Excerpted From: Vanessa Miller, Frank Fernandez and Neal H. Hutchens, The Race to Ban Race: Legal and Critical Arguments Against State Legislation to Ban Critical Race Theory in Higher Education, 88 Missouri Law Review 61 (Winter, 2023) (258 Footnotes) (Full Document)


MillerFernandezMiller.jpegConservative government officials across the country are supporting state education laws and policies that could alter the nature of higher education in some states. The laws and policies attempt to ban institutions from teaching critical race theory (“CRT”), an academic framework that scholars use to examine the relationship between law and race, and more broadly seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Individuals opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. In some states, lawmakers have outright banned the teachings of what they believe to be CRT in the classroom. In other states, lawmakers have restricted institutions and companies from providing workplace anti-racism trainings that discuss race or sex. However, scholars have criticized these state officials for their misunderstanding and mischaracterization of the tenets of CRT and related theories or strands of scholarship.

The current anti-CRT legislative movement closely resembles former President Donald Trump's public attacks on CRT, anti-bias workplace trainings, the New York Times 1619 Project, and the Black Lives Matter movement following months of global racial justice protests in response to the murder of George Floyd and other racialized incidents. The national shock of a widely publicized incident of police violence and the increasing popularity of the Black Lives Matter movement led companies to adopt anti-racism workplace strategies and schools to include a racially inclusive curriculum. Influenced by an emerging conservative push against CRT and related concepts or ideas, President Trump signed Executive Order 13950, “Combating Race and Sex Stereotyping” (“EO 13950”) on September 22, 2020. EO 13950 asserted anti-racism trainings in the workplace promoted “offensive and anti-American” race and sex stereotypes that falsely misrepresented “our country's history” and “role in the world.” Although President Joseph Biden rescinded EO 13950 on his first day in office, the purpose of the order fueled a nationwide conservative effort to ban CRT and eradicate discourse of race and racism in educational settings.

Most of the current legislative bans on CRT primarily focus on curriculum in elementary and secondary education, such as limiting course content and course materials. However, lawmakers in nearly thirty states have also introduced bills targeting CRT or other “divisive concepts” in higher education. As of December 2022, eight states have passed legislation banning CRT in postsecondary institutions or in some way targeting CRT even if the actual requirements of a law are unclear: Idaho, Oklahoma, Iowa, New Hampshire, South Dakota, Mississippi, Tennessee, and Florida. Additionally, Montana and Arkansas took other legal means to target CRT in higher education.

In Montana, the Superintendent of Public Instruction requested the state's Attorney General to weigh in on the issue of CRT. The Montana Attorney General issued an opinion, holding that CRT was analogous to racial discrimination and “[c]ommitting racial discrimination in the name of ending racial discrimination is both illogical and illegal.” State Attorney General opinions in Montana carry the weight of law. Similarly in Arkansas, a state representative requested an analysis on the issue of CRT in schools from the state's Attorney General. The Arkansas Attorney General held that the First Amendment does not “immunize a person or educational institution from violating others' rights under [law] by engaging in race-based practices,” such as “practices based on critical race theory, professed ‘antiracism,’ or associated ideas.” Though Arkansas Attorney General opinions are not binding on the courts, the Arkansas Supreme Court has held they can be persuasive.

The inclusion of postsecondary education in the wave of anti-CRT legislation has already impacted faculty teaching and scholarship. An Iowa State University undergraduate diversity requirement stalled for months because it violated the state's recently passed legislation against teaching “divisive concepts.” Oklahoma City Community College canceled a fully-enrolled summer course on race and ethnicity because it conflicted with the state's new law on how to discuss race and racism. As discussed in Part III, professors at the University of Florida who teach or engage in race scholarship have become political targets and face job insecurity because of the nature of their work. The anti-CRT laws have threatened academic freedom and challenged the very purpose of higher education as a social institution for teaching and scholarship.

The bans on CRT are also causing university general counsel offices and law firms that represent educational organizations to grapple with the legal and educational implications. How do public institutions of higher education comply with the anti-CRT state laws and refrain from impinging on faculty First Amendment freedoms? What legal avenues do faculty have when they are dissuaded or prohibited from teaching concepts that are foundational to an academic discipline that helps understand and address pervasive social problems? Can faculty or administrators demonstrate their support for opposing racism and sexism on campus or in society generally in other lawful ways? These legal questions are important because they point to the legal, educational, social, and economic costs of anti-CRT bans.

This Article argues that state anti-CRT laws and policies in higher education run afoul of legal and normative principles. First, the bans conflict with basic First Amendment legal standards. Second, the bans are poor policy choices because they run contrary to the pursuit of equity and inclusion in educational environments, as well as the traditional norms of higher education. Part I of the Article provides an overview of recent efforts to ban CRT and their relation to higher education. Part II presents a First Amendment legal analysis of why the bans are legally impermissible as written. And finally, Part III contends that anti-CRT legislation, in serving to perpetuate existing racial inequities in education and elsewhere, demonstrates the ongoing importance of CRT and other critical lines of scholarship in higher education.

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There has been a weaponization of free speech by groups from the political right attempting to cast restrictions on free speech and, at times, academic freedom as only emanating from the political left. As covered in Part I, states have adopted campus speech laws and various organizations have touted a campus free speech crisis. While challenges to academic freedom can and do arise from liberal or progressive circles, in reality, anti-CRT legislation and related efforts, such as the attempts to halt expert testimony by faculty members in Florida, highlight that weaponization efforts from the political right could be particularly devastating for academic freedom and faculty free speech. Infringements from academic freedom can come from the “right” or the “left” of the political and social continuum, and recognition of this state of affairs is one way to help courts craft First Amendment standards that are broadly protective of academic freedom rights.

Vanessa Miller, J.D., Ph.D., is Assistant Professor in the Department of Educational Leadership and Policy Studies at Indiana University.

Frank Fernandez, Ph.D., is Assistant Professor of Higher Education Administration & Policy and Affiliate Faculty with the Center for Latin American Studies at the University of Florida.

Neal H. Hutchens, J.D., Ph.D., is Professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky.