Conservatives are on the march in the political offensive against the teaching of Critical Race Theory and related racialist concepts in K-12 public schools, a battle that has moved into state legislatures. I have written about some of the philosophical problems with the “anti-anti-CRT” movement. But it is also the case that the anti-CRT initiatives must navigate a series of political and legal obstacles, and prudent consideration of those is a worthwhile task for those of us who believe in that cause.
Greg Lukianoff, CEO of the Foundation for Individual Rights in Education (FIRE), has some thoughts worth reading in a blog post co-authored with three other FIRE staffers. FIRE is, as I have detailed, an essential defender of free speech rights in higher education, without which conservative college and graduate students would be in a much worse situation. As you might expect, Lukianoff is somewhat skeptical of using state laws to limit the teaching of ideas in any school, particularly universities, but he takes a thoughtful approach to the important distinctions: between public and private schools, between universities and K-12 schools, between academic freedom and the power of government to intimidate and indoctrinate students. On the legal and political status of public K-12 education:
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 [as far back as 1794]…[W]hat 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…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.
[T]he 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…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.
State power over curricula includes the power to choose which materials will be taught, and which will not:
States have broad discretion in controlling K-12 education…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.
At the same time, while Lukianoff believes that many anti-CRT laws are constitutional, he warns that poorly-drafted laws can end up banning the teaching of things that the legislators never intended to ban, and can lead to confusion and discord at the school level. But he rejects the view that the laws are reacting to entirely chimerical concerns, citing multiple examples of “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,” citing the California state curriculum as a particularly noxious example of political and racial indoctrination, and observing that “what opponents of ‘CRT’ are getting at is a philosophy that comes directly in conflict with small-L liberalism…the rise and widespread adoption of a philosophy that relies on genetic essentialism, overgeneralization, guilt by association…shame and guilt tactics, and deindividuation.” This is a worthy thing to oppose, especially if you believe in classically liberal values.
Read the whole thing. It is worth your time. So is this blog post by my former RedState colleague Patterico, on why the New York Times op-ed by David French, Kmele Foster, Thomas Chatterton Williams, and Jason Stanley against state anti-CRT laws ends up misrepresenting carefully drafted anti-CRT laws such as the one in Texas. It is not surprising that the Times piece is short on nuance; it is a co-authored piece by four people with differing worldviews, which inevitably leads to a lowest-common-denominator approach to what the authors can agree on, plus it is published in the Times, which means complying both with the constricted word limits of the Times and its institutional allergy to saying anything its readers would find uncomfortable. But that is no excuse for readers swallowing its characterizations as the last word on what these laws actually say and do. Patterico sets the record straight. (UPDATE: He has further responses here).