The Southern Strategy III: Suing the District
The SC "Freedom Caucus" Lawsuit against Lexington One
This piece is Part III in an ongoing series considering parallels between the “Southern Strategy” of 1960s American politics and the current manufactured war on race- and gender-related discussions and concepts. Part I is here. Part II is here.
The sheer power on display to turn King against himself— a process that has been underway since the first day this holiday was celebrated— is a grim reflection of the way opponents have long subjected antiracist thinking and activism to distortion, misappropriation and redefinition. The brazen casting of critical race theory as the contemporary villain following 2020’s racial reckoning is no surprise.
—Kimberlé Williams Crenshaw, “King Was a Critical Race Theorist Before There Was a Name for It,” 2022.
For the first time in their history, Negroes have become aware of the deeper causes for the crudity and cruelty that governed white society's responses to their needs. They discovered that their plight was not a consequence of superficial prejudice but was systemic.
The slashing blows of backlash and frontlash have hurt the Negro, but they have also awakened him and revealed the nature of the oppressor. To lose illusions is to gain truth.
—Martin Luther King, Jr., “Challenge to the Nation’s Social Scientists,” 1967.
In February 1964, the FBI received a letter, forwarded from Attorney General Robert Kennedy’s office, from a concerned parent. “Who do you turn to when your ‘teen age daughter buys and brings home pornographic or obscene materials being sold along with objects directed at the ‘teen age market in every City, Village and Record shop in this Nation?” the letter begins.
The complaint was about a record: garage rock band The Kingsmen’s recording of “Louie Louie,” a cover of Richard Berry’s 1955 original.
The letter’s author demurs from sharing the supposedly “obscene” and “pornographic” lyrics, which are “so filthy I can-not enclose them in this letter,” but does call for the “prosecution” of everyone involved in the recording. The letter ends with ominous question: “How can we stop this menace? ? ? ?”
While the lyrics in Berry’s version are easy to understand and tell a fairly wholesome story of the narrator missing a girl across the sea, The Kingsmen’s garage rock version features vocals so unintelligible that the FBI chose to send the record to a lab for analysis, and still failed to decipher them. In the end, the case was closed without anyone being prosecuted, and most people who have heard about the whole affair in the ensuing decades have probably had a good laugh.
This story is less funny to me as we near the end of 2022 than it was when I first heard it, because it sounds a little too much like the emails sent to outgoing SC Education Superintendent Molly Spearman (as uncovered by Paul Bowers through multiple FOIA requests) during the beginning of what has become a dangerous (and stupid) censorship crusade against “CRT” by lawmakers across the country. It’s less funny because both the incoming SC House Education and Public Works chair and US Republican House leader have labeled this continued witch hunt for “CRT” as a major priority. It’s less funny when the bad faith argument that books about LGBTQ+ people are “obscene” or “pornographic” has become a rallying cry for far-right politicians and dangerous extremists.
It’s also less funny when you consider that in 1964, the FBI was also engaged in a campaign of censorship, harassment, surveillance, intimidation, and proxy violence against civil rights and antiwar activists and leaders, as described in the 1976 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1975-76. History has pretty powerful echoes here, as the report describes efforts under FBI Director Hoover (who is described as having personal animosity towards Dr. King in particular) to secretly wiretap, discredit, harass, and blackmail King and other civil rights advocates. While the FBI and Department of Justice were fielding panicked letters about mumbled song lyrics, they were also spying on King, declaring “war” on him, attempting to “neutralize” him, and declaring his “I Have a Dream” speech “demagogic”; the year before, the Department of Justice had even hatched a plan to cut the mic during the speech if they didn’t like the direction it took.
“From January 1964 through November 1965,” according to the Select Committee report, “the FBI installed at least 15 hidden microphones in hotel and motel rooms occupied by Martin Luther King”. Why the surveillance? “The wiretaps on Dr. King’s home telephone and the phones of the SCLC offices were authorized by the Attorney General for the stated purpose of determining whether suspected communists were influencing the course of the civil rights movement”.
According to the report, at least some of this was motivated by culture-war partisan politics, and again the echoes are strong today:
The unexpressed major premise of much of COINTELPRO is that the Bureau has a role in maintaining the existing social order, and that its efforts should be aimed toward combating those who threaten that order.
The “New Left” COINTELPRO presents the most striking example of this attitude. As discussed earlier, the Bureau did not define the term “New Left,” and the range of targets went far beyond alleged “subversives” or “extremists”.
Substitute “far Left” or “Woke” or “CRT” for the undefined “New Left” and it all sounds pretty familiar.
The report even goes on to the describe “Efforts to Prevent Teaching” by the FBI that sound eerily close to efforts by far-right political groups today: “Teachers were targeted because the Bureau believed that they were in a unique position to ‘plant the seeds of communism’ [or whatever ideology was under attack] in the minds of unsuspecting youth”(bracketed phrase included in the report). In the South Carolina “Freedom Caucus’” complaint against Lexington School District One last month, the authors express a nearly identical sentiment: “Through these curricula, along with mandatory teacher and staff training in racist concepts, the School District is violating state law as it forces racist ideology on young children.”
Last week, I found and read that complaint, which I encourage you to read, either by clicking here or by searching the South Carolina Judicial Branch website. When the “Freedom Caucus” announced it last month, the lawsuit received a lot of initial press (including this article from Zak Koeske of The State Newspaper and this article from Seanna Adcox of the Post and Courier, which are worth reading). The attention makes sense, because the whole purpose of the suit is pretty obviously to generate clicks and outrage for the “Caucus”. Unfortunately, I am not aware of any outlet covering or analyzing the specific claims and content of the suit in a way that would help the public to understand the veracity or validity (or lack thereof) of its claims, which have arguably caused real harm to the district and chilled legitimate speech in the state, even if they never go to trial.
And in fact “Freedom Caucus” chair Adam Morgan has suggested that the complaint, itself, in addition to video released by the “Caucus,” should be taken as the major source of evidence to support these claims.
In the filed complaint, the “Freedom Caucus” (a group of far right culture-warrior legislators and their hangers-on, described in the complaint as “a legislative special interest caucus”) alleges that Lexington One somehow broke the “Partisanship Curriculum” proviso in this year’s state budget, which they claim forbids “Critical Race Theory-Derived Ideas” (that’s the actual capitalization they used, and I’m disappointed they didn’t include a trademark symbol).
The proviso never actually uses the words “CRT” or “Critical Race Theory,” and on a literal level it has nothing to do with Critical Race Theory, at least not in the sense that any scholar would use to define the set of theories and writings that have existed under that umbrella term (coined by Kimberlé Crenshaw) since the 1970s. Instead, the language of the proviso is copied and pasted from the same Trump administration Executive Order banning diversity training requirements for federal employees on which many of these same legislators based their weird school censorship bills last session. (Crucially, lawmakers failed to pass any of these bills, so, for the second year in a row, they added the language into the budget, anyway, because most people— including many lawmakers— won’t ever read the budget, and it essentially has to pass. Democracy in action!)
The central faulty syllogism of the filing (and of anti-“woke” witch hunts in general) is that
“Critical Race Theory” promotes racism against white people (what some people used to call “reverse racism”) and that,
the school district was teaching “Critical Race Theory,” so,
the school district was promoting racism against white people.
Instead of logical connections between actions the district is alleged to have taken and the text of the law, the filing is heavy on emotionally charged language and (probably deliberate) misdirection. For example, the complaint reads, “It [presumably any ideology the Caucus doesn’t like] is all the same pernicious, racist nonsense. Schools that adhere to these theories teach that students are oppressors or oppressed based on skin color and sex” (brackets mine). No examples are given to support the claim, which sounds suspiciously like a classic composition fallacy, suggesting that “these theories” are “all” “racist nonsense”. This is based on the claim that students are being taught “tenets” which, according to a footnote in the filing, this New York Times article says “reject the philosophy of ‘colorblindness’ as inherently racist”. Importantly, as of this writing, the footnoted article does not include the words “as inherently racist,” but it does include explanations from actual Critical Race theorists which contradict much of the complaint’s fundamental framing:
Some of those critics seem to cast racism as a personal characteristic first and foremost— a problem caused mainly by bigots who practice overt discrimination— and to frame discussions about racism as shaming, accusatory or divisive.
But critical race theorists say they are mainly concerned with institutions and systems.
“The problem is not bad people,” said Mari Matsuda, a law professor at the University of Hawaii who was an early developer of critical race theory. “The problem is a system that reproduces bad outcomes. It is both humane and inclusive to say, ‘We have done things that have hurt all of us, and we need to find a way out.’”
But this is all old news: anti-“CRT” activists and politicians are generally disinterested in what the term means to the people who coined it; they’re happy to cherry-pick and even create their own definitions as they see fit. When the words of CRT or antiracist or LGBTQ+ thinkers and authors support their goals, they quote them; when the words of the same thinkers and authors don’t support their goals, they disregard them or suggest that the words don’t mean what a plain reading of the words would suggest.
Facts that don’t fit the narrative are not the point. When I asked Freedom Caucus leader Representative Adam Morgan for the evidence to support claims that Lexington One violated the budget proviso, he repeatedly chose not to provide specifics, but said that “several” teachers (including two of his own constituents— he does not have constituents in Lexington One) had complained, and tried to steer attention back to the outrageous claims, instead. When I pressed for more specifics he suggested that if I didn’t publicly accuse Lexington One of racism, I might be a “coconspirator” [sic], myself (a classic “straw man” fallacy with a helping of ad hominem).
When the complaint does delve into facts, they are mostly limited to:
things private consulting group EL Education (not Lexington One) has written in the past
things antiracist author and historian Ibram X. Kendi (Stamped From the Beginning) and other authors (not EL Education or Lexington One) have written in the past
quotes matching a video secretly made by a former Lexington One student teacher, which the suit and press conference have framed as if they were a part of a district PD training (there is no evidence that they were). I wrote a lot more about that video here.
Connections between these facts are generally weak or misleadingly implied. For example, a quote is given from EL Education’s website that in turn quotes Kendi (from this screenshot provided as a footnote in the complaint):
Anti-racism means taking an explicit stand against racism. We subscribe to author Ibram X. Kendi’s definition: “One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an antiracist. There is no in-between safe space of ‘not racist.’” (“Fact” #19)
If this quote from EL Education proves anything about Lexington One, it is that the district works with an organization that states it believes people should strive to be against racism, and that passively accepting racism is not a “safe space”. It seems both fair and not a violation of the law to say that passively accepting racism is not consistent with ending racism, but even if the “Freedom Caucus” disagrees with EL Education on this point, none of this proves that Lexington One has done anything at all, including violating the proviso, because Lexington One is not EL Education.
The next "fact" (#20) is a different quote from Kendi, which is not a part of the provided screenshot, though it is connected to the same footnote as if it came from EL Education’s website. The complaint reads, quoting Kendi at the beginning:
“The most threatening racist movement is . . . the regular American’s drive for a ‘race-neutral’ [society].” I. Kendi, How To Be an Antiracist 20 (2019). He [Kendi] believes that “[t]he only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”
Here, the complaint seems to suggest that EL agrees with both statements, but again no attempt is made to support this connection, or to provide context around what the quotes might mean or how they might relate to actions taken by the district.
Of course, it’s doubtful much of this would get past a good attorney or a judge, but the complaint doesn’t seem designed to win a case, but merely to embarrass the district, scare school staff throughout the state, and make a name for the “Freedom Caucus”.
But these out-of-context and carefully framed words from Kendi are not random. The edited quote, from How to Be an Antiracist, is one of the book-banning movement’s favorite Kendi quotes, because without context it sounds like the author is making the argument that racism can be solved with more racism. What he actually says in the book, agree with it or not, sounds much more like a fairly traditional affirmative action defense:
Since the 1960s, racist power has commandeered the term “racial discrimination,” transforming the act of discriminating on the basis of race into an inherently racist act. But if racial discrimination is defined as treating, considering, or making a distinction in favor or against an individual based on that person’s race, then racial discrimination is not inherently racist. The defining question is whether the discrimination is creating equity or inequity. If discrimination is creating inequity, then it is racist. If discrimination is creating inequity, then it is antiracist. Someone reproducing inequity through permanently assisting an overrepresented racial group into wealth and power is entirely different than someone challenging that inequity by temporarily assisting an underrepresented group into relative wealth and power until until equity is reached.
The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. As President Lyndon B. Johnson said in 1965, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still believe that you have been completely fair.” As U.S. Supreme Court Justice Harry Blackmun wrote in 1978, “In order to get beyond racism, we must first take account of race. There is no other way. In order to treat some persons equally, we must treat them differently” (Kendi, How to Be an Antiracist; emphasis mine).
People in a free society can debate Kendi’s (and Johnson’s, and Blackmum’s and Adam Morgan’s) positions here, and there may be good faith arguments all across the continuum of perspectives here— though we don’t get any from the complaint, itself. As a public school teacher who has worked in several districts in South Carolina, I have witnessed many obvious disparities in funding, school policies, and opportunities that seemed impossible to separate from the effects of the de facto segregation which objectively exists in our school system (whether or not you believe it is intentional, it is by definition systemic). And the data backs me up on that connection: see the Post and Courier’s excellent “Minimally Adequate” series for some of that data.
Still, we can debate the best way to interpret and respond to these facts. But first we have to understand that the argument for affirmative action (or any other kind of systemic correction of existing racial inequity) is not in favor of “discrimination” defined as racism (obviously), but in favor of dropping the pretense that we live in a “colorblind” society, which we simply do not, whether or not that reality hurts the feelings of “impressionable young students” the complaint claims to protect. (In my experience, the average student’s skin is much thicker than the “Freedom Caucus” would like to suggest, probably because the average student is much more able to cope with reality than the members of the “Freedom Caucus”. Adam Morgan hopefully got a taste of this firsthand, when he visited my classroom and heard directly from a group of South Carolina public school students, most of them young women of color. If he listened to half of what they said, he presumably learned a lot.)
But even if teaching what Kendi says here directly violates the budget proviso, the complaint, like Morgan and other members of the “Freedom Caucus,” makes no attempt to logically argue that Lexington One is, in fact teaching what Kendi says here. Saying “we filed a lawsuit,” is not a logical argument for why you filed a lawsuit. (And, if discussing Kendi’s argument does violate the budget proviso, then the budget proviso is doing exactly what its worst critics have stated, and making it illegal for students to participate in conversations about the basic realities of systemic racism they see around them every day, which is very likely a violation of the Constitution. Similarly, according to a piece from NBC News and ProPublica published yesterday, the federal Office of Civil Rights is currently investigating a Texas district for possible Title IX violations because the superintendent called for the removal of the same kinds of books the Freedom Caucus and others have been targeting in SC.
As an example of the “Freedom Caucus’” lack of substantive evidence to support its accusations, the complaint states the “fact” (#15) that EL has “implemented” a “language arts curriculum,” but doesn’t establish that the curriculum violates the proviso, or even that Lexington One is using the curriculum, only that the district is a “partner” and that “partners” implement the curriculum. This is akin to saying a car dealership has sold cars featuring heated cupholders to “customers,” and that since you are a customer, you have heated cupholders. (The complaint does link to a slideshow as evidence that a PD session included the forbidden topics, but the slideshow title page merely says it was presented to “The Ohio Deans Compact Group 12/3 & 12/4”.)
Crucially, the complaint doesn’t seem to actually cite the “bombshell video” (Morgan’s words during the press conference announcing the suit) made by a former Lexington One student teacher, which the “Caucus” has touted as a smoking gun in that press conference and in its social media campaign, even though it seems to be the main source of "evidence" for the suit. The complaint uses a pretty clever (if dishonest) trick of citing first the aforementioned slideshow (which does not seem to a version used in Lexington One’s PD sessions), then quoting a different “specialist” from EL, using words from the video.
Most of the quotes ascribed to EL seem to be from the secret video: for example, the complaint states, “In September 2022, an EL Education professional development specialist travelled to EL Education schools in Lexington County School District One to provide training” (“fact” #25). But the series of “facts” which follows is almost certainly not about what the specialist said to school employees, because they come from the video by the former student teacher, recorded without the specialist’s knowledge, at the hotel where he worked. For example, the complaint (and Morgan) directly quote her saying, “We have some people who are willing to be allies, and some people who are willing to be co-conspirators.”This is a direct quote from the video, and there is no evidence that what this specialist said informally to a non-district employee, even if it would violate the proviso, is what she said while being paid by Lexington One (which would be the entire basis for the suit).
This sneaky framing allows the complaint to implicitly attribute all kinds of things to professional development held in the district without actually proving that the district or EL Education did anything to violate the proviso, which doesn’t outlaw beliefs— although I’m sure some of its proponents would love to do that if they could— but only actions taken using state funds. I pointed this out to Morgan several times; he had no substantive response.
Bottom line: the complaint doesn't actually seem to allege actions by Lexington One that violate the budget proviso. It merely suggests (in a misleading way) that EL Education, a private business, might have violated it, primarily through rhetorical misdirection and quotes from a video which doesn't involve district employees and doesn’t take place on district property. It reads less like an actual lawsuit than what it is: a publicity release from an image-obsessed "caucus" designed to seem like they're fighting a thing (that does not exist in the way they say it does) on behalf of special interests who want to be told the conspiracy theory they believe is true.
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The letter is available as part of the FBI’s publicly-released report on the investigation into “Louie Louie”, on its FOIA page here.
Former FBI intelligence head William C. Sullivan, quoted in “Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1975-76 (Church Committee)” Book II, p. 11.
The FBI Chicago field office, quoted in the same report, p. 11.
“Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1975-76 (Church Committee)” Book III, p. 120.
Same as above, p. 120.
Same as above, p. 3.
Same as above, p. 29.
Morgan really seems to like this “co-conspirators” line, suggesting during the press conference that it shows illegal intent. I would like to think he is intelligent enough to know that the specialist is clearly using the word in a tongue-in-cheek way, to make fun of the fact that people like him have made discussions of race so difficult to approach that they often feel illegal. Mission accomplished, I guess.