The Volokh Conspiracy

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From a Law Professor, About Anti-Racism Meetings


Prof. Robert Steinbuch (Arkansas-Little Rock) let me know about this, and I thought it was much worth passing along:

I am a law professor, a member of my school's Diversity and Excellence Committee, and the Chairman of the Arkansas Advisory Committee to the United States Civil Rights Commission. My school recently had an outside speaker present (virtually) the thesis of How to be an Anti-Racist by Ibram X. Kendi. It was an interesting discourse, because academics don't honestly discuss race enough; academics talk race, for sure, but they don't typically discuss race.

When we were able to get passed the obligatory, preliminary canned responses that take place in similar settings throughout the country, I found some of the dialogue valuable. We scratched the surface of a real substantive debate. It was an important beginning. More real discussion is needed.

Two components, however, offer teachable moments on where we can improve the operation of such events. Neither is entirely novel, but having experienced one for the first time, I realized more can be said on the topic, whether or not I ultimately succeed in expanding the conversation.

The first notable aspect of the discussion is that when we broke into Zoom subgroups, the invitee went from group to group instructing each member to recount his or her affirmative efforts at being Anti-Racist. Due to a purely technical problem, my presence in the subgroup wasn't initially recognized (no irony intended)—even though I was there. When my image appeared to others, a colleague offered that I was in the meeting and volunteered on my behalf that I, as mentioned, chair the Arkansas Advisory Committee to the United States Civil Rights Commission.

So, I wasn't forced to decide what I would proffer as my Anti-Racist credentials—nor whether I would even do so. To be clear, there was no threat of formal punishment for non-compliance, but neither was the alternative of opting out even suggested. And in an environment where we typically bend over backwards to ensure that event participants are made comfortable, that absence seemed palpable.

Sadly, academics across the country engaging in such activities often don't recognize the meaningful similarity between socially coerced statements of Anti-Racist activities and the anti-communist oaths of the McCarthy era—evincing the failure, regularly repeated, to appreciate tragic histories so often justified by good intentions. Indeed, the McCarthyites were actually right that Communism is evil—its adherents having directly killed tens of millions of people—notwithstanding that such proclamations might not be de rigueur today.

The McCarthyites were wrong, however, in forcing the public adoption of that view through sworn allegiance, as is well recognized today. Being allowed to be wrong, particularly in the political context, ironically leads to improved democracy and enlightenment. Learning good citizenship is not like memorizing multiplication tables. It must actually be done to be mastered.

Such community shaming exercises surely weren't restricted to conservatives during the Red scare, but conservatives have been branded—perhaps not exclusively but certainly disproportionately—with that ignominy, nonetheless. While McCarthyites well deserve to share that label, in reality those actions were emblematic of the archetypal totalitarianism of both the far left and the far right during the last century that resulted in the most homicides in human history.

Indeed, Soviets and Nazis readily adopted mandatory oath taking and social shaming as methods of forced conformity in addition to imprisonment, torture, and murder. My father lived under the former during World War II; many other relatives died under the latter.

During that instance in which I was caught in Zoom's version of Gene Roddenberry's transporter buffer, I was afforded a fleeting moment to reflect on my options regarding what I perceived as a social conformity exercise: I feared that not responding would garner the now seemingly acceptable label of White Fragility, much like those who refused to chant the mantra of having never been a member of the communist party were effectively tattooed with a scarlet "R."

Having researched for decades issues of sex-based disparities, I had long heard the cringeworthy claims of female fragility. Those are largely eschewed now, thank goodness. But the ease with which that very same collective pseudo-psychological emotional characterization is welcomed discourse regarding, in this case, a racial group underscores that under new leftist doctrine, majority-cohort membership alone justifies those in that class being saddled with the condemnation of inherent bias and collective wrongdoing.

Thus, this new claim of fragility is an epithet fundamentally designed to force a public accounting of one's moral worth on a provided scale. Rather than the naked assertion that failing to swear allegiance itself demonstrates antagonism to the chosen philosophy, this technique is slightly more sophisticated.

