*Meriam Mossad
I. Introduction
Critical Race Theory (CRT) is an academic movement that emerged in the mid-1970s. It was founded by civil-rights scholars and activists who sought to critically examine the intersection of race and the law, and to advocate for more radical approaches to the pursuit of racial justice.[1] The late Derrick Bell, a former civil rights lawyer and the first tenured Black professor at Harvard Law School, examined CRT in connection with American jurisprudence on racial issues that, even when seemingly liberal in principle, served to entrench racism.[2] Bell also argued that facially neutral laws continue to uphold white racial dominance, despite the decline of legal segregation and institutional discrimination.[3]
Recently, conservative lawmakers have sought to ban the teaching of CRT in schools.[4] As of January 2022, fourteen U.S. states have enacted bills that would restrict the teaching of CRT or limit how teachers discuss racism and sexism, and thirty-three other states are in the process of implementing such bans.[5]
II. Teachers’ First Amendment Rights to Free Speech
The First Amendment protects free speech against governmental abridgment, with exceptions.[6] In Garcetti v. Ceballos, the Supreme Court established that government employees, including teachers, surrender some free-speech protection when they speak while carrying out their public duties.[7] Under the First Amendment,
[s]peech by a public school teacher is protected . . . when (1) the teacher speaks as a citizen about matters of public concern and (2) the teacher’s interest in exercising free speech is not outweighed by the countervailing interest of the state in providing the public service the teacher was hired to provide.[8]
The Court’s ruling is limited to teachers in K-12 public schools because K-12 public schools have standardized curriculums and school boards have an interest in maintaining a uniform curriculum throughout schools in a district.[9] Based on the Court’s holding in Garcetti, teachers who allege that banning the teaching of CRT violates their First Amendment rights are unlikely to prevail because courts will likely find teaching CRT to involve speech by a public employee that does not relate to a public concern.[10] Even if a court finds teaching CRT to be a public concern, it could still hold that such a concern does not outweigh the state’s interest in providing the services the teacher was hired to provide.[11]Teaching CRT would occur within the school, during school hours, and within the teacher’s scope of employment; therefore, a court would not view it as speech by a private citizen, but rather as speech by a state employee.[12]
Furthermore, even if teaching CRT is a matter of public concern and thus non-curricular, courts may still refrain from protecting it as speech.[13] The school may prohibit speech involving a matter of public concern if it can show a “countervailing interest of the state in providing the public service the teacher was hired to provide.”[14] The school administration’s countervailing “legitimate pedagogical interest” may be sufficient to trump a teacher’s valid First Amendment claim.[15]
III. Students’ Rights to a Comprehensive Education
While precedent indicates that courts would likely not recognize teachers’ free speech right to teach CRT, courts may find that students have a right to learn about CRT under the First Amendment and under the Fourteenth Amendment’s Equal Protection Clause. For example, in Arizona, a student challenged the state’s ban on teaching Mexican American Studies (MAS) in Arizona Public Schools.[16] On appeal, the Ninth Circuit held that only the students, not the school employees, had a viable claim because teachers or administrators do not have a constitutional right to offer certain courses.[17] Specifically, the court held that students “have a liberty interest grounded in their First Amendment right to receive information[,]”[18] and this right “extend[s] to students’ right to receive information in the context of the development of a school curriculum.”[19] Applying Arlington Heights,[20] the court concluded that, while the statute banning ethnic studies was not discriminatory on its face,[21] the termination of the MAS program had a disproportionate impact on Latino students because, at the time of termination, approximately ninety percent of the students enrolled in the program were Latino.[22]
Despite this victory, the court’s holding may not apply to one group of students if the ban applies to all social studies classes. However, if the recent bans eliminate elective classes that explore CRT, and those elective classes are predominantly composed of one race of students, such bans could be challenged for the resultant discriminatory impact.[23] In line with the Supreme Court’s reasoning in Arlington Heights,[24] the Arce court reasoned that “the statute and/or its subsequent enforcement against the MAS program would still be unconstitutional if its enactment or the manner in which it was enforced were motivated by a discriminatory purpose.”[25]
Bans on CRT emerged after Donald Trump and various conservative commentators made opposition to the topic a political rallying cry, engaging in fear-mongering voters and thus inflaming the issue amongst their constituencies.[26] Christopher Rufo, a senior fellow at the Manhattan Institute, a libertarian think tank, is believed to be responsible for the surge in conservative interest in CRT.[27] Rufo received a tip from a whistleblower that the city of Seattle was conducting “internalized racial superiority training sessions for its employees.”[28] In response, Rufo wrote that this diversity training “is part of a nationwide movement to make this kind of identity politics the foundation of our public discourse.”[29] His article inspired a rush of whistleblowers from school districts and federal agencies to complain about diversity training.[30]
