An Analysis of Anti-CRT Laws Applied to Educators

Several states have recently passed laws that restrict the teaching of what they consider to be tenets of Critical Race Theory (CRT).  Eight states, Arizona, Idaho, Iowa, New Hampshire, Oklahoma, South Carolina, Tennessee, and Texas passed laws in the 2021 legislative session that either prohibit the teachings of such tenets and/or prohibit teachers and students from being forced to attend trainings which involve these topics. Many other states, mainly in states with Republican-controlled legislatures, have introduced similar bills for the 2022 session.  The purpose of this post is to discuss what impact these laws have on you as a teacher. In this post, I will discuss the similarities and differences between the laws, what the laws actually prohibit, gray areas of the laws, and their likely fate when challenged in court.  

Core Focus of Anti-CRT Laws

An Education Week investigation revealed that the various bills create five distinct categories of exclusions (I added the final sixth one):

• “Divisive” or “racist or sexist” concepts: Bans on teaching all or some of the concepts identified in President Trump’s executive order prohibiting diversity training in federal agencies (these are present to some degree in all the bills except Idaho’s);
• Other rules related to discussing identity: Proposals that restrict making race, gender, or other social identities salient in some way, but don’t use the language from the executive order (this is exclusive to Idaho which specifies only that students should not be compelled to “affirm, adopt, or adhere to” any of three objectionable tenets);
• Banning “action civics”: Language that prohibits students from participating in advocacy for course credit (Ohio’s proposed law would go so far as to deny credit that would count towards graduation) and limits how teachers can talk about current events (the law in Texas and Ohio’s proposed law require that teachers cannot be compelled to teach current events, but if they do so, must be balanced in their approach); 
• Curriculum transparency: Proposals that would require schools to publicly list the materials that teachers use on school websites; 
• Prohibitions against teachers showing bias: Language that states teachers can’t show political or partisan bias in the classroom;
• Prohibitions on compelled trainings of students or teachers which include the aforementioned divisive concepts. 

Most of the laws adopted by states so far spell out the various tenets of CRT they object to. Oklahoma’s law is illustrative. It states that no school shall require or make part of a course the following concepts: 

a. one race or sex is inherently superior to another race or sex,

b. an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,

c. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,

d. members of one race or sex cannot and should not attempt to treat others without respect to race or sex,

e. an individual’s moral character is necessarily determined by his or her race or sex,

f. 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,

g. any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or

h. meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race. Ok. Stat. §70-24-157(B)(1).

The vast majority of these anti-CRT bills use virtually identical language in describing these “divisive” concepts.  As Education Week reported, this is because a “complex web” of conservative groups is responsible for drafting the model legislation that inspired most of these bills.  I would also note that journalist Christopher Rufo, who was responsible for initially sounding the alarm about CRT with conservative media, was consulted by the White House and state legislatures about the drafting of legislation as well. According to Education Week, President Trump’s September 2020 executive order, banning certain types of diversity training in federal agencies, is the origin of the language concerning these disfavored tenets (the order was revoked by President Biden immediately upon him taking office). In that order, Trump singled out nine ideas he deemed divisive that should be excluded from such trainings. It was these ideas that made their way almost verbatim into the anti-CRT laws. 

Interestingly, only a few of these divisive concepts could be labeled as being actual tenets of Critical Race Theory. Advocates of CRT do not endorse one race as being superior to another, that individuals are inherently racist (although they assert that individuals may need to become aware of any implicit biases they may hold before becoming true anti-racists), or that their moral character is determined by their race. Some of the core tenets of CRT like systemic racism (that U.S. social and governmental institutions are imbedded with racism and need to be reconstructed), racism is not biologically based but is socially constructed, and that the United States perpetuates a caste system based on race that keeps African Americans at or near the bottom are not mentioned in Trump’s order. 

One Memphis teacher quite astutely observed that the statutory language of anti-CRT laws doesn’t actually prevent the teaching of Critical Race Theory:

I don’t see how this bill actually bans anything I would want to do. This says that we should not teach that America is inherently racist or that people are inherently anything because of their race. I don’t see how this bans critical race theory. The rhetoric behind the bill is horrible, but the wording doesn’t seem to prevent me from teaching that redlining is racist, or many cops treat black people worse than white people. — Michael Pleasants, substitute teacher, Georgian Hills Middle School, Memphis.

I think this sort of imprecise statutory drafting resulted from a rushed legislative process, having a conservative interest group or “statute mill” draft the proposed legislation, and from having a journalist, who has no formal legal training, consult on much of the included language. The end result was a set of laws that one former Idaho Supreme Court Justice described as being thrown together in “haphazard fashion.”

