Knaves or Fools?

The rash of anti-CRT legislation demonstrates an appalling ignorance of, or indifference to, constitutional protections of speech

By Jiawei Lin and Raymond Yang

Republican lawmakers in more than half of the U.S. states have proposed and in some cases enacted content-based speech regulation in their states’ educational systems—regulation specifically designed to prohibit the teaching of “divisive concepts” found in critical race theory. These lawmakers are either lamentably unfamiliar with free-speech doctrine as embedded in the First Amendment or, worse, are knowingly flirting with unconstitutional aims for short-term political advantage. Either explanation demonstrates that American legislatures are operating in an alarming state.

Over the past year numerous state legislatures have responded to the mainstreaming of critical race theory (CRT) by proposing and in some cases enacting bills aimed at prohibiting the teaching of certain CRT-inspired “divisive concepts” in schools. These developments effectively (if, one hopes, unwittingly) create or strive to create state censorship in America’s educational system. Some of them censor through a narrow targeting of certain kinds of speech. Others do so by targeting only vague concepts, which invites procedural arbitrariness—interpretation and enforcement untethered from and unguided by constitutional principle and instead subject to the prejudices and predilections of whomever happens to wield power at any given moment. Many of the proposed or recently enacted bills (and categorically those aimed at institutions of higher learning) amount to an alarming violation of freedom of speech, as established by the First Amendment, which safeguards against speech laws being decided and modified by the shifting balances of power.

Are the lawmakers advancing these bills fools or knaves? Either they are failing to recognize the proposed legislation’s manifest incompatibility with one of America’s foundational legal tenets, or they’re knowingly floating such unconstitutional proposals, pursuing short-term political advantage through culture-war posturing 

The Rise of Anti–Critical Race Theory Legislation

On September 22, 2020, then President Donald J. Trump issued Executive Order 13950, which aimed to “combat offensive and anti-American race and sex stereotyping and scapegoating” within the U.S. Government. (Exec. Order No. 13950, 85 Fed. Reg. 60, 683 [Sept. 22, 2020]. Revoked by Exec. Order No. 13985, 86 Fed. Reg. 7009 [Jan. 20, 2021].) The order prohibited the teaching of certain “divisive concepts”—a term that loosely captures the common teachings of critical race theory—by the U.S. military, governmental agencies, and federal contractors. Despite or possibly because of its controversial nature, the executive order quickly mobilized some Republican state legislators to follow suit. To date, Republican lawmakers in twenty-two states have proposed legislation that aims to prohibit the same teachings in a school environment, and four other states have adopted similar regulations through their state boards of education. While these bills have commonly been regarded as “anti–critical race theory legislation,” such a label does not clarify the bills’ scope or their sometimes dangerously open-ended wording. 

Defining Critical Race Theory

The term critical race theory generally refers to a theoretical framework, or a set of perspectives, that examines structural and institutional racism, especially in the United States. Yet even within this framework, CRT subscribers can hold very different viewpoints on the operative mechanisms of institutional racism. (Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction 3 [Angela Harris ed., 2012].) As a result, defining CRT in a precise manner is difficult, because the term encompasses a wide range of perspectives. 

In examining the proposed anti-CRT legislation in the numerous states, we will therefore assume the definitions adopted by the lawmakers themselves. Interestingly, most of these definitions are copied verbatim from Executive Order 13950. Specifically, these bills adopted the definition of divisive concepts found in Section 2 (a) of the Order:

“Divisive concepts” means the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating. [85 Fed. Reg. 60 at 685

Variation in language among these bills was relatively minor. While Kentucky, for instance, has added more provisions to further elaborate on the set of “divisive concepts,” Idaho and New Hampshire have removed some items from the definition. Further, states that did not specifically adopt this definition have tended to employ even broader classifications in their bills.

The Constitutionality of Anti-CRT Legislation in Public
Primary and Secondary Schools

While the application of the proposed legislation is controversial, as a matter of law, courts generally recognize that states, under the Tenth Amendment, have broad discretion in setting up public school systems—specifically public schools that provide K–12 education. 

