On January 12, Keith Ammon, a Republican member of the New Hampshire House of Representatives, introduced a bill that would bar schools as well as organizations that have entered into a contract or subcontract with the state from endorsing “divisive concepts.” Specifically, the measure would forbid “race or sex scapegoating,” questioning the value of meritocracy, and suggesting that New Hampshire—or the United States—is “fundamentally racist.”
Ammon’s bill is one of a dozen that Republicans have recently introduced in state legislatures and the United States Congress that contain similar prohibitions. In Arkansas, lawmakers have approved a measure that would ban state contractors from offering training that promotes “division between, resentment of, or social justice for” groups based on race, gender, or political affiliation. The Idaho legislature just passed a bill that would bar institutions of public education from compelling “students to personally affirm, adopt, or adhere” to specific beliefs about race, sex, or religion. The Louisiana legislature is weighing a nearly identical measure.
The language of these bills is anodyne and fuzzy—compel, for instance, is never defined in the Idaho legislation—and that ambiguity appears to be deliberate. According to Ammon, “using taxpayer funds to promote ideas such as ‘one race is inherently superior to another race or sex’ … only exacerbates our differences.” But critics of these efforts warn that the bills would effectively prevent public schools and universities from holding discussions about racism; the New Hampshire measure in particular would ban companies that do business with government entities from conducting diversity, equity, and inclusion programs. “The vagueness of the language is really the point,” Leah Cohen, an organizer with Granite State Progress, a liberal nonprofit based in Concord, told me. “With this really broad brushstroke, we anticipate that that will be used more to censor conversations about race and equity.”
Most legal scholars say that these bills impinge on the right to free speech and will likely be dismissed in court. “Of the legislative language so far, none of the bills are fully constitutional,” Joe Cohn, the legislative and policy director of the Foundation for Individual Rights in Education, told me, “and if it isn’t fully constitutional, there’s a word for that: It means it’s unconstitutional.” This does not appear to concern the bills’ sponsors, though. The larger purpose, it seems, is to rally the Republican base—to push back against the recent reexaminations of the role that slavery and segregation have played in American history and the attempts to redress those historical offenses. The shorthand for the Republicans’ bogeyman is an idea that has until now mostly lived in academia: critical race theory.
The late Harvard Law professor Derrick Bell is credited as the father of critical race theory. He began conceptualizing the idea in the 1970s as a way to understand how race and American law interact, and developed a course on the subject. In 1980, Bell resigned his position at Harvard because of what he viewed as the institution’s discriminatory hiring practices, especially its failure to hire an Asian American woman he’d recommended.
Black students—including the future legal scholar Kimberlé Crenshaw, who enrolled at Harvard Law in 1981—felt the void created by his departure. Bell had been the only Black law professor among the faculty, and in his absence, the school no longer offered a course explicitly addressing race. When students asked administrators what could be done, Crenshaw says they received a terse response. “What is it that is so special about race and law that you have to have a course that examines it?” Crenshaw has recalled administrators asking. The administration’s inability to see the importance of understanding race and the law, she says, “got us thinking about how do we articulate that this is important and that law schools should include” the subject in their curricula.
Crenshaw and her classmates asked 12 scholars of color to come to campus and lead discussions about Bell’s book Race, Racism, and American Law. With that, critical race theory began in earnest. The approach “is often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures,” Bell explained in 1995. The theory’s proponents argue that the nation’s sordid history of slavery, segregation, and discrimination is embedded in our laws, and continues to play a central role in preventing Black Americans and other marginalized groups from living lives untouched by racism.
For some, the theory was a revelatory way to understand inequality. Take housing, for example. Researchers have now accumulated ample evidence that racial covenants in property deeds and redlining by the Federal Housing Authority—banned more than 60 years ago—remain a major contributor to the gulf in homeownership, and thus wealth, between Black and white people. Others, perhaps most prominently Randall Kennedy, who joined the Harvard Law faculty a few years after Bell left, questioned how widely the theory could be applied. In a paper titled “Racial Critiques of Legal Academia,” Kennedy argued that white racism was not the only reason so few “minority scholars” were members of law-school faculties. Conservative scholars argued that critical race theory is reductive—that it treats race as the only factor in social identity.
As with other academic frameworks before it, the nuances of critical race theory—and the debate around it—were obscured when it escaped the ivory tower. It first entered public discourse in the early 1990s, when President Bill Clinton nominated the University of Pennsylvania Law School professor Lani Guinier to run the Justice Department’s Civil Rights Division. Republicans mounted an aggressive and ultimately successful campaign to prevent her appointment, tagging her the “Quota Queen.” Among the many reasons her adversaries said she was wrong for the job was that she had been “championing a radical school of thought called ‘critical race theory.’” The theory soon stood in for anything resembling an examination of America’s history with race. Conservatives would boil it down further: Critical race theory taught Americans to hate America. Today, across the country, school curricula and workplace trainings include materials that defenders and opponents alike insist are inspired by critical race theory but that academic critical race theorists do not characterize as such.
Fox News gave only passing thought to critical race theory until last year. The first mention on the network occurred after Bell died, in 2012. A video of President Barack Obama praising him 21 years earlier began circulating online. “Open up your minds and your hearts to the words of Mr. Derrick Bell,” Obama said. That introduction was followed by a hug between the two men, which Fox cited as further evidence of Obama’s tendency to consort with radicals. A guest on Hannity offhandedly alluded to the theory during a segment on George Zimmerman’s trial for the murder of Trayvon Martin in 2014; network regulars briefly referred to it twice in 2019. Then, in 2020, after Derek Chauvin was captured on video kneeling on George Floyd’s neck for more than nine minutes, and the United States became awash in anti-racist reading lists—some of which included books and articles that discussed critical race theory—Fox suddenly took a great interest in the idea. It became the latest in a long line of racialized topics (affirmative action perhaps being the most prominent) that the network has jumped on. Since June 5, 2020, the phrase has been invoked during 150 broadcasts.
