A college law professor who teaches critical race theory worries that educators are living through another ‘Red Scare’

Critical Race Theory protests
Protesters and activists stand outside a Loudoun County Public Schools board meeting in Ashburn, Virginia on October 12, 2021.

  • A raft of bills restricting teaching on race and gender are emerging in state legislatures.
  • The movement is raising concerns about a “chilling effect” on educators.
  • One critical race theory professor likened it to a Red Scare.

Tanya Katerí Hernández feels fortunate to be a tenured professor at Fordham University School of Law, a private Catholic institution in New York City that she said supports her teaching on critical race theory.

But she told Insider she worries about what might happen if, for instance, her family needed her to move to another state where the laws involving her expertise are becoming hostile. She questions whether she could teach what she sees as the most important issues for her students to learn elsewhere without being fired. 

“That is sort of like living under a Red Scare, almost,” she said, a reference to the McCarthy-era, Cold War hysteria when accusations of communist sympathies could end careers. “That’s the closest that I can conceptualize it as.”

Hernández warns others entering the profession that they could be vulnerable, too.

The topic of critical race theory — a college-level study of racial bias in US laws — has become contentious both for K-12 schools, where educators say it isn’t taught, and for universities where it has been taught for decades. The academic theory has become a catchall for teaching about race, equity and diversity. Conservatives argue it divides people into groups of oppressors and victims. The conservative Legal Insurrection Foundation launched criticalrace.org to track CRT training at colleges and universities.

This year, 54 bills have been introduced in 24 state legislatures to restrict teaching and training in schools, higher education and state agencies and institutions, according to a new study by PEN America, a literary and human rights organization. Most bills target discussions of race, gender, US history and banning “prohibited” or “divisive” concepts. By October 1, 11 had become law in nine states: Arizona, Arkansas, Idaho, Iowa, New Hampshire, Oklahoma, South Carolina and Tennessee and Texas.

Some of the laws are vague, Hernández said, and worded in a way in which you’re not sure what it captures. “There’s lots of discretion for any kind of interpretation,” she said, “And that’s certainly not a comfortable space for an educator to be trying to do their job in.”

Tanya Katerí Hernández
Tanya Katerí Hernández teaches critical race theory at Fordham University School of Law in New York City.

‘Completely untrue’

Legislation considered “anti-CRT” isn’t principally intended to prohibit the study of CRT, but a broader set of ideas at schools and universities, the PEN America study says. “In short: They are educational gag orders,” the study says.

The laws are already having an effect. Oklahoma City Community College suspended a course on race and ethnicity. Iowa State University professors received guidance on how to avoid “drawing scrutiny” for their teaching. A Texas K-12 administrator told teachers to balance Holocaust books with an “opposing” perspective.

At the University of Florida, an associate professor filed a grievance alleging he was threatened with discipline if he used “critical race” in his curriculum and program design, the Tampa Bay Times reported.

The National Education Association, which represents teachers and higher education faculty, is offering state-specific guidance to make sure educators know what the laws mean for their work. The union says the laws shouldn’t undermine efforts to ensure all students “feel seen in the classroom and benefit from culturally-inclusive curricula and pedagogical tools that teach the historical facts about our country.”

In her advanced critical race theory course this semester, Hernández said the CRT controversy has been “the shadow lurking over a lot of the conversation.” Many of the students find it a valuable analytical frame for approaching legal topics like voting rights or employment, but they’re seeing a “constant onslaught in the news” about critical race theory.

For some students, the attacks are proof of the value of what they’re learning. Others are “almost sort of fearful,” questioning whether they can talk about it publicly or write about it in op-eds. “It’s very chilling,” she said.  

She has advised students exploring career paths in this space that they will be vulnerable in areas in the country where “censorship gag orders” have gained traction in state legislatures.

Hernández, who is working on her third book in a series on racial discrimination and the civil rights struggle, has taught critical race theory for 25 years and she grew accustomed to blank stares from people when she explained her work because they didn’t know the term.

Now that people have heard about it in the news or on Saturday Night Live, she said, they are either curious or misinformed. “They think it’s part of an anti-whiteness mode of analysis or a racial hate platform,” she said, adding that that’s “completely untrue.”

She describes it as an analysis of legal jurisprudence that examines how advances in civil rights laws were undermined and have in many ways led to disenchantment with a colorblind approach to dealing with racism. “It’s a very specific framework for looking at law and the way in which it’s deployed in society and how to better reform it,” she said. 

While K-12 teachers may teach that Jim Crow laws existed to enforce racial segregation in the South after the Civil War, CRT looks at how obstruction to racial inclusion continues after Jim Crow laws ended, she said. “It looks at patterns and it looks at continuing legacies,” she said.

It’s not coincidental, she said, that political operatives are funding attacks on critical race theory now after the murder of the Black man George Floyd by white police officer Derek Chauvin in Minneapolis and the ensuing protests. The misinformation campaign is working well, she said, because it taps into racial anxiety and discomfort.

Claims that teaching CRT is “unpatriotic” are “ironic,” she said. Teaching students “the truth” about history and how to ask questions about making things better is “actually the most patriotic thing that one could do,” she said.

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