In recent months, some Americans have been galvanized into action over the teaching of critical race theory, leading to dozens of lawsuits and the passage of multiple state statutes and amendments that have banned the doctrine from public schools. But will those bans survive the inevitable court challenges? As predicted by Greg Lukianoff, president of the civil libertarian Foundation for Individual Rights in Education, and three co-authors, one certainty is that this is just the tip of the iceberg: “There are going to be lots of lawsuits.”
Key fault lines for any litigation center on basic questions about the scope of the First Amendment; whether the bans are too vague; whether racial discrimination played a role in the development of the legislation; and whether the bans abridge equal-protection rights.
Insofar as the bans relate to the teaching of CRT in colleges and universities, the answer seems straightforward to some critics. As Lukianoff and colleague Bonnie Snyder put it bluntly, they “are almost always unconstitutional and are contrary to a free speech culture.” Snyder, director of high school programs at FIRE, added in an interview with RealClearPolitics that colleges and universities “seek and create new knowledge, and hence they are allowed a great deal of latitude (academic freedom) to test ideas and to challenge existing ones.” (FIRE has sharply criticized anti-CRT bills aimed at academia.)
The principle of academic freedom guarantees “some degree of autonomy for college professors to choose what they teach and how they teach it,” added Frank LoMonte, professor of media law, and a First Amendment expert, at the University of Florida. This usually requires deference to the professional judgment of a professor, who is knowledgeable of their subject, he told RCP. If professors are fired for making a “politically controversial statement in the classroom or writing a politically controversial academic article,” they would have “a good shot of getting their job back.”
K-12 schools are a different story. “For one thing, K-12 students are legally compelled to attend school. Parents are required to send them. They are also minors,” Snyder explained. Contrary to colleges and universities, the purpose of K-12 schools “is to transmit existing knowledge, which typically is done according to the community standards in which they reside.”
This not only means that state governments have greater authority to set school curricula, but that classroom teachers, who are public employees, have less autonomy in what they impart to students. “If you are told to teach in a certain manner, then your only response can be, ‘Aye, aye, captain,’” LoMonte said. “Academic freedom does not extend to the K-12 classroom.”
The disjuncture between the relative freedom of higher education and the restrictions of K-12 schools has not gone unnoticed by activists on either side. Conservative writer Christopher Rufo, a senior fellow at the Manhattan Institute, believes the current mode of challenging CRT in higher education is insufficient. “My preference is for state legislation to focus on K-12 schools, where ... the bans will pass constitutional muster and will protect children from state-sanctioned racism,” he told RCP. “I believe the problem in universities will not be solved with this kind of legislation; lawmakers must consider deeper structural reforms in order to confront the entrenched ideological bureaucracies in many public university systems,” he added.
While the contours of a First Amendment claim against the bans seem straightforward, one of the strongest arguments is how vague the bans are – and consequently how difficult they would be to enforce. Several critics have asserted that it is questionable — in the case of a Tennessee law — whether a teacher will have violated the law for declaring either Stalinism or Nazism to be evil.
Lukianoff and Snyder dismiss this concern. Due to the limited First Amendment rights of K-12 teachers, a vagueness claim “does not apply much to the context of K-12 teaching,” they and their fellow authors wrote. While a vague law does not make it wise, “a vague law cannot be struck down for infringing rights that don’t exist.”
LoMonte disagrees. Even in a public school setting, one can still bring a vagueness claim as a violation of due process rather than as a violation of free speech rights, he said. “Which is to say, even if teachers have zero First Amendment rights in the classroom, they always have a due process right not to be fired for mysterious reasons that they can't understand.” Because governments cannot act in arbitrary and irrational ways, if a CRT ban is “so open-ended” and “subjective” that a principal or superintendent “can just pluck you out a class one day and say, ‘You're a CRT violator, out you go,’ then that's probably vague for due process purposes,” he said.
Challenges to the bans will likely come from racial discrimination claims. As noted by American Civil Liberties Union attorney Emerson Sykes, “hints of racial animus and discrimination in statements by legislators” may play a role in future lawsuits.
According to LoMonte, while a racial discrimination claim would have to be fact- and evidence-specific, a controversial Arizona court case provides a possible road map. In 2010, Arizona Gov. Jan Brewer signed a bill outlawing a Mexican American studies curriculum in Tucson under the stated intent of stopping race-based resentment and unpatriotic learning. Later, in 2012, the state banned seven books related to the curricula from public schools. In a 2017 U.S. Circuit Court ruling, the ban was deemed unconstitutional and motivated by ethnic bias.
In order to bring a racial discrimination claim against the CRT bans, “you would need there to be some overt statements” by lawmakers “that a court could find as an unmistakable sign of ethnic or racial motivation. If you have those facts, then that's the way to go,” LoMonte said.
Finally, equal protection claims might be invoked, but experts say they are the most difficult to establish, largely due to the standards of proof required. According to LoMonte, a lawsuit would have to prove both racially motivated mistreatment and that a specific race was being denied the benefit of a CRT curriculum for which they were the intended beneficiary. But because classes that introduce CRT-related ideas are directed at curricula, and not at particular students, it will be difficult to make the case that one race was “uniquely singled out for differentially discriminatory treatment,” he said.
“It's just going to be tougher as a matter of factual proof,” he said.