Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

The Law's Definition of "Scapegoating," "Stereotyping," and Specific Defined Concepts

To start, the law defines a few key phrases:

Section 261H.7(1)(a) defines "Race or sex scapegoating" as "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex, or claiming that, consciously or unconsciously, and by virtue of persons' race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

261H.7(1)(b) defines "Race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of the individual's race or sex."

Before moving on to other defined terms, a few thoughts on these definitions.

The "scapegoating" notion is more limited than it may first appear, because it only addresses instances where fault, blame, or bias is attributed to a particular race or sex, or members of a race or sex, because of that person's race or sex. This includes the portion of the definition that addresses conscious and unconscious bias--the definition only applies if that bias is because of the biased person's race or sex. While I am not an expert on the subject, it is my understanding that most discussions of bias often focus on biases being prompted by those being targeted or evaluated, rather than by the holder of the bias. This means that people of all races may have a particular, stereotyped view of a particular race--for example, both White and African-American police officers may hold an unconscious bias against African-American suspects and think that they are more likely to be dangerous. Because such a bias is not dependent on the race of the bias-holder, it would not be encompassed by the definition in the law.

The section on Race or sex stereotyping includes the notion that "privileges" cannot be ascribed to an individual because of their race or sex. This appears to apply to any notion of white privilege, male privilege, or similar concepts. If "Race or sex stereotyping" is prohibited, such a prohibition would prevent teaching or training that teaches people to recognize these types of privilege.

The law then addresses, "Specific defined concepts," which includes:

(1) That one race or sex is inherently superior to another race or sex.

(2) That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist.

(3) That an individual, solely because of the individual's race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

(4) That an individual should be discriminated against or receive adverse treatment solely or partly because of the individual's race or sex.

(5) That members of one race or sex cannot and should not attempt to treat others without respect to race or sex.

(6) That an individual's moral character is necessarily determined by the individual's race or sex.

(7) That an individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.

(8) That any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual's race or sex.

(9) That meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

(10) Any other form of race or sex scapegoating or any other form of race or sex stereotyping.

I haven't dug into the history of this bill or of the Trump Order on which it was based, so I am not sure where this list of defined concepts comes from. There is a bit of overlap with tenets of critical race theory (again, based on my limited knowledge and exposure of it), but this list is largely imprecise, all over the map, and prone to abuse.

To start, the terms "racist" and "sexist" aren't defined. It's therefore unclear whether those notions refer to conscious, intentional racism and sexism, unconscious bias, or disparate impacts of policies and practices that result from historic racism that is no longer as overt (or legally sanctioned) as it once was. For example, concept number 9--the notion that "meritocracy" is racist or sexist--could be implicated by training or teaching that points out that standardized tests tend to favor more privileged white people. While those who write these tests and use these tests in admissions practices likely aren't sitting down and saying "I can't wait to write/evaluate this test in a manner that disadvantages racial minorities!" the imprecise and undefined wording of the statute seems to go beyond this, and prohibit discussion of disparate impacts based on race or sex.

This causes problems for other concepts on the list, including number 2, which addresses fundamental and systemic racism of the United States and the state of Iowa. Perhaps those who hear charges of systemic racism think that critics are accusing most or all people in government of being intentionally biased against particular groups. But such explicit, biased actions are often hidden behind racially-coded proxies (e.g., heightening police presence in "high crime" areas; discussions of "inner cities," and many more examples). Systemic racism may also manifest through facially neutral laws or policies that end up having a disparate impact as a result of historic power structures and discrimination. All of this may be characterized as systemic racism, and all of this may be encompassed by this concept--which is a shame, because there is a great deal of truth behind these concerns.

Affirmative action may also be covered by this list to the extent that its opponents describe it as "reverse racism." If affirmative action is framed as taking away opportunities for, say, white people in favor of racial minorities, it can easily fall under concept number 4, which prohibits adverse treatment because of race or sex.

