By Nicholas Barry Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics

July 21, 2021

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The Supreme Court decision in Brnovich v. Democratic National Committee regarding Arizona election laws immediately and predictably drew considerable criticism from numerous voting rights advocates.[1]  The two laws challenged in this instance allowed election officials to discard provisional ballots cast if a voter showed up at the wrong precinct and barred third-party groups from collecting and delivering absentee ballots, also known as ballot harvesting.[2]  Those challenging the laws contended that they violated § 2 of the Voting Rights Act or even possibly the 15th Amendment given the disparate impact these laws would have on voters of color.[3]  However, the Court held that neither law was enacted with discriminatory intent, nor did they present any hindrances beyond what are the “usual burdens of voting”[4].  Therefore, these two laws were deemed permissible acts by the state as it oversaw its elections.[5]

As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them.  I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not.  It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry.  Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.

However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it.  I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me.  My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]

As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities.[7] In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.[8]

It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students.  Even so, I have at least a basic understanding of it such that I at least know it when I see it. 

To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT.[9]  While I genuinely doubt this was an intentional reference, their intentions do not affect this determination.  Specifically, in siding with the state of Arizona to uphold these new voting laws, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,’’ neutral and color-blind policies will impede minority voting rates.[10]  In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color blind) policy will “predictably” lead us to this result.  This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.

Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy.  So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students.  There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.

Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic.  Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with. 

The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom.  That is what lies at the root of my despondency.  In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.

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[1] Reid Wilson, Supreme Court ruling shocks voting rights activists, academics, The Hill (July 1, 2021), https://thehill.com/regulation/court-battles/561190-supreme-court-ruling-shocks-voting-rights-activists-academics.

[2] Brnovich v. Democratic Nat’l Comm., No 19-1257, 594 U.S. ___ at 1 (July 1, 2021).

[3] Id.

[4] Id. at 26.

[5] Id. at 30.

[6] Jack Dutton, Critical Race Theory Is Banned in These States, Newsweek (June 11, 2021), https://www.newsweek.com/critical-race-theory-banned-these-states-1599712.

[7] See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1060–67 (1991) (“[W]e are not currently a colorblind society . . . race has a deep social significance that continues to disadvantage blacks and other Americans of color. While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.”).

[8] See generally Critical Race Theory: The Key Writings That Formed the Movement passim (Kimberlé Crenshaw et al., eds. The New Press 2010); accord Gary Peller, I’ve Been a Critical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point For Us., POLITICO (June 30, 2021), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-lightning-rod-opinion-497046.

[9] See Brnovich, No 19-1257, 594 U.S. at 18 (“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”).

[10] Id.

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About the Author

Nicholas Creel is an Assistant Professor of Business Law and Ethics at Georgia College and State University with a Ph.D. in Political Science from Texas Tech University, a JD from the University of Dayton School of Law, and an LL.M. from St. Mary’s University School of Law.