Critical Race Theory and Campus Discourse

November 7, 2022

Critical Race Theory and Campus Discourse
NWCCU Annual Meeting
Nov. 2, 2022
Eduardo M. Peñalver
President, Seattle University


As a university administrator – for the past year as a president but before that for seven years as a law school dean – when I am off campus, one question I get asked more than any other is about freedom of speech on campus.


OK, that’s not totally accurate. 


The question I actually get asked more than any other is “Why would anyone want to be a university president?” 


But the second most frequent question is about the state of freedom of speech.


I would imagine that is true for many of you as well.


I think this is an important question, and it’s a topic we need to engage our campus communities about.  But conversations require good faith interlocutors.  And so, at the outset, it is important to acknowledge that some of the concern we hear expressed over campus speech is not in good faith. 


I am not saying that every person who raises this issue or asks this question is doing so in bad faith.  But it is important to acknowledge that some of the most vocal critics of campus discourse, people whose commentary informs the questions we get asked, are not actually interested in freedom of speech or in helping to improve higher education.  Instead, their concern serves as a stalking horse for the belief that higher education is just too liberal.


And that belief is nothing new.


William F. Buckley began his career with a book complaining that Yale was too secular and too liberal. That was in 1951.


In the late 1950s, the Johns Committee (named for conservative Democratic state senator Charley Johns) investigated faculty at the University of Florida and other public universities in the state with the goal of rooting out gay and communist faculty, and really any faculty they viewed as too far left, which in the committee’s view included faculty who supported racial integration.


In our own time, some of those who – as recently as three years ago – were lamenting the lack of freedom of speech on college campuses are now actively promoting bans on so-called “Critical Race Theory” with the express intent of suppressing a broad category of speech about a vitally important topic. 


In September of 2020, the Trump Administration, through the Office of Management and Budget, started things off by banning any training within the federal government relating to Critical Race Theory, calling it “Anti-American propaganda.”


It described Critical Race Theory as a school of thought dedicated to the view that (1) the United States is an inherently racist or evil country and (2) that white people are inherently racist or evil.


In reality, critical race theory is a term used to describe a broad body of scholarship that originally began in law schools in the 1980s but that is now influential within a number of other disciplines in the humanities and social sciences. 


Critical race theorists grapple with questions around how racial hierarchies function through seemingly race neutral social and legal structures to perpetuate the subordination of certain groups even in the absence of individualized or organized discriminatory intent.


Law Professor Kimberle Crenshaw, one of the founding figures in the field, recently described critical race theory as follows.  She said, and I quote:


“The ‘critical race’ dimension of CRT holds that there is no natural explanation for contemporary patterns of racial inequality and that race is a social construction. 


The “theory” part of CRT signals that the project looks beyond the important but limited scope of bringing lawsuits.  Instead, Critical Race Theorists look at the wider ways that ‘colorblind’ rules underwrite systemic inequalities.”


As Crenshaw’s definition makes clear, with the exception of its rejection of biological racism, critical race theory does not reflect one narrow point of view.  It certainly does not stand for the propositions ascribed to it by the Trump OMB.  Instead, it represents a broad but related family of approaches to analyzing questions of race, law and society. 


Among critical race theorists, there is ample debate and disagreement.  People who call themselves critical race theorists express a range of positions on a great many issues, including their methodological precommitments. 


Just as importantly, many people who do not consider themselves critical race theorists nevertheless hold views that overlap with parts of what Crenshaw describes as the theory’s core tenets.  The rejection of biological determinism about race, for example, is a view that extends well beyond the community of self-described critical race theorists.


Critical race theory has always had its . . . “critics.”


When I was a student at Yale Law School in the 1990s, the then-dean of the Law School, Anthony Kronman, told an assembled group of students that – under his leadership – the law school would never hire a critical race theorist. 

That view changed under his successor deans, and Yale Law now employs several people who would consider themselves critical race theorists.  As far as I have seen, none of them believe that either the United States or white people are inherently evil or inherently racist.


Although I have never considered myself a critical race theorist, I have greatly benefitted from reading their work.  One element of critical race theory that I have found to be particularly useful in my own scholarship on land use is its analysis of structural racism.


The idea behind structural racism is that systems of racial subordination do not depend exclusively on individual or even collective acts of intentional discrimination.  Instead, they can be encoded in seemingly neutral practices and institutions that operate to the systematic disadvantage of certain groups, who have historically been on the margins.