Number 8 is also particularly concerning: while it is limited to the concept that people "should" feel discomfort of guilt because of their race or sex, it will likely be implemented to prohibit the teaching of any concept that happens to cause such discomfort in members of the audience. The teaching itself may not demand that those in the audience feel discomfort or shame--it may instead call on them to view the world from a different perspective, recognize their privilege, and consider how their seemingly benign conduct may cause greater harm than they realize. Many people confronted with these notions will likely feel uncomfortable, though, which will likely lead them to accuse the teacher of asserting that they should feel uncomfortable. This concept may therefore be used to ban the teaching or training of any concept that happens to cause discomfort in certain audience members and creates a significant potential for abuse.

What Practices Does the Law Affect?

While the law devotes a lot of space to defining stereotyping, scapegoating, and specific concepts, the scope of the law appears, at first, to be limited. Section 25A.1 applies to training by and for members of governmental entities or agencies. It requires that the heads of those agencies:

ensure that any mandatory staff training provided by an employee of an agency, governmental entity, or governmental subdivision, or by a contractor hired by the agency, governmental entity, or governmental subdivision does not teach, advocate, encourage, promote, or act upon stereotyping, scapegoating, or prejudice toward others on the basis of demographic group membership or identity.

I have no idea what this means, primarily because it uses only portions of terms defined at length elsewhere in the law. This provision prohibits the teaching, advocating, encouraging, or promoting of "stereotyping" and "scapegoating." First, this does not explicitly prohibit the teaching of the "Specific defined concepts," nor does it even explicitly prohibit "Race or sex stereotyping" or "Race or sex scapegoating"--as it only uses the (undefined) terms, "stereotyping" and "scapegoating." Are those terms broader than the defined terms? Do they encompass the same behaviors, but with applicability to demographics beyond race and sex? It's unclear. Second, the broad "encouraging" and "promoting" terms may encompass a far broader set of behaviors than actually teaching the specific defined concepts or notions that fall under those defined Race or sex stereotyping/scapegoating. This blog post, for instance, by criticizing the definitions and breadth of the specific defined concepts, may be viewed as "encouraging" or "promoting" those concepts. These imprecise terms will likely result in overcautious behavior by those arranging for training, resulting in the unnecessary chilling of speech (for more background on the problem of vagueness in the First Amendment context, see here).

This section tries to save itself with a list of items it purports not to do, including preventing agencies and entities from promoting diversity and prohibiting a curriculum that teaches sexism, slavery, racial oppression and segregation, and related topics. But the failure to define the scope of what is prohibited and what is not prohibited leaves everything vague--are the restrictions supposed to be read broadly? Are the exceptions supposed to be read broadly? If there is an apparent conflict, which provision wins out?

These problems, which apply to training by and for members of governmental entities or agencies, apply to the law's restrictions on school districts as well. Section 279.74 includes the same vague language--prohibiting any curriculum or student training that "advocate[s], encourage[s], promote[s], or act[s] upon specific stereotyping and scapegoating toward others on the basis of demographic group membership or identity." Again, none of these terms are defined, and the broad "encourage" and "promote" language urges a broad reading that will result in restricted curricula. While the law does not explicitly say that teachers are prohibited from teaching the specific defined concepts, I'd be willing to bet that those who drafted the law would think that doing so would "encourage" or "promote" stereotyping or scapegoating.

The only restriction in the law that mentions the defined terms is the restriction on "each public institution of higher education," from allowing training that happens to "teach, advocate, act upon, or promote specific defined concepts." Why the section about higher educational institutions is the only one that explicitly mentions the "specific defined concepts" is unclear.

This law purports to take on "Critical Race Theory," a notion that the bill's proponents almost certainly do not understand. It takes an imprecise, scattershot approach at banning the teaching and training of various concepts. Through its use of broad notions of "encouraging" or "promoting" undefined notions of "stereotyping" and "scapegoating," the law will almost certainly chill a great deal of speech--including the teaching of facts and well-accepted concepts that happen to make certain audience members uncomfortable. I won't get into the law's constitutional implications and whether it would survive a challenge, as this post is long enough as it is, but it's a shame to see the passage of such a shortsighted and poorly written law.