A Landmark Civil Rights Lawsuit
Private litigation against critical race theory in Evanston public schools is necessary because the Biden administration won't enforce federal law as written
By Max Eden, City Journal, July 8, 2021
LINK: https://www.city-journal.org/evanston-critical-race-theory-lawsuit-and-the-non-enforcement-of-civil-rights

Last week, a teacher in Evanston, Illinois, filed a landmark civil rights lawsuit against her school district. Her complaint: the district segregated staff by race for professional development, subjected students to race-shaming “privilege walks,” instructed teachers to take race into account in student discipline, and taught students that treating people equally “helps racism.”

Such practices are, unfortunately, no longer shocking. But even if the public has become inured to such stories of state-sponsored racism, policymakers have yet to grapple fully with the significance of why this lawsuit had to be filed: the U.S. Department of Education’s Office for Civil Rights (OCR) has given up on traditional civil rights enforcement.

The facts of the case are not much in dispute. They were investigated by OCR, which, in January, under the Trump administration, found that “the District engaged in intentional race discrimination by coordinating and conducting racially exclusive affinity groups,” that “the District appears to have deliberately singled out students and other individuals by their race, in order to reduce them to a set of racial stereotypes,” that “the District’s Policy to apparently impose racial discrimination in discipline has no part in federally funded education programs or activities,” and that the district’s “privilege” activities “may have created a racially hostile environment.”

But following President Biden’s Executive Order on Advancing Racial Equity, OCR took the perhaps historically unprecedented step of suspending its own decision. It’s hard to imagine that the Biden administration would have walked back the office’s decision if nonwhite students were being victimized. And it’s equally hard to evade the conclusion that the administration has all but formally decided that the anti-discrimination provisions of the Civil Rights Act do not apply to white students or teachers.

This case should give policymakers some insight into the most common “conservative” objection to state legislation colloquially labeled “critical race theory bans.” Some on the right argue that it would be better to curb problematic critical-race-theory instruction by enforcing existing civil rights laws, including Title VI and Title VII of the Civil Rights Act, which prohibit discrimination on the basis of race. But the primary enforcement mechanism for the Civil Rights Act in public education is the Department of Education’s Office for Civil Rights—and OCR has signaled that it will not enforce the law to protect white people.

A private right of enforcement exists under Title VI, under which this Illinois teacher—with the help of the Southeastern Legal Foundation—is suing. But this is an inadequate tool for parents concerned that their child’s school has become enthralled by a racist ideology that, according to the suit, trains its teachers that “to be less white is to be less racially oppressive,” that “white identity is inherently racist,” and that labels any teacher who disagrees as a “racist.”

The Biden administration’s abdication of equal protection is why legislation known as “critical race theory bans” are necessary. Passed in a number of states, these bills do not, by and large, directly target curricula. Rather, they tend to prohibit CRT-inspired pedagogy that creates what should be universally recognizable as a racially hostile learning environment: promotion of ideas that “one race or sex is inherently superior to another race or sex” or that “an individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously,” as well as “ascribing character traits, values, moral or ethical codes, privileges, or beliefs to a race or sex or to an individual because of the individual’s race or sex.”

Rather than direct their ire at state legislators seeking to protect students, civil rights activists should press the Biden administration to enforce civil rights law as written. Meantime, states should not sit back and leave parents and teachers to fend for themselves in the courts.

Max Eden is a research fellow at the American Enterprise Institute.