I’ll offer an example from my own field.  Until the middle of the 20th century, intentional racial discrimination in private housing markets was both legal and pervasive.  Racially restrictive covenants excluded Black people from owning homes in vast swaths of American cities.  By some estimates, covenants excluded Black people from three quarters of the land in the city of Detroit and over half of the land in Chicago. 


These covenants were also common in the Pacific Northwest.  If you search the chain of title for your home, you may well find a prohibition on its ownership or occupancy by anyone not of the White race.


Compounding racially restrictive covenants was the federal government’s practice of defining neighborhoods where Black people and immigrants lived as poor credit risks, a practice known as “redlining,” which continued well into the post-war housing boom.  


Mortgages in those neighborhoods were not eligible for federal guarantees, which is to say, federal subsidies.  This meant that the home loans available to residents of those neighborhoods had shorter terms and higher interest rates or that loans were simply not available at all. 


Redlining thus became a self-fulfilling prophecy. By restricting Black households’ access to affordable credit for homeownership or home improvement, it led to the deterioration of credit-starved Black neighborhoods. 


As late as 1966, not a single federally guaranteed loan had been issued in Paterson and Camden, New Jersey.  And, over a 15-year period between 1934 and 1949, only one Black household in the entire City of Miami received a federally guaranteed loan.


Government insistence on racial segregation in housing built with federally guaranteed loans meant that new suburban developments in the decades after WWII were almost uniformly white.


Racially restrictive covenants were held to be unenforceable by the U.S. Supreme Court in the 1948 case of Shelley v. Kraemer.  And intentional discrimination in housing markets became illegal in 1968 with the passage of the Fair Housing Act.  The practice of official redlining eventually came to an end around the same time.


We know from testing studies that private discrimination in both housing and credit markets continues.  But it is far less pervasive than it once was, and it tends to be more subtle.


But the impacts of decades of pervasive discrimination have proven extremely durable.  And, since homeownership constitutes the greatest single source of household wealth for most American families, the legacy of prior and ongoing housing discrimination constitutes an important part of any explanation for today’s observed racial wealth gap.


In addition, models of racial segregation in housing – such as the famous agent-based model developed by the Nobel-prize winning economist Thomas Schelling – suggest that residential segregation, once in place, is a stable equilibrium that requires affirmative steps to dismantle. Unsurprisingly, our urban landscape continues to be characterized by a great deal of it.


And contemporary studies demonstrate that residential segregation yields measurable negative outcomes for Black and brown households.


For example, because of the absence of trees and parks in formerly redlined neighborhoods, the average temperature in those parts of American cities tend to be around 5 degrees higher on a summer day than in leafier neighborhoods, exposing residents to more frequent bouts of dangerously hot days. 


And residential segregation combines with other (facially neutral) practices, such as local government finance and restrictive zoning laws, to perpetuate unequal access to high achieving schools, well-paying jobs, and other vehicles of economic opportunity. 


Most of these causal mechanisms operate without any reference to race.  They work by locking in the impact of prior race-conscious actions and policies.  If these sorts of structural inequities fell upon a powerful and influential group of people, they would have been remedied long ago. But they are allowed to persist, which is what critical race theorists would predict.


For the past few minutes, I’ve been making a series of empirical claims about causes and consequences.  My claims are contestable and falsifiable. 


That is to say, they are the exactly the sorts of assertions that are the proper subject of academic study, discussion and debate. 


That is what universities are for. 


The idea of using the power of the state to ban one particular line of thought about these vitally important social phenomena is antithetical to our work, to academic freedom, and to the freedom of speech on campus, properly understood. 


If a theory is wrong, it will eventually succumb to a better one.  The entire academic enterprise is built on faith in that proposition.  If we didn’t believe that, we should shut our doors.


But contemporary efforts to silence critical race scholars are not really about disagreement over an academic theory or about the merits of attendant concepts like structural racism. 


The proper response to disagreement over an academic theory is to marshal evidence and arguments against it, not to invoke the power of the state to ban it.


Legal attacks on critical race theory are part of a larger political or cultural war.  Over the past 20 years, as our polity has become increasingly polarized along educational lines, universities have been pulled towards the center of our national political battles.


And within this zone of political conflict, critical race theory has become the latest useful foil.


As Christopher Rufo – one of the architects of the Trump OMB policy – put it in a tweet in March of last year:


“We have successfully frozen their brand—'critical race theory’—into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category,” Rufo wrote.

