Over 30 state legislatures across the country have introduced bills to limit the discussion of racial history in a wave prompted by the emergence of critical race theory as a subject of political fear-mongering. In this episode, Rich Ford and Joe Bankman are joined by Professor Ralph Richard Banks, an expert in race and law, for a discussion about the politicization of critical race theory, book banning, and more.
This episode originally aired on SiriusXM on February 26, 2022.
Richard Thompson Ford: From Stanford University and Sirius XM. This is Stanford Legal. I’m Rich Ford.
Joe Bankman: And I’m Joe Bankman. Today we’re talking to our colleague, Rick Banks, the co-founder and faculty director of the Stanford Center for Racial Justice about the controversies over critical race theory.
Thompson Ford: Yeah. So Joe, critical race theory is now in the news and it’s become a central part of national politics. There have been in 330 book challenges just in the fall of 2021 in public schools about books that teach about racial history and racial justice. 122 gag order bills have been introduced in 33 different states to prohibit the teaching of what people are calling critical race theory, and 12 have become law in 10 states. So critical race theory is in the news everywhere. And today we’re going to talk to our colleague Rick Banks about first, what is critical race theory and why are so many people so upset about it?
Bankman: Well, I know you teach this too Rich, so I can’t wait for the discussion between Stanford Law schools, two teachers of critical race theory, Rick Banks, and you, Rich Ford.
Thompson Ford: So we’re here with my colleague, Rick Banks, and Rick you’ve taught critical race theory. I’ve teaching critical race theory here at Stanford Law School. I imagine when we started teaching critical race theory many years ago, we never thought that it would become central to national politics. A gubernatorial election in Virginia now, might hinge on the question of critical race theory. What do you think is going on here?
Rick Banks: Part of the story is that critical race theory has become sort of a locus for all sorts of political anxieties, cultural conflicts in American society right now. And when you think about a critical race theory is really a convenient target because of those three words, critical race theory. The theory generates opposition, and there is a anti-intellectual strain within American society, which leads people to be not in favor of something that’s theoretical. So the theory is a problem. The critical part is a problem that conflicts with strains of American culture and thought, and then the race part we know is a problem that gets people worked up. So it’s kind of the perfect term. If you wanted to rally people and kind of stir up some of their anxieties and worries about the changing nature of our country, about changing demographics, about how we understand ourselves as a nation, if you want to stir up anxieties about all of that, you could hardly have something better than critical race theory to do it with.
Thompson Ford: The name alone, you don’t need to know anything about the content. Just from the name, you’ve got a rallying point for a lot of people in our country.
Banks: In fact seems true that most people don’t know anything about the content. It was one of those situations where you have people who are opposed to something, and if you were actually to ask them, well, what exactly do you mean by critical race theory? They would quickly run out of accurate things to say. That’s just one of the paradoxes that we’re living within.
Thompson Ford: It is a strange thing because in a sense, critical race theory is a jurisprudential movement. It’s something that we teach to second and third year law students never dream of trying to teach it even to undergrads, much less to high school students, grade school students, but a lot of the controversy is around that notion, that critical race theory is being taught to kids in K through 12 schools. And they’re being indoctrinated in some way.
Bankman: Well, let me jump in here for those of us who don’t teach yet. Can you give us, and I know this is hard knowing a little bit about it, if you had to describe this complicated set of readings that most people, I think it’s safe to say would never get through on their own, how would you describe it?
Banks: Well that could be a long conversation. Let’s start with the question, what is critical race theory? But the simple way to think about it is that the Supreme court decided Brown vs Board of Education in 1954. The court there famously declared that segregated education is inherently unequal. And the call was to disestablish the system of segregation that prevailed throughout much of our nation.
Critical race theory is in essence, an effort to explain why 10 years after Brown, no desegregation had occurred. There were literally only like maybe a handful of black students who had then been put into mixed race schools 10 years later. How could it be that the Supreme Court says something is bad and wrong and unconstitutional yet it persists even after. Or more generally you could say, why were we even at the point of having to decide Brown? How could it be that the slaves were free in the prior century, the emancipation proclamation, the 13th amendment, the reconstruction amendments more generally, yet more than half the century later here we are with people who are still by any measure, not free. And critical race theory at core is an effort to kind of answer that question.
How can we have so many gestures toward freedom or efforts to implement freedom, but then still have a lack of freedom for the descendants of slaves?
