Is Critical Race Theory Illegal?

Teaching critical race theory in the public schools is immoral, but it is legal unless the legislature in a given state has banned it. On the other hand, for an employer to inflict CRT training on employees against their will can be legally problematic. And even in the public schools, promoting CRT while discriminating against expression of other viewpoints may violate the First Amendment.

Today the Upper Midwest Law Center, fresh off its victory over the City of Minneapolis, in a case in which a state court judge ordered Minneapolis to hire more police officers to comply with that city’s charter, held a press conference to announce several new legal actions, all related in some way to critical race theory. (Disclosure: I am a member of UMLC’s Board of Directors.)

From the press release announcing the actions:

Tara Gustilo says: “I shouldn’t be demoted or retaliated against because I don’t agree with the racially divisive and demeaning CRT ideology.” Is she wrong? Our clients believe we are all human and we are all important – all are created equal. They believe no one should be told they are “irredeemable.” Our clients believe that not being judged by race or ethnicity is a right, not a privilege. They believe all have the right and responsibility to understand and critically assess history and culture and that no one should ever have advantages or detriments based on race.

But, shockingly, the Critical Race Theory (“CRT”) message in 2021 to students and employees in Minnesota public schools, state agencies, public hospitals and many private schools and business corporations is the opposite. Students and employees are being told that White people are “oppressors” who benefit from systemic racism, that Blacks are “oppressed” by Whites who are intrinsically racist whatever they do, and that other groups are “White-adjacent” junior oppressors unless they join the attack on Whites. The practical consequences of this CRT, BLM or 1619 Project ideology (all with Marxist origins) include the familiar hallmarks of racial discrimination from the Civil Rights Era: race-based discrimination and favoritism, bullying of critics, name-calling and retaliation. Whites are a target of course, but CRT is rejected by many of all races who see it as bad for everyone and as denying minorities’ ability to take charge of their lives.

The clients of UMLC are among the critics and victims. Tara Gustilo, a Filipino-American doctor at Hennepin Healthcare System (formerly known as HCMC), Joe and Aaron Norgren, Native-American father and mixed-race son employees at DHS, and Bob and Cynthia Cajune, Native-American and White parents of multi-racial children at Lakeville Public Schools, and many other parents there, are challenging this abhorrent, racially-divisive ideology, grounded in Marxism and anti-Americanism, which is literally pushing aside the medical care, teaching and public service missions at these organizations to convert them to this warped version of “social justice.”
Doug Seaton, President of UMLC, said: “Our clients are bravely confronting CRT-inspired bullying, indoctrination and retaliation, which is not ‘training’ or persuasion. They have been insulted, lied about, threatened, demoted and fired, simply for refusing to submit to this ideology. But the U.S. Constitution, the federal Civil Rights laws, and their Minnesota counter-parts don’t permit this race-based discrimination, retaliation, compelled speech, and invasion of privacy.”

UMLC believes that the courts must be asked to rule on these questions because our laws are not self-enforcing and many politicians, employers and institutional “leaders” are either afraid or too “woke” themselves to follow the law, confront the new commissars of CRT and stop their abuses.

Today, UMLC announces parallel EEOC charges and state and federal lawsuits on behalf of Tara Gustilo, a HHS Doctor; Joe and Aaron Norgren, a Native-American father and multi-racial son, former and current employees at DHS; and Liberty In Our Neighborhood 194 an organization of Lakeville Public School parents, and several individual Lakeville parents, including Bob and Cynthia Cajune, a Native-American Veteran and white couple with multi-racial children.

The initial agency complaints and a draft lawsuit complaint are available here.
Bob Cajune, the Lakeville Native-American Veteran and parent, says that: “Black Lives Matter, of course, but so do all other human lives. Posting ‘BLM’ signs and disallowing ‘All Lives Matter’ signs is political speech or viewpoint discrimination. Discriminating against or demeaning any race is not neutral and is wrong.”

Aaron Norgren believes that: “these Critical Race Theory ideas of race separation, division, incitement of hate for Whites, Christians and traditionalists, and demeaning of Blacks and other minorities as unable to act or succeed in ‘America,’ should not be promoted at a state agency or anywhere else.” This is wrong and it’s illegal.

The Lakeville, Minnesota public schools have posted “Black Lives Matter” signs in the district’s schools. When students and parents requested that the district also post “All Lives Matter” and “Blue Lives Matter” signs, the district refused. This is an obvious case of viewpoint discrimination by a public agency that violates the First Amendment. Now that a lawsuit has been filed, I expect the Lakeville school district to surrender quickly. What we really need, however, is for concerned parents and others to run for the school board in Lakeville and thousands of similar towns across the country, so that it doesn’t take a lawsuit to belatedly redress this kind of injustice.

To me, the most poignant of UMLC’s cases may be that of Dr. Tara Gustilo. Dr. Gustilo was demoted from her position as the head of the Hennepin Healthcare System’s department of obstetrics and gynecology because she refused to sign on to CRT propaganda. Like several other UMLC plaintiffs, she has to present her race discrimination claim to the Equal Employment Opportunity Commission before proceeding with a lawsuit. This is how her EEOC complaint begins:

An impressive history, but if you don’t toe the left-wing line, nothing else matters:

In today’s corporate America, fealty to the Marxist line trumps everything else. Dr. Gustilo, despite her impressive credentials and successful track record, was demoted for failing to back critical race theory:

I don’t know whether Dr. Gustilo’s employer engaged in race discrimination in violation of federal law. That is a subject on which Paul, for one, is vastly more knowledgeable than I am. But Minnesota also has a statute that bars public employers like Hennepin Healthcare System from discriminating against employees on the basis of political orientation. I am confident that Dr. Gustilo’s cause of action under that provision is sound and will be vindicated in the courts.

In the end, the evil of critical race theory and other forms of Marxism will be defeated when the public at large understands what they represent. Meanwhile, legal action can be a valuable means of reining in discriminatory conduct by employers and others, and also a part of the ongoing educational process. Kudos to Upper Midwest Law Center for taking on these important cases.

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