Bari Weiss has written a column that includes a comprehensive discussion with Christopher Rufo and attorney/writer David French. It is a highly civil and insightful discussion. She begins her column with this:

If you are reading this, I suspect you are disturbed by an ideology that segregates people by race; that insists on a racial hierarchy in which entire racial groups are monolithically good or bad; that does away with race-blind tests in the name of progress; and that insists that any inequality of outcome is evidence of systemic discrimination.

Those are bad ideas at odds with our most foundational American values. On Friday, Andrew Sullivan published an essay arguing that CRT removes the “bedrock of liberalism.” I agree.

The question is: What should be done about it? . . . The idea of banning ideas should make any American shudder.

In my discussion below, everything I write is a paraphrase other than the bits of text that are in quote marks.

At min 35 in the discussion French asserts that the many new statutes banning there teaching of critical race theory “flat out violate the constitution.” I agree with Weiss and French. There is a big difference between teaching about a subject and preaching that subject in a way that makes students feel that they are compelled to agree. French disputes that the CRT movement has deep radical control over America’s institutions, even though it is influential. He believes that we have the means, including our legal system, of addressing this ideology. He worries that overblowing the force of CRT is mustering a anti-First Amendment pushback on the political right (e.g., regulating big tech and anti-CRT legislation).

Rufo “strongly disagrees, urging that CRT is overwhelming American institutions from coast to coast, and that these are extraordinary and dangerous times. He argues that the State does not have free speech rights. They, through public schools, have a state run monopoly and a captive audience (that consists of children, even young children) upon which they are forcing compelled speech that takes the form of “racial poison.” Children should not be compelled to express belief in racial essentialism, racial discrimination, the need for collective guilt or the need to acknowledge that one is responsible for the crimes of one’s ancestors. He argues that the State, though Departments of Education, already have the power (and obligation) to implement the school curricula.

French responds (at min 45) that much of the proposed legislation is not necessary in that there are already robust Constitutional protections against compelled speech. Further, many of the bills are not limited to K-12 education. Unconstitutional grant-making is already illegal by the theory of “unconstitutional conditions.” We need to take these bills “bill by bill.” There might need to be a lot of litigation about this, in that many of these bills are wildly vague. French completely agrees that compelled CRT speech is improper (with or without the new bills). Some of these bills improperly take aim at some of the foundational principles of traditional liberalism.

Rufo argues that these new (“race neutral”) laws are necessary to protects one’s right to conscience. He argues that communities ought to be able to enforce their own values in their own institutions, which they fund. He argues that many of the laws allow the teaching of CRT as a theory, in a contextual way, but you can’t force your students to believe them. You cannot teach CRT as a dogma. He argues that the State has much more “shaping power” in K-12, grades that students are required to attend. He argues that the public should also do whatever it can to shape the values instilled by public colleges, including criteria for grant-making, which many of these new laws seek to protect.

French compares to teaching religion. The Constitution allows teaching about Christianity, but not teaching it “as truth.”

Weiss asks French what he would suggest to combat CRT if these new state laws are unconstitutional. He suggested local courageous control of schools. Get involved in your child’s school. Many non-elite public schools are not steeped in CRT. There are many opportunities to speak up. In K-12, the state is already given lots of leeway to determine curriculum. Laws affecting that cannot be unconstitutionally vague.

French: The question is not whether these ideas are good. The question is what are the limits of constitutional protection? Many of these bills attack compelled speech, but the First Amendment already protects students from compelled speech. Right now, no school has the right to force a student to wrote a letter of apology to students for one’s “white privilege.”

Rufo urges that these bills are necessary because students are being forced to do such things. Rufo states that he has a database of more than 1,000 institutions where students are currently being forced to engage in such behavior.

French responds: “Then file a lawsuit.” He admits that only the Idaho statute comes close to being constitutional. The other statutes ban the expression of particular viewpoints. (Min 1:02:00). This is lawful only in narrow circumstances (re state employees). The universities do not have First Amendment rights, but the professors do, and based on French’s experience as an attorney, most of these new laws will be struck down as speech codes, if challenged in court.

French “wants to hear” from those who promote CRT. He disagrees with many of these ideas, but he wants to hear them, understand them and, I many cases, reject them. But he does not want to ban these ideas from the marketplace of ideas.

Weiss to French: Aren’t the CRT promoters trying to erase the ability of people like French to reject CRT?

French: There is no doubt that many of these people want to shut him up. There are speech codes and they generally fail in the courts. Foundation for Individual Rights in Education (FIRE) indicates that at one time 80% of colleges had speech codes.  As a result of litigation, only about 25% of them currently have speech codes.

At min 111, both French and Rufo, who have Multi-racial families, describe how they talk with their own children about their “identities and about what it means to be American.” It was a heartfelt ending to a vigorous and engaging conversation.

Follow up Tweet by David French: