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Fighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools

By Joshua Gutzmann. Full Text.

Fox News mentioned critical race theory (CRT) more than 1,900 times from April to mid-July of 2021, marking CRT as a new focus of Republicans and conservative donors and sparking a movement to ban teaching of the theory in schools. Nine states have already passed legislation intended to ban the teaching of CRT, and nineteen states are considering similar legislation. The state school boards in four additional states have introduced new guidelines prohibiting race-related discussions; and, by some counts, as many as twenty-four other states have seen some kind of effort to restrict education on racism, bias, or the history of some ethnic or racial groups. Several local school boards have adopted their own bans, and federal bills have been introduced as well. Most of the legislation passed and proposed mirrors language contained in an executive order by former-President Trump that attempted to ban specific concepts that many conservatives believe are being taught by radical leftist teachers. Though this order has been partially struck down by a federal court as unconstitutionally vague, the state legislation remains.

This Essay begins by surveying the new legislation and describing the common features among each state’s CRT ban. It then provides a broad overview of some potential constitutional challenges to the legislation, including First Amendment and Fourteenth Amendment challenges, and addresses the possibility of a justiciability defense. Focusing on the need to show harm to students—not just teachers—this Essay next outlines two specific harms to students that have arisen or are likely to arise from the legislation and from its chilling effect: harm to culturally sustaining pedagogy and critical reasoning skills. Finally, this Essay examines these harms by reviewing a portion of the literature on culturally sustaining pedagogy and examining how new social studies standards in Minnesota—as a prototypical example of educational best practices—might conflict with anti-CRT legislation. This discussion may serve as a starting point for litigators challenging CRT legislation who need to articulate the harms caused by the legislation and identify viable challenges.