As college professors navigate transition back to in-person or hybrid teaching in a post-COVID world, state bills such as Ohio’s House Bill 322 threaten educators’ right to speak openly about race in their classrooms.
Christopher Banks, Ph.D., J.D., is a political science professor at Kent State University. In his classes, he often talks about difficult, graphic topics or ideas to help his students understand different perspectives as it relates to American politics.
With the introduction of House Bill 322 to Ohio’s legislature, he said he is concerned about his right to teach and the disservice the passing of this bill would do to his students.
“If it’s infringing on anything, if that bill goes through, it’s going to be infringing on my right as an instructor and to teach the way I want to honor academic freedom principles,” Banks said. “[The bill is] a misconstruction of what critical race theory is, and it’s only being used as a political tool.”
According to the NAACP Legal Defense and Education Fund, critical race theory is an established academic principle that examines how systemic racism impacts American society and legislation.
It began as a concept in the 1970s and 1980s following the Civil Rights Movement, and derived from the concept of critical legal studies, according to Banks’ book, co-written by David M. O’Brien, The Judicial Process: Law, Courts, and Judicial Process.
Critical legal studies maintained that law does not exist in terms of a definitive right or wrong, but rather to advance the success and power of American politicians and legal systems.
“That particular theory was very nihilistic,” Banks said. ”It was very insistent that the law is very indeterminate, it’s uncertain. So therefore, the controlling institutions and the government behind it, meaning Congress, presidency, anyone with political elite status, basically use the power of law to advance their own interests.”
The concept of critical race theory agrees in part with critical legal studies, but it differs in that it finds American legal institutions to be deeply ingrained with systemic racism, thus benefiting those who hold power.
“What the critical Legal Studies folks argued is [that] all law is politics,” Banks said. “The same sort of thing is reflecting in critical race, but they use race as the template or the springboard to make the argument that basically, white supremacist, and those who are in control of institutions are discriminating against the African American race and others.”
Bills like House Bill 322 attempt to prevent the topic of race from being forced onto students and listeners, but Banks said that’s not really the goal of critical race theory on its own.
“Basically, we don’t want school boards and government to tell us what to do, basically, and especially on issues of race, and that’s really not what … critical race theory really purports to do,” he said. “It’s more of an educational idea to tell people about what discrimination is in reality, and it’s not really forcing anything on anybody. It’s just a matter of information.”
The rise of critical race theory as a political buzzword and anti-critical race theory legislation in the last year is due in part to former President Donald Trump’s September 2020 executive order banning “diversity inclusion training” and training relating to “divisive topics” in federal contracts, according to the American Bar Association.
Though House Bill 322, and similar bills that have circulated other state legislations, tend to be known as “anti-Critical Race Theory” bills, Ohio’s version lacks the mention of the words “critical,” “race” and “theory” entirely.
Instead, it focuses on banning “divisive language” or “uncomfortable” topics that can lead to “forms of psychological distress.”
“The point of education is to make students think hard about their own perspectives and other perspectives,” said Irene Mulvey, Ph.D., president of the American Association of University Professors. “Students don’t have a right to not have their perspectives challenged. I mean, that’s really the point of education.”
Additionally, The lack of specification raises questions about who’s standards the bill is meant to follow, Mulvey said.
“There are bills, trying to ban critical race theory, all over the country,” Mulvey said. “The language is deliberately vague, in that … it may say ‘critical race theory,’ but then it goes on to describe something which is not critical race theory, which is really just banning anything having to do with race or racism.”
In its current form, House Bill 322, which is being reviewed by the state house committee, aims to bar the teaching of critical race theory in K-12 education systems. However, a 2021 study conducted by the America’s Promise Alliance questioned the need for such bills, since according to the study, only about “half of high school students report learning about race and racism in their classes and many students encounter white-centric curricula.”
Further, the study found that topics of police violence, protests and racial justice were topics of discussion in communities across the country, but many students did not have the option to extend that discussion to classrooms, and when they did, the discussion often lacked nuance and context of race relations in America.
Mulvey said she found the bills to be “cynical” and she questioned the need for such bills too, since they attempt to “ban something that’s not even taught in K-12, rarely taught in the undergraduate level [and] is really a law school” principle mainly discussed in higher education. she said.
But due to the conservative control over state legislature, Banks said the bill has a chance of passing in Ohio. However, Mulvey said there will be push back if there’s an attempt to extend the bill to higher education.
“They might have a more difficult time of it in higher education, because of the academic freedom for faculty and colleges and universities,” Mulvey said. “At the higher colleges and universities, [curriculum] is really more up to the faculty, so it may be harder in higher [education], but I can’t imagine them not coming.”
State Rep. Gail Pavliga (R-Portage County) did not return requests for an interview.