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Laws Aimed at Critical Race Theory May Face Legal Challenges (1)

July 7, 2021, 8:46 AMUpdated: July 7, 2021, 2:24 PM

New laws in GOP-controlled states restricting how teachers and professors can discuss race and racism may be vulnerable to court challenges claiming they violate classroom free speech rights and students’ equal protection guarantees.

The statutes enacted or under consideration in several states often are criticized as vague and overbroad, both First Amendment violations. What educators can teach or discuss with students often is left unclear due to how the bills are worded, say education and constitutional law professors.

“If a law hasn’t put a reasonably intelligent person on notice of what it prohibits, then the law can’t be enforced against a person who doesn’t know what the law prescribes,” said Ronald Krotoszynski, a University of Alabama law professor who’s written about the restrictions’ constitutionality.

The state laws may also be subject to challenge on other grounds, including that lawmakers were motivated by racial animus, and that the prohibitions will disparately impact students of color and violate their rights to equal protection under the law. The latter argument’s strength is up for debate, however.

Any challenges may force courts to resolve the legality of statutes which Republicans have seized upon as politically potent in the run up to the 2022 midterm elections.

Critical Race Theory

The controversy is playing out nationwide, from local school boards to the halls of Congress. But the main focus has been on Republican-dominated state legislatures.

Twelve states, including Texas and New Hampshire, have either enacted or are considering new classroom restrictions as of June 29. Four state boards of education have adopted state-wide measures.

Some laws ban the teaching of critical race theory, an academic framework created by law scholars in the 1970s which argues that racism persists through seemingly race-neutral American laws, policies, and institutions.

Republican lawmakers argue that educators are teaching the concept to sow division and hatred in schools. “The woke class wants to teach kids to hate each other, rather than teaching them how to read, but we will not let them bring nonsense ideology into Florida’s schools,” Florida Gov. Ron DeSantis (R) said in a June statement.

Opponents of the bills say there’s little evidence that it’s being taught in public K-12 classrooms.

Most of the recently proposed legislation prohibits educators from teaching that one race or sex is inherently superior to another; that any individual is inherently racist, sexist, or oppressive because of their race or sex; and that any individual should hold blame for past racism or sexism.

Texas specifically banned teaching about the 1619 Project, a New York Times reporting initiative on the role of slavery in the nation’s founding. But many of the prohibitions on critical race theory provide little guidance to educators about what specifically they’re prohibited from discussing with students.

That makes the laws vulnerable to potential challenge as an unconstitutionally vague imposition on curricular and classroom free speech rights.

“If a law is broad enough that it allows someone discretion to decide who they want to fire and when, then teachers aren’t put on advanced notice of what they can’t do,” said Derek Black, a University of South Carolina education and constitutional law professor. “It’s like they’re at risk of someone’s whim on a daily basis.”

As a result, Black said the laws “will end up having the effect of scaring teachers away from topics and discussions that they do have the freedom to engage in.”

The American Federation of Teachers, the nation’s second-largest teachers union, has a $2.5 million defense fund to challenge the measures passed so far and is “preparing for litigation as we speak,” President Randi Weingarten said Tuesday in a speech.

“Mark my words: Our union will defend any member who gets in trouble for teaching honest history,” Weingarten said.

Protective Language

Some of the laws contain language designed to protect against legal challenge, including Iowa’s that states it doesn’t “violate the First Amendment rights of students or faculty” or “intellectual freedom and free expression.”

This may instruct a court to side with educators but Krotoszynski says the potential for First Amendment challenge remains nonetheless: “one could characterize the subtext as being ‘if in doubt, then leave it out.’”

Oklahoma’s education commissioner promised further guidance to teachers on what they can teach under their new state law by Aug. 1. The guidance will inform the evaluation process for complaints filed against teachers, though the law went into effect July 1.

Classroom Speech Limits

Supporters of the law argue that public school teachers don’t have the same free speech rights inside classrooms as they do as private citizens.

“Teachers absolutely do not have a First Amendment right to teach whatever they want in their classrooms,” according to a toolkit circulated by the Center for Renewing America, a conservative advocacy group that’s supporting efforts to enact the laws.

The Supreme Court ruled in favor of broad academic freedom for college professors in a 1976 decision which called the college classroom the “marketplace of ideas” and struck down a New York prohibition on teaching “subversive” doctrines, which at the time was aimed at communism.

K-12 teachers don’t have the same discretion to decide what to teach. “We don’t have a Supreme Court precedent on this, so depending on the jurisdiction the teacher is in, the teacher may not have so much leeway,” said Suzanne Eckes, an education professor at Indiana University-Bloomington.

States provide overarching curricular direction for school districts to follow, and districts, schools, and teachers are allowed liberties where gaps remain.

“Academic freedom exists in the spaces in which the individual who has hired you to teach has left gaps open,” said Black. Nevertheless, a broadly worded critical race theory law could still be subject to a vagueness challenge if it doesn’t define what’s prohibited conduct.

Racial Animus Motivations

The laws could also be subject to a 14th Amendment racial animus challenge which asserts a racially discriminatory intent in how a law or policy is enacted or enforced. This kind of case requires an examination of bill sponsors’ public statements, among other evidence.

A model for such a challenge is Gonzalez v. Douglas, a case against an Arizona law banning ethnic studies education, law experts say. A Republican state superintendent of public education advocated for the law, which targeted a Mexican-American ethnic studies program in the Tucson school district.

An Arizona federal judge found in 2017 that the law was passed with racial discriminatory intent based on the superintendent’s online and verbal statements.

“It depends on the context in which the law is implemented,” said Jason Walta, deputy general counsel at the National Education Association. “In the case, they looked at statements from the chief proponents of the law, both in the context of its passage, election campaign statements, and statements made in school board meetings.”

The disparate impact of eliminating the ethnic studies program on the Tucson district’s majority-Latino student body was also considered by the federal judge. Researchers found that the program improved the academic achievements of these students.

Krotoszynski says that the recent restrictions will also disparately impact students of color. In Florida, where the state board of education adopted a state-wide measure, at least 63% of students identify as non-white.

This argument, and 14th Amendment equal protection challenges generally, may prove unconvincing, particularly should such a case reach the current conservative-dominated Supreme Court.

“Certainly during the Warren Court era, the Court was much more generous when it came to equal protection arguments, but I’m skeptical that that kind of argument would succeed,” said Wayne Batchis, a University of Delaware professor of political science and constitutional law.

(Updates with speech by AFT President Randi Weingarten)

To contact the reporter on this story: Tiana Headley at

To contact the editors responsible for this story: Seth Stern at