If a single person bears the most responsibility for the surge in conservative interest in critical race theory, it is probably Christopher Rufo. Last summer, Rufo, a 36-year-old senior fellow at the Manhattan Institute, a libertarian think tank, received a tip from a municipal employee in Seattle. (Rufo had lived in the city and, in 2018, ran unsuccessfully for city council.) According to the whistleblower, the city was conducting “internalized racial superiority” training sessions for its employees. Rufo submitted a Freedom of Information Act request and wrote about his findings for the institute’s public-policy magazine.
“In conceptual terms,” Rufo wrote, “the city frames the discussion around the idea that black Americans are reducible to the essential quality of ‘blackness’ and white Americans are reducible to the essential quality of ‘whiteness’—that is, the new metaphysics of good and evil.” The training was rampant, he wrote, infecting every part of the city’s municipal system. “It is part of a nationwide movement to make this kind of identity politics the foundation of our public discourse. It may be coming soon to a city or town near you.” His article—which did not include the phrase critical race theory—inspired a rush of whistleblowers from school districts and federal agencies, who reached out to him complaining about diversity training they had been invited to attend or had heard about.
A month later, Rufo employed the term for the first time in an article. “Critical race theory—the academic discourse centered on the concepts of ‘whiteness,’ ‘white fragility,’ and ‘white privilege’—is spreading rapidly through the federal government,” he wrote. He related anecdotes about training influenced by critical race theory at the Environmental Protection Agency, the FBI, and the Treasury Department, among others. In early September, Tucker Carlson invited him on his Fox News show during which Rufo warned viewers that critical race theory had pervaded every institution of the federal government and was being “weaponized” against Americans. He called on President Donald Trump to ban such training in all federal departments.
“Luckily, the president was watching the show and instructed his Chief of Staff to contact me the next morning,” Rufo wrote to me. (He would agree to be interviewed only by email.) Within three weeks, Trump had signed an executive order banning the use of critical race theory by federal departments and contractors in diversity training. “And thus,” he wrote to me, “the real fight against critical race theory began.”
Trump’s executive order was immediately challenged in court. Nonprofit organizations that provide these training sessions argued that the order violated their free-speech rights and hampered their ability to conduct their business. In December, a federal judge agreed; President Joe Biden rescinded the order the day he took office. But by then, critical race theory was already a part of the conservative lexicon. Since Trump’s executive order, Rufo told me, he has provided his analysis “to a half-dozen state legislatures, the United States House of Representatives, and the United States Senate.” One such state legislature was New Hampshire’s; on February 18, the lower chamber held a hearing to discuss Keith Ammon’s bill. Rufo was among those who testified in support of it.
Concerned that the measure might fail on its own, Republicans have now included its language in a must-pass budget bill. In March, Republican Governor Chris Sununu signaled that he would object to “divisive concepts” legislation because he believes it is unconstitutional, but he has since tempered his stand. “The ideas of critical race theory and all of this stuff—I personally don’t think there’s any place for that in schools,” he said in early April. But, he added, “when you start turning down the path of the government banning things, I think that’s a very slippery slope.” Almost everyone I spoke with for this article assumed that Sununu would sign the budget bill, and that the divisive-concepts ban would become law.
Although free-speech advocates are confident that bills like Ammon’s will not survive challenges in court, they believe the real point is to scare off companies, schools, and government agencies from discussing systemic racism. “What these bills are designed to do is prevent conversations about how racism exists at a systemic level in that we all have implicit biases that lead to decisions that, accumulated, lead to significant racial disparities,” Gilles Bissonnette, the legal director of the ACLU of New Hampshire, told me. “The proponents of this bill want none of those discussions to happen. They want to suppress that type of speech.”
Conservatives are not the only critics of diversity training. For years, some progressives, including critical race theorists, have questioned its value: Is it performative? Is it the most effective way to move toward equity or is it simply an effective way of restating the obvious and stalling meaningful action? But that is not the fight that has materialized over the past nine months. Instead, it is a confrontation with a cartoonish version of critical race theory.
For Republicans, the end goal of all these bills is clear: initiating another battle in the culture wars and holding on to some threadbare mythology of the nation that has been challenged in recent years. What’s less clear is whether average voters care much about the debate. In a recent Atlantic/Leger poll, 52 percent of respondents who identified as Republicans said that states should pass laws banning schools from teaching critical race theory, but just 30 percent of self-identified independents were willing to say the same. Meanwhile, a strong majority of Americans, 78 percent, either had not heard of critical race theory or were unsure whether they had.
Last week, after President Biden’s first joint address to Congress—and as Idaho was preparing to pass its bill—Senator Tim Scott stood in front of United States and South Carolina flags to deliver the Republican response. “From colleges to corporations to our culture, people are making money and gaining power by pretending we haven’t made any progress,” Scott said. “You know this stuff is wrong. Hear me clearly: America is not a racist country.” Rufo immediately knew what he meant. “Senator Tim Scott denounces critical race theory in his response to Biden’s speech tonight,” he tweeted. “We have turned critical race theory into a national issue and conservative political leaders are starting to fight.”