13 important points in the campus & K-12 ‘critical race theory’ debate

After many, many requests for my thinking¹ on the topic of bills that seek to regulate teaching of concepts related to race and gender (and facile accusations that by not commenting, I have revealed I am on the wrong side!), I have decided to hammer down my thoughts into these 13 points. Note that while the bills are popularly known as “anti-critical race theory” bills, that’s a misnomer I’ll address below. Instead, I’m calling them “divisive concepts” bills, which better captures what they seek to regulate.

Caveat: Some of what I discuss below, primarily issues relating to K-12 education, is beyond FIRE’s purview, which is limited to America’s colleges and universities, and accordingly — as per usual at ERI — what I say is my opinion and not an official FIRE position.

1. There are dozens of these bills, with possibly hundreds of amendments. 

As you may have noticed, there are a lot of these bills. It would take a law review article or book to achieve perfect specificity and comprehensiveness in addressing each of them. Indeed, there are so many that it has made discussion of the bills difficult, with some being clearly unconstitutional, while a few others essentially reiterate existing racial discrimination law and seek to ban the kind of compelled ideological speech that is already prohibited under the First Amendment. 

The sheer volume of proposed legislation has created a situation where activists on either side accuse opponents of hypocrisy for not offering a quick opinion on new bills, when it would be close to impossible for most average people to survey the whole landscape. Even this blog entry — some 5,000 words long — will only cover broad trends and common features of the “divisive concepts” bills. 

2. Laws that bar the teaching of certain concepts or materials relating to race and gender in higher education are almost always unconstitutional and are contrary to a free speech culture. 

We’ve opposed higher ed bills that would bar points of view from the classroom loudly and often (for example, see here, here, here, here, here, and especially legislative counsel Tyler Coward’s roundup of these bills, here) for the same reasons we have opposed speech codes: The unfettered exchange of ideas is essential to the purpose of a university in a free society. 

The inherent legal defect of divisive concepts bills in higher education that contain prohibitions or conditions on classroom speech is that they are, by their nature, an attempt to discriminate against a viewpoint. To the extent that classroom expression of those viewpoints might tread on other rights (which we’ll explore further below), those abuses would generally already be prohibited by existing law. And even if the new law managed to avoid imposing orthodoxy directly, the chilling effect on academic freedom and professors’ free speech would render them unconstitutional.

Some of these bills impacting higher education are close to the line of banning in-class expression, while others, including Pennsylvania HB 1532 (which FIRE will be writing more about in the coming days), are egregiously unconstitutional, banning all instruction about “racist” concepts and banning campuses from hosting speakers who espouse any “racist” or “sexist” concepts.

For the project of human knowledge to advance, nothing should be completely off limits in the crucible of higher education.

Universities are places where ideas, even wrong ones — especially wrong ones, in fact — find their place on what I call Mill’s Trident. For the project of human knowledge to advance, nothing should be completely off limits in the crucible of higher education. Those who genuinely believe the ideas addressed in these bills to be indefensible should encourage them to be tested in that crucible, not protect those ideas from potentially devastating analysis by exiling them from the institutions dedicated to that inquiry. 

If bills that restrict concepts from being taught in universities are passed and signed, they will rightfully face legal challenges and almost certainly be struck down.

But that’s higher education. K-12 is another story. 

3. Students’ rights to free expression and freedom of conscience should be the first priority in the K-12 context, and public K-12 students should be afforded greater recognition of their First Amendment rights.

The Supreme Court recognized that K-12 students have free speech rights in the landmark decision of Tinker v. Des Moines. Unfortunately, since then, the Supreme Court has chipped away at those rights in decisions like Bethel v. Fraser (restraining vulgarity), Hazelwood v. Kuhlmeier (limiting school-sponsored curricular speech), and Morse v. Frederick (limiting potentially pro-drug speech).

We at FIRE think the free speech rights of high school students have been eroded too much, and we said so in our amicus curiae brief in the recently-decided case of Mahanoy Area School District v. B.L.. In Mahanoy, a cheerleader who sent an f-word laden Snapchat to express her frustration with not making the varsity squad (on a weekend, away from school grounds) was suspended from cheerleading for a year. 

