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Lawsuits over bans on teaching critical race theory are coming – here’s what won’t work, and what might

Republican politicians have championed legislation to limit the teaching of material exploring how race and racism influence American politics, culture and law. (AP Photo/Mary Altaffer, File )

As states and school districts started threatening teachers with disciplinary action for teaching about systemic racism, the question naturally arose: Does this violate the teachers’ First Amendment rights?

The First Amendment protects free speech against government punishment, outside of something as extreme as a threat of violence. A school district is a government agency. So anyone punished by a school district for nonthreatening speech seems to have the makings of a First Amendment case.

But from years of teaching and researching First Amendment case law, I know that this is where things get complicated.

Public school teachers are government employees. And thanks to a much-disputed Supreme Court decision from 15 years ago, government employees, including teachers, surrender quite a bit of free-speech protection when they clock into work.

Whether K-12 educators have any legally protected right to choose how and what to teach is sure to be tested soon, now that the furor over teaching kids about race and racism has reached a boiling point in communities across the country.

Arizona Gov. Doug Ducey in a black blazer and green tie in front of a microphone.

Arizona Gov. Doug Ducey signed a bill on July 9, 2021, prohibiting the teaching of critical race theory in public schools. (AP Photo/Ross D. Franklin, File)

When workers sign in, rights – mostly – sign out

In recent months, right-wing media has fixated on “critical race theory” – a field of inquiry about the impact of racism baked into criminal justice and other powerful institutions that is taught almost solely at the law school level. The phrase has been distorted into an “anti-white” conspiracy by the forces of “wokeness” to brainwash schoolchildren.

Surfing this wave of media-created rage, seven states have banned mentioning specified race-related topics in the classroom. Some 20 other states are considering it.

Arizona’s newly enacted ban, signed into law on July 9, is typical of those popping up around the country. It imposes penalties, from suspension of a state teaching license up to permanent revocation, for anyone caught teaching certain taboo concepts.

The banned list includes teaching that anyone should “feel discomfort, guilt, anguish, or any other form of psychological distress” on account of race or ethnicity, or that “meritocracy” or “a hard work ethic” are concepts created to oppress people of particular races or ethnicities.

Normally, once a state sets the rules for acceptable on-the-job speech, public employees have no choice but to comply. That’s a product of the U.S. Supreme Court’s 2006 Garcetti ruling, in which the justices said government employees can’t rely on the First Amendment if they’re punished for on-duty speech that is part of an official work assignment.

Teaching is an official work assignment. So the First Amendment seems unlikely to rescue a teacher fired for teaching a forbidden subject.

More rights in higher education

At the college level, federal judges have given professors a bit of extra legal protection to teach and write without fear of retaliation. The Garcetti rule does not apply with full strength on college campuses, federal courts say, because the principle of “academic freedom” allows professors to explore edgy topics that push the boundaries of students’ comfort zones.

The likely explanation for why judges have hesitated to extend that same level of autonomy to K-12 teachers is that curriculum decisions are more standardized in public schools than in college.

A professor at one state university is free to teach history differently from a professor at a sister university in the same state. But K-12 curriculum has long been dictated by state and local school boards, so that American history is supposed to look more or less the same from one classroom to another.

Judges are reluctant to substitute their judgment for the – presumed – expertise of those school board members.

An excerpt from a recent Texas Senate debate on the teaching of critical race theory.

The right to receive information

Still, it’s possible to win a constitutional challenge to a curricular decision – if you are a student. A decade ago, students in Arizona devised a roadmap for successfully challenging racially motivated restraints on what schools can teach.

In 2010, conservative Arizona lawmakers, irked by the Tucson school district’s course in Mexican-American history, passed a law banning “ethnic studies” in public schools.

A Tucson school administrator, 10 teachers and two students sued to challenge the forced cancellation of Mexican-American studies.

But a federal judge decided that only the students, not the school employees, had a viable claim. It wasn’t clear that teachers or administrators had a constitutional right to offer particular courses.

But it was clear that students had a right to receive information, which couldn’t be taken away for a discriminatory reason.

“Students,” Judge A. Wallace Tashima wrote, “have a First Amendment right to receive information and ideas … a right that applies in the context of school curriculum design.”

After multiple trials and appeals, a federal judge ruled in 2017 that the ban indeed violated the students’ rights, because it lacked any legitimate educational basis.

Will the Constitution fail teachers?

Are teachers entirely out of luck if they’re fired for what they teach? Not necessarily. Their speech might end up being constitutionally protected – just not by the First Amendment.

The 14th Amendment curbs the authority of state and local governments to take away any benefit or privilege, including a job at a public school, for an arbitrary reason.

Legally, this is known as a “due process” claim, and here’s how it works.

Let’s say you are driving down the highway, sipping from a Starbucks cup. A state trooper pulls you over and issues you a ticket for violating the state law that requires hands-free cellphone calls. When you protest that a coffee cup isn’t a cellphone, the trooper responds, “Well, you should’ve known that drinking coffee is just as bad as talking on the phone.”

