UC Irvine Law Review

A majority of state legislatures have introduced bills prohibiting public schools from teaching certain “divisive concepts” attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that racial harm is caused by discussions of race rather than systemic racism. At the same time, to the extent the laws forbid suggesting that systemic racism is widespread or that the United States is not a meritocracy, these bans may prevent students from learning core CRT concepts.

Part II then examines these bans through a critical race theory lens. It first demonstrates how the laws’ ignorance of critical race theory and of the role race plays in the United States reflects white privilege. It next explains how the bans embody white fragility—those defensive behaviors white people may exhibit when their racial advantages are pointed out—in the way they overreact to imagined threats, focus on white people’s wellbeing, frame white people as the true victims of race relations in the United States, and finally assert false equivalencies.

Ultimately, critical race theory bans reinscribe racial inequalities. By chilling classroom discussions about the creation and maintenance of racial hierarchies, these bans leave unaddressed all the structural issues that critical race theory aims to uncover. It is a perfect vicious circle.