Laws Aimed at Banning Critical Race Theory in K-12 Schools Are a Poorly Written, Misguided Mess

Even if you agree with the intention, these laws are a mistake

This is the year of the anti-Critical Race Theory bill. Back in February, I warned of the threat these bills pose to academic freedom and free speech in higher education. Fortunately, most have since been either withdrawn or heavily amended, though at least thirteen are still live.

But now it’s public schools in the crosshairs. So far, about twenty-four states have proposed more than fifty different bills to restrict how K-12 teachers discuss issues of race and sex. Seven are already law; one passed just last week in New Hampshire.  

As the bills’ defenders are quick to point out, state governments have always had broad discretion to set curricular standards, require or prohibit certain texts, and restrict faculty speech. And besides, according to anti-CRT activist Chris Rufo, these bills “simply prohibit teachers from compelling students to believe that one race ‘is inherently superior to another,’ that one race is ‘inherently racist, sexist, or oppressive,’ or that ‘an individual bears responsibility for actions committed in the past by other members of the same race.’” Isn’t that a good thing?

Sure it is. The problem is that Rufo is lying. He and his supporters are counting on people to not read the legislative texts, and instead take anti-CRT activists at their word. This is a mistake. Most of these bills, including many of the ones that have become law, go much further than simply banning compelled speech. If allowed to stand, a pall of orthodoxy will settle over classrooms in a way unseen in years.

It’s Not About Compelled Speech

Consider this language from Tennessee’s anti-CRT bill, which Governor Bill Lee signed into law last month.

“An LEA [public school authority] or public charter school shall not include or promote the following concepts as part of a course of instruction or in a curriculum or instructional program, or allow teachers or other employees of the LEA or public charter school to use supplemental instructional materials that include or promote the following concepts:” [emphasis added]

The law then lists proscribed concepts, but that need not detain us here. What matters is that the law prohibits mere inclusion of those concepts, as distinct from and in addition to their promotion. That means even a neutral, objective discussion is off the table. An exception is carved out for some historical events, but many others, as well as current events, are subject to the ban. The moment you include one of these ideas in your curriculum, you’ve broken the law.

For instance, it is currently illegal in the state of Tennessee for teachers to include any material in the classroom that promotes “division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.” How is a civics teacher supposed to operate within those limits? Can she have her students watch a modern presidential debate? Evaluate a partisan campaign ad? Engage with virtually any polemical work of journalism or political philosophy? I don’t see how.

Similar bills recently became law in Oklahoma and Texas. Both prohibit K-12 public school teachers from requiring or “mak[ing] part of a course” one of the proscribed concepts. Not “promoting” or “teaching as true” or “compelling students to affirm.” Just “make part of a course.”

(Lest there be any doubt about intent, an earlier draft of the Texas bill specified that the ban would apply only to material that served to “inculcate” one of the proscribed concepts, but state legislators removed this language at the last minute.)

The problems here are obvious. One of the forbidden concepts is the idea that “one race or sex is inherently superior to another race or sex.” Banning that sounds reasonable enough, right? Now suppose a social studies teacher in Houston wants to assign Alexander Stephens’ 1861 “Cornerstone Speech.” It is a watershed address in American history and the clearest articulation of the Confederate position. It is also a speech built around the idea that black people are inferior to white people. What is that teacher supposed to do? And given the sensitivities of students, their parents, local politicians, and activists, what must the teacher be willing to risk?

It’s not hard to see what went wrong. Legislators in these states want to ban teachers from assigning antiracist gurus like Ibram Kendi and Robin DiAngelo. They want topics like “white privilege” out of the classroom, no matter how objectively discussed. Unfortunately, they’ve drafted bills so broad and clumsily written that entire historical eras and swathes of contemporary events would be barred from discussion.

And these are just the ones that are already law. Similar bills are under consideration in Kentucky, Arizona, Missouri, Pennsylvania, and Ohio. Arizona’s bill is especially perverse, threatening to levy a $5,000 fine on any teacher who fails to “discuss controversial issues of public policy or social affairs…from diverse and contending perspectives without giving deference to any one perspective.” Language this vague, paired with fines this steep, will have a predictable consequence: self-censorship.

Business as Usual?

The response from many supporters of these bills is, essentially, “so what?” They acknowledge that many ideas, events, and theories will be banned from the classroom, but insist that this is just business as usual. Professors may have academic freedom, but public school teachers don’t. State governments and school boards have always had authority over K-12 education, so what’s the big deal? And a ban on Critical Race Theory, they say, isn't so different from a ban on creationism, which almost everybody accepts as a sensible limit on classroom speech.

This is a bad argument. First of all, the analogy to creationism doesn’t really work. Teachers across the country are still permitted to discuss the theory of creationism or assign a text promoting it, so long as they do so in an objective way and without endorsement. Otherwise, they would be unable to discuss the Bible, Greek and Roman mythology, or even the Preamble to the Declaration of Independence. Many classic works of world literature would be banished as well, from The Divine Comedy to Crime and Punishment. It’s obvious, therefore, why we need a distinction between discussing an idea and promoting it. But these anti-CRT bills, to their discredit, prohibit both.

Supporters also err by describing these bills as business as usual. Yes, state legislatures do set curricular standards, but rarely with such ambiguous language. For instance, teachers in Texas and Ohio would be forbidden from including any course material that describes slavery and racism as “anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.” What does that mean in practice? How do teachers handle evidence to the contrary? And how are they supposed to hew to this new orthodoxy while also ensuring, as both bills require, that they discuss controversial topics objectively and from a variety of perspectives?

For that matter, how is a biology teacher in Tennessee supposed to teach the theory of evolution now that he is legally prohibited from including any material that says Americans are not “endowed by their Creator with certain unalienable rights, including, life, liberty, and the pursuit of happiness”? What is that teacher supposed to do? Just trust that all of his students and their parents are calm, reasonable people? Have you met parents?

Defenders of these bills wave these concerns away, insisting that their intent is simply to prohibit compelled speech or teaching left-wing cant as fact. They are also asking us to trust that the bills will always be implemented in a rational and predictable way. But anyone with a little imagination or working knowledge of First Amendment history knows better.

Which isn’t to say that every legislative fix is equally bad. Proposed language in North Carolina largely echoes existing law and would probably do little harm, though efforts to pass it appear to have stalled. But North Carolina’s bill is the exception. The vast majority of bills, including those that are now law, are repugnant to an open society. They must be opposed.

Facing Facts and Moving Forward

It’s tempting to stop here. But instead, let me offer a concession to anti-CRT activists, as well as perhaps a few suggestions.

First, critics of CRT pedagogy (or whatever you wish to call it) have a legitimate gripe. There are real episodes where public school teachers have crossed the line. In Cupertino, third graders were instructed by their teacher to create an “identity map” with their race, ethnicity, and so forth, and then mark which of their identities “holds power and privilege.” An Oklahoma high school teacher told his students that “to be white is to be racist, period.” And at a public charter school in Las Vegas, students were taught that white, male, Christian, and heterosexual identities are inherently oppressive.

No one knows how common or representative these episodes are, but they’re real.

And that’s a problem. I am a parent. My daughter hasn’t begun grade school yet, but needless to say, I do not want her to feel guilt or shame on account of her racial identity. And while I believe it is important that she be taught about systemic racism at some point in K-12, it must be done at the right age and with great care. These episodes do not inspire confidence. They feel shallow, crude, and potentially harmful.

The “woke Left” (and here I broadly include myself) needs to do a much better job denouncing examples of bad antiracist pedagogy and elevating examples it thinks are good. There’s no use pretending the bad examples don’t exist. Clearly they do, and clearly people are going to talk about them. The least we can do is show that we are taking them seriously.

Now for the suggestions. Here I want to speak to the worried parent who’s uncomfortable with these bills, but doesn’t know how else to fight what seems like a pernicious ideology.

Good news! There’s a lot you can do. First, you can talk to the teachers and administrators at your local school. These people want to help, and they have an incentive to avoid controversy. Trust in the former and (if necessary) exploit the latter. You might also consider running for your local school board, a tried and true strategy for the outraged parent who wants to make a difference. It’s not quite as glamorous as banning a loose and ill-defined list of ideas, but it does have the advantage of being Constitutional, in case that sort of thing matters to you.

Second, you can insist on greater transparency from your child’s school. I offer this suggestion with some misgivings, since it’s very easy for the media to transform a harmless lesson plan into a full-blown assault on the American Way of Life. There is also a long history of activists using open records laws to harass educators. Nevertheless, parents have a right to know what their children are being taught (with exceptions for student privacy), and sunlight can be a powerful disinfectant.

Lastly, you can file a complaint with the Office of Civil Rights. As David French notes, much of what anti-CRT critics allege is already illegal under Title VI or Title IX of the Civil Rights Act. Activists are well aware of this fact and are proceeding accordingly, though without the fanfare that accompanies the announcement of a new law. It’s too soon to say whether they will be successful, but I give them much better odds than I would Chris Rufo.

Of course, I’ll be on the other side of most of these efforts, but I’m trying to be conciliatory. The culture war surrounding education is in desperate need of a truce, and it won’t happen unless both sides see a path forward.

What does that look like? First, we need to put the brakes on any illiberal laws or policies, however tempting they may be. Second, both sides need to do a better job calling out their bad actors and charlatans (yes, I’m both-sides-ing this thing, get over it), no matter how enjoyable their antics may be. And lastly, we need to remember what all of us, with the exception of those charlatans, genuinely want: the best for our kids.