As FIRE wrote in that brief (citations omitted): 

If public grade school administrators may surveil and punish off campus student expression far beyond the schoolhouse gate, a generation of Americans will be taught a corrosive, illiberal lesson about the illusory value of their constitutional freedoms. Their experiences with our public schools will “influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities.” Because “[t]his influence is crucial to the continued good health of a democracy,” student experiences with our public schools must not include government censorship and surveillance.

FIRE was pleased that the student’s rights were vindicated Wednesday by an 8-1 Supreme Court decision (which you can listen to on our Free Speech Out Loud series) affirming that the school had violated her First Amendment rights. In his concurring opinion in the case, Justice Alito meditates extensively on why the First Amendment allows any restrictions on K-12 students at all, concluding it is due to the school’s in loco parentis role. Why then, he asks, do public K-12 students have free speech rights that their private school counterparts do not? Due to the fact that their attendance is compulsory, rather than consensual. More on this later.

One of the most important rights K-12 public school students enjoy is the right to freedom of conscience, which includes a right to be free from compelled speech.

One of the most important rights K-12 public school students enjoy is the right to freedom of conscience, which includes a right to be free from compelled speech. This right was explicitly recognized in 1943, in the beautiful West Virginia State Board of Education v. Barnette decision, which held that students cannot be compelled to salute the flag or say the Pledge of Allegiance against their conscience. (Follow this link to hear an audio version of the Barnette opinion as read by former ACLU president Nadine Strossen.)And indeed, some of the divisive concepts legislation has grounded itself in a concern about compelled speech; for example, North Carolina’s HB 324 proscribes “[c]ompelling students, teachers, administrators, or other school employees to affirm or profess belief in [certain concepts regarding race.]” To the extent these proposed laws would prevent students from being forced to say things against their conscience, identify in particular ways, or mouth opinions that are not their own, those proposals are reiterating a right that is already firmly established under the law.

4. K-12 curricula are not suddenly political. They have always been political. 

The modern view of education as a pipeline designed to carry children from preschool to graduate school tends to obscure the fact that K-12 education had a very different evolution from the university system. 

Compulsory public education was a project advanced by politicians and enacted by legislatures for a political purpose, which, broadly speaking, could be described as “domestic tranquility.” In 1794, decades before Massachusetts enacted its compulsory education law, Gov. Samuel Adams praised education’s value as a crime prevention tool; in 1830, Pennsylvania Gov. George Wolf advanced education as necessary to achieve “security and stability.”

By 1918, all 48 then-existing states had laws requiring compulsory education to advance the government’s interests — more than 20 years before there were even individual rights in schools to weigh against those interests. Additionally, higher educational opportunities were relatively uncommon until the G.I. Bill started to democratize them. As recently as 1960, the idea that compulsory K-12 education should serve the same purpose as selective citadels of learning, which at the time educated about 1 in 10 men and even fewer women, would have been viewed as extraordinarily strange.

Accordingly, what will become the curriculum in most public K-12 schools is democratically decided by a combination of state legislatures, local school boards, and individual schools. As such, they represent the will of the people, as expressed in local and state elections. The individual schools cannot exceed the scope granted them by their school boards, which themselves derive power and authority from the state. There is a large distinction between the expansive role that higher education plays in our society and the restricted responsibilities incumbent upon an American elementary, middle, or high school. Higher education is a gigantic engine not merely for teaching but also for engaging in knowledge-expanding research. As such, it enjoys certain necessary privileges, such as academic freedom.

What will become the curriculum in most public K-12 schools is democratically decided by a combination of state legislatures, local school boards, and individual schools.

Attendance at a college or university is voluntary and intended for adults from age 18 and up, whereas K-12 education is mandated by law, intended to transmit existing knowledge and impart shared values. The compelled audience of protected minors is considered particularly impressionable and vulnerable to potential indoctrination. 

Because K-12 attendance is compelled by the state and, at public schools, funded predominantly by local taxes, it is understandable that the substance of that teaching is subject to democratic oversight, through state legislatures and elected (or appointed by those who were elected) school boards. Legislators are expected to exercise oversight when citizens with children in the schools voice legitimate concerns about curricular matters.  

