Excerpted From: Leah M. Watson, The Anti-“Critical Race Theory” Campaign - Classroom Censorship and Racial Backlash by Another Name, 58 Harvard Civil Rights-Civil Liberties Law Review 487 (Summer, 2023) (477 Footnotes) (Full Document)


LeahWatson“Ignorance allied with power is the most ferocious enemy justice can have.” - James Baldwin

Since the racial reckoning of 2020 following the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, references to “critical race theory” in schools have become a rallying cry for conservatives who seek to keep students ignorant of racism and oppression in America. I use quotations because the phrase “critical race theory” has been co-opted by conservatives to misleadingly reference a range of speech describing race, the systemic nature of racism, and anti-racism efforts. Critical race theory is a framework primarily utilized in higher education to track and challenge the ways racism is built into American institutions. Critical race theorists do not teach students to hate any group, seek to divide Americans, or reduce complex identities only to racial classifications. But, this fight isn't limited to critical race theory. Conservatives seek to erase all meaningful discussions of race or racism in schools, including (1) classroom instruction on systemic discrimination that helps students process the events they study and the world around them; (2) culturally responsive teaching, which builds upon students' lived experiences to further academic engagement, develop positive social identity, and foster critical thinking skills; and (3) critical race theory. Collapsing these three concepts, collectively “race conscious instruction,” under the banner of “critical race theory” is a deliberate effort by conservatives to minimize the wide range of speech they seek to censor.

Legislation prohibiting race conscious instruction has been introduced in 45 states since January 2021. Censorship efforts spread like wildfire in 2022, with the number of bills introduced increasing by more than 250 percent compared to 2021. By January 2022, 35 percent of all primary and secondary (K-12) students, or 17.7 million students, attended districts that experienced some form of a local campaign to end “critical race theory” in classrooms. These efforts were not limited to K-12 classrooms; 30 percent of 2021 classroom censorship bills and 39 percent of 2022 classroom censorship bills applied to higher education. This movement has significantly reduced, or altogether silenced, discussions of racism and sexism in classrooms, essentially operating as an educational gag order on these topics.

As a former teacher and attorney currently litigating the constitutionality of educational gag orders in Florida, Oklahoma, and New Hampshire, I strongly believe that any discussions of classroom censorship must begin with the impact on students and establish why it is important to continue to incorporate race conscious instruction in schools. The Supreme Court has recognized that public schools play an important role “in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests.” Contrarily, the current classroom censorship campaign deprives students of the opportunity to accurately understand the multicultural society in which they live and its history, while reinforcing the dominant, white male narratives that discount, and often completely exclude, the perspectives of people who identify as Black, Indigenous, People of Color (BIPOC), Lesbian, Gay, Bisexual, Transsexual, Queer (LGBTQ+), and/or women. To effectuate this goal, educational gag orders violate the constitutional rights of students and educators alike.

The push to keep students and future generations ignorant of the historical and current manifestations of racism in America is, in my view, a thinly veiled attempt of a vocal minority of predominantly white people to maintain control amidst shifting demographics. This issue is not clearly split along racial lines; not all white people are perpetuating these efforts. Furthermore, not all white people are racist, despite the institutional privilege their race affords. A small group, however, is using classroom censorship as a pawn in their game to hoard control and to prevent societal progress. In 2017, for the first time in the history of this country, white students became the minority in public schools. The percentage of white public school students dropped from 61 percent in 2000 to 48 percent in 2017. “Rapid demographic change is the strongest single predictor of whether or not districts have been impacted” by anti-“critical race theory” efforts. The districts where white student enrollment declined by 18 percent or more were three times more likely to be impacted by a push to remove “critical race theory” from schools than districts with less rapid demographic shifts. Districts impacted by anti-“critical race theory” efforts are more likely to be racially mixed or majority white and located in communities that are politically contested (no presidential candidate won more than 49 percent of the vote in the 2020 election). The hysteria about “critical race theory” in schools isn't motivated by a desire to improve the academic success and social development of students; I argue it is racial gaslighting, primarily driven by a fear of a vocal minority that white people are losing societal control, stoking concerns that have persisted for centuries.

Throughout America's history, hard-fought progress towards racial justice has been immediately followed by retrenchment to perpetuate the hierarchies of the status quo. After the emancipation of enslaved people, states passed the Black Codes, laws to control formerly enslaved people through the restriction of their independence and economic autonomy. Reconstruction also ushered in the Jim Crow era of sanctioned terror on Black communities. The War on Drugs, an affirmative attack on Black communities, trailed the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. After the historic turnout of young voters and voters of color in the 2008 election of President Barack Obama, state legislatures and election officials passed a number of restrictions on voting. In an effort to limit access to the polls, at least 25 states narrowed voter identification laws, circumscribed voter identification policies, and/or shortened the early voting period. Research demonstrated that strict voter identification laws, limitations on Sunday voting, longer wait times on Election Day, and polling place consolidation disproportionately harmed voters of color. These efforts redoubled following the heightened voter turnout and unprecedented votes by mail during the 2020 presidential election. States passed laws that restricted the availability of mail ballots, implemented stricter signature requirements or voter identification for mail ballots, and limited in-person voting. They also aggressively purged voter rolls, eliminated same day registration, and prevented the addition of polling places and early voting days.

