Excerpted From: Maria Ignacia Araya, Censorship of the Marketplace of Ideas: Why Critical Race Theory Bans in Public Schools Violate the First and Fourteenth Amendments, 47 Nova Law Review 31 (Fall, 2022) (254 Footnotes) (Full Document)


NoPictureFemaleCritical race theory has reemerged under the national spotlight in the last two years. This theory that originated as a response to the civil rights movement, now stands at the center of political debate. The topic was once an obscure academic framework circulating strictly in higher education, and now it has evolved into a catchall term for any discussion regarding systemic racism or bias. Efforts to thwart discussions about critical race theory have resulted in bans at the national level, and more recently, bans at the state level. Parents and legislators in support of legislation banning critical race theory in public schools allege that educators are “‘indoctrinating’ students with [] lessons on race” that cause students discomfort and shame. Meanwhile, critical race theorists, educators, and some parents say that opponents are misconstruing the theory's principles to reverse progress made in racial equality and add that the theory is not taught in K-12 classrooms. This Comment seeks to clarify what the academic framework of critical race theory means at its core and the history of how it came to be in order to illustrate how far it has strayed from its true meaning. This Comment also seeks to explain why such bans are unconstitutional. Part II of this Comment provides background on the history of critical race theory and how it was established, as well as the tenets of critical race theory and the concepts that critical race theorists promote. Part III of this Comment explores how critical race theory has spilled over from scholarly commentary into the political arena. Part IV of this Comment reviews legislation that has been introduced and passed nationwide and briefly analyzes the general language contained in the legislation. Part V explores the theme in American history to keep certain materials out of public schools. Part VI explores issues of constitutionality with regard to the First Amendment, while Part VII explores issues of constitutionality with regard to the Fourteenth Amendment and includes an analysis focused on the “void for vagueness” doctrine and the Equal Protection Clause. Part VIII applies the analysis to Florida law.

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Opinions that spur controversy may arise in classroom discussions, which is what deems the classroom the “marketplace of ideas.” By limiting instruction related to race and racism, the American values that promote academic freedom, which are recognized by the courts, will be defeated. The courts overwhelmingly denounce prohibiting the expression of opinions, and such opinions that may cause a specific reaction may be within the scope of instruction that the law bans. Additionally, large parts of Florida's uncomfortable history with issues of race go largely ignored in the classroom as is. On November 2, 1920, the same day that women were able to vote for the first time in the United States, Florida experienced the worst instance of Election day violence. A Black man named Mose Norman was turned away at the polls. When he returned to the polls to take note of the individuals who had denied him his right to vote, as instructed by an attorney, he incited a mob of white men, many of whom were involved with the Ku Klux Klan. During the violence, the mob targeted Julius “July” Perry, beat him, shot him, and lynched him. The mob murdered between thirty to sixty Black residents, and “[w]ithin one year of the massacre, all Black residents [had been] driven out of Ocoee.” Much of America's dark history may cause discomfort or shame, and it is a natural response. Until the Supreme Court reviews the constitutionality of anti-critical race theory legislation, widespread uncertainties will exist among America's educators and much of America's dark history will remain ignored.

Ignacia Araya graduated cum laude from Florida State University and earned her bachelor's degree in Political Science and English (Editing, Writing, and Media). Ignacia is currently a Juris Doctorate candidate for May 2024 at Nova Southeastern University, Shepard Broad College of Law.