5. Most of the divisive concepts bills aimed just at K-12 are probably constitutional, given that legislatures have a lot of power to decide curriculum. That doesn’t mean they are above criticism.

Some have pointed to the fact that many of the laws affecting K-12 are extremely broad and vague and held that up as evidence that they are unconstitutional. However, the legal doctrine that laws affecting speech must be narrowly tailored so as not to sweep a lot of constitutionally protected speech under their purview, does not apply much to the context of K-12 teaching. K-12 teachers have very limited First Amendment rights in the context of their official teaching duties, and a vague law cannot be struck down for abridging rights that do not exist.

However, while high levels of breadth and vagueness might not render such laws unconstitutional, I do think it makes them unwise. 

Some have claimed that the divisive concept bills only prohibit schools from requiring that students affirm certain points of view. Such a bill would — they argue — complement existing First Amendment law which, as mentioned above, prohibits compelled speech. However, many bills go further than simply protecting freedom of conscience. Many are so vague that they arguably forbid teaching about slavery or racism at all, even uncontroversial and anodyne statements of historical fact. Rhode Island’s H6070 (tabled in committee) bans “race or sex scapegoating,” defined as, in part: 

(ii) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex and similarly encompasses any claim that any particular race or sex is responsible for society’s ills.

This could be read as making basic statements of fact — for example, “In the United States, until 1865, the enslavement of black people by white people was widespread practice,” — unlawful if spoken by a teacher or administrator to a student.

This isn’t the only part likely to cause anxiety for well-intentioned teachers. Many of the bills prohibit “making part of any course” that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” It is not hard to imagine a student feeling uncomfortable by learning true facts about historical racism, presented reasonably, coming home distraught and telling their parents. Under these bills, parents may argue that the teacher has done something unlawful. This is always an issue when speech restrictions focus on concepts characterized by a subjective reaction like discomfort or guilt, without making absolutely clear that the regulation is targeting behavior intended to create that response in students. Indeed, my book with Jon Haidt, “The Coddling of the American Mind,” emphasized the dangers of focusing on impact over intent.

However, while high levels of breadth and vagueness might not render such laws unconstitutional, I do think it makes them unwise. 

While some divisive concepts bills may turn out not to have any of these problems, from what I’ve seen, the majority are not carefully worded and I fear even good faith efforts to abide by these laws will lead to self-censorship of otherwise unobjectionable, factual, or appropriate material. 

As mentioned earlier, public K-12 teachers are state actors, and their speech in the course of their duties is state speech. Laws regulating the speech of state actors in the course of their duties are not subject to the same scrutiny and specificity requirements as laws and policies regulating speech of the general public. Nevertheless, teachers, administrators, and parents are not lawyers, and if FIRE’s experience with how universities handle vague speech codes is any guide, navigating vague regulations like these will come at a high cost. The vagueness will lead to frivolous complaints being filed and some of those complaints being acted on incorrectly in an attempt to conspicuously comply with the laws, and that will result in a chilling effect on even non-controversial teaching. So again, while the divisive concepts bills that apply only to K-12 may not be unlawful, there are good reasons to think that most are unwise.

6. Banning specific curricular materials like The 1619 Project in public K-12 schools, whether or not you agree with doing so, is within the power of the government in many states. 

As a federal appellate court observed when dismissing a viewpoint discrimination claim from a textbook author, states have broad discretion in controlling K-12 education and “[c]entral among these discretionary powers is the authority to establish public school curricula which accomplishes the states’ educational objectives.” Therefore, states can formally adopt, or reject, classroom educational materials produced by organizations such at the Zinn Education Group, the Southern Poverty Law Center, The Heritage Foundation, Black Lives Matter, or, for that matter, FIRE. 

7. Misleading reporting has muddied the waters. 

People’s opposition to the bills has led them to seeing ghosts that aren’t there and to exaggerate the threats of even problematic bills.

