Excerpted From: Angelica Knight, Critical Race Theory and Florida Schools: An Attempt to Suppress Racism Embedded Within American History, 17 Florida A & M University Law Review 141 (Spring, 2023) (113 Footnotes) (Full Document)


AngelicaKnightIn May of 1896, the United States Supreme Court ruling in Plessy v. Ferguson upheld a state law in Louisiana allowing racial segregation if each race had equal quality facilities. This issue arose from a transportation law requiring separate train cars for Black Americans and White Americans and came to embody the “separate but equal” doctrine. Over half a century later, on May 17, 1954, the United States Supreme Court issued a unanimous ruling in the landmark case--Brown v. Board of Education--deciding that racial segregation was unconstitutional. The Court held that the “separate but equal” doctrine violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. This decision ultimately overturned Plessy v. Ferguson. Brown intended to create equal access to education for all individuals, regardless of race. For many people, Brown represented a huge turning point in the fight for equality because of the belief that the decision signified the beginning of the end of segregation and that they were winning the battle. However, Brown was not the end of the story, and racism did not stop. Poverty and racial separation are still prevalent in schools today. Schools today may not look like they once did before Brown, but discrimination issues have become present through other avenues. Most recently, in the opposition to Critical Race Theory; opposers argue that it is a divisive concept, with supporters explaining that racism is embedded in American history through a historical context.

Across the country, groups have begun to stand up for the civil rights to which they are entitled. In May 2020, the United States saw the largest racial protests since the Civil Rights Movement; Black Lives Matter activists stood against racism after George Floyd, a black man, was murdered at the hands--or knee--of a white officer. After the murder of George Floyd, racism became more apparent, undeniable, and visible, making Critical Race Theory an important part of the political agenda. Bills and legislation removing Critical Race Theory from the educational curriculum are also hot topics in secondary and higher education institutions. In September 2020, President Trump signed an executive order that excluded Critical Race Theory from federal contracts. In May 2021, United States Senators Marco Rubio, Kevin Cramer, and Mike Braun introduced the Protect Equality And Civics Education (“PEACE”) Act to prohibit federal funding from being utilized to support or promote divisive concepts, such as Critical Race Theory, in schools. Following the introduction of the PEACE Act in May, Florida's State Board of Education, in June 2021, adopted a rule banning public schools from teaching Critical Race Theory. Based on the Ninth Circuit's decision in Arce, what does the Eleventh Circuit intend to do, or what should it do? The legislation banning the Mexican American Studies program in Arce v. Douglas is similar to the PEACE Act. The Court in Arce found that the bill violated the equal protection clause of the Fourteenth Amendment, the right to association of the First Amendment, and interpretations around education. Removing Critical Race Theory is not the solution; the solution is to make changes to the country's systems and institutions and acknowledge that the racial injustices embedded within them are no longer acceptable, and it is imperative to treat all individuals equally.

This comment will analyze Arce v. Douglas to inform how the Eleventh Circuit should analyze this decision to allow educators to teach Critical Race Theory in Florida schools. The underlying goal is to assess why it is essential for educators to teach Critical Race Theory in schools. This comment argues attempts to remove Critical Race Theory from curriculum obscure and ignore the instances of racism that marginalized populations in America have repeatedly been subjected to throughout history. Part I of this paper will provide background on Critical Race Theory, provide its definition, and explain how it came into existence. Part II, sections A and B will discuss the Constitutionality of bans on Critical Race Theory. Part II, section C, will provide an in-depth analysis of the Ninth Circuit's decision in the Arce v. Douglas case and compare the legislation in that case to the Florida Protect Equality And Civic Education (PEACE) Act, highlighting the blatant similarities between the two legislations and any apparent differences. Part II section D will discuss the importance of using a historical analysis when reviewing cases centered around racial discrimination and equal protection. Finally, Part III will discuss a solution as to how the courts should analyze Critical Race theory, and finishing off with discussing how it is impossible to achieve justice while attempting to utilize a non-racial means to get there.

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Critical Race Theory is an important component of American history; therefore, this ban should not be allowed to take place, and the Eleventh Circuit should find it to be unconstitutional. From Ethnic Studies, to Critical Race Theory, and most recently the attack on Diversity, Equity, and Inclusion (DEI), which is aimed at diversifying staff, and promoting inclusivity for faculty and students. Florida's Governor, Ron DeSantis, has stated “DEI, critical race theory, and gender ideology are not “what a liberal arts education should be.” He has made it clear that he will not accept nor tolerate these practices further going on to state “the whole experiment with DEI is coming to an end in the state of Florida. We are eliminating the DEI programs.” Critical Race Theory ensures that we are aware of where and what we've come from. Choosing to target specific groups through ethnic bans and prohibitions does not display solidarity or advancement toward equality and justice. Injustice anywhere is a threat to justice everywhere. It is impossible to disregard race as we attempt to advance to a society where all things and people are treated equally and afforded the same opportunities. We must consider how history has shaped our present-day society. In the words of the late and great Justice Ruth Bader Ginsburg: “It's very hard for me to see how you can have a racial objective but a nonracial means to get there.”

Angelica B. Knight, J.D., St. Thomas University Benjamin L. Crump College of Law, 2023; M.P.A., Florida Atlantic University, 2020, B. A., Florida Atlantic University, 2018.