School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans

By Dylan Saul. Full Text.

In 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the country, and nearly twenty state legislatures have considered or enacted bans on teaching CRT in K–12 public schools.

The problem is, CRT—a legal academic theory contending that American laws and institutions are systemically racist—is not actually being taught in K–12 schools. Anti-CRT crusaders, nevertheless, have primed the American public to equate CRT with perceived anti-white bias. CRT, these activists allege, is being used to indoctrinate school children into hating the United States and feeling discomfort over their own race. The state-level CRT bans, accordingly, prohibit teaching that an individual can be “unconsciously” or “inherently” racist, that an individual “bears responsibility” for racist acts committed in the past, or that an individual should feel “discomfort” on account of their race.

Although the CRT bans’ language is facially neutral, it has caused widespread confusion over what subjects can and cannot be taught. Educators allege that CRT bans’ true purpose is to create a “chilling effect” designed to discourage all classroom conversations about systemic racism. Political reporting further suggests that CRT bans were enacted primarily to drum up grassroots support for conservative politicians, rather than to protect schoolchildren. This Note argues that, to the extent that CRT bans further politicians’ careers at the expense of students learning about systemic racism throughout American history, they can and should be challenged in court.

Drawing on comparisons to analogous caselaw concerning bans on ethnic studies curricula, this Note advances a novel three-part First Amendment argument to defeat CRT bans. First, a long line of Supreme Court precedent establishes that while local governments have broad discretion to set public school curricula, students’ “right to receive information” cannot be infringed without a “legitimate pedagogical concern.” Second, this Note resolves a longstanding Circuit split in favor of requiring public school teachers to remain viewpoint neutral, and demonstrates that CRT bans clearly discriminate based on viewpoint by adopting a whitewashed view of American history. Third, because CRT bans prevent teachers from leading viewpoint-neutral classroom conversations about systemic racism that might cause “discomfort,” all for a political instead of a pedagogical purpose, students have standing to challenge the CRT bans as a violation of the First Amendment.

Although ultimately pessimistic about judges’ willingness to invalidate the democratically-enacted CRT bans, this Note concludes that the bans do deprive students of their First Amendment rights, and therefore must be challenged in federal court.