Much Ado About Critical Race Theory

Authors

Matthew Patrick Shaw, Vanderbilt Law SchoolFollow

Abstract

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither reflecting a “legitimate pedagogical concern” nor pursuing a “valid educational purpose” is all for naught under current doctrine that effectively presumes the legitimacy and validity of state educational actions without question. And so, this Article argues for adjusting this conclusory presumption into a rebuttable one, and it turns to education science and practice on teaching and learning for expert insight on which actions satisfy this basic condition. This Article’s proposed “workable constitutional rule” is the rarest of doctrinal interventions that would be simultaneously corrective, conservative, and critical. The irony elaborated by this Article is that these so-called “anti-CRT” laws had little to do if anything with critical race theory. It was the states’ misappropriation of CRT for political purposes that elevated the theory to doctrinal, popular, and pedagogical prominence. That it took “much ado about critical race theory” to begin meaningful constitutional inquiry in various stakeholders’ interests in how states choose to educate is befitting—and instructive.

Recommended Citation

Matthew Patrick Shaw, Much Ado About Critical Race Theory, 82 Wash. & Lee L. Rev. 1301 (2025).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss4/5