Janine Jackson interviewed law professor and legal theorist Kimberlé Crenshaw about Trump’s “Equity Gag Order” for the December 11, 2020, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: On September 4, the director of the Office of Management and Budget sent a memo relaying orders from Donald Trump that federal agencies stop funding antiracism trainings, or any training involving Critical Race Theory or mentioning “white privilege.” His evident source for the attack was conservative activist Christopher Rufo.
On September 17, Trump declared:
Critical Race Theory, the 1619 Project, and the crusade against American history is toxic propaganda, ideological poison that, if not removed, will dissolve the civic bonds that tie us together. It will destroy our country.
He talked about creating a “1776 Commission” to promote “patriotic” education.
And on September 22, the White House released the Executive Order on Combating Race and Sex Stereotyping, which, while not naming CRT specifically, expanded the ban on “training that promotes race or sex stereotyping or scapegoating” to the US military, government contractors and their employees, and other federal grantees. It’s come to be known as the “Equity Gag Order” by the civil rights groups that leapt to resist it, but for an obvious assault on free speech and freedom of thought, it hasn’t garnered the attention one would hope for. Kimberlé Crenshaw is a pioneer of Critical Race Theory. She’s a law professor at UCLA and Columbia law schools, executive director of the African American Policy Forum (where I am a board member) and the Center for Intersectionality and Social Policy Studies, as well as the host of the podcast Intersectionality Matters. She joins us now by phone from California. Welcome back to CounterSpin, Kimberlé Crenshaw.
Kimberlé Crenshaw: Always a pleasure, Janine. Thanks for having me.
JJ: So the White House issues these directives, and then this executive order. And people might not know about it, because it’s not got the attention it deserved, but it wasn’t just hateful hot air; there were immediate, actual repercussions, and across a range of spheres, right?
KC: Yes, absolutely. You know, what is striking about the reaction, Janine, is that people who are fair-minded, social justice–oriented, did understand a version of the threat. Recall the debate in which President Trump refused to denounce the Proud Boys; he did the whole “stand by” signaling. And folks got that; they understood that that was a real danger to the republic, they understood that this was a pushback against civil rights and the wider, broader commitments to social justice.
But at that very same time, he had issued an order, and the order effectively incorporated into the federal bureaucracy precisely the ideology that groups like the Proud Boys were organized to advance: It’s this idea that attention to racial and gender justice was actually discriminatory against white people and against men, the idea that really embracing the 14th Amendment and enacting what is necessary to ensure equal opportunity instead takes away opportunity and privilege that they see as being their right to hold on to.
So people “get” the attacks when they are in the streets. But when they are in the discourse, when they’re in our norms, when it is about the ideologies of equity and justice—those kind of attacks don’t seem to really garner the same amount of attention. And I think it’s partly because people don’t imagine, materially, what they do.
So part of our campaign is to try to give people a picture of materially what they do. We put out a call to folks who experienced the consequences of this gag order to tell us what happened, and within less than 10 days, we got more than 300 stories about talks being canceled, about research projects being halted, about training at the CDC that was about structural racism contributing to some of the horrific outcomes, disparate outcomes, from Covid also being cancelled. So this is really having a significant impact, but people just seem to be unaware of it.
JJ:. Yeah, on December 2, the Policy Forum’s webinar series Under the Blacklight focused on this campaign that you’re talking about, which is called #TruthBeTold, and the gag order, and you heard folks like Lisa Rice from the National Fair Housing Alliance—saying that she can’t talk about residential segregation and racial disparities in homeownership when she’s trying to talk about ending housing discrimination!
But you’ve started to talk about the roots of this; like so many things, Trump didn’t create this.
JJ: Trump may be sui generis—he’s his own person—but he can’t pull on strings that aren’t there, and there are historical roots to precisely this type of attack that you’re talking about: Antiracism is itself racist. There’s context there, right?
KC: Yeah, this is a classic; this is a page out of the book of “how to suppress efforts to transform the status quo by attacking the very idea that there’s a problem with the status quo,” and “those who are raising the problem are the problem.”
So we can go back to COINTELPRO, for example. COINTELPRO was a government FBI program that ran from 1956 to 1971, and the whole point of the COINTELPRO program was to “expose, disrupt, misdirect, discredit and otherwise neutralize” the activities of civil rights groups. Why? Because the basic demands for equity, for justice, the demands to dismantle segregation were framed as un-American.
The inverse of that, of course, is that segregation is American; the status quo has to be defended by all means, even to the point of destroying individuals and organizations. COINTELPRO was the frame under which Martin Luther King was surveilled; there were efforts to destroy his character and his marriage, and that’s just the tip of the iceberg. So we have seen this in our history of the civil rights movement.