These events likely inspired legislators to enact anti-CRT statutes and may help demonstrate the legislators’ arbitrary or irrational intent in the enactment of anti-CRT statutes.[31] Opponents of CRT view calling out institutional racism as calling them racist personally because “many Americans are not able to separate their individual identity as an American from the social institutions that govern us—these people perceive themselves as the system.”[32] Furthermore, several existing statutes could have ensured that teaching CRT does not include “materials of a sectarian, partisan or denominational character.”[33]
To combat statutes banning the teaching of CRT, students could assert that banning CRT in school is a violation of their First Amendment Rights. To “establish a First Amendment violation[, a plaintiff must] prov[e] that that the reasons offered by the state, though pedagogically legitimate on their face, in fact serve to mask other illicit motivations.”[34] In Pico, the Supreme Court held that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”[35]
Students may also argue that banning CRT in schools on the basis of reducing racism is a pretext, and that these statutes are enacted and enforced for narrowly political, partisan, and racist reasons. The same evidence supporting the conclusion that banning CRT in schools violates the Fourteenth Amendment also supports the conclusion that these statutes were enacted and enforced for illicit reasons rather than out of pedagogical concern.[36]
IV. Conclusion
Challenges to the state laws banning the teaching of CRT in schools will likely occur and the results may vary depending on each state’s history, the language of the laws, the language employed in debate, and the number and race of affected students. However, teachers are unlikely to prevail in claims that the ban infringes on their First Amendment rights since state employees give up some rights while on the job. Students may be more successful than teachers in challenging the ban under the First Amendment right to free speech or the Fourteenth Amendment’s Equal Protection Clause if they can show that these statutes have a discriminatory purpose or effect. Addressing criticism of CRT outside of the courtroom may first start with separating the individual American identity from the social institutions that govern us and depersonalizing the conversation about institutional racism. However, this approach may be tone-policing historically oppressed groups into silence. A better, yet more complex and difficult approach, is for individuals to acknowledge their contributions to an oppressive system and work to unlearn these biases.
*Meriam Mossad is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, and a member of the Royal Graham Shannonhouse III Honor Society. She also serves as a teaching assistant and research assistant for Professor Closius. This past summer, Meriam interned for Judge Elizabeth Gunn at the U.S. Bankruptcy Court for the District of Columbia. She now works as a law clerk at Silverman Thompson Slutkin & White.
[1] Amy Ansell, Critical Race Theory, in Encyclopedia of Race, Ethnicity, and Soc’y 344–46 (Richard Schaefer ed., 2008).
[2] Id.
[3] Id.
[4] Marisa Iati, What is Critical Race Theory, and Why do Republicans Want to Ban it in Schools?, Wash. Post (May 29, 2021, 8:00AM), https://www.washingtonpost.com/education/2021/05/29/critical-race-theory-bans-schools/.
[5] Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, Educ. Wk., https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06 (Jan. 26, 2022).
[6] W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943).
[7] Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
[8] Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4thCir. 1992).
[9] Id.
[10] Id.; see also Carr v. Dep’t of Transp., 230 A.3d 1075, 1089-90 (Pa. 2020); Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 825 (9th Cir. 2017); Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1166 (11th Cir. 2015).
[11] Stroman, 981 F.2d at 158.
[12] Id. at 156.
[13] Id.
[14] Newton v. Slye, 116 F. Supp. 2d 677, 685 (W.D. Va. 2000) (citing Stroman, 981 F.2d at 156).
[15] See Boring v. Buncombe Cty. Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998).
[16] Arce v. Douglas, 793 F.3d 968, 973 (9th Cir. 2015).
[17] Id. at 973, 987.
[18] Id. at 988.
[19] Id. at 981 (citing Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998)).
[20] Id. at 977 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)).
[21] Id.
[22] Id. at 978.
[23] Id.
[24] Arlington Heights, 429 U.S. at 265–66 (“When there is a proof that a discriminatory purpose has been a motivating factor in the decision, [] judicial deference [to the legislature] is no longer justified.”).
[25] Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (citing Arlington Heights, 429 U.S. at 265–66).
[26] Adam Harris, The GOP’s ‘Critical Race Theory’ Obsession, The Atlantic (May 7, 2021), https://www.theatlantic.com/politics/archive/2021/05/gops-critical-race-theory-fixation-explained/618828/.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] See, e.g., Arcev. Douglas, 793 F.3d 968, 977 (9th Cir. 2015); see also Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
[Precedent] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes . . . because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality.
Arlington Heights, 429 U.S. at 266.
[32] Rashawn Ray & Alexandra Gibbons, Why Are States Banning Critical Race Theory?, Brookings, https://www.brookings.edu/blog/fixgov/2021/07/02/why-are-states-banning-critical-race-theory/ (Nov. 21, 2021).
[33] González v. Douglas, 269 F. Supp. 3d 948, 966 (D. Ariz. 2017).
[34] Id. at 972 (citing Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982)).
[35] Pico, 457 U.S. at 872 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
[36] See González, 269 F. Supp. 3d at 964–72; see also Tiana Headley, Laws Aimed at Critical Race Theory May Face Legal Challenges, Bloomberg L. (July 7, 2021, 4:41 AM), https://news.bloomberglaw.com/us-law-week/laws-curbing-critical-race-theory-may-face-legal-challenges.
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