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July 06, 2021


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Scott Fruehwald

Maybe the problem some people have with CRT is that CRT scholars try to push theories on students and employees that are not only unproven, but scientifically disputed.

1. Implicit Association Test (IAT)

Law Professor Brian Leiter, “It doesn't measure implicit bias, and what it does measure doesn't correlate with discriminatory behavior. It's now well past the point where philosophers should be embarrassed to still be trafficking in this pseudo-science.” Leiter Reports: A Philosophy Blog

Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and Legal Education. (SSRN 2020).

“Implicit bias theory, particularly regarding its purported relationship to biased behavior, is utter nonsense. And there is scientific proof.”

"Recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. As discussed in more detail below, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law review articles concerning implicit bias or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior.”

2. Microaggressions

Edward Cantu (Legal Scholar) & Lee Jussim (Social Psychologist), Microaggressions, Questionable Science, and Free Speech, SSRN. 2021.

“One risk is that, after some claim becomes a popular research topic in another field, but before research establishes that claim as valid, it will take off like wildfire in legal scholarship without sufficient gatekeeping. This is what has happened with microaggressions: educators, scholars, and administrators have accepted the CMC as valid even though psychologists have not established its scientific legitimacy.”

3. See also

Bobert McRobertson

Scott, not to be too flippant, but lighten up, Francis.

I get that there are many points of view on the appropriateness and effectiveness of things like implicit bias training, implicit association testing, diversity trainings, and the like, and I get that conversations about microaggressions often abuse the terminology and oversell the point, but...what are you even talking about? This stuff doesn't suggest anything about what our kids are being taught in school nor the merits of either side of the "debate" our society is supposedly having on CRT at the moment.

I mean, when was the last time you looked at a high school history book or spoke with a teacher? I might critique a high school history curriculum for offering a sanitized version of our country's history, or for glossing over important topics or major events too quickly, or for requiring too much memorization and too little reasoning and writing. But...CRT? In schools?

To be honest, I think you are coming off as very...I don't know, overcredulous? Do you really, truly believe that even an outlier high school history teacher has the time, much less the desire, to even lightly touch on CRT? And unless there's a subset of teachers out there who have some kind of weird fetish for getting hassled by angry parents, I would think it's especially unlikely to happen in our current political environment. Still, even assuming that some number of teachers out there are incorporating CRT into their curriculum (again, they aren't), would it *really* be such a bad thing for some kids to hear about it?

I guess the point of my confused rambling is that our current societal debate on this issue is entirely transparent nonsense. I know that a variety of grifters out there are selling a wEiRd, ScArY version of CRT that teaches all the white kids that they are bad and should feel bad, or something, but you are aware that these guys are just making things up right? Anyway, dollars to doughnuts, you won't hear anything about CRT on the news in 2-3 months when the right-wing podcasters, grifters, and Koch think tank guys decide on a new boogeyman. Your mileage may vary depending on your preferred media, but I give it 6 months max.

And, sure, I'll allow that there is probably some legitimate CRT scholar somewhere trying to push bad corporate diversity trainings on people or get some version of CRT incorporated into some curriculum somewhere -- but I would hardly attribute that sort of thing to CRT scholars in general. And more broadly, I just can't convince myself that it's at all a big deal.

Ediberto Roman

Dear Scot and Robert--interesting and provocative observations. Scot, obviously, you and I differ. However, your quotes suffer from the exact purported problem you assert is evidently a failure of CRT. You use quotes to somehow prove the purported failed impact of implicit bias -- do quotes made in absolute terms end all debate? Further, your arguments evidently made to prove the shortcomings of CRT utterly fail to address the issue I addressed in my original post--the attack on CRT made by politicians purportedly for the purpose of "saving our children." Perhaps on another day? Though I agree, more research is perhaps warranted. Similarly, your quote regarding microaggressions simply claim some observers differ, without much more-- I say, well okay, we differ. I do also note, you look to fairly specific topics raised by some CRT scholars in an effort to dismantle the entire edifice--I suspect few people of color would so easily reject the notion of microaggressions. Then again, I love your enthusiasm, especially at this late hour---let's debate the value of CRT one day? I am game.

Robert, powerful response. I could not agree more. That reference of "transparent nonsense," just killed it. Sorry for my own rambling, but reading that turn of phrase at 5:00 a,m., made me smile.

Daria Roithmayr

Thanks to Ediberto Roman for this excellent post. One small correction--Kimberle Crenshaw has mounted a very effective counteroffensive recently. See her Nation Podcast, her various op-eds and radio shows, and a range of other interventions. Others in the original founding generation like Gary Peller, Kendall Thomas and Patricia Williams have also been quite aggressive in defense. But as many scholars have acknowledged, the attack on CRT is an attack on anything that focuses a lens on persistent, systemic, historical racism. So the counterattack has been joined more broadly by a wonderful group of historians as well, including my own colleague Ariela Gross, and a wide range of scholars in many diverse disciplines as well. Last but not least, for a more in-depth exploration of CRT, some might find helpful my syllabus on the subject, located here

Scott Fruehwald

"Though I agree, more research is perhaps warranted." There has been a mountain of research on implicit bias theory, microaggression theory, anti-racism, and pervasive white supremacy. There is as much scientific support for and evidence supporting implicit bias theory, microaggression theory, anti-racism, and pervasive white supremacy as there is supporting the earth-centered theory of the universe, creationism, social Darwinism, and alchemy. I spend 10 pages listing the cognitive science, social science, and other authorities refuting these theories at

And, please get my name right.

Daria Roithmayr

Thanks for the most excellent post, Ediberto. Just a small note--let me point out that Kimberle Crenshaw has mounted quite an aggressive counterattack in the last few weeks. Check out her podcast in The Nation, her Washington Post Op-Ed, her MSNBC appearance and lots of other interventions. Same goes for Kendall Thomas and Pat Williams and other members of the original founding generation. Also in the fight are historians, sociologists, high school educators and others who recognize that the critics are attacking anything that discusses the country's struggle with persistent racism. It's important to note that the critique need not be right or even comprehensible for it to succeed--as has happened many times before, this is backlash to what many whites perceive to be recent gains for people of color in general, and African-Americans in particular. More importantly, the attack is a strategy that the GOP hopes to ride to a mid-term victory. That being said, for a deeper exploration of CRT, some might find my syllabus helpful:

Scott Fruehwald

Also, The National Education Association has come out in favor of teaching CRT. "In a weekend decision, the NEA approved a plan to 'publicize' CRT and provide resources to fight back against those speaking out against it. The union went so far as to call the divisive ideology 'reasonable and appropriate' for young students."

Jason Yackee

I'd be potentially more persuaded by Ediberto's defense if he would address the relationship (or lack of one) between CRT and what those on the right (and some on the center) are really reacting to, which is generally not the law-review version of CRT, but the intellectually vapid and, to many, offensive and dangerous (bastardizations of CRT?) that one finds in the works of (self-enriching charlatans?) like Kendi or DiAngelo, or in the propagandistic DEI "trainings" that many of use are increasingly subjected to--hardly a forum for honest debate about controversial, complex issues--or in DEI-related artifacts, such as the rightly infamous Smithsonian guide to whiteness and white culture. I think that if CRT scholars want to claim intellectual respectability, they need to stand up *against* the popular manifestation of (something like CRT?) that seems to be sweeping the country and which is certainly *not* simply a "scholarly movement that seeks to address history in an accurate and honest fashion."

Ediberto's position seems to be--hey, that crazy stuff isn't CRT, don't blame us! But I suspect that CR theorists are very happy to have the crazy stuff shoved down our throats while maintaining, strategically (and dishonestly?), a lack of ownership or interest.

Anonymous Bosch

"Simply put, CRT is anti-subordination scholarly movement that seeks to address history in an accurate and honest fashion. Specifically, CRT seeks to expose the impact of structural racism throughout this country's past, by examining, among others, events such as slavery, Japanese internment, and more recently Family Separation."

Except it doesn't aim for honesty or accuracy, otherwise the reasons it offers for race essentialism as a key conceptual lens would be far more qualified. You know who can be counted amongst CRT's most visceral opponents? Unreconstructed Marxists. And rightfully so. Case in point: your family separation example.

If America needs CRT at all, it's because of this: to hear from First Nations/Indigenous voices, to ask WHY the F#$K millions of South Americans, East Asians, Africans, Middle Easterners, and others moved to a white settler colony established upon their land. Why these "minority" Americans believe that (1) further diversifying the settler colony class and/or (2) socializing the means of production and exchange will legitimize their even DWELLING upon the land in the first place, let alone that such actions might improve the legitimacy of the settler colonial legal systems and procedures (municipal, state, and federal). That YOUR property deed will somehow be any less of the instantiation of racist colonial law that says it's your land and not that of the Cree, the Iroquois, etc, because the correct critical mass of non-white and non-heterosexual and non-cisgendered folks sit in the legislature and make up the electoral district.

AND WHEN you "progressive" American bozos appeal to the need to live together in harmony, to grow as a community, or to be "truly progressive", or any such other bullshit rationalizations or vacuous claims to try to legitimize your staying put and not fucking off back to the lands of your ancestors, pray realize that you're ultimately just appealing to the same "legal liberalism" quackery that CLT and CRT claim to disavow and transcend, and NOT some communitarian, post-national alternative - one you'd have to have the competency to construct out of cloth anyway. (Of course, who am I to belittle your HLS JDs, two years at a white shoe firm, and federal clerkship training for this grandiose project).

Moreover, your average American whitey is beginning to realize two things. First, she's at the intersection of reviled race and a downward trending socio-economic group. Second, that most of America's minority groups moved to a new country/continent blanketed by a whitey-created legal, economic, and social system, one that was predicated upon land theft and African slave labour, and that those peoples nevertheless moved there PRECISELY in order to make a better life for themselves, i.e., WITHIN the system whitey created. That is to say, when the average whitey liberals, social democrats, libertarians, and conservatives embrace CRT for themselves, you are all in some very, very deep shit. (Your "progressive" media and Blue Team are doing their utmost presently to push them in that direction, in case you haven't noticed).

America is falling into a tribal bog from which you will never recover, which you will not overcome. It is a maelstrom entirely of your own making.

And when you blame Bush, or Trump, or Reagan, ask yourselves whether a Eugene Debs would have dumped millions of poor people into America.

Ediberto Roman

Scott, life is too short to be so angry. Let's chat in person if you need to vent so vehemently. I am sure we can debate the matter civilly, or at least I am sure your tone will change. By the way, in the first sentence to your first comment you state the theory is unproven--that was the reason for my effort to be polite and support what appeared to be a call for further debate and inquiry---I was being kind, despite the tone of your most recent comment. Your efforts to equate CRT with alchemy and other theories you list is not only arrogant and imperial, it's speaks to your bias. Despite your indignation and cites, you utterly failed to contest the point of my original post---CRT is not threatening "our kids."

Jason, you attempt to twist CRT by equating it to "propagandistic DEI 'trainings.'" That is not CRT. CRT is a scholarly movement that examines structural discrimination by examining historical examples of that discrimination. Such examinations were too often absent from our collective psyche prior to the movement. Your suggestion that CRT is "sweeping the nation" is just silly. CRT has been around been around since the late 1980s, and having it taught in law school seminars is a far cry from sweeping the nation, as you inaccurately posit. As I point out in my original post, what is, if anything, sweeping the nation is another trumped-up conservative effort to promote hysteria in order to appeal to the masses over the threat of their new brown scapegoat.

Scott Fruehwald

I am not angry, and please don't try to characterize my tone. I am simply stating what cognitive scientists, social scientists, and other experts have demonstrated. If you can show why the science is wrong, please do so.

Anonymous Bosch

"As I point out in my original post, what is, if anything, sweeping the nation is another trumped-up conservative effort to promote hysteria in order to appeal to the masses over the threat of their new brown scapegoat."

No. The GOP - who have lost, or are losing, their own base - see the country coming apart at the seams and don't know what to do about it. They, and not the base, are generally committed to legal liberalism. (This isn't at all to claim that they have a principled commitment to free speech, freedom of association, etc.). But thanks for yet another example of how CRT advocates themselves engage in both mystification and vilification. It MUST be an example of "brown scapegoating"...

Ediberto Roman

I am not your subordinate that needs to complete a research assignment. In terms of what "experts have demonstrated," your research is far from definitive or exhaustive. Instead, let's frame a debate in person or in writing, and we can address the matter. Furthermore, I can and will characterize your tone if I deem it appropriate. I thus continue to say: Why you so angry? Go ahead, have the last word---I know you need it.

Scott Fruehwald

Bare conclusions are meaningless. Show me how my "research is far from definitive or exhaustive."


Ediberto, I appreciate the post. I am curious what you think of Scott's point that the NEA has said CRT is 'reasonable and appropriate' for young students. That seems to indicate it could affect younger kids.

Also, what do you think of this?

No assignments from me! I was just genuinely curious about your thoughts. But of course I realize you have a life and may not want to respond to random anonymous qs!


It always seemed to me that CRT was a form of legal realism: examining the biases and prejudices that might have influenced holdings in cases that purportedly turned only on the facts and law. Ok, that's a worthy effort. I have read this work with great interest.

It is a cheap and superficial argument, in my view, to assert that CRT "explains" something like internment camps. In that instance, there is nothing to "uncover" -- such cases turned on explicit and declared prejudices and it doesn't take a CRT scholar to lecture us to learn that sort of obvious point.

What is a issue here, I think, is that tiny but overly influential group of radical thinkers in this country, hard at work and devoted to a project to tear apart the foundations of belief in American ideals (never realized and always aspirational, but real nonetheless). If you argue this point, you are likely a part of this group. CRT is being weaponized, like other perfectly valid observations, to serve a cause. That cause, to the vast majority, is repugnant, but, if all you consume of left wing news sources, you might think otherwise.

Ediberto, you are a scholar of colonialism. That is, what you repeatedly label American colonialism: "the second-class citizen status of millions living on ... territories ... compared with American legal rhetoric concerning citizenship and its precepts of equality and justice." So, apparently, you think of the US as one really terrible colonial power in the world. Amazingly, you have written about the "United States's Colonization of Puerto Rico" without any apparent sense of cognitive dissonance.

Should you devote as much time and energy, or ANY time and energy, exposing the effects of Spanish colonization in this hemisphere? Or, are you just using your research to demonize what you have called, recently in these pages, "gringos" and "anglos"? (Ok, I get it, Ediberto, it was a burden being around these people in your privileged, private school, because they couldn't dance and all the rest of the dirt you flung at them.)

The point is that some scholars can use their talents to promote knowledge and understanding; some use their talents to sow doubt and discord to serve causes (usually, to seize power from others).

What do you want your efforts as a scholar to accomplish?

And, btw, I didn't see anything that Scott said to provoke your response.

Daria Roithmayr

Thanks to Ediberto Roman for a most excellent post. I would only note that Kim Crenshaw and others have been aggressively calling out the attacks on CRT for what they are--backlash--in the Washington Post, The Nation, MSNBC and other outlets.

A couple of additional points to make. First, in whatever way the ideas might get translated by DEI practitioners (and one has to question the practice of conflating the ideas with a translation by third-party consultants), the broader target of the anti-CRT backlash is clear: any discussion of the country's sordid racial history that moves past some intentional individualist description of racism to identify persistent structural and institutional issues. One need only look at the legislation to identify that the target isn't critical race theory per se, or even the consultant's version of it, but rather ideas about the path-dependent persistent effects of things like slavery and Jim Crow. This targeting of such ideas constitutes a backlash against perceived gains by people of color in the wake of the political developments that began last summer.

Second, I find it amusing that a commenter above indicts us CRT theorists because he suspects we are happy to have the consultant's version of CRT on offer for training programs. Besides being a very strange guilt-by-speculative-association, I think this comment concedes that the consultants' version is quite different from the theorists' version, as my debate presentation for the Federalist Society makes clear. TBH, I'd be happier if people hired me to present the CRT critique, not least because I'd love to get consultant fees! ;-) But again, the target isn't the consultant's version of CRT; the target is a broader discussion of persistent racism and its link to our racial past.

That this is the actual target becomes clear when we wade through the squawking about the NEA's resolution. Here's what the resolution actually supports: the "honest teaching of social studies topics, including truthful and age-appropriate accountings of unpleasant aspects of American history, such as slavery, and the oppression and discrimination of Indigenous, Black, Brown, and other peoples of color, as well as the continued impact this history has on our current society." And the NEA thinks its reasonable that the curriculum "be informed" by a range of frameworks for understanding the persistent impact of these events on our current social landscape. Including but not limited to CRT. A far cry from the descriptions of a "must teach the kids CRT" program circulating on FOX News and the NY Post. But I find it quite illuminating that the critics vehemently object to the NEA's resolution to provide students with an accurate and unpleasant account of our racial history.

Last but not least, I find it highly amusing (and I think Brian would too) that Brian Leiter, a legal philosopher, is being cited as the primary source for casting doubt on implicit bias. To be sure, there are very legitimate and valid questions about implicit bias, acknowledged by the experts on implicit bias themselves, which any responsible discussion of the concept would do well to rehearse (as I do in my CRT class). But Brian Leiter is not the author of those critiques. He's a philosopher. Citing to Brian on implicit bias makes about as much sense as citing to third-party consultants and the least accurate among them for an understanding of CRT. If you are interested in what CRT actually is about, some of you might find helpful my syllabus on the subject:

Scott Fruehwald


Here is the full NEA Resolution

The NEA will, with guidance on implementation from the NEA president and chairs of the Ethnic Minority Affairs Caucuses:

A. Share and publicize, through existing channels, information already available on critical race theory (CRT) -- what it is and what it is not; have a team of staffers for members who want to learn more and fight back against anti-CRT rhetoric; and share information with other NEA members as well as their community members.

B. Provide an already-created, in-depth, study that critiques empire, white supremacy, anti-Blackness, anti-Indigeneity, racism, patriarchy, cisheteropatriarchy, capitalism, ableism, anthropocentrism, and other forms of power and oppression at the intersections of our society, and that we oppose attempts to ban critical race theory and/or The 1619 Project.

C. Publicly (through existing media) convey its support for the accurate and honest teaching of social studies topics, including truthful and age-appropriate accountings of unpleasant aspects of American history, such as slavery, and the oppression and discrimination of Indigenous, Black, Brown, and other peoples of color, as well as the continued impact this history has on our current society. The Association will further convey that in teaching these topics, it is reasonable and appropriate for curriculum to be informed by academic frameworks for understanding and interpreting the impact of the past on current society, including critical race theory.

D. Join with Black Lives Matter at School and the Zinn Education Project to call for a rally this year on October 14—George Floyd’s birthday—as a national day of action to teach lessons about structural racism and oppression. Followed by one day of action that recognize and honor lives taken such as Breonna Taylor, Philando Castile, and others. The National Education Association shall publicize these National Days of Action to all its members, including in NEA Today.

E. Conduct a virtual listening tour that will educate members on the tools and resources needed to defend honesty in education including but not limited to tools like CRT.

F. Commit President Becky Pringle to make public statements across all lines of media that support racial honesty in education including but not limited to critical race theory.

Also, Brian Leiter is not the only person I cited on implicit bias theory. See

Enrique Guerra-Pujol

What's missing in all this back-and-forth is the fact that these stupid anti-CRT laws are themselves un-American and probably unconstitutional....

Ediberto Roman

Anonprof101--Scott's NEA point is his best. I need to examine that matter before addressing it. Of course, I will read your citation, as I typically do---but note your request with that of others. Will happily address your citation and arguments--just need some time.

Anon, I am glad you have read some of my work--not all though. I do not simply attack U.S. colonialism. I explore a colonial venture that was largely untouched in law courses, including foundational courses such as constitutional law. While I enjoyed your reference to cognitive dissonance reference, We of course differ--if you read my books and articles on colonialism, I am critical of not only the U.S., but other colonial motherlands. Further, I am actually harsh on my fellow Puerto Rican people for their complicity in the land's colonial stalemate. In the end, you miss my point, and that of many other CRT scholars, if you believe addressing matters not fully previously, or perhaps not accurately explored, are made to promote discord. In my case, the opposite is the case. I seek to expose matters too often are dismissed as not U.S. issues or matters that are about "those people." I nonetheless am pleased my post promoted debate and strong reactions--as I told a friend (he's conservative, by the way), I always enjoy engagement. Happy to address these matters in a formal setting in op-eds, in-person debates, or articles. Not to promote anger or discord, but hopefully understanding and respect.

BTW, I of course differ with you about what Scott said--but that too is okay.

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