But there are even more recent things: Black Lives Matter has been framed by the FBI as “identity extremism.” And there’s been a program that is called the IRON FIST, from 2019, and the idea, again, is to monitor the threat posed by the very ideas that generated all of the protests—first that we saw, going all the way back to 2016, but also the recent reckoning.
This is all seen, by a particular cohort, as deeply threatening to the American status quo, and things that are seen as threatening then become criminalized or demonized. And so we see the same thing that we’ve seen happening over and over and over.
And you know, we could go all the way back to slavery, when just the right to read was seen as being a danger, if Black people and slaves were allowed to understand and articulate their demands for freedom. So there’s nothing new here.
The only thing that I think is particularly damaging in this moment is the belief that this is just part of the craziness of Trump, and it’ll go away when he goes away. People are unaware of the lasting damage that this has caused, and the fact that rescinding the order is not enough; more is going to have to be done to address the damage, and to ensure that race and gender justice is grounded in a more steady foundation than it has been to this time.
JJ: Well, you mentioned COINTELPRO, and part of the order was this snitch line, where folks were supposed to report trainings that were in violation of the executive order.
KC: Can you imagine?
JJ: Yeah, exactly, exactly. And of course, that’s bad enough, aimed at federal employees, but then, hey, a college student sends their teacher the executive order in order to protest course material that included sections on Critical Race Theory and intersectionality—to say, essentially, “I’ve got backing in saying, ‘I don’t want to hear these words. I don’t want to learn this. I don’t want to talk about this.’”
KC: And that’s exactly what they want. That’s exactly why people who are only seeing this as a limited order that only applies to government employees are sadly, tragically, missing the boat. The whole point of this order is to put the weight of the federal government behind the idea of anti-antiracism; the whole idea is to allow threats of the loss of federal funding to drive the suppression of these ideas—to literally put the gag in the mouths of teachers and researchers and opinion leaders. And corporate executives. And military officials. All those people who say, “We have a consistent and ongoing challenge to create the real conditions of equality and opportunity,” all those who would look at our systems and our society and say, “There’s still work to be done”—this gag order is basically saying, “You only can do that at your peril in the future.”
And this is why it was so shocking. I mean, you rightly pointed out the students who object to material around Critical Race Theory, intersectionality, implicit bias… But entire universities have decided to withdraw their equity training. And then, most recently, a few weeks ago (this was after the election), Stanford University issued a memo saying that to be in compliance with this executive order, it cannot be said that Stanford University is a place where “systemic racism exists.” It’s basically “we’re just going to declare that this is a racism-free zone, because this executive order says so, and so we’re going to go along with it.”
So, first of all, it was overcompliance; it never quite said that. But here’s the thing, Janine: Stanford University is a site in which scholars have produced much of this material and these frameworks that the order is trying to gag—things like implicit bias, things like racism that plays out in making artificial intelligence. So here’s an institution that’s producing some of these ideas that now thinks that it cannot use these very ideas in its own institution. That’s how dangerous this moment is.
JJ: I saw a serious amount of institutional defense of Critical Race Theory, and of diversity training, and of teaching history critically—civil rights groups, of course, the American Library Association, the American Association of Museums, corporate groups, as you say—stepping up to say, “This is backward.”
But it feels then to people like, as you’ve sort of said, “Well, this is just dead-enders desperately flailing; therefore, it’s probably not really dangerous.” But we aren’t really trying to just go back to the status quo ante, you know, we aren’t trying to say, “Oh, could we have permission to say the word racism again?”
What is the more robust vision that speaks back to this effort to silence? And I did want to pick up just one thing, in terms of the argument, because folks may remember it from the media as well. I’m remembering James Pinkerton, back in 1995, you remember this—saying, “Those who…have emphasized racial categories at the expense of colorblindness must bear some responsibility for legitimizing the racially categorizing thinking that results. One such result is The Bell Curve.” In other words: arguing that Black people and other people of color are systematically discriminated against is the same as saying they’re inferior. So that’s kind of the intellectual history. But there is a countervision that’s much bigger than just saying that that’s wrong.
KC: Absolutely. And you know, Janine, that is one of the most telling aspects of this order, is how ideas that at one point may not rise to the level of bureaucratic endorsement, still they hang around.
KC: They’re always available for precisely the moment to be deployed. So this idea that the first person to say “This is racist” is the racist; this idea that any critique of the racial contours of the status quo is itself a racist idea: This has been a far-right set of arguments that has kind of been on a lazy Susan.
JJ: Coming around…
KC: It’s just been circulating around until there’s a moment like now, when there’s been a racial reckoning across the country, people are rising up, people are demanding material, demanding ways of thinking about: Why do we still have to worry about police killing someone in an agonizing eight-minute death? Why do we still have to worry about a Black man running through a neighborhood and being shot by two white vigilantes? Why do Black women still have to worry about going to sleep at night and maybe never waking up because of the police having a no-knock raid in their home?
I mean, all of these things that people are asking, the answers to these are largely the kinds of ideas that are packed into these ideas about structural and systemic bias, about implicit racism, about intersectionality. These are all ideas that have been packaged together under the frame of Critical Race Theory; it’s basically the idea that we still have problems with structural racism, and we don’t get away from those problems by not talking about it, by having the “see no evil, hear no evil, speak no evil” approach; that is not a reasonable approach to any social problem we care desperately about.
So when we think about what this order means, it means, yes, we have to rescind it, but more has to happen. We’ve got to go beyond that position, that to not speak about racism is to be antiracist; that cannot be the final inference from this moment.
So one of the things that the #TruthBeTold campaign is advocating for is: we need to assess the damage that has been done from this short period of time when antiracism has been framed as racism, and use that as a way of understanding where we need to seek deeper roots into the very foundation of our equal opportunity practice.
We know now that the commitments were not as robust, or the understanding of what needed to happen for people to be able to read and see, in a fully legible fashion, how racial power was playing out across all of our institutions.
So that is the upshot: When you’ve gone through a storm and your house has lost a couple of rooms, it tells you, “Hey, when we rebuild this, we’ve got to rebuild this better.” So we’re hoping that the Biden/Harris administration applies the “build back better” to racial justice and to gender justice, and hopefully that starts by embracing #TruthBeTold.
JJ: Let me just ask you, finally, about bringing attention to it. I mean, media did not do what they should have: There were some good stories, particularly by USA Today‘s Jessica Guynn, but other than that, I did see stories that just kind of, as I would say, narrated the nightmare; they use this kind of zombie neutral voice that has the effect of normalizing and legitimizing things like—and if folks don’t know this, just the flavor—Donald Trump has said, “Teaching this horrible doctrine to our children is a form of child abuse in the truest sense of those words.” That’s what we’re dealing with here.
But I’m concerned that media’s tendency to triangulate is going to mean that “we have a problem with racism” and “we don’t have a problem with racism” are both going to be seen as equally valid points of view that have to be entertained. But generally, I guess what I’m saying is it bothers me a lot that academic media, that legal media, that compliance-specialty media, the librarians were talking about this, but the free speech crowd—and this is kind of where we started—
JJ: —didn’t seem to get it, doesn’t seem to get it.
KC: And you know, Janine, it reminds me so much of a report that FAIR did many years ago on affirmative action, in which the reporting was basically, “on the one hand, on the other hand,” and no significant analysis of the way that affirmative action was actually being framed. Even calling it “preferential treatment” was weighing in on it in a way that misshaped and distorted what these policies actually do, and what the justifications for them have been.
And that, I think, we’re seeing replay here. Because there’s so little engagement about built-in racial biases in our so-called neutral institutional practices, because there is such limited conversation about that in the mainstream media—this thing goes right into that machine, and it kicks out the same thing.
So even though there are causes of alarm because of the connection between this and the Proud Boys/”fine people” in white nationalist comments, even though this is the ideology of that, our media just didn’t seem to be able to report it. I’ll just raise this issue: Where have the free speech people been? Where are the people who are so concerned about cancel culture? Where are the people who are saying, “the person who believes that Black people have fewer brain cells than white people, they should be able to come on campus.” But those who are saying and framing what these ideologies do, they don’t have the same platform to, basically, fight back?
So in some ways, I feel very much like we are potentially in that period after the first Reconstruction, when people wanted race to go away. They wanted the whole fight to go away, and what came out of that was an agreement between white folk—white folk in the South and white folk in the North—that this was no longer going to be a priority; they were just going to step away from it and concede this issue, effectively, to the Redeemers.
If we’re not very, very careful, if we don’t push our allies and demand that our media do better in reporting on this, if we don’t really come together and lift up some of the truth that this order is trying to silence, then we may be heading in a very seriously flawed and problematic direction about suppression of, frankly, what the challenge of equality really is in our society.
JJ: We’ve been speaking with Professor Kimberlé Crenshaw. The African American Policy Forum is online at aapf.org, that’s where you can find out more about the #TruthBeTold campaign, the Under the Blacklight webinar series and the Intersectionality Matters podcast. Thank you so much, Kimberlé Crenshaw, for joining us this week on CounterSpin.
KC: Thanks for having me.