FIRE opposed Florida SB 264 (which, while not explicitly an divisive concepts bill, has been swept up in the conversation) on the grounds that its extremely broad granting of rights to surreptitiously record professors would create a massive chilling effect in the era of “gotcha” videos. I was surprised to see that when the bill went viral, it wasn’t for that provision, but for something that wasn’t in the bill at all: an alleged mandatory political registry of students and professors. See, for example, Salon’s headline (“DeSantis signs bill requiring Florida students, professors to register political views with state”), and The Hill’s headline (“Florida Gov signs law requiring students, faculty be asked to declare their political beliefs”). But what does the bill actually say? 

(b) The State Board of Education shall require each Florida College System institution to conduct an annual assessment of the intellectual freedom and viewpoint diversity at that institution. The state board shall select or create an objective, nonpartisan, and statistically valid survey to be used by each institution which considers the extent to which competing ideas and perspectives are presented and members of the college community feel free to express their beliefs and viewpoints on campus and in the classroom. The state board shall annually compile and publish the assessments by September 1 of each year, beginning on September 1, 2022. The state board may adopt rules to implement this paragraph. 

If you know anything about surveys, the “statistically valid” clause means that this will be a sample, not a comprehensive census, nor does it make the survey mandatory for individual students or professors. It doesn’t even require that the political affiliation of individual students and professors be surveyed, let alone de-anonymized and published!

It is quite frustrating when people, due to misleading reporting, ask why FIRE hasn’t opposed a bill (that we actually opposed) for something that is demonstrably not in that bill. For what it’s worth, FIRE would oppose efforts to create a mandatory political registry of students and professors as a violation of freedom of conscience. We’ve done so before. But that is not what’s going on here. (For more on this bill and misreporting surrounding it, check out Jonathan Adler’s excellent piece for The Volokh Conspiracy.)

I was surprised to see that the bill went viral for something that wasn’t in the bill at all

More than that, surveys of how free students and professors feel to share their views and how often they’re exposed to diverse views are a good thing. FIRE has done several. The chilling effect and the lack of viewpoint diversity on campus is a problem, and it’s one that’s hard to solve without good data telling us what’s happening and why. Surveys like these will be crucial to making headway and improving the state of free speech on campus. In fact, surveying campus attitudes makes my list of five things university presidents should do to improve the climate for free speech on campus.

8. Proponents and critics of the divisive concepts bills are largely talking past each other on the issue. 

Proponents of the bills see them as banning sessions where preteens are made to apologize for their race privilege, or where biracial children have been told that one parent probably physically abused the other due to their oppressor status. They look at sections in the bills that ban teaching mandatory guilt, genetic essentialism, and racial superiority and wonder — and assume — that opponents of the bills must be proponents of teaching those concepts.

On the other hand, critics of these bills see bans on the 1619 Project, and vague clauses that arguably reach any discussion of slavery, and interpret them as a highly politicized mandate to teach a certain view of history intended to soften the horrors of slavery and minimize historical racism. They see those who support such laws as wanting children to learn a jingoistic and propagandized version of history. While some on each side are undoubtedly acting in bad faith, the majority are motivated by sincere and valid concerns, and both proponents and opponents are motivated to ignore the valid points of their opposition. 

Each side’s distorted impression of the goals of the other side, and of what’s actually in the bills, has been an unfortunate side effect of the media coverage. Those listening to left-leaning outlets and pundits could be forgiven for thinking that the bills outright ban discussion of slavery. Those listening to right-leaning outlets and pundits could be forgiven for having no idea of the breadth and vagueness of a lot of the clauses in these bills, and the chilling effect they may create with teachers making good faith attempts to comply. The media coverage of these bills has been largely lacking in deep-dives into the actual text of the bills, instead relying on broad characterizations of their intent and the motivations behind those introducing them.

As I’ve already gone into many of the good points made by the critics of these bills, I would like to pay some attention to the valid concerns that the bills were meant to address. With the exception of the vague kinds of clauses mentioned above, most of what these bills prohibit are speech or patterns of behavior by teachers that even many of the critics of these bills would find problematic, and arguably would already run afoul of laws prohibiting racial discrimination and harassment. For example, North Carolina’s HB 324, mentioned above, prohibits public K-12 schools from “promoting” the following concepts:

(1) One race or sex is inherently superior to another race or sex.

(2) An individual, solely by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

(3) An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.