“The goal is to have the public read something crazy in the newspaper and immediately think 'critical race theory.’ We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.”


This is not the language of intellectually honest academic engagement and critique.  It is the language of opposition research and political marketing.


The true nature of this strategy reveals itself in the swift pivot many politicians have made from knitting their brows about the state of free expression on university campuses to imposing bans on the teaching of critical race theory on those very same campuses.


It was just in 2019, for example, that Florida Governor Ron DeSantis issued a call to action for higher education institutions to protect robust freedom of speech. 


He said, and I quote, “it is imperative for the future of our society that our state colleges and universities protect a culture of free speech on their campuses,” a statement I think most of us would agree with.  He urged Florida universities to sign a pledge to protect freedom of expression.  And they did.


Now, just two years later, Governor DeSantis has signed the “Stop WOKE Act.”  The law purports to prohibit critical race theory in a number of settings.  A federal judge recently enjoined the enforcement of the Act against private employers, calling it a fairly flagrant violation of free speech rights.


The law also applies to public educational institutions in the State, including institutions of higher learning.


Its provisions, ostensibly targeted at so-called “critical race theory,” cast such a wide net that they might be read to prohibit a university official from endorsing the idea of affirmative action or from asserting that Black people experience any kind of systematic disadvantage in American life. 


If I were a public university professor or administrator in Florida, the law might arguably punish me for the comments I made just a few minutes ago suggesting that contemporary Black households continue to suffer from the structural impacts of 20th century housing discrimination.


You might agree with my claims about the entrenched consequences of housing discrimination or you might disagree with them.  But I hope you would affirm that they represent a legitimate point of view that is entitled to contend on a level playing field with competing perspectives, without the state intervening to settle the argument.


In contrast, the Stop WOKE Act seeks to deploy the state’s coercive power to suppress a particular point of view because Governor DeSantis and others reject it. 


Florida is hardly alone in this regard, a recent study by the pro-free-speech organization, PEN America, found that 36 states, including several in the Pacific Northwest, have introduced or enacted legislation aiming to prohibit the teaching of critical race theory, with nearly 40% of those bills targeting higher education along with K-12 schools. 


Even more dangerous than the broad reach of these laws is the legal theory some states are using to defend them. 


As Hamilton College President David Wippman and retired Cornell dean Glenn Altschuler pointed out in a recent essay in The Hill, Florida has been defending the Stop WOKE Act by asserting in court that, as public employees, professors at state universities do not have any rights of academic freedom vis-à-vis the state. 


Relying on the Supreme Court’s 2006 decision in Garcetti v. Ceballos, a case involving the very different context of employees in the office of the Los Angeles District Attorney, Florida’s lawyers have asserted that state college curricula and classroom instruction are “government speech” and “not the speech of the educators’ themselves.”


They have insisted that there is (and I’m quoting here) “no purported right to academic freedom,” and that, in the Stop WOKE Act, the government of Florida “has simply chosen to regulate its own speech.”


Wippman and Altschuler rightly call this line of argument, if accepted by the courts, “an existential threat” to public higher education.


We need to acknowledge that multiple things can be true about campus discourse at the same time. 


It can be true that there are very few conservative voices on many university campuses, particularly in certain disciplines. 


Samuel Abrams, a political scientist at Sarah Lawrence College, found that, among college professors, self-described liberals outnumber conservatives by about six to one. At colleges in the northeast, the ratio is 28 to one.


Second, it can be true that there are significant voices on the left, including on campus, that reject values of free speech and robust intellectual debate.  A department chair at Williams College put it this way last year, “[t]his idea of intellectual debate and rigor as the pinnacle of intellectualism comes from a world in which white men dominated.”  (This is a nearly textbook example of what my philosophy professors called “the genetic fallacy.”)


Third, it can be true that some universities have failed sufficiently to protect the academic freedom or freedom of expression of students and faculty who have expressed controversial views. 


And it can be true that there is an asymmetry – a disparate impact – in this controversy-aversion.  Because of the relatively small numbers of conservatives on campus, conservative views that would be within the mainstream off campus can prove extremely controversial when expressed on campus.  Conversely, progressive views that might be considered extreme if expressed off campus often do not generate much fuss on campus, even among people who disagree with them.


All of these things might be true.  For my part, I think some version of each of them is probably accurate.


And yet, even if they are true, it can also be true that some of the loudest voices taking higher education to task for these shortcomings are not interested in actually promoting healthy discourse on campus.


