Bloomberg Law
July 19, 2022, 8:00 AM

Anti-Critical Race Theory Laws Are Actually Pro-CRT

Jonathan Feingold
Jonathan Feingold
Boston University School of Law

Since January 2021, Republican officials across the country have introduced nearly 200 “backlash bills” that regulate how teachers (and others) can discuss topics like racism and sexual orientation in the classroom. Fifteen states have passed backlash bills—a term that locates these laws within a broader rightwing campaign to counter nationwide efforts to provide more inclusive schools and workplaces. Four more states have adopted similar provisions through state policy or executive action.

PEN America, a free-speech advocacy organization, has dubbed these laws “educational gag orders”—a phrase intended to capture proponents’ desire to “silence race- or gender-based critiques of US society and history.”

PEN America is correct. But as I detail elsewhere and outline below, backlash bills are counterintuitive: most of these laws, if we privilege their text over political sloganeering, support more anti-racism in the classroom, not less.

Commentators often overlook this insight because bill proponents are adamantly anti-antiracist and backlash bills buttress a transparent effort to erode faith in, and “lay siege” to, public institutions.

Calculated Talking Points

Public officials continue to rehearse calculated talking points to discredit modest reform efforts and target individual educators. Against this backdrop, backlash bills produce “classrooms ruled by caution, silence, and fear, rather than robust inquiry and debate.”

Stakeholders and civil rights organizations have responded with at least six lawsuits across four states. Many resemble Santa Cruz v. Trump, where plaintiffs successfully enjoined Executive Order 13950, which the Trump administration had weaponized against antiracism writ large. In December 2020, a federal judge concluded that Trump’s EO was “void for vagueness” and chilled “free speech.”

Although inoperative, Trump’s EO became a template for copycat state laws. In New Hampshire, educators and school officials have challenged four “banned concepts” that GOP legislators inserted into an annual budget trailer. Tracking Santa Cruz, the plaintiffs claim that the law violates the First Amendment and is unconstitutionally vague under the 14th Amendment.

On the latter point, the plaintiffs contend the statute is vague by design to make “educators fearful and uncertain in the performance of their jobs, as well as to drive certain viewpoints and ideas . . . from the marketplace of ideas—all while maintaining a veneer of plausible deniability.” Litigants have raised similar claims in Oklahoma, Ohio, and Florida.

Looking Ahead

We can expect two additional litigation fronts.

First, stakeholders will likely challenge backlash bills for violating federal laws—including Title VI, Title VII, and Title IX—that prohibit discrimination based on race, gender, sexual orientation, and other protected categories. Recent reports out of Florida reveal how this could play out.

After Gov. Ron DeSantis (R) signed Florida’s “Don’t Say Gay” law, news circulated that “LGBTQ teachers ... are being told to take down photos of their same-sex spouses in their classrooms and not to talk about them to students.” If Florida required districts to single out LGBTQ educators for adverse treatment in this way, it would violate federal antidiscrimination law.

It is therefore unsurprising that Florida denied that the new law mandates anti-LGBTQ discrimination. To support this claim, Florida foregrounded the statute’s neutral text, which regulates instruction on “‘gender identity’ and ‘sexual orientation,’ not only instruction on transgender identity and homosexuality.”

Florida’s response illuminates a common duality of backlash bills. Most bills contain neutral text that rehearses standard antidiscrimination norms. And yet, bill proponents levy pointed attacks against social justice concepts and texts.In Florida, the “Don’t Say Gay” law’s neutral language contrasts with overt anti-LGBTQ animus displayed by Florida’s GOP—including the bill’s sponsor.

New Hampshire presents a similar story. State law now mandates that “[n]o pupil in any public school ... shall be taught [or] inculcated ... that an individual should be discriminated against ... solely or partly because of his or her ... gender identity, sexual orientation, [or] race.”

Contrary to this neutral command, the bill’s chief sponsor attacked “diversity training or inclusion training,” denied that systemic racism exists, and compared diversity and inclusion trainers to “snake oil salesmen.”

This duality resurfaces the insight noted above: If we take seriously the text of these laws, most backlash bills—because they mandate neutrality and include basic antidiscrimination mandates—support the very policies their proponents might not like: this includes more anti-racism, more CRT, and more culturally competent pedagogy in the classroom, not less. It may be contrary to common understanding , but anti-CRT lawmakers have been passing pro-CRT laws.

To understand why, it helps to focus on the legal text. As noted above, New Hampshire prohibits inculcating the belief that “an individual should be discriminated against ... solely or partly because of ... gender identity ... race.” The state also prohibits instructing that “one’s ... gender identity, sexual orientation, [or] race ... is inherently superior to people of another ... gender identity, sexual orientation, [or] race.” Other states, including Florida, Georgia, and Texas, have passed laws with similar mandates.

Laws Give Teachers Some Power

Consider the consequences of this language. If we take seriously the text, New Hampshire law grants teachers a right, if not a duty, to explain why racial profiling is never appropriate; to affirm the inherent dignity of Black trans youth; and to condemn inherently racist ideologies like the great replacement theory.

This language would also expose schools to liability for implementing curricula from outfits like Hillsdale College, an openly anti-LGBTQ and anti-antiracist institution. Albeit ironic, Florida’s Department of Education—which recently retained Hillsdale to rewrite its standards and train its teachers—is likely now violating a backlash bill its governor just signed.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jonathan Feingold is an associate professor at Boston University School of Law. He is an expert on affirmative action, education law, and antidiscrimination law, and his research explores the relationship between race, racism, and the law—with a focus on how antidiscrimination law reinforces and reproduces racial hierarchy in America.