That’s a due process problem. Nothing in the cellphone law put you on notice not to drink coffee.

Due process, I believe, not the First Amendment, will be the strongest argument for teachers who are intimidated by vaguely worded restrictions on what they can teach.

Tennessee, for instance, just enacted a sweeping new law that prohibits using classroom materials promoting “division” or “resentment” among people of different races or ethnicities.

Does that make it a firing offense to assign Richard Wright’s classic novel “Native Son,” which deals bluntly with themes of hopelessness among young Black men confronting societal limits on their opportunities?

If the answer to that question is “nobody knows,” that’s a constitutional red flag.

Regardless of who sues and when, the federal courts eventually will have the last word on how heavily state policymakers can dictate what teachers teach.

[Understand what’s going on in Washington. Sign up for The Conversation’s Politics Weekly.]The Conversation

Frank LoMonte, Director of the Brechner Center for Freedom of Information, University of Florida

This article is republished from The Conversation under a Creative Commons license. Read the original article.

9 comments

Michael McGuire July 25, 2021 at 5:38 pm

Not buying it. I have spent nearly half my career as an expert witness and I understand firsthand that attorneys frame their argument(s) to favor their client – as in half the truth is presented, and only half the truth. Mr. LoMonte is arguing with half the truth.

The fight nationally is not about teachers having the right to teach what they want. It’s much more about parents from all over the nation and from all walks of life, sharing a common concern that school boards have been quietly allowing CRT based teachings into the school curriculum. Enough data has come to light that a CRT based curriculum teaches a student ‘what to think’ instead of how to ‘critically think’.

We all heard the talking heads on mainstream media drone on over the past several years about CRT, white supremacy, systemic racism, the heroes of BLM, Defund the police etc.

Today we have our leading national law enforcement arms claiming white supremacy is the nation’s greatest threat since the Civil War. Does anyone know a white supremist? Even our elected officials in congress make blatantly racist claims that they would not vote for a Biden appointment if they were “White Men”.

Only when polling has shown how unproductive this narrative has become did the progressive left, in lockstep, shift the narrative to: CRT is an obscure law-school level study. Sidebar – you have to give them credit for having such centralized control.

CRT is a theory and needs to stand its ground in the harsh light of free speech and common sense without support from the mainstream media and institutionalized thuggery.

I believe Norwalk schools are moving this way with the reorganization of the BOE. People need to understand that Equity (a key component of CRT) is biased and bestows frightening powers to those who decide what is Equitable. No one should ever be given that type of power.

So Mr. LoMonte – let’s see how these pending tests of CRT fair in the open when both sides are heard.

George July 25, 2021 at 10:36 pm

Other than teaching ACTUAL U.S. and world fact based HISTORY all political views of teachers and administrators must be left out of classrooms. End of story, no questions asked!

John Levin July 26, 2021 at 9:58 am

The level of willful ignorance, mendacious denial and myopic tribalism that goes with the current right wing campaign of factitious outrage over “critical race theory” leaves me astonished and profoundly sad. A useful first step might be individuals committing to dialogue with people outside their own social silo.

Seve July 26, 2021 at 1:05 pm

John Levin calls infers that if one is against CRT he is willfully ignorant, is in mendacious denial and guilty of myopic tribalism myopic tribalism. But actually CRT promotes tribalism by dividing people by race. It is not inherently right-wing or left-wing to be against this pollution of the mind. It is just common sense. At the end of the day, the community should decide what is taught to its children NOT some agenda-driven political class.

Michael McGuire July 26, 2021 at 5:02 pm

Seve- well said.

John – hardly an invitation to open discussion. But I’ll take the bait. What is your take on Equity……am I wrong?

Nancy Guenther Chapman July 26, 2021 at 9:06 pm

Sue, I cannot post stories from Politico. The Conversation is a nonprofit and offers its articles under a Creative Commons license. I would be violating Politico’s copyright if I posted their articles.

Stuart Garrelick July 27, 2021 at 1:10 pm

I have heard differing definitions of CRT, some of which I agree with and some not so much. Can we define what we are talking about?

Tom Belmont August 17, 2021 at 3:31 pm

CRT is derived from CT. CT is defined in “scholarly papers” as a method of dividing “classes” of people. classes of people is described in the Communist Manifesto to incite social unrest, division, and revolution. CRT divides people by race. Teaching CRT in public schools is directed by the federal government. It’s MO is to overturn the Constitution and Bill of Rights and capture power and wealth to those “intellectual elite rulers” known as American Marxists. Their MO flies in the face of Constitutional law and negates the Individual Liberties found in our Bill of Rights. To combat that futile effort to find a utopian society and conjoined utopian world society by the elite American Marxist s,we the People, in order to save the existing union, must join together ,without regard to political party, from grassroots up and abolish this threat of tyranny as was done 1776, so that government of the people, for the people, by the people shall not perish from the earth. Yet, CRT is but one frontal assault wielded upon the Founding of the United States and it’s free market economy by the Radical American Marxists.

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