For some of these critics, the goal is not to make higher education better.  It is to erode public confidence in higher education in order to gain electoral advantage within a polity that is increasingly polarized along educational lines.

And polling data shows that they are succeeding. 


Public trust in higher education is declining across the board, but it is doing so most dramatically among political conservatives. 


Needless to say, this declining trust, coupled with our political polarization around education, makes the job of addressing the challenges around campus discourse even harder, as each side retreats into its bunkers and looks at the other with suspicion.


Rather than ideological point-scoring, what we actually need is a good-faith conversation about how we can teach our young people the value of free inquiry and civil disagreement. 


These values are essential to universities’ mission to fearlessly search for the truth and to prepare the leaders of tomorrow. 


Teaching them these lessons requires that we expose our students (and, for that matter, ourselves, as educators and researchers and administrators) to a wide range of people and ideas, including ideas that they (or we) might consider to be wrong or mistaken or even offensive. 


And this in turn means that we should be concerned about the relatively narrow range of perspectives represented on our campuses.


In a society where robust but civil engagement across disagreement is the rare exception, the university needs to be a countercultural oasis where it is embraced and cultivated.  And learning how to engage in civil disagreement requires the presence of a wide diversity of viewpoints and the ability to share them.  It requires that we experience people with whom we disagree as real, living and breathing human beings, not mere abstractions. 


It is easier to dismiss or cancel or condemn an abstraction.  Relationships force us to evaluate the views of others with more intellectual charity.  But we can’t have relationship without presence.


These days, we tend to experience disagreement episodically and in an impoverished way.  The emotionally manipulative algorithms that stage-manage our experience online ensure that the forms of disagreement we typically encounter are anything but thoughtful. 


Algorithmically designed disagreement is intentionally curated to make us angry, or perhaps feel morally superior, but not to encourage us to reflect or to help us discern the truth. 

Our lack of experience with truly thoughtful and thought-provoking disagreement has led to a collective atrophy of the social virtues essential to civil discourse, virtues like speaking judiciously and listening charitably.  We see the effects of this atrophy all around us, including on campus.


But I don’t want to put all the blame on technology.  Fostering these discursive virtues is an area where universities have also sometimes fallen short, not because we have an affirmative desire to promote or suppress a particular point of view, but more often because we administrators want to avoid controversy or bad publicity for our institutions.


We don’t want to trend on Twitter. 


(Sorry, I promised I wasn’t going to put ALL the blame on technology.)


Our failures are facilitated by the relative lack of viewpoint diversity on campus. 


We know that homogenous groups are prone to blind spots.  The absence of viewpoint diversity can make us inadvertently tone deaf to observers who do not share the views that predominate on campus.


This same dynamic can have the effect of excessively shrinking the Overton window for campus discourse, feeding that controversy asymmetry I mentioned before.


How can we shift this dynamic? 


I have three ideas, none of them silver bullets, all of them incremental.


One easy thing we can do to help create the reality we want to see on our campuses is to talk about the importance of civil disagreement and about the discursive virtues of listening generously and speaking courageously.  If we promote the idea that campuses are a place for practicing and teaching civil disagreement, and if we do so early and often, we can soften the soil for the steps we need to take when confronted with calls to de-platform or sanction people merely because of their point of view or the position they have expressed.


One of the hallmarks of Jesuit education and spirituality is repetition.  The hope is that the repetition of an important point will help it to sink in.  Following that model, I have been talking about different versions of this issue at every opportunity.  Even if my remarks on some occasion – such as an admitted student gathering – are primarily about something else, I try to find a way to work in some reference to the virtues of disagreement and the unique role of civil disagreement in the intellectual life of a university.


A second way to help our campuses become more friendly to civil disagreement is to be thoughtful about the speakers we invite.  We tend to be attentive to diversity of identity in speaker selection or panel composition, for example.  But how often are we attentive to viewpoint diversity?


This can be easier said than done.  We have all read about examples of situations in which conservative speakers – although not just conservative speakers – have been unable to speak on campus because of controversy, protest, and disruption.


I want to set to the side the unique case of professional provocateurs . . .  people like Milos Yiannopoulos.  These kinds of speakers add nothing to our educational mission. 


Of more interest and concern are the situations in which controversy has arisen around speakers who are well within the academic mainstream.


An example of this was the decision last year by MIT to cancel a speech on climate change by University of Chicago geophysicist Dorian Abbott because of views he had expressed in other contexts about race-based affirmative action in college admissions.