The courts also recognize that states may place substantial limits on a teacher’s speech in the classroom. Mayer v. Monroe County Community School Corp. reflects the power of the government to impose such limitations. (474 F.3d 477 [7th Cir. 2007].) In Mayer, the court emphasized that public school systems do not “regulate” a teacher’s speech; rather, they hire that speech. (Id. at 479.) Students of the K–12 system are a captive audience; that system is compulsory unless parents provide alternative arrangements, such as homeschooling. Thus, given the depth of precedent on this matter, it is generally acknowledged that states have the authority to develop school curricula as they see fit, and the federal government would violate the Constitution if it attempted to establish a nationwide curriculum mandate that overrode state policies.

However, the federal government is not powerless in regulating the states’ school curricula. In fact, it has substantially interfered with the states’ educational programs since the 1960s. Signed into law by President Lyndon B. Johnson in 1965, the Elementary and Secondary Education Act was among the first attempts by the federal government to influence state education curricula by establishing educational objectives. This act has since been updated by the No Child Left Behind (NCLB) Act in 2001 and the Every Student Succeeds Act (ESSA) in 2015. By the time ESSA was enacted, the federal government was able to manipulate the states’ curricula indirectly by emphasizing educational priorities, student testing, teacher qualifications, and “challenging” academic standards. However, these acts operated as a general set of guidelines rather than a detailed set of standards. 

A unified set of federal educational standards first appeared in 2010 as the Common Core State Standards (CCSS), which also served as the primary means of federal intervention into state school curricula. CCSS did not offer any specific curriculum, but it did detail what students were expected to know and be able to accomplish in each subject at each grade level, and it was therefore rather effective in regulating state curricula. To incentivize adoption of CCSS, the federal government under President Barack Obama offered extra federal funding to the participating states. The program reached its peak in 2013, with forty-five states and the District of Columbia having adopted this set of standards. However, the program was short-lived: some states never adopted CCSS, and other states, such as Arizona and Oklahoma, eventually repealed their adoption. (World Population Review. Common Core States 2021. https://worldpopulationreview.com/state-rankings/common-core-states.) Moreover, even though many states still employ CCSS in their schools, the program was officially pronounced “dead” in 2018 by the U.S. Department of Education, which eliminated the monetary incentives and encouraged the states to change these standards as they saw fit. (DeVos, Betsy. Prepared Remarks by U.S. Education Secretary Betsy DeVos to the American Enterprise Institute. Bulletin [Jan. 2018], https://content.govdelivery.com/accounts/USED/bulletins/1d38710.) Hence, the abandonment of CCSS by the federal government lifted some limitations on the states’ curriculum-making powers and likely created an opportunity for these anti-CRT bills to become law.

Even without CCSS, the federal government still reserves some power to intervene in and alter the states’ existing educational frameworks when necessary. This was established by the landmark precedent Brown v. Bd. of Educ., where the Supreme Court ruled that racial segregation in public schools is inherently unequal and thus in violation of the Fourteenth Amendment’s Equal Protection Clause. (347 U.S. 483, 495 [1954].) However, these proposed anti-CRT restrictions in K–12 education are unlikely to amount to an Equal Protection violation, much less a special circumstance warranting this type of federal intervention. The courts will likely uphold the states’ decisions to exclude CRT from their school curricula, assuming that the bills are not otherwise unconstitutional.

The Constitutionality of Anti-CRT Legislation in Public Higher Education

When anti-CRT restrictions target public institutions of higher education, however, courts will likely be quick to strike them down as an infringement of the freedom of speech. In fact, state governments’ extensive authority over school curricula ends with primary and secondary education. It is widely accepted by courts that institutions of higher education have traditionally enjoyed a great degree of autonomy, including the freedom to teach controversial topics. (See Regents of University of California v. Bakke, 438 U.S. 265, 312 [1978], “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment”; see also, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 [1967], “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us …”; see also Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 263 [1957], “[A university has the discretion] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study,” Frankfurter, J., concurring.)

Thus, any attempt by the states to inhibit the teaching of CRT in higher education would be considered “content-based speech regulation.” The Supreme Court has held on numerous occasions that states may regulate the content of constitutionally protected speech only to promote a compelling state interest, and the states must choose the least restrictive means to further that end. (See, for instance, Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 [1989], ruling that the federal government had a compelling interest in restricting obscene commercial telephone messages, but that the restrictions were overbroad and thus unconstitutional.) 