(4) An individual’s moral character is necessarily determined by his or her race or sex.

(5) An individual, solely 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.

(6) Any individual, solely by virtue of his or her race or sex, should feel discomfort, guilt, anguish, or any other form of psychological distress. [...] 

These bills are a reaction to legitimately concerning documented cases of K-12 students being singled out due to their race and made to participate in exercises that are, arguably, racially discriminatory. I was disturbed to read some of the examples in my co-author — and FIRE colleague — Bonnie Snyder’s forthcoming book Undoctrinate: How Politicized Classrooms Harm Kids and Ruin Our Schools—And What We Can Do About It, such as:

1. A biracial high school student in Las Vegas was allegedly singled out in class for his appearance and called derogatory names by his teacher. In a lawsuit, the student’s family alleges he was labelled an oppressor, told denying that status was “internalized privilege,” and told he needed to “unlearn” the Judeo-Christian principles imparted by his mother. When he refused to complete certain “identity confession” assignments, the lawsuit claims, the school gave him a failing grade. He has had to attend counseling. 
2. Third grade students in California were forced to analyze their racial and other “identities,” rank themselves according to their supposed “power and privilege,” and were informed that those in the “dominant” culture categories created and continue to maintain this culture to uphold power.
3. Parents in North Carolina allege that middle school students were forced to stand up in class and apologize to other students for their “privilege.” 
4. Buffalo public schools teach students that all white people perpetuate systemic racism and are guilty of implicit racial bias. 
5. Elementary children at the Fieldston School in Manhattan were sorted by race for mandatory classroom exercises.  
6. A head teacher in Manhattan was caught on tape acknowledging that the curriculum at his school teaches white students that they’re inherently “evil” and saying, “we’re demonizing white people for being born.” 

While there is some debate to be had over how widespread the phenomenon is, some students are being made to feel, in class, that their mere existence is problematic and requires an apology or explanation. These bills, wise or not, are intended to address this problem. If your argument against these bills is that they’re much ado about nothing, or a solution in search of a problem, I think you should look deeper and think more critically about what proponents of these laws are worried about.

Concerns about the mental health of students right now are well-founded.

Concerns about the mental health of students right now are well-founded. The documented decline in mental health among Gen-Z and younger students that we discussed in “The Coddling of the American Mind” has only gotten worse since we wrote the book (as we covered in our Catching up with Coddling series that updates the trends we covered in the book). With skyrocketing rates of anxiety among young people, it is not hard to see why some would want to prohibit teaching kids that they should feel guilt or anguish due to immutable characteristics of their person.

9. Legislation is not the only way to address the aforementioned concerns.

To the extent that the bills address schools requiring students to adopt certain political viewpoints, that kind of compelled speech is already forbidden under First Amendment case law. While K-12 teachers have few First Amendment rights in the classroom, and their right to speak pursuant to their official job duties is sharply limited by the Supreme Court’s 2006 ruling in Garcetti v. Ceballos (which, in my opinion, goes too far), laws that chill teachers’ off-campus speech on matters of public concern unrelated to job duties would be unconstitutional. 

Much of the behavior proscribed in the divisive concepts bills refers to patterns of discriminatory behavior that would probably already be illegal under federal anti-discriminations laws like Title VI, which bars discrimination on the basis of race, color, or national origin in educational programs that receive federal funding. As my good friend and former FIRE president David French has pointed out in discussing a case alleging an anti-Semitic diversity training at Stanford, to the extent that the divisive concepts bills overlap with current law, discrimination lawsuits are a viable alternative to legislation.

The real solution needs to be broader reform with a positive vision, rather than bills with a necessarily non-exhaustive list of what not to do.

As far as professional means of addressing the same concerns, ethical guidelines governing the teaching profession already proscribe mistreating students, and professional complaints are an option.

Insofar as these bills attempt to proscribe problematic behaviors, though, those behaviors are symptoms of a deeper problem, and thus the bills would be band-aids at best. The real solution needs to be broader reform with a positive vision, and lots of creative thinking and experimentation, rather than bills with a necessarily non-exhaustive list of what not to do.

