat is one of them.
One real problem is folks who actually aren’t, themselves, educators––who aren’t in the classroom, who aren’t, themselves, actually researchers or teachers trying to find and disseminate knowledge, light, and truth––playing an increasingly large proportionate role just in the ecosystem of the universities. And if you’re a hammer, everything looks like a nail—you make work for yourself. If this is your bureaucratic assignment, you want more and more things to fall in your bureaucratic fiefdom, and it’s a genuine problem.
The late great Ralph Winter, in his — who was a very good friend of The Federalist Society at the founding, was asked about this in his confirmation hearings. It’s the tension between administrators, deans of all sorts, and real professors, you see. And the chair of the committee was shuffling some papers — and Ralph had an amazing sense of humor, very quick — said, “Now, Mr. Winter,” — he was shuffling some papers, said — this was his confirmation hearings for the Second Circuit — “you’re just a professor, not a dean, right?” And Ralph Winter said, “No, Mr. Chair, I’m a professor, not just a dean.”
And so, there is a problem here, when the folks are not, themselves, educators, when they’re not researchers, and they’re not actually classroom teachers.
Greg Lukianoff: I really want to amplify that. One of the things that’s been blazingly clear from doing this for 20 years is how much the hyper bureaucratization of universities creates these problems. It creates threats to due process, threats to free speech. It creates bias-related incident programs that enforce an orthodoxy that’s very hard to challenge in a court of law. I think that — I say this a lot — one thing is if I ran a non-profit with the kind of overhead at development and administrative costs of universities, I would be out of business because nobody would want to give money to something that’s that bureaucratic-heavy. Yet, we watch this massive expansion going on in higher ed, and it’s even worse because one of the things that I think we underestimate, as I mentioned earlier in The Coddling of The American Mind, was the role of education schools. And one thing I didn’t fully put together was that, although there was so much political homogeneity in education schools, even by 2005, that it took FIRE, and I think maybe NIS, to oppose a mandated evaluation for commitment to social justice among the accrediting body of all education schools, and they were just fine with it. It took us to fight that.
And what I’m getting at is that, that lines up with the more radicalized K-12 [inaudible 2:04:30]. What I didn’t know was how many––and I was doing this work with Sam Abrams from AEI––how many of those education schools who don’t go to K-12, go to higher education. For the three schools he looked at, it was 56 percent, and the other percentages were from other highly ideological departments. So I do think that the idea that we can have this bureaucratization and cost-effective, rigorous, and intellectually legitimate universities, I think that you really start having to have much lower overhead at these schools if you really want freedom of speech, academic freedom.
Hon. Kyle Duncan: Thank you. Let’s move on so we can be sure to get to everyone. Please, go ahead.
Andrea Lucas: Thank you. Andrea Lucas. I’m a republican commissioner on the EEOC, so Title VII and employees’ rights are more my wheelhouse, but I’m interested––there was mention of teacher’s rights from that angle––to what degree does Title VII provide either a compliment or a solution for constraints on suing under free speech rights? So Title VII, in my opinion, many of these practices are hostile work environments for the teachers, whether they’re a private or a public employee. So, I’m interested, are you seeing that in litigation or as a solution for some of the constraints you might have under other statutes or rights?
Hon. Kyle Duncan: Anyone who would like to take that? Maybe Kim?
Kimberly Hermann: I think we’re going to. There’s certainly a lot of teachers that are interested in that avenue. There’s a number of EEOC complaints that are being considered being filed. We’re not litigating any of those right now, but I certainly think you’re going to see those coming down that pipeline —
Hon. Kyle Duncan: Thank you.
Kimberly Hermann: — from various groups.
Hon. Kyle Duncan: Is that Ilya?
Ilya Somin: Yes.
Hon. Kyle Duncan: Please.
Greg Lukianoff: Hi, Ilya.
Ilya Somin: Ilya Somin, George Mason University, not to be confused with the other Ilya, Ilya Shapiro, who’s also in this room.
Hon. Kyle Duncan: He’s there, right there.
Ilya Somin: I didn’t actually realize you were here.
Hon. Kyle Duncan: Yes.
Ilya Somin: I could go into a greater — in greater detail about the problem of Ilya confusion, which even has its own hashtag on Twitter, but instead I’d like to ask a question that follows up on the previous questions about institutional approaches to these issues that — I agree there is a problem, at least in some school districts, with CRT or woke education or whatever you want to call it, but I’m also worried about the possibility of instead of having a CRT curriculum, why not just implement a more conservative curriculum and force that through at the state level or even at the national level? The history of right-of-center attempts to control educational curricula is also not a very attractive one and includes many awful things.