Applying this two-pronged Strict Scrutiny test in evaluating the situation at hand, however, shows that the states’ anti-CRT legislation would fail to withstand such judicial scrutiny. While the states have an interest in fostering traditional American values among their constituents, this is not an interest compelling enough to warrant state censorship of ideas that propose different viewpoints. Nor can the states invoke such compelling interest as the need to suppress imminent social unrest. Currently, no credible research suggests that the teaching of CRT promotes social unrest or causes harm to others. But even were the states to provide such research, they would be able to restrict the teaching of CRT only if they could also prove that the speech entailed in CRT is specifically “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (See Brandenburg v. Ohio, 395 U.S. 444, 447 [1969], holding that Ohio’s criminal syndicalism act was overly broad for failing to consider whether or not advocacy and teaching of a particular idea would actually incite imminent lawless action.)

Furthermore, even if the courts were to find that the states had a compelling interest in restricting the teaching of “divisive concepts,” a total prohibition of such ideas from higher education is hardly the “least restrictive means” in accomplishing that goal. (The least restrictive means, for example, might involve limiting the manner of instruction, such as requiring that classes that teach CRT and related ideologies be elective courses.) Therefore, total prohibition would remain legally impermissible.

The states might argue that their authority to regulate speech in institutions of higher education is consistent with the Supreme Court’s decision in Garcetti v. Ceballos, ruling that statements made by public employees in the course of their specific duties do not enjoy First Amendment protections. (547 U.S. 410, 421 [2006].) However, numerous circuit-court decisions have provided robust First Amendment protections regarding a professor’s speech within his/her classroom, and the Ninth Circuit Court of Appeals even explicitly recognized a teacher-professor categorical exception to Garcetti. (See Demers v. Austin, 746 F.3d 402, 418 [9th Cir. 2014]. See also Meriwether v. Hartop, 992 F.3d 492 [6th Cir. 2021].) Since the Supreme Court has not overturned or qualified these decisions, instructors’ freedom of speech within the classroom and the categorical academic exception to Garcetti proposed by Demers remain good law within their circuits. But this does not mean professors can force students to make particular statements against their personal beliefs. Students in universities are no longer a “captive audience” as they were in Mayer, and they enjoy the full protection offered by the First Amendment. (474 F.3d at 479.) Although no existing case law has involved such a scenario, were a professor to compel students to make certain remarks while teaching a mandatory class, the students could counter that such action is unconstitutional state indoctrination. This is because the academic exception to Garcetti does not grant professors the right to infringe others’ speech. 

Interestingly, states may pose restrictions on public institutions of higher learning in aspects outside of classrooms, such as in mandatory orientations and training programs. The teacher-professor exception carved out of Garcetti and allowing for academic freedom of speech does not extend to the institution itself—a state entity. (See Demers, 746 F.3d at 412.) This dichotomy of protections gives state governments more power to regulate speech made by the institutions’ administrations. 

Although state bills containing explicit and restrictive provisions applicable to classrooms in public institutions of higher learning are blatantly unconstitutional, legislators from six different states—Idaho, Iowa, Louisiana, Missouri, Oklahoma, and Pennsylvania—still decided to add such impermissible provisions to their bills. Louisiana’s failed bill even included a self-evidently contradictory disclaimer that, “Nothing in this Section shall be construed to … [i]nhibit or violate the first amendment rights of students or employees or undermine intellectual freedom and freedom of expression.” (H.B. 564, 2021 Leg., Reg. Sess. [La. 2021].) The legislators’ glaring disregard for free-speech rights raises interesting social and political questions, which will be addressed below.

The Expected Outcomes of Anti-CRT Bills

Most of the existing anti-CRT bills are likely to fail—and have failed—for a simple reason: lack of support. The failure of such bills in Arizona, Louisiana, and South Dakota—states that predominantly support the Republican Party—demonstrates that these proposals struggle to gather the necessary backing to become law even in politically favorable environments. Further, the restrictions proposed by these particular failed bills were not even the most stringent among the proposals. Both Arizona and South Dakota limited their bills’ applications to public primary and secondary schools, and South Dakota’s bill did not even contain an enforcement mechanism that involved monetary penalties—a rather common item among the numerous bills. Their progression through a legislature is hardly an easy task, and bills that gain enough political support to become law are likely those with the least-restrictive provisions. Moreover, even if bills that contained more-restrictive provisions managed to be signed into law, they would quickly face challenges in court. And as mentioned previously, bills that target public higher education are simply indefensible in court for violating the First Amendment’s Free Speech Clause. 

