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Is Compulsory Race and Bias ‘Training’ Legal?

And can white people suffer racial discrimination under federal law? The questions are more complex, and unsettled, than they may appear.

Wendy Kaminer
March 08, 2021
H. Armstrong Roberts/Classicstock/Getty Images
H. Armstrong Roberts/Classicstock/Getty Images
This article is part of Free Speech and the First Amendment.
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Can white people suffer racial discrimination under federal law? If that seems like a simple or even stupid question, its complexities have challenged the Supreme Court in affirmative action cases from Regents of the University of California v. Bakke to Fisher v. University of Texas. In upholding race-conscious university admissions policies, so far, the court has acknowledged that while white people may be victims of reverse discrimination, their rights may be outweighed by the demands of diversity.

Critical race theory and trendy anti-racism trainings dispense with such complexities with a simple declaration: White people are endemically and exclusively racist, the products and beneficiaries of a country and culture shaped and served by white supremacy, whether they like it or not. White people (and I am one) can be unintentional or unknowing perpetrators of racism, but never its victims.

Anti-racism or anti-bias training aims to uncover our racism for us, forcing us to explicitly (and publicly) confess and confront it. White people, including those who fought (or thought they fought) for racial justice, may think they know themselves, but the trainers know better. Dissent, much less resistance to reeducation, is simply denial, an expression of “white fragility.” The demands of anti-racism trainers are nonnegotiable. So, as mandatory training sessions proliferate in schools, government agencies, and private workplaces, litigation is inevitable. It’s already begun.

High school senior William Clark and his mother, Gabrielle, are suing Democracy Prep, a Nevada charter school, for punishing William, subjecting him to a hostile educational environment, and threatening to deny him a diploma for refusing to participate in mandatory social justice training. The curriculum, titled “sociology of change,” declared that “reverse racism doesn’t exist,” and required students to “make professions about their gender, sex, religious and racial identities”; it then “subjected those professions to interrogation, scrutiny, and derogatory labeling,” Clark’s complaint alleges. William, a light-skinned, mixed-race student, is the only apparent white student in his class, and his various identities, including his Christianity, categorized him as an oppressor: According to the curriculum, he had an “inherent belief in the inferiority” of others and was instructed to “unlearn” the principles instilled in him by his mother, a conservative Christian.

The Clarks are seeking an injunction in federal court allowing William to graduate, deleting his failing grade for the course, and demanding monetary damages. They invoke his rights under federal equal education guarantees (Title VI and Title IX) and his First Amendment right against compelled speech, eloquently delineated by Justice Robert H. Jackson in the landmark case of West Virginia State Board of Education v. Barnette, upholding the right of Jehovah’s Witnesses to refrain from saluting the flag. “If there is any fixed star in our constitutional constellation,” Jackson wrote, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

William charged his school with requiring him to confess the indices of his presumed privilege—to “proclaim in class and in assignments his race, color, sex, gender and religious identities for which he in turn would receive official, derogatory labels.” Democracy Prep disputes the Clarks’ description of the sociology of change course, its mandates, and the accommodations offered to mitigate William’s concerns. Substantial differences in opposing parties’ factual accounts make it difficult, if not impossible, to decide the legal questions, which include procedural issues related to the applicability of federal equal education statutes.

Federal District Court Judge Andrew Gordon thoughtfully discussed the factual and legal issues during an initial hearing on Feb. 25, denying the Clarks immediate relief, without prejudice. Judge Gordon was most sympathetic to William’s First Amendment compelled-speech claim, citing evidence that he was “required to profess beliefs and attach labels to his personal attributes.” Commenting on course material declaring that reverse racism doesn’t exist, the judge remarked, “that doesn’t sound like let’s have a dialogue; it seems more (like) indoctrination.” But he was skeptical of the factual basis for William’s claims of discrimination, hostile environment, and retaliation, stressed the need for an evidentiary hearing, and urged the parties to mediate. The hearing transcript is well worth reading in full.

The Clark lawsuit is a reminder, if one is needed, that facts matter. So consider this simple hypothetical: The facts clearly demonstrate that a high school teacher labeled a white male student an “oppressor” on the basis of race and sex and required him to “unlearn” his beliefs about his status as privileged or oppressed, based on his inherited personal identities. Does he have the same right to redress as a Black male student treated similarly? Anti-bias trainers might condemn the question as an expression of white privilege for implying that white people can ever compare their treatment to the demeaning, discriminatory treatment of Black people.

Federal judges, however, may differ. Given increasing judicial partisanship, judges appointed by Republicans may be especially sympathetic to discrimination and compelled-speech claims by white students categorically labeled oppressors on the basis of race. Like most controversies involving race, sex, or religion, among other demographic factors, debates over critical race theory and social justice training programs are skirmishes in our omnipresent culture war. Criticism of these programs often emanates from the right and support for them from the progressive left.

Yet left-leaning judges who may be sympathetic to campaigns against structural racism and unconscious bias also seem unlikely to codify the insistence of critical race theorists that reverse racism doesn’t exist and hold that laws against race discrimination only protect people of color. Nor will they deny white people First Amendment protections on account of their race.

Outside the courtroom, many old-fashioned liberals, like me, who question the premises and methods of anti-bias training may keep their questions to themselves. The Clarks’ lawsuit, for example, is supported by the International Organization for the Family, which has been labelled a right-wing “hate group” by the Southern Poverty Law Center. Relatively few liberals will want to risk their reputations by agreeing with the IOF publicly. Liberal Democratic politicians wouldn’t dare.

Still, not all challenges to anti-bias training incorporating critical race theory come from the right. Jodi Shaw, who identifies as liberal, famously resigned from Smith College (my alma mater) after its adoption of a comprehensive anti-white, allegedly anti-racism agenda. Shaw, a Smith alum, posted widely viewed YouTube videos on Smith’s hostile, illiberal environment. In an eloquent resignation letter, posted by Bari Weiss, she summarized her critique:

I was told on multiple occasions that discussing my personal thoughts and feelings about my skin color is a requirement of my job. I endured racially hostile comments, and was expected to participate in racially prejudicial behavior as a continued condition of my employment. … Smith College has created a racially hostile environment in which individual acts of discrimination and hostility flourish … in which dissenting from the new critical race orthodoxy—or even failing to swear fealty to it … is grounds for public humiliation and professional retaliation. … I can no longer continue to work in an environment where I am constantly subjected to additional scrutiny because of my skin color … where I am told, publicly, that my personal feelings of discomfort under such scrutiny are not legitimate but instead are a manifestation of white supremacy. Perhaps most importantly, I can no longer work in an environment where I am expected to apply similar race-based stereotypes and assumptions to others.”

Shaw is filing a complaint with the Massachusetts Commission Against Discrimination; a lawsuit seems likely to follow. Smith is a private institution and so Shaw will not have a First Amendment claim for compelled speech, but she may have strong state and federal workplace discrimination claims.

The cruel excesses and idiocies of Smith’s aggressively woke culture were deftly exposed by Michael Powell’s recent New York Times article on the school’s “battle over race, class, and power.” As Powell recounted (and Shaw confirmed), the college initiated its deeply flawed anti-racism policies in response to a frivolous discrimination complaint in 2018 by a Black student. But the effort to brand Smith, formerly a Seven Sister enclave of wealthy WASPs, as an oasis of woke, anti-racist inclusivity began years earlier, as I can attest.

Back in 2014 I was condemned as a racist for quoting a racist slur—the racist slur—while discussing Huck Finn on a free-speech panel for alumnae; I argued against bowdlerizing the novel and questioned the mandate to reference such words by their initials, regardless of context. My words (or word) created an uproar on campus and sparked harsh criticisms of President Kathleen McCartney.

Presiding over the panel, McCartney, who was seated next to me, didn’t react to my remarks, much less condemn them. Indeed, at first, the administration seemed pleased with our discussion. “What a wonderful conversation last night,” a panel organizer remarked the next day. But praise quickly gave way to recriminations, when the Smith “community” angrily renounced my allegedly racist speech (which one critic characterized as an act of racial violence) and McCartney’s failure to shut me down. McCartney then apologized and vowed to “get better.”

I mention this episode because like the flawed anti-racist agenda exposed by Jodi Shaw and The New York Times, it’s a demonstration of white fragility. McCartney, Smith’s white female president, seems afraid to challenge the students she’s supposed to lead; she exemplifies white fragility much more than Jodi Shaw. Fighting back and making herself a pariah on campus, Shaw exemplified strength, the courage of her convictions.

We don’t always enjoy the legal right to act on our convictions, but we should enjoy an inalienable freedom to harbor and express them. Anti-racism programs that aim to compel students and employees to “unlearn” their beliefs, and internalize new, ideologically mandated self-images, violate fundamental freedoms of speech and conscience. The likelihood that they’ll succeed mainly in promoting self-censorship and insincere self-flagellations doesn’t mitigate their intolerance of dissent and intrusive authoritarianism.

Does structural racism exist? I believe so. But sending white people to mandatory thought reform camps seems more likely to impede than advance efforts to redress it. Do many, maybe most of us, harbor unconscious biases? Probably. But they’re not the business of our teachers or employers, much less our legislators.

Social justice/anti-racism trainers who disagree and consider me a racist are free to evangelize, and those white people eager to prove their allyship are free to submit voluntarily to their preaching. Others should be free to debate and reject it, in schools and workplaces, without suffering retaliation. It doesn’t matter if the cause of anti-racism trainers is just, when freedom of conscience is at stake: “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men,” Justice Jackson wisely wrote in Barnette. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” Of course anti-racism training refuseniks don’t risk extermination, but they do risk the loss of educational opportunities and employment on account of their race—as the cases of Jodi Shaw and William Clark make clear.

Can white people suffer race discrimination? Apparently. Discrimination is the resort of people in power, as social justice warriors correctly assert, and they hold power in compulsory anti-racism trainings and the structures that support them. As mere human beings, they’re not above abusing it.

Wendy Kaminer is a lawyer, journalist, and author.

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