Along those lines, I recently wrote an article for Persuasion titled “The Empowering of the American Mind,” which puts forth 10 principles for a positive vision of K-12 education based on (small-L) liberal values. I think that, if implemented, they would go a long way toward solving the underlying problems that resulted in these bills’ introduction. I would love to read others’ positive visions for K-12.

10. Critical race theory isn’t a perfect term for the problematic behavior these bills are trying to address.

What these bills are trying to address doesn’t map directly to the academic definition of critical race theory, which is, in short, an academic school of thought pioneered by Derrick Bell, Kimberlé Crenshaw, Mari Matsuda, and Richard Delgado (among others) that holds that social problems, structures, and art should be examined for their racial elements and impact on race, even when they are race-neutral on their face. 

As a result, a lot of arguments dismiss the bills by claiming “they don’t teach critical race theory in K-12!”, pointing to the fact that Bell’s work is on few, if any, K-12 syllabi. But that is a refutation of a point no one is actually making. 

Like it or not, the acronym “CRT” as commonly used in 2021 doesn’t refer to the foundational texts and authors in the academic movement. It’s a shorthand for certain ideas that have filtered (in reductive forms or not) from CRT thinkers into the mainstream, including in bestselling books like “White Fragility” and “How to Be an Antiracist” — ideas like how relationships between individual white and nonwhite people are those of the oppressor and oppressed, that all white people are consciously or unconsciously racist, that ostensibly raceblind concepts like “meritocracy” are the result of white supremacy, among others.

This is a formula for reinforcing group difference, undermining the hope of future social cohesion, and returning to a kind of tribal politics.

Indeed, many if not most of the bills ban teaching of these concepts, rather than critical race theory itself. Arguing that the bills are bad purely based on the semantics that they are not referring to “true” CRT is little more than deflection. Arguing that the term “CRT” as applied to the bills is a misnomer may be correct, but it won’t persuade anyone that the bills, or the concerns underlying them, should be abandoned. (Additionally, if the bills were banning something that isn’t actually taught in K-12, why bother with any pushback?)

What opponents of “CRT” are getting at is a philosophy that comes directly in conflict with small-L liberalism — and I am among the many Americans who believe the ideals of small-L liberalism are worth defending. What critics of CRT fear is the rise and widespread adoption of a philosophy that relies on genetic essentialism, overgeneralization, guilt by association, what we call in Coddling “The Great Untruth of Us versus Them,” shame and guilt tactics, and deindividuation. This is a formula for reinforcing group difference, undermining the hope of future social cohesion, and returning to the kind of tribal politics of the country in which my father grew up: Yugoslavia.

11. The California ethnic studies curriculum helps demonstrate what the proponents of these bills are afraid of.

After being vetoed last year for its casual anti-Semitism (along with other issues, such as ignoring a number of other ethnicities), California approved its model “ethnic studies” curriculum for K-12 in March. It looks exactly like what you’d expect it to look like after four revisions attempting to make it just barely not overtly anti-Semitic enough to pass. In its first iteration, the Los Angeles Times called it an “exercise in groupthink,” noting that it largely adopted radical talking points, while Bret Stephens of The New York Times described it as “tendentiously racialized,” asserting that it “magnifies differences” and “encourages tribal loyalties.” Most notoriously, the existence of Jews was omitted from the curriculum, a curious decision for a course that purports to address bigotry but manages not to mention the group most targeted by hate crimes, per capita. 

In its present iteration, there are two “optional” lessons about Jews (see Chapter 4). One talks specifically about Middle Eastern Jews; the other asks questions like (see page 385): 

b. When and how have Jews been racialized as non-white?

c. What is conditional whiteness?

d. When, how, and which Jews have experienced conditional whiteness? What benefits and losses might people experience when whiteness is conditional?

 [...]

f. How did the Holocaust shift Jewish Americans’ position in American society?

So rather than ignore Jewish people, the new curriculum includes an optional chapter about why they’re selectively white and how the Holocaust might have improved their status. This seems like the precise opposite of a tolerance program, and its provenance suggests an intentional effort to inculcate tribalism at the very least, and even anti-Semitism.

12. What is the deeper cause of this battle? A breakdown in societal trust and trust in expertise, particularly along partisan lines. 

