As Republicans continue their fight against critical race theory (CRT), cracks have begun to emerge in their coalition.
At least six states have passed bills purporting to ban concepts associated with CRT in K-12 education, and at least 20 more are considering similar legislation. While proponents say that the intent of the legislation is to crack down on educational practices that heighten racial tensions and portray the U.S. as inherently racist, critics argue that the bills would criminalize teaching key parts of American history.
CRT holds that America is fundamentally racist, yet it teaches students to view every social interaction and person in terms of race. Its adherents pursue “antiracism” through the end of merit, objective truth and the adoption of race-based policies.
Some commentators, like Andrew Sullivan, argue that anti-CRT bills are not necessary, and are contrary to a spirit of free speech.
“Banning illiberal ideologies like CRT makes us indistinguishable from the woke,” he wrote in June. He further said that the bills were worded in such a way that rendered them “pretty close to unenforceable.”
Critics on the left also echo these concerns about banning and maintain that it will infringe on free speech and academic freedom.
Jeffrey Sachs, a politics professor at Acadia University, argues that Texas’ bill would prohibit a teacher from assigning Alexander Stephens’ 1861 “Cornerstone Speech,” because “it is a speech built around the idea that black people are inferior to white people.”
Texas’ anti-CRT bill prohibits teachers and administrators from “mak[ing] part of a course the concept that: one race or sex is inherently superior to another race or sex.”
Bills like the ones passed by Texas and Iowa, are modeled closely on an executive order signed by former President Donald Trump in September 2020. That executive order prohibited federal agencies, employees, and contractors from teaching a variety of “divisive concepts” associated with CRT. Those concepts included the ideas “that one race or sex is inherently superior to another race or sex; an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; [and] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.”
The free speech claim that doomed Trump’s anti-CRT executive order is unlikely to apply to state laws regulating K-12 education curricula, Foundation for Individual Rights in Education (FIRE) attorney Adam Goldstein told the Daily Caller via email. “Within the scope of what is legitimately curricular, we haven’t seen the limit of th[e] authority [to set curricula],” Goldstein said. “The state has as much authority over K-12 curriculum as it has over anything else.”
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However, Goldstein’s FIRE colleague Bonnie Snyder noted that bill provisions “prohibit[ing] curriculum that would cause ‘discomfort, anguish, or any other form of psychological distress’ because of a student’s race or sex,” may pose problems for educators.
“Neutrally-presented historical facts might well make someone uncomfortable about racial or gender issues,” Snyder told the Daily Caller. “It’s likely that all kinds of topics might make people uncomfortable, and it’s not realistic to teach history that ignores race or gender, so this kind of overly broad vagueness could become a problem. It’s also unreasonable for teachers to be held responsible for students’ feelings about all curricular content.”
Manhattan Institute fellow Christopher Rufo, who first publicized a weekend-long diversity training at a federal nuclear laboratory that compared white men to domestic terrorists, disagrees on the vagueness issue. Rufo has advised “more than a dozen state legislatures,” and Republican elected officials like “Tom Cotton, Ted Cruz, and Ron DeSantis,” on anti-CRT legislation, he told The Fifth Column podcast.
“In the coming years, we will learn which bills are the most effective and, if necessary, states can exchange information and adopt best practices,” he told the Daily Caller, in response to a question about whether or not some bills may be too vague to be implemented correctly.
Rufo cited bills in Idaho, Tennessee, and New Hampshire as “very strong. They are narrowly tailored to prevent the most egregious racial stereotyping, scapegoating, and harassment, while protecting the ability of teachers to be effective in the classroom,” he continued.
David French, a former First Amendment lawyer and current editor at The Dispatch, disagrees with Rufo’s characterization of those bills. Laws like the Tennessee bill “are broad and vague enough to create an extraordinary chilling effect on classroom speech,” he wrote in June.
French, Kmele Foster, Thomas Chatterton Williams, and Jason Stanley note in a New York Times op-ed that “the Tennessee statute prohibits a public school from including in a course of instruction any ‘concept’ that promotes ‘division between, or resentment of’ a ‘creed.'”
“Would teachers be violating the law if they express the opinion that the creeds of Stalinism or Nazism were evil?” they ask.
Anti-CRT bills touch on a broader theme of state legislatures’ involvement in public school curricula, Snyder says.
“There is always a debate over what should be included in the K-12 classroom and how it should be covered. This is perennial since class time is a zero-sum game and different content competes for inclusion,” Snyder explained.
Goldstein adds that some of the more extreme educational practices may run afoul of civil rights laws. “If the
law prohibits segregation of schools, and if your pitch for a class starts with segregating students by race, it’s going to be tough to avoid running into Title VII [of the Civil Rights Act of 1964] issues, because the purpose there is to create two different experiences.”
School districts in Massachusetts, Virginia, and Illinois have been accused in lawsuits of segregating students and teachers by race. Other suits allege that students were required to offer compelled speech, which violates the First Amendment. (RELATED: Nevada Family Sues Charter School Over Allegedly Racist Curriculum)
Rufo and Snyder agree that legislation should be a last resort for opponents of CRT.
“If you have a problem with something a teacher allegedly did or said in class, it’s respectful to speak to the teacher first and give him or her a chance to explain,” Snyder said. “Only after exhausting [various] avenues would you appeal to the state board of education or legislators.”
“Parents should follow a simple escalation pattern. First, bring it to the attention of teachers and principals. Then, if the problem is not resolved, bring it to the attention of superintendents and school boards. Finally, if the issue is deeply ingrained, such as many Critical Race Theory pedagogies, lobby the state legislature to fix the problem. That’s how democracy works. The public gets to decide what happens with public institutions,” Rufo added.