Differences Among the Bills

While the language of these anti-CRT bills is often similar, there are some noticeable differences.  For example, Idaho’s law only forbids a school from compelling a student to “personally affirm, adopt, or adhere to” the tenets often found in Critical Race Theory or from creating instruction or unit of study that directs or otherwise compels students to do the same. Under Idaho’s law, teachers would still be able to discuss the tenets of CRT and include materials that touch on them as long as they present the opposing point of view and do not compel students to adhere to or affirm the tenets. In other words, a discussion on the issue of slavery reparations would be allowed as long as both sides of the issue were presented, but an assignment that required students to acknowledge reparations necessary would not be. 

By contrast, most of the other state laws, like those is Oklahoma and Texas, expressly prohibit teachers from assigning, discussing or making part of the course any divisive concept, at least as it relates to certain issues of race and racism. For example, it would likely be unlawful for a teacher in one of these states to initiate a discussion or create an assignment that includes the topic of implicit racial bias or casts America as an inherently racist country (this concept is a veiled reference to the “Idea of America” essay contained in the “1619 Project”).  

A couple of states (Texas and Ohio’s proposed law) would even prohibit schools from compelling teachers to discuss current events or controversial topics in their classes. Taken to its logical extreme, this would mean that a social studies teacher could not be assigned to teach a Contemporary Issues class without their consent, or if they were, allow them to refrain from discussing current events within that class. Such a “conscientious objection” would seem to entirely defeat the purpose of the class.  

Reaction to the Anti-CRT Laws

While these laws are a gross over-reaction to the perceived problem of instructor bias, the reaction to them has been at times illogical. The immediate response to the laws by many liberal commentators has been to assail them as the “whitewashing of history.”  For example, a recent MSNBC headline read: “GOP Pushing Bill to Ban Teaching History of Slavery.” One Tennessee teacher commented after the passage of his state’s anti-CRT law that anything touching race and racism would now be off limits: 

The Republican Party has focused on ‘cancel culture’ quite a bit recently, but this bill is its own form of ‘cancel culture’ that goes entirely too far. History teachers cannot adequately teach about the Trail of Tears, the Civil War, and the Civil Rights Movement. English teachers will have to avoid teaching almost any text by an African American author because many of them mention racism to various extents. Even classics written by white authors like ‘To Kill a Mockingbird’ and ‘Huckleberry Finn’ will now be off limits. — Mike Stein, English and English as a second language teacher at Coffee County High School, Manchester.

Such scare tactics are pure hyperbole and evidence a basic misunderstanding of the purpose of the laws. Many of the laws specifically state that they are not intended to prevent the teaching of racial oppression or racism, and that certain aspects of history such as slavery, the Trail of Tears, and the Civil Rights movement should still be taught. Texas goes so far as to even specify in its law a litany of topics and writings that should remain in the curriculum, including those of Ona Judge, Frederick Douglass, and Martin Luther King.  

Some commentators have also objected to the inclusion of balance requirements for discussions of current events or controversial subjects. They contend these laws would require educators to present repudiated theories such as the positive aspects of slavery, “scientific” basis for racism, or Holocaust deniers. The lawmakers who passed these statutes would argue this is utter nonsense. The requirement for balance under these laws only applies to discussions of controversial issues. Although not defined in the law itself, the word controversial is commonly defined as “giving rise or likely to give rise to public disagreement.” There is no serious debate today about the evils of slavery, the lack of a biological foundation for racism, or that the Holocaust was perpetrated by the Nazis. As such, none of these topics would meet the definition of controversial. However, as discussed below, the laws are still potentially overbroad and vague.

Constitutionality of Anti-CRT Laws

The ACLU and other civil rights organizations already have these laws in their crosshairs. This means that lawsuits challenging them as being violative of the First Amendment are almost assuredly soon to follow. The constitutionality of many of these anti-CRT laws is dubious. There are two possible arguments to be made against anti-CRT laws. The first is that the First Amendment protects against stripping teachers of their academic freedom.  Since some state laws apply both to higher education and K-12 schools, this argument is particularly powerful in the context of higher education. The Supreme Court has protected the academic freedom of university professors in the past against similar incursions. This argument would likely fail in the K-12 context, however, as the Supreme Court has not been hesitant to restrict the scope of the First Amendment in the K-12 arena in recent years due to the special administrative concerns of running a school. For example, schools can impose dress codes or censor newspapers (actions that restrict students’ First Amendment rights) as long as they can identify some legitimate pedagogical reason for doing so. More importantly, unlike college professors, primary and secondary teachers’ right to academic freedom is more limited. States and local school boards routinely bar the use in the classroom of obscene or sexually suggestive material, material that could be considered religious indoctrination, or the use of material that would discriminate on the basis of sex, race, national origin, religion, and sexual orientation. 

Any law restricting freedom of speech would also have to survive an overbreadth or vagueness challenge. This essentially means that the law cannot be so broad or unclear that the teachers or administrators it restricts would not be able to accurately predict when they are violating the law. This argument is a far stronger one for opponents of anti-CRT laws. 

