Excerpted From: Dylan Saul, School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans, 107 Minnesota Law Review 1311 (February, 2023) (370 Footnotes) (Full Document)


DylanSaulIn 2021, conservative politicians and media personalities launched a culture war over teaching critical race theory (CRT)--the idea that U.S. laws and institutions are products of and perpetuate white supremacy--in K-12 public schools. In the midst of this “manufactured panic,” nine state legislatures enacted statutes that either explicitly or implicitly banned the teaching of real or perceived CRT concepts in public schools. Many more are debating similar bills. In reality, few secondary schools actually teach CRT, given that CRT is an intellectual and often abstract legal theory. Yet anti-CRT legislation is often drafted broadly to ban the teaching of concepts such as “the United States of America or [a given state] are fundamentally or systematically racist,” thus creating a “chilling effect” that prohibits an array of classroom discussions about race. For many students, however, systemic racism is a reality that must be confronted every day, including in school. CRT bans thus threaten to marginalize or devalue both students' lived experiences and informal cultural-historical training.

CRT bans' impact on American school-children ought to concern parents and citizens. Data show that “ethnic studies” classes and “culturally relevant pedagogy” correlate with positive feelings of self-empowerment and improved school performance among K-12 students of color. Crucially, psychological studies have long indicated courts have only recently recognized white students benefit just as much from interactions with diverse peer groups and critical examination of white supremacy as students of color do. “Critical Race pedagogical practices,” proponents argue, “have the potential to empower students of color while dismantling notions of colorblindness, meritocracy, deficit thinking, linguicism, and other forms of subordination.” Simply put, even if CRT itself is not taught in K-12 schools, “it is important for young people to learn about the past--and to discover both the good and the bad in our history.” But CRT bans' explicit purpose is to prevent these conversations from happening in the classroom: they prohibit discussions of “inherent privilege[ ],” deny that white people “bear[] responsibility” for “actions committed in the past,” seek to prevent white people from feeling “discomfort,” and outlaw teaching that the United States is “fundamentally ... racist.” To the extent that CRT bans prohibit students from engaging with this difficult material, they present a very real threat to all students' learning outcomes that merits a legal remedy. However, because challenges to CRT bans have yet to work their way through the courts, students, teachers, and activists seeking to challenge CRT bans have a dearth of precedent to rely on.

This Note seeks to help plaintiffs in future CRT curriculum cases overcome that hurdle by identifying possible constitutional challenges to CRT bans. Part I delves into the history of CRT and the contemporary backlash to it. Part II compares the CRT debate with analogous legal battles over ethnic studies curricula, which reveal that students have grounds to challenge CRT bans as an infringement of their First Amendment freedoms, notwithstanding states' undoubted ability to set public school curricula. Part III advances a novel three-part First Amendment argument for challenging the constitutionality of CRT bans. First, the bans infringe students' “right to receive information.” Second, courts should resolve a longstanding circuit split by requiring viewpoint neutrality in school curricula. Third, given CRT bans' predominant political purpose, state and local governments fail the viewpoint neutrality test and lack the requisite “legitimate pedagogical concerns” necessary to infringe students' rights. This Note concludes that while students have standing to challenge CRT bans under the First Amendment, courts will likely hesitate to wade into the culture war by overturning democratically-enacted curricular bans thought to be within the purview of states' traditional police power. Nevertheless, this Note's roadmap for mounting legal challenges to CRT bans can also help students and activists rachet up social pressure to repeal CRT bans through the court of public opinion.

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This Note demonstrates that curricular bans on teaching CRT-related concepts in K-12 public schools are susceptible to First Amendment challenges predicated on students' “right to receive information.” Specifically, this Note argues that when placed in the context of conservative backlash to Black Lives Matter protests, CRT bans serve two purposes: (1) drumming up moral panic for political profit; and (2) creating a “chilling effect” on classroom discussions about systemic racism. Although school boards and state legislators retain broad rights to set curriculum and restrict “school-sponsored” expression, neither of these objectives is “reasonably related to legitimate pedagogical concerns,” as is required by Hazelwood. If anything, evidence suggests that banning CRT from the classroom does a disservice to students of all races: “CRT in education, specifically in curriculum,” allows educators to “provide students a real understanding of U.S. history and thus maybe have a more concrete grasp of race and racism today.” And to the extent that CRT bans prohibit only certain views in race-based classroom discussions, they fly in the face of compelling precedent holding that public schools cannot engage in viewpoint discrimination when setting the curriculum. No matter how vehemently conservative politicians disagree with CRT, the government may not exercise its discretion “in a narrowly partisan or political manner” nor deny access to ideas merely because it disagrees with the speaker's view.

CRT adherents reading this Note have every reason to be pessimistic about the chances of successfully overturning CRT bans, given courts' complicity in upholding a legal tradition rooted in white supremacy. Indeed, the most important avenue to push back against CRT bans may well be in the court of public opinion, such as by encouraging students to peacefully protest CRT bans in the same vein as Tinker. Yet comparisons to analogous case law concerning ethnic studies bans provide a spark of hope. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Given the fervor of white society's disagreement with CRT, in the words of Professor Kimberlé Crenshaw, CRT proponents “have every reason to be wildly optimistic.”


J.D. Candidate, University of Minnesota Law School, 2023; Lead Managing Editor of Minnesota Law Review, Volume 107.,