So I wonder if, instead, it might be better — I would ask the panel if instead, it might be better to — instead of trying to seek centralized state control and have our preferred curriculum rather than somebody else’s, to instead decentralize power and allow for more institutional diversity and competition through some variety of school choice policy where there would be many different options. It wouldn’t be, if you live in a given area, you have to go to the local public schools, or you can still continue to pay tax money for those schools and have to fully self-fund for private alternatives, instead just some sort of voucher system or tax credit system. There are many different proposals that would mean some of the money would end up going to woke private schools that many people in this room might not like, but there would also be many alternatives on the right and the center and many other options. And that might be better than letting either the right or the left try to control curricula from state capitols or, even worse, from Washington D.C. So I would ask the panelists, might that be a better way to address some of the problems we have been discussing?
Hon. Kyle Duncan: Reactions?
Ilya Somin: Thank you.
Hon. Kyle Duncan: Thank you.
Josh Hammer: Those don’t strike me as mutually exclusive at all, honestly. I, personally, fully support greater privatization, school choice vouchers. I always support all that stuff. I just don’t’ see that as, necessarily, being in any kind of state of tension with pursuing marginal policies to that extent and wielding power at the state level to crack down on the racialist abhorrent indoctrination of our innocent children.
I guess, to go back to a slightly earlier question that I think you’re building off of here, I probably slightly disagree with my new friend on my left on this question. So you know, I lived in Texas for four years, and when I was there, I think, it was Governor Abbot. So then, Governor Abbott was oftentimes warring with the city council in Austin here, and the Texas state legislature would always legislate against the various forms of leftist malarkey that the city council in Austin was pulling out of its proverbial rear end.
And at the end of the day, in our system of governance, it is the state that wields power. It is not ultimately municipalities that are ultimately corporate creations largely of this day. We see this in Florida, too—my new home state. Governor DeSantis has been battling with all sorts of school districts and counties—Miami Dade County, Brower County—about the children wearing masks in schools in this calendar year. So look, are people probably speaking, right of center people, sober-minded American patriotic people who do not want their children indoctrinated again into hating themselves or their country here? From my perspective, it would be more prudent to try to vote with our feet and then wield power in the state jurisdictions and leave our men and women behind who might be living there in Austin, Texas, but still behind enemy lines. But at the same time, I don’t see that, again, in any degree of tension whatsoever with pushing for additional school policies in the state leg as well—school choice policies.
Hon. Kyle Duncan: Great. Thank you. Dr. Fish?
Dr. Stanley Fish: I’m not good at asking questions. I’m good at telling people what to believe.
Hon. Kyle Duncan: You go right ahead.
Dr. Stanley Fish: So I’ll get right to it. First of all, I’ve been speaking out against both diversity and social justice teaching for 25 years in the New York Times and elsewhere. My key statement, which I repeat ad nauseum is, social justice may be a good thing, but it’s not a good academic thing. And I believe that because I believe that all academic decisions should be made on academic, that is, pedagogical or intellectual, grounds. This puts me in line with my friend Akhil’s emphasis on light and truth. Back in 1915, as you all will remember –
Hon. Kyle Duncan: Well, that was someone after the Norman invasion.
Dr. Stanley Fish: — I thought that 1066, in the mode of Frank Sinatra, was a very good year.
But in 1915, it was against the law in several states to teach evolution. These days it’s against the law in many states, on the basis of Supreme Court and lower court decisions, to teach intelligent design, sometimes called creationism. I think that both of those movements––both of those developments––are suspect if they are based on ideological or political grounds rather than educational grounds. And in fact, I have a great deal more sympathy for intelligent design than most of my friends do have.
This brings me to critical race theory. The question to be asked critical race theory, from my perspective, is it an academic discipline, or is it something else, or is it a hybrid, or is it one thing at one time and another thing at another time? First of all, it exists. How do I know it exists? I teach it. And why do I teach it? Because I and three coeditors have published a jurisprudence casebook in which critical race theory is one of 12 or 13 chapters. Now in that theory––in that casebook chapter––you will find writings by Patricia Williams, Kimberle Crenshaw, Richard Delgado––who is one of the editors of this casebook––Charles Lawrence of Stanford, and other persons whose intellectual credentials and legal theory credentials, I think, are in very good order. And what they are teaching is something called critical race theory.
And you have to understand what critical means. It doesn’t mean against. It means reflecting on. It means not taking the surface for necessarily the entire truth. That’s what critical means. Take a critical look at it. And that is what the scholars that I named a moment ago do. They take a critical look at what’s been going on in the history both of race relationships and thinking about race relationships and legal decisions that pertain to race relationships. That seems to me to be an absolutely legitimate academic enterprise. And it’s an academic enterprise that needs no apology from me or from anyone else.
