13 Important Points in the Campus & K-12 ‘Critical Race Theory’ Debate

After many, many requests for my thinking1 on the topic of bills that seek to regulate teaching of concepts related to race and gender (and facile accusations that by not commenting, I have revealed I am on the wrong side!), I have decided to hammer down my thoughts into these 13 points. Note that while the bills are popularly known as “anti-critical race theory” bills, that’s a misnomer I’ll address below. Instead, I’m calling them “divisive concepts” bills, which better captures what they seek to regulate.

Caveat: Some of what I discuss below, primarily issues relating to K-12 education, is beyond FIRE’s purview, which is limited to America’s colleges and universities, and accordingly — as per usual at ERI — what I say is my opinion and not an official FIRE position.

1. There are dozens of these bills, with possibly hundreds of amendments. 

As you may have noticed, there are a lot of these bills. It would take a law review article or book to achieve perfect specificity and comprehensiveness in addressing each of them. Indeed, there are so many that it has made discussion of the bills difficult, with some being clearly unconstitutional, while a few others essentially reiterate existing racial discrimination law and seek to ban the kind of compelled ideological speech that is already prohibited under the First Amendment.

The sheer volume of proposed legislation has created a situation where activists on either side accuse opponents of hypocrisy for not offering a quick opinion on new bills, when it would be close to impossible for most average people to survey the whole landscape. Even this blog entry — some 5,000 words long — will only cover broad trends and common features of the “divisive concepts” bills.

2. Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture.

We’ve opposed higher ed bills that would bar points of view from the classroom loudly and often (for example, see hereherehereherehere, and especially legislative counsel Tyler Coward’s roundup of these bills, here) for the same reasons we have opposed speech codes: The unfettered exchange of ideas is essential to the purpose of a university in a free society.

The inherent legal defect of divisive concepts bills in higher education that contain prohibitions or conditions on classroom speech is that they are, by their nature, an attempt to discriminate against a viewpoint. To the extent that classroom expression of those viewpoints might tread on other rights (which we’ll explore further below), those abuses would generally already be prohibited by existing law. And even if the new law managed to avoid imposing orthodoxy directly, the chilling effect on academic freedom and professors’ free speech would render them unconstitutional.

Some of these bills impacting higher education are close to the line of banning in-class expression, while others, including Pennsylvania HB 1532 (which FIRE will be writing more about in the coming days), are egregiously unconstitutional, banning all instruction about “racist” concepts and banning campuses from hosting speakers who espouse any “racist” or “sexist” concepts.

Universities are places where ideas, even wrong ones — especially wrong ones, in fact — find their place on what I call Mill’s Trident. For the project of human knowledge to advance, nothing should be completely off limits in the crucible of higher education. Those who genuinely believe the ideas addressed in these bills to be indefensible should encourage them to be tested in that crucible, not protect those ideas from potentially devastating analysis by exiling them from the institutions dedicated to that inquiry.

If bills that restrict concepts from being taught in universities are passed and signed, they will rightfully face legal challenges and almost certainly be struck down.

But that’s higher education. K-12 is another story.

3. Students’ rights to free expression and freedom of conscience should be the first priority in the K-12 context, and public K-12 students should be afforded greater recognition of their First Amendment rights.

The Supreme Court recognized that K-12 students have free speech rights in the landmark decision of Tinker v. Des Moines. Unfortunately, since then, the Supreme Court has chipped away at those rights in decisions like Bethel v. Fraser (restraining vulgarity), Hazelwood v. Kuhlmeier (limiting school-sponsored curricular speech), and Morse v. Frederick (limiting potentially pro-drug speech).

We at FIRE think the free speech rights of high school students have been eroded too much, and we said so in our amicus curiae brief in the recently-decided case of Mahanoy Area School District v. B.L.. In Mahanoy, a cheerleader who sent an f-word laden Snapchat to express her frustration with not making the varsity squad (on a weekend, away from school grounds) was suspended from cheerleading for a year.

As FIRE wrote in that brief (citations omitted):

If public grade school administrators may surveil and punish off campus student expression far beyond the schoolhouse gate, a generation of Americans will be taught a corrosive, illiberal lesson about the illusory value of their constitutional freedoms. Their experiences with our public schools will “influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities.” Because “[t]his influence is crucial to the continued good health of a democracy,” student experiences with our public schools must not include government censorship and surveillance.

FIRE was pleased that the student’s rights were vindicated Wednesday by an 8-1 Supreme Court decision (which you can listen to on our Free Speech Out Loud series) affirming that the school had violated her First Amendment rights. In his concurring opinion in the case, Justice Alito meditates extensively on why the First Amendment allows any restrictions on K-12 students at all, concluding it is due to the school’s in loco parentis role. Why then, he asks, do public K-12 students have free speech rights that their private school counterparts do not? Due to the fact that their attendance is compulsory, rather than consensual. More on this later.

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