The Application of Critical Race Theory may Offend Civil Liberties and Human Rights.

Graham Hill's picture
Submitted by Graham Hill on Fri, 2021-06-25 00:57

Our Ministry of Education has a proposal for the School's History curriculum that hints at the application of Critical Race theory.

In the United States where CRT has a firmer hold, there have been instances of proposed discrimination in the provision of medical services based on skin colour which is said to be justified as a form of reparation.

Recently a Court struck down a CRT inspired policy of paying Federal Covid relief funds for restaurant owners based on colour and gender. Law Professor Jonathan Turley in The Hill stated:

…So a ruling by a federal district court in Texas this week was particularly jarring: Judge Reed O’Connor found that the Biden administration engaged in systemic gender and race discrimination to implement COVID-19 relief for American restaurants. Café owner Philip Greer had claimed in a lawsuit against the Small Business Administration (SBA) that, while white, he needs the same rescue as minority restaurateurs under the newly enacted American Rescue Plan Act. (see link below)

Another restaurant case in Tennessee set off difficulties in the distribution of funds. An Italian restaurant owner 'challenged the race-based preferences.' The Federal Court divided 2 to 1 and that 1 judge dissented is astonishing given the legislation:

Judge Amul Thapar said the policy's use of race violated equal protection principles. It was enough, Thapar wrote, for the administration to point to general social disparities to justify a discriminatory policy. It has to—and failed to—point to some specific prior discriminatory incident and show the government had a hand in those events.

The decision ordered the agency to stop using race- and sex-based criteria and said Vitolo's application should be approved, provided he met the qualifications.

In an arbitrary Oregon policy, Latinos were excluded. Professor Turley cites a comment by the Chief Justice from a 2007 case who “..stated that position most succinctly by declaring that the "way to stop discriminating based on race is to stop discriminating based on race."

In February 2021 a Federal Covid relief bill for farm owners was said to be for the socially disadvantaged- thus a CRT social justice Federal Bill. "The bill is an affront to the American ideal of equal treatment under the law — and a slap in the face for people who want everyone helped fairly.” The New York Post’s headline read: “Biden’s COVID relief bill is chock full of anti-white reverse racism”:

In another farmers’ relief case on 13 June 2021 interim relief was granted:

“…another federal court appears close to ruling that his Administration is engaging in raw racial discrimination. Milwaukee District Judge William Griesbach issued a temporary restraining order in Wisconsin halting Biden’s controversial $4 billion race-based federal relief program for farmers. The awarding of relief based on race immediately raised objections of racial discrimination. The ruling is based on the court’s view that the white farmers challenging the program are likely to prevail.”

Then MSM, which doesn’t know any better, errantly chimed in by saying the case was’ baseless’ with the NBC saying the case “was part of a “war against equity” by Trump supporters.” As Professor Turley puts it:

“The Court found that the program was unambiguously discriminatory since “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, “Plaintiffs are excluded from the program based on their race and are thus experiencing discrimination at the hands of their government.”

The administration is "punting" on effecting social justice to intertemporal cosmic justice. That is not justice in the normal sense of rights-based justice. There is no correlative duty with social justice.

In an article in The Epoch Times 22 June 2021, ‘Is CRT Legal: Critical Race Theory may violate Civil Rights Act, the Constitution: Dr Carol Swain' (link below).

Dr Swain states that CRT organises people into oppressors and oppressed groups and in the USA and elsewhere "all white people are considered oppressors who benefit from undeserved advantages [privilege]." She adds that whites are deemed- not proven- guilty of systemic racism.” She properly points out that:

"The demonization of one group of people because of the colour of their skin is discriminatory.'

There is no basis for the “deeming” and it is used as a rhetorical device to avoid a logical and fact bases argument to get to the conclusion.

The demonization involves abstraction of a group of people, then stereotyping followed with prejudicial behaviours as Gordon W Allport set out in The Nature of Prejudice in 1954.

Dr Swain goes on to say “that people forced into CRT-based training, who are to confess to being racist”- and we can add to do of privilege walks of shaming or the mandatory reading of Kendi and DiAngeloe’s flawed books- “are protected by the US Civil Rights Act 1964. That Act prohibits discrimination on the basis of race colour, national origin, religion and disability...”

In New Zealand, the same protection against discrimination is contained in section 19 of the New Zealand Bill of Rights Act 1990 and sections 21 and 22 of The Human Rights Act 1993.

The question is whether the new Ministry of Education's history curriculum with its CRT flavouring- Equity, social justice, decolonisation- breaches or will breach the legislation?

The question is whether the new Ministry of Education's history curriculum with its CRT flavouring- Equity, social justice, decolonisation- breaches or will breach the legislation?

Then other questions are :

1. Whether our Human Rights Commission is up to the task?

2. In terms of the proposed hate speech legislation does the application of CRT involve “stirring up” through the “deemed” stigmatising and demonization -prima facie case of 'stirring up'- of people based on the immutable fact of skin colour?

3. How does this work for mixed families?

A case in Seattle pessimistically indicates the partiality of Human Rights Commissions. There the Seattle Human Rights Commission dismissed a claim which required whites to pay ‘Reparation Fee’s to enter a Pride event:

“Promotional material for Taking B(l)ack Pride was posted on Facebook as a “BLACK AND BROWN QUEER TRANS CENTERED, PRIORITIZED, VALUED, EVENT.” The Facebook page adds: “White allies and accomplices are welcome to attend but will be charged a $10 to $50 reparations fee that will be used to keep this event free of cost for BLACK AND BROWN Trans and Queer COMMUNITY.”

The Capital Pride organisers in their complaint argued that:

“We consider this reverse discrimination in its worse (sic) form and we feel we are being attacked for not supporting due to disparaging and hostile e-mails. Please review this event’s stated admission policy as we feel this event is violating Seattle, King County, State and Federal equality laws.”

What is astonishing was the reaction, and actions, by the Human Rights Commission in dismissing the claim. Professor Turley comments:

It would seem a fair complaint since the event was engaging in open racial discrimination. After all, the Seattle Human Rights Commission advises the city “in order to educate them on methods to prevent and eliminate discrimination city-wide.” Lipson and Le Fevre however received a letter that shamed them for even raising a racially discriminatory practice.

The Commission not only shamed them but posted the response so others could read. The Commission advised them, if possible, to “educate yourself on the harm it may cause Seattle’s BIPOC (Black, Indigenous, People of Colour) in your pursuit of a free ticket to an event that is not expressly meant for you and your entertainment.” (emphasis added).

As they say, as regards the questions posed, ‘watch this space.’


Graham Hill MA (Hons) LL.B (Hons)
Nelson, 25 June 2021