Bankman: A great summary of a hard to summarize heterodox literature.
Banks: Another way to take this question and bring it really up to the present is to say that in the 1960s, when the civil rights laws were passed, this was after Brown, Martin Luther King, we had these historic civil rights laws of the sort that our nation had never seen before. The racial wealth gap at that time between whites and blacks was about 10 to one. Today, what’s the racial wealth gap? It’s about 10 to one. Critical race theory is a way of trying to answer that question. How can we have so much change in some sense, but in so little change in another sense, and we can do that same story on many themes.
Thompson Ford: There’s a sense there’s a real disillusionment with the law and its inability to fulfill what many perceived to be its promises for racial justice. Cause you could talk about neighborhood segregation, that persists. You could talk about police violence in communities of color, that persists. So we have all of this law and all of these legislative initiatives and policy initiatives to promote racial justice and yet in many ways the project of racial justice seems stalled in the past and critical race theory is trying to answer that question by looking very deeply at the mechanisms of law. And that’s the part that’s complicated, no one who’s talking about critical race theory and the political arena today is focused on.
Banks: Exactly. One should be somewhat disillusioned because so many of these debates, Rich, as you mentioned that we’re having now about police brutality, for example, I mean these were the same debates people were having in 1968 and 1972. And here we are yet again. In this recurrence, so these debates is actually to start contrast to the optimism that most people brought to the struggle back in the day. When slavery ended, people thought that there would be sort of a real birth of freedom there. When Thurgood Marshall won Brown vs Board of Education, he actually believed that the schools would become racially integrated. What would he say today? To see what is still pretty stark racial segregation, not only on the basis of race, but also on the basis of class.
Bankman: So you’ve outlined critical race theory in terms of what it addresses. Are there some answers it gives that are inherently controversial and is that what’s triggering this or is this really unrelated to critical race theory? And it’s related to something else. When I say this, what I’m talking about is the reaction we see in a lot of states to outlaw something called critical race theory and to vote for one candidate instead of another.
Banks: So critically these controversies both are and are not about critical race theory. They are not about critical race theory clearly in that most of the people or many of the people, maybe most of the people who are up in arms and going to school board meetings, they could not define critical race theory. So they don’t really know what it is they’re opposing. And of course, critical race theory is not taught in any schools that I know of, that are not colleges or law schools or other graduate schools. Critical race theory is not taught in elementary schools or middle schools or even high schools as far as I know. So in that way, it’s not about critical race theory, but in another way, it is about critical race theory because critical race theory has become a stand in for a constellation of anxieties that people feel.
Some of those anxieties are related to broad changes in society, demographic change, economic changes, the changing world economy, people’s worries about where they’ll fit in, in our nation. And this is a nation that’s becoming ever more unequal. And so people have these worries and more particularly, I think people are worried about, some of the worries that parents have are legitimate. Let me back up and say, I’m opposed to the banning of books, the prohibition of certain ideas, these laws that prohibit talking about race, those are bad solutions. That’s not what the country should be about. That’s not what education should be about, but at the same time, I don’t think we should assume that all of the concerns that are motivating parents are illegitimate. I think many of those concerns are legitimate. And for example, I do think that parents have a legitimate concern that young children might be indoctrinated to a certain viewpoint or made to feel like they’re to blame for the problems in society.
And I felt that, frankly, I’ll tell you as a parent of three boys, who’ve gone through many different schools, I felt that when I’ve been to presentations where school officials, even university officials, frankly, have said things like toxic masculinity is the problem. Boys are carriers of toxic masculinity. They’re perpetrators in waiting. And that’s why we have problems on campuses because these boys are perpetrators in waiting who are coming up with plans to commit atrocities of one sort or another. And I wouldn’t want my child in a class where a teacher is saying that or where an administrator is saying that. And I think that white parents, frankly, are understandably concerned if they have a young child who’s in a class where a teacher wants them to identify as privileged and to own their white privilege and to identify that they’re a part to the oppressor class. I think that’s a problem. And sometimes that does happen. People go a little too far with their rethinking of how education should occur.
Thompson Ford: So it’s kind of an overcorrection in the sense that you have a lot of schools where the history of racism was never taught. Certainly when I was in high school, for instance, we probably spent about 10 minutes on slavery in the American history class, but now it’s become, there’s maybe a lack of nuance sometimes in the way these issues are advanced. And one thing that you would get from critical race theory is it’s actually taught in law schools in most cases is nuanced but if it’s taught in an unnuanced way, it can become more of just a guilt trip or virtue signaling. And that’s not so good.
Banks: Yeah I agree. I as well, when I was in school and even somewhat with my children when they were young, is that they were taught history as a series of happy stories. So we’re taught more about the end of slavery than about slavery. And then after you go, then you jump from the emancipation and the abolition of slavery to the civil rights there. But there’s no talk of all the bad stuff that happened between the two. So that happens a lot, that we want to tell a happy story about America. And then that’s also not a good thing, but the solution to that is not to try to pick out wrong doors and try to figure out who sits where on some sort of oppression and hierarchy when you’re talking to elementary school students or even middle school students.
That’s not probably what we should be doing either. So probably what I think the problem is that we should be talking about systems and processes in school. We do want children to have a critical perspective on American society and where we are and how we got here. But it’s hard to talk about systems and processes, and it’s all too easy to lapse into talking about people and pigeonholing people and kind of categorizing people. So in a bizarre sense, the critics of the old way of doing things, where we tell the happy story about race, sometimes we can recreate the same sort of problems in our approach that we’re trying to attack.
In other words, in the typical approach, if the black people kind of got the short end of the stick and reviewed as the problem historically, and as black culture, and there’s something deficient about black people. Now, there are some people who want to flip the script and say, well now that wasn’t the problem, but the problem is the white people. And they’re the racist who are causing the problems. And if you are white, you are the racist, you are the problem. You are the one who’s maintaining the hierarchy. I don’t know if that’s a productive or even accurate way to describe where we are.
Bankman: And you know, of course human nature being what it is, if you feel connected to a race that frankly has had kind of a bad record, which I think we’d have to say those of us were white, have a bad record. It’s all too natural to look for overstatements. On the other side, you’re feeling a little bit on edge to begin with. And the easiest thing to do is to react to overstatements, which is why this whole area is really so fraught to get us to where we need to go requires such a deft hand.
Banks: Yeah, this is a challenge.
Thompson Ford: And there’s an irony in that. One of the ideas that I at least most closely associate with critical race theory is the notion of structural inequality or systemic inequality, which really is the antidote to blaming individuals. So a big part of the point is say, it’s not a question only of individual bad actors, but it’s a question of institutions and practices that can perpetuate the inequalities without bad actors. But what now everyone’s concerned about with critical race theory is that you’re blaming white people or trying to make them feel guilty, which is exactly not the point.
Banks: I agree. It should be the point to highlight the ways in which racism at large has distorted democracy. And that’s kind of the big point and it’s distorted democracy in ways that certainly have harmed black people and continue to harm black people. But it’s also distorted democracy in ways that impair democracy itself and have harmed white people even. So we should keep that in mind, but it’s easy to lose sight of that. And I even think that some things that might seem innocuous are actually part of the problem. I’ve become less a fan over time of the idea of white privilege. There is white privilege, just to be clear, but to make white privilege central to how we think about race and the dynamics of racism is seeming to be more and more misguided. When we live in a country where the majority of white people would have trouble repairing their car, if it breaks down, the majority of white people are not sure how they would handle a major medical expense. So there’s a lot of people out there who are white, who are actually not feeling especially privileged.
Thompson Ford: That’s a really interesting point. So when we return, we should come back to the question of white privilege and the controversy around critical race theory.
So we’re back with our colleague, Rick Banks talking about critical race theory and the controversy surrounding the teaching of racial history in American schools. So Rick, when we left, we were talking about the way people are made to feel guilty because of their race. And that seemed to be one of the things they might be fueling this reaction to critical race theory. And there’s an irony here because in a way, some of the reaction to critical race theory, it seems to be a reaction to the popularity of something like Black Lives Matter that for the first time, really you had a multiracial coalition, lots of people opposed to police violence, lots of white people, who are on the forefront of an anti-racist movement to make the nation confront its history. And maybe that’s more threatening to some people than a movement for racial justice that is almost exclusively non-white.
