Arkansas Attorney General Leslie Rutledge created something that has been missing from one side of the critical race theory debate: an explanation of what it is.
In a 10-page advisory opinion responding to a state representative, Rutledge addressed several key issues in the critical race theory debate, including whether so-called “anti-racism” and critical race training in public schools and universities violates the U.S. Constitution and Title VI of the Civil Rights Act.
She concluded that key parts of putting CRT into practice, for example, using “overt racial segregation” and “racial stereotyping or scapegoating,” would be unlawful under the Constitution’s Equal Protection Clause and Title VI.
Although Rutledge listed ways in which “curricula, instruction, or other programs” can create a “racially hostile environment,” she also included a reminder that institutions can find “some legitimate pedagogical uses” for critical race theory in higher education.
As Cornell Law School professor William A. Jacobson observed on Tuesday, “The Opinion does not categorically say that teaching CRT violates the anti-discrimination laws; it focuses on how it is implemented.”
But perhaps more important than Rutledge’s conclusion was the simple explanation of what her opinion labeled as “Critical Race Theory, ‘Antiracism,’ and Associated Ideas.” She rightly framed critical race theory and anti-racism as being opposed to the original aspirations of the Civil Rights movement.
Rutledge noted that the “intellectual father of critical race theory,” Derrick A. Bell, Jr., believed that “the civil-rights triumph of Brown v. Board of Education was a mere consequence of a temporary convergence of elite whites’ material self-interest with the interests of blacks.”
The state attorney general plainly added that for contemporary advocates, “Critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”
With ample citation, not only did she explain the intersectional theory put forward by legal scholar Kimberle Crenshaw, but she also outlined how it has manifested today. She included examples such as a recent Department of Education rule on civic education grants and the New York Times’s 1619 Project.
Rutledge also aptly mentioned the controversial resources put out by the Smithsonian’s National Museum of African American History, which read, in part, “Being antiracist is different for white people than it is for people of color. … For people of color, it means recognizing how race and racism have been internalized, and whether it has been applied to other people of color.”
Critics of the backlash against critical race theory have often labeled it as an idea reserved for the ivory tower of academia. The Los Angeles Times’s editorial board called critical race theory “an area of academic study that emerged during the 1970s.” An Associated Press report defined it as “an academic framework that examines history through the lens of racism.”
When the Florida Board of Education voted to approve a rule banning critical race theory from public schools, the teachers unions cried foul and accused Gov. Ron DeSantis of banning “honest history.” The Left’s retort has always been that critical race theory was just an idea.
Rutledge’s opinion acknowledged this, but added some much needed nuance to our discourse. She rightly pointed out that although CRT is an idea, its implementation results in discriminatory practices. In other words, it is a pernicious ideology that has evolved and infiltrated our institutions, with tangible consequences.
For those accused of not knowing what critical race theory is, Rutledge’s opinion should be essential reading. It materializes a nebulous academic theory, and (more importantly) shows how it has evolved to what it has become today.