Additionally, some of the definitions of the “divisive concepts” enumerated in Executive Order 13950 were still extremely vague. One such definition mentions prohibiting the teaching that “an individual should be discriminated against … solely or partly because of his or her race or sex.” (Exec. Order No. 13950, Supra, at 685.) At first glance, this definition does not necessarily raise any ambiguity, but it is plausible that a loose interpretation of this provision could lead to bans on the teaching of affirmative action and other reparation programs. In a legal environment, minor technical flaws can be fatal, and in the context of anti-CRT legislation, they will likely encourage overly broad prohibitions that extend beyond CRT, causing collateral damage. 

This issue is even more apparent for states that have modified the divisive concepts definition or come up with their own metrics for their respective bills. For example, Kentucky’s Bill Request No. 60 considerably broadened the definition of divisive concepts to include “[Ideas] promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.” (H.B. 60, 2021 Leg., Reg. Sess., at 4 [Ky. 2021].) But in failing to provide any clear guideline on how to identify ideas that “promote division,” the bill grants enormous discretion to enforcement agencies, which often leads to abusive enforcement and excessive restrictions. Thus, the vagueness of the proposed definitions could lead to further legal challenges and serve as grounds for the courts to strike down these proposals. While courts will try to construe ambiguous language in a piece of legislation to save it against constitutional attack, see, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009), this constitutional avoidance cannot save bills that require a rewrite, see Reno v. American Civil Liberties Union, 521 U.S. 844, 884–85 (1997).

The Broader Social and Political Impacts

The emergence of anti-CRT bills as a legislative phenomenon—especially the blatantly unconstitutional bills discussed above—raises a troubling question: What prompted the state legislators to propose these impermissibly broad restrictions? 

One plausible explanation for the proposing of unconstitutional anti-CRT legislation is simple ignorance of the law: the Republican legislators who sponsored these bills erroneously believed that they had the power to prohibit the teaching of “divisive concepts” in higher education. Even though many citizens would expect their elected representatives to be experts of, or at least knowledgeable about, a given legislature’s powers and limitations, and to respect the boundaries of their delegated authorities, this is not necessarily an accurate assumption. One only needs to win an election to become an elected representative, but this process does not provide any training to prepare the candidates for their responsibilities as lawmakers. Thus, candidates that eventually become legislators are not guaranteed to have a good understanding of legal technicalities or even constitutional doctrines. 

Ignorance of the law does not reflect positively on the legislators’ abilities. But if the unconstitutional provisions were proposed knowingly by the legislators, the issue presented by these bills is even more severe, and a likely explanation for such outrageous conduct would be that these bills were a series of political stunts designed by politicians to earn favor with their constituents. By employing patriotic language and branding a particular set of unpopular ideas “divisive” and “anti-American,” lawmakers can invoke a sense of urgency and looming danger (however spurious) among their constituents. Then, by proposing legislation that thwarts such dangers, they are likely to gain more political support—creating a localized “rally round the flag” effect.

Under this theoretical explanation, the fact that the provisions were unconstitutional is unimportant, because the sponsors of these bills did not intend for the proposals to have any true legislative value. And if the unlawful provisions were to be excised or later struck down by the courts, the sponsors could blame others for the failure to guard against the impending danger. Bills that originally contained impermissible provisions and that have since been substantially modified raise a strong suspicion of such ulterior motive.

Arkansas’s S.B. 627—now known as Act 1100—is a potential example, as the legislative history of this act shows that it was the Republican lawmakers’ second bill on the same subject within five months. Moreover, the original bill—H.B. 1218—proposed a highly restrictive curriculum, including prohibiting the teaching of “divisive concepts” in public schools, public charter schools, and public institutions of higher education that receive state funding. (H.B. 1218, 93rd Gen. Assemb., Reg. Sess., at 2 [Ark. 2021]. Withdrawn on 3/15/21.) These overly broad restrictions were blatantly unconstitutional and had no legislative value, but such flaws did not stop the legislators from sponsoring this bill. 