Now the moment that academic enterprise turns into a political program, I get off the train, as I get off all the trains the moment when that happens. Two weeks ago, I was called before my dean at Cardoza Law School because of my weakness on the question of pronouns. So I’ve had my own run-ins in this way. Always the line for me is entirely clear. Is it a decision being made on intellectual, academic grounds, or is it not? The moment that my own law school, one of my law schools, the Cardoza Law School, voted that race as a topic must be a part of every course, I got off that train. That’s absolutely absurd. But it’s equally absurd to have a political movement based on the banning of a set of ideas which, if they are taught responsibly and historically, deserves attention, as any other seriously put forward set of ideas deserves attention. And finally, Greg, you’ve got to recognize, after all the years when I’ve been telling you this, that free speech and freedom of inquiry have nothing to do with one another.
Greg Lukianoff: [Laughter] You’re right, Stanley.
Hon. Kyle Duncan: I’m not sure there was a question there for anyone, —
Greg Lukianoff: Yeah.
Hon. Kyle Duncan: — but I think there might have been a question of this entire panel.
Prof: Akhil Reed Amar: The question is a good one — is, “Why wasn’t he on this panel?” —
Greg Lukianoff: Yeah.
Prof: Akhil Reed Amar: — because that was well put. Thank you.
Greg Lukianoff: Yeah. Well, my friend Jonathan Haidt puts it really well. And it’s amazing how this gets read like a Zen cone when you tell younger people this, is that universities have to choose their telos. It can either be truth or it can be justice or some pre-existing idea of what you should believe. It cannot be both. And the idea that I’ve actually had to explain this to adults who graduated from law schools — because they’re like, “Well, how could that possibly be?” No, you’re presuming to know the result of all your academic endeavors from the beginning. That’s completely getting things backward. And the difference — I love Stanley, even though we disagree on any number of things. The primary difference is, I just think of free inquiry, academic freedom as within the larger sphere of what Johnathan Rauch calls liberal science, which is — in which free speech is part. It’s actually more of a technical debate than you’d think. But, anyway. Good to see you, Stanley. Oh, and if you get in trouble at Cardoza, by the way, come to FIRE. That would be fun.
Dr. Stanley Fish: I’m over age.
Letitia Todd Kim: I would say that — I think, probably, as I see it, one of the largest problems is that critical race theory, however you define and describe it—let’s call them the concepts that are grounded in critical race theory—at many schools, increasingly at a younger and younger and younger level, is the only thing on offer. It’s not like, “Well, here’s one theory and one way to explain the world, and here’s another, and you get to pick and choose.” That’s not how it’s going. Everything is taught, in many schools, from the perspective and viewpoint of these concepts that are grounded in critical race theory.
And as Kim had pointed out, these are, in many cases, young kids, so it’s not enough to say, “Well, they have free speech. They can raise their hand and disagree if they so choose.” They’re ten. Okay? They’re nine. They really can’t. And I think one of the things we really need to demand in our schools, regardless of whether they’re public or private, is a diversity of sources. And we’re just not seeing diverse sources in the classroom right now.
Hon. Kyle Duncan: Thank you.
Kimberly Hermann: It also comes in through all the different subjects, too. Right? We see it in math word problems. So they’re not going in there saying, “Let’s teach critical race theory,” but it’s being implemented in every single subject. And so, it’s really hard for parents to identify it, too. But it’s not even just teaching both sides. It’s that it’s infiltrated every subject at every grade in every school.
Hon. Kyle Duncan: Thank you. Pepper, I think you were next, and then we’ll…go ahead.
Pepper (sp): This is for Ms. Hermann. I’m pretty sure that if this were a room full of plaintiff’s personal injury lawyers, we’d all go out of here, and we’d all try to find expert psychologists to be our plaintiff’s personal injury damage experts. We’d go out and get some sympathetic young plaintiffs who had been harmed for life by being educated in this way, and then we’d sue the individual teachers, the board members, the organizations for intentional infliction of emotional distress. Has that been tried? If not, why not?
Kimberly Hermann: There are plaintiff’s attorneys that are talking about doing that. From our perspective, as a public interest law firm, we are trying to get the courts to declare these practices to be violating Title VI––like the Department of Education found in the Evanston case already––or violating the First Amendment. There are people that are doing that, and there are times where that might be warranted. We’ve had two different sets of parents come to us where their kids tried to harm themselves because one of them doesn’t understand where they fall because they’re biracial.