Banks: The Black Lives Matter protest were extraordinary. Something that has not happened during our lifetimes. And it was heartening to see so many people of all backgrounds recognizing the significance and pervasiveness of what is an American tragedy, which is so many lives taken at the hands of the state. So that was heartening. The question that multiracial character that protest raises though, is sort of what happens next? When everyone was cooped up during the pandemic and people are quarantining and so forth, there was this aspect where the protests seemed kind of liberating and people were able to get out. But the question is what do we do now? How do we reform policing and what role can regular people play in these processes? So I think that the jury is still out there.
Thompson Ford: That’s certainly true. Though the reaction to critical race theory may well be a reaction to what’s now unprecedented in terms of the number of whites who are at least in a word behind an anti-racist movement, it might actually be going into classrooms for instance, and saying, we’ve got to really confront our nation’s racial history. For the first time, that’s become a widespread thing among people of all races, rather than limited to mainly to people of color.
Banks: I agree with that. I think that does leave people really unsettled because we never have, as a nation, shown much sustained inclination to confront our history or even our present, we’d rather look away than to see the society that we live in. And so the prospective of having lots of people of all races who are now calling for that sort of confrontation, that will leave many people very uncomfortable and uncomfortable in ways that they may not even be able to fully articulate the nature or extent of their discomfort, but critical race theory gives them a target and a way to express some of this anxiety that they’re feeling.
Bankman: And we talked amongst the three of us during our break about the fact that often the people who are making the more extreme statements and using white privilege the most are really white allies of movements like Black Lives Matter. And I think that’s human nature too. It’s easier to say something maybe even a little more extreme on behalf of others sometime. And so to the extent there’s a reaction, one of the ironies is the reaction is maybe to excesses of white allies, which hit home even more and are more destabilizing to see someone of your own race, use the term white privilege with such frequency.
Banks: You’re kind of accustomed to hearing those charges from across the divide, so to speak. But once you have that from someone on your own team, so to speak that could seem destabilizing. I think that’s a real dynamic. And the question of it that this raises, I think is, how do we not lapse into all of these sort of performative instances of racial justice and invocations of white privilege and all of that, how do we move beyond that and actually make changes in society. I mean, we have a society where police officers have extraordinary leeway and are rarely held accountable for wrongdoing. We have a society, that’s a wash in guns, and that is extraordinarily violent. We have a society where education and the quality of education your children receive depends on where you live and where you can afford to buy a house, frankly. We have lots of challenges. And the question I think is, how do we go from this individual sort of awakening to these problems, to some sort of real transformation, and that’s going to be the challenge ahead.
Bankman: Rick, a lot of these questions that you’ve raised, which are the big questions residing, are they the kinds of things that the new center that we formed at Stanford, the Center for Racial Justice. And I know you co-form that you’re co-directing that, are those the kinds of things this center is addressing? And if not, tell us a little bit about the center.
Banks: So the Stanford Center for Racial Justice is a new undertaking rooted in the law school, but serving the university. And the goal at large is to try to connect the myriad resources of Stanford University, the research capabilities, intellectual capital that we build up, the convening power, the brand, all of the resources of Stanford, we want to connect those to problems out in the society. And the motivation for doing that now in short is that racism both historical and currently really not only hurts people of color, it actually undermines democracy. Indeed, it may threaten the sustainability of this democracy. So that’s the motivation is the recognition of that problem and our goal, if we could just put it into a few words, our goal is to democratize knowledge. It is to generate and disseminate knowledge about how to attack some of the toughest racial problems in a way that moves society forward.
And we need to focus on that democratization of knowledge, because part of the big problem we have in society, frankly, is that we have too much ignorance and too much certainty. The ignorance is that people don’t know what the problems are. They’re unaware of our history. They’re unaware of how the history informs a present. They’re unaware of the dynamics that predictably lead to undesirable outcomes in the present.
But then also people have too much certainty about what to do. And we see that with the polarization in our society, where on all sides of the debate, people think that they’re certain that they know what to do, and the problem is only those people on the other side. And if they could vanquish those people, then everything would be great. And that’s actually recreating the problem. We need to be dedicated to research. We need to be dedicated to knowledge production, to knowledge dissemination. We need to genuinely be committed to what is at the core of the university’s mission as a means of serving the society. And only by doing that, can we undermine both ignorance and certainty, which have been in parallel so much.
Bankman: Well we want to thank our guest, Rick Banks again, and I want to thank you Rich Ford for participating in a discussion on critical race theory and the controversies over it here on Stanford Legal on Sirius XM.