While trying to explain the situation in a forthcoming interview with Michael Moynihan at VICE, I realized that at the core of what’s going on is a fundamental lack of societal trust and the lack of trust in expertise. Many parents, even many on the left, don’t necessarily trust K-12 teachers to do the right thing on their own. They believe that without new laws, rather than educating about certain historical facts, teachers will be indoctrinating their children into a bleak worldview.

Many parents, even many on the left, don’t necessarily trust K-12 teachers to do the right thing on their own.

As I’ve written in the “Catching Up With Coddling” series, the education schools where modern teaching methods originate are overwhelmingly politically homogeneous, and education schools have indeed been at the center of some of the worst cases and policies I’ve seen in my entire career. Opponents of these laws similarly don’t trust Republican politicians to come up with laws that don’t specifically target progressives and progressive beliefs. And, of course, given the situation, why would they? 

You may suspect that the next thing I’m going to do is to issue some kind of clarion call about learning to trust each other again. While I’d love to do so, I have no illusions that there is any quick fix to this conflict, as it was a long time in the making. We know it’s bad that our culture war helmets are on all the time, but both sides can find ample reasons to justify their suspicion.

13. There are going to be lots of lawsuits.

I can say with great confidence we are going to see a lot of lawsuits coming out of K-12 curriculum in the next several years. CRT opponents may sue to enforce some of these laws over defiant individual schools, school boards, and teachers, and may sue on behalf of individual students and their families claiming violations of free speech rights and the right to be free from compelled speech and other violations of the right to private conscience. Supporters will sue to assert the independence of school boards, individual schools, and teachers’ unions, and even potentially in the name of the free speech rights of students.  Doubtlessly, individual parents who probably didn’t think of themselves as on either side of this issue will sue if they believe their children have been mistreated, discriminated against, or if the school has created a hostile environment.

Who’s going to win in this situation? I can’t say for certain, but it’s most likely not the children.

Who’s going to win in this situation? I can’t say for certain, but it’s most likely not the children.

(And, while I have your attention, how about we move basic statistics down to the high school level? Learning how to read polls and approach studies skeptically is increasingly important in a democratic society, and is certainly more important, dare I say, than my beloved trigonometry. All things being equal, I wish I’d learned about statistics earlier.).

Conclusion: Sometimes the principled thing will make nobody happy

Being part of this debate has been, well, tedious. It puts on full display the worst of the culture wars. For saying that bills with teaching bans are unconstitutional as applied to higher education, I’ve faced numerous pile-ons, including one fellow claiming that I clearly didn't learn any of the lessons of Communism — quite an allegation if you know anything about my family history (from serfs to kulaks to refugees to Americans).

And on the other side, many media outlets and Twitter pundits have covered this as if this is just some kind of hoax or phobia coming out of nowhere that is intended to ban talking about slavery. In fact, I think the popular view in the media is that these laws are a response to no problem at all. Accordingly, I’ve had numerous people come to me animatedly asking or demanding that we blast these “unconstitutional” laws as applied to K-12, when they’re often not actually unconstitutional and often don’t say what their opponents think they do.

The reality is, as usual, complicated.

The reality is, as usual, complicated. Proponents of these bills need to realize that they can’t legislate these ideas out of existence, and that the more egregious bills are not only unconstitutional and thus totally futile, but throw fuel on an already raging culture war fire. Opponents of these bills need to read the bills and be honest about what’s actually in them and recognize that their opponents are motivated by something other than a desire to hide the true history of slavery. It is my hope that, wherever you lie on this issue, this article has given you a greater understanding of the opposing side. And if not, you’re welcome to join those yelling at me across both sides of the aisle!

¹ Here on ERI, I (Greg) usually use first person singular, even in co-authored pieces.

In need of First Amendment resources for teachers? The Foundation for Individual Rights and Expression has you covered. Our "First Things First" First Amendment textbook for college undergraduates explores the fundamentals of modern American free speech law. Meanwhile, our K-12 First Amendment curriculum modules help educators enrich and supplement their existing instruction on First Amendment and freedom of expression issues in middle and high school classrooms. Explore thefire.org for even more First Amendment educational resources.