For example, if a state banned the teaching of any material that suggests that “an individual should be discriminated against or receive adverse treatment solely or partly because of the individual’s race,” would that include the topic of affirmative action? Would it now be unlawful in a state with such a restriction to discuss the ongoing need for affirmative action or the Supreme Court cases that touch on it?  There is certainly a valid argument to be made that it would since certain groups (Whites and Asians) are arguably discriminated against on the basis of their race under affirmative action programs to promote the admission, hiring, or promotion of individuals of other races. Similarly, would it violate the prohibition against teaching that individuals should bear responsibility for actions committed in the past by other members of the same race or sex if a Contemporary Issues teacher decided to hold a seminar on the issue of reparations for slavery? The answer is unclear. The situation certainly seems like it would fall under the prohibition, but may not, especially if the teacher presented both sides of the issue equally and in an unbiased manner. 

Memphis law professor Steve Mulroy is wary of the confusion that these types of laws could cause: “The problem is teachers aren’t lawyers. Teachers don’t have time to parse the language of the statute and take the risk that their interpretation is the same as that of an administrator or the General Assembly or the commissioner of education, so the inevitable effect would be to have a chilling effect on teachers.” Given these issues, there is a strong argument to be made that these laws are overbroad and vague. 

What is the Proper Response to Bias in the Classroom?

Regardless of the legality of anti-CRT laws, I think it is fair to ask whether they are an appropriate response to the perceived problem of bias in the classroom.  Certainly, these type of laws subject conservative Republicans to charges of being hypocritical.  How could the same person argue for robust freedom of speech by railing against cancel culture, and then turn around and cancel advocates of CRT? Law Professor Aziz Huq believes that either position is antithetical to the First Amendment:

The idea that audience discomfort provides a justification for censorship. . .is at profound odds with our free speech tradition. The case against CRT shows why: Because it turns on how an audience feels, this argument for speech bans has an indefinite, elastic quality, one that accommodates an endlessly voracious appetite for censoriousness. One of the lessons of the CRT debate, indeed, is that offense can and is taken at indubitably true facts. In many educational contexts, this would mean that either side of a hot-button issue would have the right to shut the other down.

If we were to sit down privately, one-on-one, with many of these legislators who voted for anti-CRT bills, I think they would admit that their issue is not so much with Critical Race Theory being taught (it very rarely is taught directly) as it is with what they perceive to be a bias in education that favors a liberal/Progressive perspective on the issues of race and racism. In an effort to seem responsive to the cries of minorities of prejudice and injustice after protests engulfed many major cities in the wake of the deaths of Michael Brown, George Floyd, and others at the hands of White police officers, many school districts have instituted programs that have parroted the rhetoric of the Progressive cause hook, line, and sinker to the exclusion of more conservative theories. To wit, many school districts have adopted the 1619 Project’s curriculum and its central thesis that slavery and racism are the root causes of the ills that afflict Black America. Teachers have begun incorporating lessons on social justice into their classes. Many of these same teachers instruct their students that true equality cannot be achieved in the United States without eradicating the systemic racism that permeates all major social and governmental institutions. Some schools have even engaged their students in trainings that separate the students by race and focus their efforts at heightening their awareness of oppression and implicit bias. 

A comment by one Nashville educator responding to the recent passage of Tennessee’s anti-CRT law sums up this trend well: “It will make it harder for me in the classroom as most of my students face racism and discrimination in this country. Good teachers should be teaching the truth, which is that every system in the U.S. is built on racism and white supremacy.”— Travis Vaughn, math teacher at LEAD Southeast High School, Nashville. 

The problem with this statement is that it assumes that every system in the U.S. is built on racism and white supremacy. However, this is not a hard and fast truth, but rather one theory of many that attempt to explain the causes of the disparities in health, education, and welfare that many members of minority communities experience.  To teach it, or any other social science theory, to the exclusion of others does a disservice to our students. We want to produce critical thinkers, not simpletons who can merely regurgitate the pablum they read on social media. 

Too many commentators, educators, and teachers’ unions have dismissed out of hand the concerns raised by parents, conservative pundits, and legislators that were at the heart of these anti-CRT laws. They scoff at them as feeble attempts to legislate against a problem that doesn’t exist. They proclaim that such laws are indicative of the continuing culture wars that right-wing Republicans are still trying to win in the face of mounting pressure from immigrant and minority communities. In other words, their concerns over CRT are simply smoke screens for their true motive which is to hold onto their White privilege and power. While these charges may ultimately prove to be true (or false), such charges do nothing to respond to legitimate criticism that instruction on these topics is often biased. 

What then should legislators have done to correct the problem? The appropriate response, in my mind, would have been to require more objectivity and balance in the classroom. But a measured approach doesn’t sell on election day or engender moral outrage. It’s left up to us as educators to fix the problem. 

So, while we wait for the courts to sort out the mess state legislators have wrought, my advice is simple: continue to teach the issues surrounding race and racism in your classroom but err on the side of balance.  Avoid any explicit references to ideas or theories that would clearly fall under the prohibited divisive concepts. And finally, strive to be educators, not proselytizers.