Christopher F. Rufo  ⚔️

It has *long* been conservative orthodoxy that states possess near-plenary power over their curricula. Many on the Right have supported abolishing the Department of Education for decades on precisely these grounds. It's a federalism argument right out of Madison in Federalist 45.

What is the issue here? If blue states like California can mandate ethnic studies in their curricula (aside: have "principled" right-liberals objected to that on proceduralist grounds?), then how can red states not ban racially discriminatory pedagogy that's anathema to Title VI?

None of the state-level educational choices at issue in these disputes are "value-neutral" or "pluralistic." They all necessarily entail substantive value judgments. Even libertarian-leaning conservatives ought to understand that, at least in the context of federalism—right?

What I suspect may be going on here, at least implicitly or subconsciously, is skepticism of the constitutionality of the Civil Rights Act of 1964 itself. There is a long libertarian/legal "strict constructionism" tradition here, going back to Barry Goldwater and Ron Paul.

But such positivist strict constructionism, which in the American legal context dates as far back as Jefferson, is misplaced. It is not, nor has it ever been, our tradition. That's my claim in "Common Good Originalism: Our Tradition and Our Path Forward." https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2021/06/Hammer_FINAL_6.3.pdf …