The pattern of progress followed by retrenchment continued with the 2020 racial reckoning. After George Floyd's murder in May 2020, protests in support of racial justice occurred across the world. In the weeks following Floyd's death, approximately 15 to 26 million people in the United States reported that they protested, making Black Lives Matter the largest movement in America's history. On a single day, half a million people attended Black Lives Matter protests in nearly 550 places across the United States. Black Lives Matter protests were held in over 40 percent of counties. Soon thereafter, at least 90 bills were introduced in 35 states to restrict protestors and/or civil disobedience, including bills to make it illegal to insult police while extending immunity to drivers who hit protestors with their cars. Many bills targeted tactics used by movements led by people of color. This legislation will likely be “disproportionately enforced against movements by people of color or focused on issues of racial and social justice.”

The first section of this article discusses the efforts to advance racial justice that precipitated this backlash; highlights the value of race conscious instruction; and describes the difference in the three forms of race conscious instruction. The second section demonstrates how the anti-“critical race theory” movement is a politically motivated attack that is at odds with the best interests of students. In an effort to thwart progress towards racial justice, conservatives intentionally misrepresented critical race theory as a threat to white people and democracy; demanded censorship to remedy this contrived threat; and coordinated federal and state-based strategies to silence speech that addresses inequality. The third section focuses on educational gag orders, and outlines the scope and type of censorship, enforcement mechanisms, and the resultant culture of fear and intimidation to coerce compliance. The fourth and final section analyzes litigation challenging the ways this censorship violates the First and Fourteenth Amendment rights of educators and students.

[. . .]

Rufo reportedly “described ‘the fight against critical theory’ as ‘the most successful counterattack against B[lack] L[ives] M[atter] as a political movement. While the anti-“critical race theory” movement has spread quickly and continues to evolve, I remain encouraged that this fight is not over. Classroom censorship is not a foregone conclusion. Parents and advocates organized across the country to defeat proposed classroom censorship litigation during the 2022 legislative cycle, even in conservative states like Indiana and South Carolina. The resistance movement also drew upon the voices and skillsets of students, policy advocates, lawyers, educators, researchers, communications specialists, and politicians. Their success often resulted from collaboration between historically marginalized groups and is a direct testament to the power of organizing.

Additionally, litigation appears to be a promising avenue to challenge educational gag orders. We won early victories in our classroom censorship litigation, including the issuance of a preliminary injunction blocking enforcement of the higher education provisions of Florida's Stop W.O.K.E. Act and the survival of our claims against motions to dismiss in Florida and New Hampshire. I hope courts will continue to recognize how educational gag orders violate the constitutional rights of students and educators.

While litigation is an important tool in this fight, it has limitations. As an initial matter, litigation takes time. Attorneys need to listen to people impacted by educational gag orders, identify legal claims based on a close review of the legislation, obtain evidence to support the claims, draft and file legal documents, and adhere to the scheduling order set by the court. None of these things can happen overnight. Furthermore, litigation cannot keep pace with the breakneck speed of conservatives seeking to remove race conscious instruction in schools. In less than five months in Florida, Gov. DeSantis required institutions in the State University System to report all activities involving DEI or critical race theory; appointed new Board of Trustees members, including Rufo, in a hostile takeover of New College, a liberal arts college to conduct a “top-down restructuring” of the institution; and rejected the College Board's Advanced Placement African-American History course, stating that it “significantly lacks educational value.” Governor DeSantis also introduced a legislative proposal that became Senate Bill 266, which he signed into law, to broaden the attack on higher education. Whereas the Stop W.O.K.E. Act prohibited training or instruction on certain topics, S.B. 266 expands those prohibitions to curriculum on these concepts “or that is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.” Notably, it forbids the use of state of federal funds for programs or campus activities that advocate for DEI or “promote or engage in political or social activism.” Consistent with the New College takeover, S.B. 266 vests power in the state university president to fire the provost, deans, and all full-time faculty. Finally, the law prohibits universities from issuing statements, foreclosing their ability to affirm their support for students of color or to vocalize the importance of DEI as they did during the racial reckoning of 2020, and requires post-tenure review of higher education faculty in a campaign to use intimidation to force compliance. A parallel attack on gender identity ensued: the Florida legislature expanded the Don't Say Gay law's blanket proscriptions on instruction about sexual orientation or gender identity to eighth grade instead of early education and only permits instruction in high school if it is deemed age appropriate. It also banned the use of personal titles and pronouns in K-12 education while mandating instruction that sex is “binary, stable, and unchangeable.” Litigation cannot be the only tool to resist these efforts. Beyond the time considerations, litigation offers a limited scope of relief. As a former teacher, I believe all students deserve race conscious instruction. However, no court has recognized this belief as a constitutional right. At best, our legal claims prevent the most censorious actions by states. Litigation is an insufficient tool to craft an affirmative position on what race conscious instruction belongs in schools.

Though imperfect, litigation is one of many methods we must utilize to fight for racial justice and race conscious instruction in schools. While daunting, I believe that we will ultimately succeed.

I am a Senior Staff Attorney in the Racial Justice Program at the American Civil Liberties Union (ACLU) and a graduate of Harvard Law School. I am a member of the ACLU team that filed the first case to challenge this type of classroom censorship legislation, and I am currently litigating these issues in Florida, Oklahoma, and New Hampshire. I am so grateful to my family, friends, and colleagues for their insight and support.