In a world of "my truths," emotional support peacocks, safe spaces, and other liberal delicateness, all of a sudden being uncomfortable with detailing one's adoption of a pro-active Anti-Racist agenda—or, heavens forbid, having no such agenda at all—necessarily means that the non-speaker is a member of a cabal protecting systemic racism, so the claim goes, whether or not he or she even knows it, no less.

It needs saying, however, that not pursuing an Anti-Racist agenda does not necessarily make for a racist nor even a beneficiary of racism. Having grown up in a mixed race, working class neighborhood, I know plenty who have profited from no kind of privilege—ever-present attempts to cast them otherwise due to their cohort membership notwithstanding.

I once purely by chance sat next to two clergy in a restaurant. (This is not the beginning of a joke.) One said to the other that a third person wasn't entitled to offer religious criticism because he wasn't a member of their faith. That might work in a religious discourse (or it might not, in fact), but it fails in academic and political circles. That mindset produces race talk without race discussion. Bill Maher recently made a claim about race on his show, as he often does, and a guest disqualified Maher because he is White. Maher moved on. That's just one example, but the phenomenon is ubiquitous today. That's not race discourse.

Of course, this mechanism for creating bogeymen itself also isn't new. Marxists equated capitalists with both power and wrongdoing. Nazis the same for Jews. The transformation here is minor: majority equals power and therefore subjects all within the group to opprobrium, regardless of individual behavior. Marxism sought the dictatorship of the proletariat; new-age leftists seek dictatorship of the self-identified oppressed. I persist in the seemingly unfashionable view that dictatorships of any kind are bad.

I shudder to imagine what I would have experienced if I were exposed to the sister activity, which I understand to have taken place during various university enlightenment assemblies and corporate wokeness sessions, of proclaiming one's inherent racism. Well, to be fair, I've taken Harvard's Implicit Bias Test several times, and I consistently test as slightly biased in favor of Blacks. I'm not sure, however, that this is the type of inherent bias that the left seeks for me to publicly own. It doesn't fit the narrative presented in race talks. It would make, though, for interesting race discussion.

The second concern I faced was what, if in deciding to comply with the Anti-Racist auditing, I would choose to present. My colleague's proffer on my behalf was the most obvious and the safest—but not my most significant Anti-Racist academic endeavor. That has been my effort to reduce racial disparities by recognizing the harm caused by mismatch resulting from highly race conscious admissions programs in higher education.

This unpopular and inconvenient truth is not generally welcomed discourse in our overwhelmingly leftist academia across the country. Yet, the data are compelling. Minorities starting law school with the "benefit" of large admissions preferences are far less likely as entering whites to become or remain attorneys.

Interestingly, the presenter broached this topic in forthrightly acknowledging that the law school entrance exam, the LSAT, is not inherently biased. As such, the lower scores on average exhibited by minorities thereon reflect a real deficit no doubt the function of a variety of societal forces. And my research, along with those of various others, demonstrate how not recognizing those shortfalls harms the very individuals that race-based admissions programs are purportedly designed to help. This was the good start of a productive conversation. (Similarly, a colleague described how a former dean who has long since left my institution belatedly conceded that my research, which he actively thwarted, raised a real issue. He never told me. I'd love to have that discussion too.)

We now easily acknowledge that Galileo was correct in rejecting heliocentrism, but it wasn't easy to recognize his right to do so contemporaneously with both the Church's expression that his view was heresy and the lack of understanding that he was, in fact, correct. Academics need to be heretical. We need to be able to freely say: "I disagree" or "I won't engage in that activity."

Indeed, that's the lesson of Galileo: defend your beliefs unless they're proven wrong, because sometimes your orphan ideas might turn out to be correct. We would do even better to celebrate those whose ideas were shunned even when they turned out, in the end, to be wrong. I hope that as we move forward in discussing important topics facing society such as Anti-Racism that we—particularly those formally in the business of education—don't allow ourselves to be anti-academic.