However, on March 15, 2021, H.B. 1218 was withdrawn from the House without a vote, and two weeks later S.B. 627 was introduced in the Senate. This bill, which was enacted into law, is much tamer than the initial proposal and complies with the U.S. Constitution. The new law is applicable only to “state entities” such as the various departments of the state government, not to schools. (S.B. 627, 93rd Gen. Assemb., Reg. Sess., at 2 [Ark. 2021].) The notable discrepancy between the two proposals’ restrictions raises many questions, but much can probably be ascribed to political—as opposed to legislative—maneuvering

This dubious process can work in reverse as well: bills that originally proposed permissible limitations but have since been retrofitted with prohibited restrictions are equally suspicious. Legislators can attract public attention and achieve political advantage by proposing extreme modifications to existing, more temperate bills. Missouri’s H.B. 952 is potentially one such example. Initially, the bill contained restrictive but constitutional provisions: it proposed prohibiting only the use of the New York Times’ 1619 Project in public schools. (H.B. 952, 101st Gen. Assemb., 1st Reg. Sess. [Mo. 2021]. As introduced on 1/28/21.) Yet on April 28, 2021, three months after its introduction, the bill was modified by the House Committee on General Laws and became much more restrictive. After the modification, the bill sought to restrict the teachings of the 1619 Project, Black Lives Matter at School, the Zinn Education Project, and other related materials in all schools—including higher-education institutions and private schools—within the state’s jurisdiction. (H.B. 952, 101st Gen. Assemb., 1st Reg. Sess. [Mo. 2021]. As modified by the House Committee on General Laws.) Such outrageous provisions are both blatantly unconstitutional and impermissibly broad. Therefore, Missouri’s H.B. 952 has likely become the most egregious bill among the various states’ proposals. 

Proposing unconstitutional legislation for political attention and advantage is unethical, even if explicable given today’s volatile, hyperpartisan environment. Under such circumstances lawmakers have granted swift passage to legislation that would not (and should not) have been well received in stable times.

One example is Texas’s H.B. 3979 and S.B. 3, which expanded and replaced it. Both laws created guidelines for a new school curriculum, including an extensive list of topics and historical documents that the students are expected to understand. (H.B. 3979, 87th Leg., Reg. Sess. [Tex. 2021].) Elements of this comprehensive proposal raised serious controversy. For example, items (1) & (2) under subsection (h-3) posed restrictions on a teacher’s right to discuss a “currently controversial event,” specifying that such discussions must be given without deference to any one perspective. (Id. at §[h-3[[1]&[2].) Numerous Texas educator advocacy groups criticized such provisions as an attempt to distort and prettify history, and the provisions sparked much opposition to the bill while it was pending in the state legislature. (Kate McGee, “Texas Educators Worry Bill Limiting the Teaching of Current Events and Historic Racism Would ‘Whitewash History,’” The Texas Tribune [May 2021], https://www.texastribune.org/2021/05/26/texas-teachers-critical-race-theory-legislature/.) 

Yet despite such resistance, just three short months after its proposal (and, perhaps significantly, in the wake of the contested presidential election and the January 6 attack on the U.S. Capitol), the bill was signed into law by the Texas Governor, on June 15, 2021. The passage of controversial partisan bills such as H.B. 3979 and S. B. 3 would probably be a challenging task in a relatively stable time. The speedy enactment of this bill showed a remarkable level of unity within the Republican party, and the volatile political atmosphere likely contributed to this outcome. That same atmosphere has likely contributed—substantially—to anti-CRT proposals as a legislative phenomenon nationwide. 

Conclusion

While the wave of anti–critical race theory proposals across the nation has been alarming, their ultimate legislative impact has been rather limited due to their overly broad restrictions and blatantly unconstitutional provisions. Despite their limited power and reach, however, these bills are nevertheless deeply troubling. The willing proposal of egregious bills as a legislative phenomenon frustrates good-faith cooperation, poses a direct challenge to a legislature’s integrity, and signifies at best a blithe disregard, and at worst a cynical contempt, for constitutional protections. The rise of anti-CRT legislation likely indicates that extreme legislative actions are the new norm in American politics.

_____

Jiawei Lin is a second year law student at the University of Michigan Law School. Raymond Yang is a second year law student at George Mason University Law School.  Both were legal fellows at the US Free Speech Union in the summer of 2021.