And then another is a middle school student who outed themselves in class when they were in the middle of a safe circle. Right? And then there was a lot of bullying that ensued from that. And so, I think we are going to see some private attorneys taking cases like that, but from our perspective, we need to be pushing the needle with getting some strong rulings in some of these most egregious cases.
Hon. Kyle Duncan: Okay. I think the last question. Go ahead.
Nick DeBenedetto: Good afternoon. Nick DeBenedetto from the New Jersey Lawyers Chapter. My question is in the context of K-12 education. What role, if any, in this discussion is there for the historical veracity of what’s being taught to the students? For example, I know that there is a version of The 1619 Project that is being adapted for elementary school students. Is there any role for people to step in more forcefully and just dispute the accuracy of what’s being put forward?
Prof: Akhil Reed Amar: Even though my main area is not K-12, I’m trying to get people like Steve Calabresi and others to join me in producing some materials about American history that would be free on the internet––we won’t want to make any money off this––that would be available to teachers and parents and students. The folks that are doing it would need, themselves, to be ideologically diverse to have a certain credibility with folks. And we want to begin just by being as factual as we can. One part of the project will be — and this connects to Professor Calabresi’s interests, in particular, since he is a strong scholar about the unitary executive — is for all Americans to know your presidents by seventh grade, know their names, know one paragraph about them because now, actually, you have the spine of American history at your disposal
World history if you know the presidents, a little bit about them, the order of them. Some will like Ronald Reagan, and others will prefer Franklin Roosevelt. But you can trade baseball card facts about them and other things if that actually becomes the discourse. And the idea is to — because it has to be age-appropriate.
The one thing that we have in common as Americans because see we don’t have race in common or religion — people’s ancestors, some of them came yesterday and some of them came 300 years ago, some with bullwhips and some in chains. So what we have is our history. That makes us Americans — and our Constitution. The new book that I have is stories that made us, as a we. So we have to have a national coherent narrative. That book is really for AP History, AP Government.
We have to start earlier, and one project would be, know your presidents, know who they are. That’s the easiest way to spoon-feed history because people are interested in other people and presidents are individuals, and so you can begin to get a sense of the broader context.
I’ll just tell what my own son, who knows his presidents and did since age six — and I’m an immigrant kid — and Greg – and I knew my presidents at age eight, and I can still close my eyes and recite them. So my son, actually, at age six, he asked me, he said, “Dad, when did the British become our friends?” I said, “Well, that’s a very interesting question, Vick. Why do you ask?” He said, “Dad, George Washington fought against the British, and Dwight Eisenhower fought alongside the British. So sometime in between, they must have become our friends.” Now, that’s actually a very sophisticated historical interpolation he did. He’s a six-year-old kid. And the truth is they did become our friends, kind of, somewhere in between.
And if you know your presidents, you actually understand that Dwight Eisenhower is a president in the model of George Washington; two-term president, above party, and so was Ulysses S. Grant, by the way.
And that’s why Ron Chernow is one of the dedicatees of this new book that I wrote, along with Lin-Manuel Miranda and others, writes about George Washington and Ulysses Grant you see because — but now you’re beginning to ask questions about Americans. But it begins with some just basic factual stuff, and I think––even though I’m not K-12 and neither is Steve––we could, with others, maybe, in this room, try to generate some non-ideological materials ––that actually have credibility––free, and get around all these textbook wars in Texas or California and other places, free and available to the world. So that’s one way of getting — and then know your states, know when they joined the union and where they are on a map, and just basic stuff like that because that’s what we as Americans have in common, our Americanness.
Greg Lukianoff: I did want to say that FIRE, actually, has a high school curriculum. When everything was shutting down last year, we sped it up to make sure it was available to teachers as they were going to go remote, and it was very well downloaded. It’s about, obviously, First Amendment, Constitutional history, that kind of stuff. And since we’re doing more K-12 outreach, we get to go to these conferences where there is The 1619 Project, where there is knowing our history, knowing ourselves, the Southern Poverty Law Center, the Howard Zinn Center. And at the moment, we’re not the cool kids at those places, but I think with Professor Amar’s history, that could be really exciting and really bring some people in. And, yeah. And know your presidents. I read a short book about Chester A. Arthur, and I learned so much about that period of time. I recommend it to all of you.
Hon. Kyle Duncan: Please join me in —
Kimberly Hermann: I was just going to make a quick plug for the Woodson Center. My friend, Ian Rowe, out there, he frequently will come out and talk —
Hon. Kyle Duncan: All right.
Kimberly Hermann: — about the 1776 Unites curriculum that they have out, which is absolutely phenomenal. It’s a really good counter-narrative to what CRT is teaching.
Hon. Kyle Duncan: Please join me in thanking the panel.