This is a kind of controversy that we need to be able manage well as university administrators, as challenging and uncomfortable as that can be.  Our failure to do so only helps to feed the narrative that freedom of expression on campus is in crisis. 


Are situations like these widespread and pervasive? 


It’s hard to say with any certainty, but I tend to doubt that things are as bad as the most pessimistic accounts suggest. 


To understand why I hold this optimistic view, I’ll tell you a story from my own campus.  Last year, the Federalist Society chapter at our law school invited a speaker from the conservative litigation advocacy group, the Alliance Defending Freedom, to come speak on the Seattle University campus.


Although we received a number of requests for the law school to cancel the speech because of anti-LGBTQ rights positions the group has taken in its litigation, the law school’s dean rejected those requests in a statement to the law school community.  She explained that we do not force student groups to disinvite speakers because of the point of view of the invited speaker. 

Rather than disrupting the speech, Seattle University’s students did exactly the right thing.  They set up a table outside the venue and engaged in counter-speech of their own.


I happen to know that a speaker from the same organization was also able to speak without incident at Cornell Law School, despite calls from undergraduates there to cancel the talk. 


I’m sure I don’t even need to tell you any of this because you read all about how well these events went in the extensive press coverage of them at the time, right?  Right?


Of course, you will never read a news story about the speakers who were allowed to speak without disruption at Seattle University and Cornell law schools. 


You only read about the speaker from the same group whose talk at Yale Law School was disrupted by students, who also heckled the law school administrators who tried to keep the event on track.


The events at Yale made the national news over and over and over again. 


If it bleeds, it leads.  Or, I should say, if it is useful to reinforcing the narrative about how intolerant higher education is, it leads.

My comment about differential press coverage does not mean that the Yale case did not happen, or that the Yale case was handled well.  But it does invite us to ask the question of how representative the Yale case is. 


I am confident that, on hundreds of campuses across the country every week, conservatives speak without disruption, even if some segment of the campus community protests, as is certainly their right.


But you will never read a story about those successful events in the national media.


We can lament how unfair this is, but that won’t change the fact that our mistakes in dealing with these sorts of situations will receive much more attention than the cases we get right. 


The occasional controversy over conservative speakers on campus points towards a third thing we can do to foster a climate that is conducive to civil discourse on campus. 


And that is to model civil discourse by building it directly into the format of our programming.


When I was at Cornell, we launched a series on civil discourse that brought to campus distinguished speakers to engage in conversation with one another.  We deliberately paired conservatives and liberals we knew disagreed with one another but who also liked or respected each other personally. 


Robert George engaged in conversation with Cornel West; John McWhorter spoke with Masha Gessen; Ezra Klein with Andrew Sullivan.


We then asked them to discuss some salient topic from their distinctive perspectives – topics like religious freedom, cancel culture, threats to democracy, or Division 1 athletics.


The conversations were uniformly well attended and well received.  Interestingly, no one ever protested or disrupted any of these talks.


Students from all backgrounds who attended were guaranteed to experience views they agreed with and disagreed with at these events.  They also experienced two people who deeply disagreed with one another, discussing those topics in a very good-natured, respectful way.


The conversations were challenging to organize –  some people are reluctant to share the stage with others.  But, overall, I think they were successful in reinforcing the message of universities as places that are uniquely situated to bring people together to talk about challenging issues across their differences.


I know I’ve covered a lot of ground in the last 30 minutes.  So let me briefly recap.


Critical Race Theory represents an important, but contestable, participant in our discourse.  It not a threat to intellectual life on campus, but an expression of it.


A greater threat to intellectual life on campus comes from those who would deploy the coercive power of the state to suppress critical race theory.  This suppression of a point of view is the antithesis of the academic freedom on which healthy campus discourse depends.  And it is rooted in a politically motivated hostility to higher education that is itself a consequence of our increasing political polarization along educational lines.


But to name this is not to say that all is well on campus.  Just because some of the critics of higher education do not have our best interests at heart does not mean that there is nothing for us to do to improve.


The relative narrowness of viewpoint diversity on campus has many causes.  But it presents an educational challenge that we need to be intentional about addressing.


To educate effective citizens, to prepare the leaders of the future, we need to teach our students about the broad range of perspectives they will encounter in their civic life, and about the best and most effective ways to engage with others across their inevitable disagreements.


The future of our democracy depends on their successful development of those skills – skills that involve both speaking with and listening to those with whom they disagree.