Excerpted From: Hannah Daigle, Critical Race Theory Through the Lens of Garcetti v. Ceballos, 20 First Amendment Law Review 230 (2022) (183 Footnotes) (Full Document)


HannahDaigleThe First Amendment states no law shall be made “abridging the freedom of speech.” The Supreme Court has repeatedly protected contentious forms of speech and expression including allowing flag burning, brandishing offensive signs during the picketing of a funeral for a deceased veteran, and the burning of a cross on an African American family's lawn. Despite each of these controversial decisions, all of which broadly protect free speech and expression, the Court has taken issue with an area that on its face, appears far less controversial. In Garcetti v. Ceballos, the Court held the First Amendment does not shield a government employee's speech and expression made pursuant to their professional duties from employer discipline. This ruling drastically narrowed the scope of First Amendment protections that public employees had previously enjoyed.

To be considered a public employee or a public sector employee, one must work for the government of the United States, a state, a territory in possession of the United States, a city, a municipality, a county, or a similar government. The broad category of public employee encompasses many professions, including police officers, public health care workers, bus drivers, and teachers. Because the category of “public employee” is extremely broad, Garcetti implicated thousands of workers. Among the many fields of public employees, public school teachers stood out as a special category to the Court. Notably, the majority points to additional factors they believe to be relevant in a school setting which could potentially carve out an exception to teachers' speech being controlled by public employers.

However, the Court does not individually discuss these additional factors; instead, it refers to the Court's previous acknowledgement that teachers possess increasingly informed and definite opinions in an academic environment specifically regarding school expenditures compared to other members of the population. Despite the Court singling out teachers in the majority opinion, the Court falls short of actually providing this differentiated class with any individualized protection. Instead, the Garcetti Court declined to decide if the Garcetti analysis would apply to issues involving teaching in a classroom, presumably leaving this determination to the discretion of lower courts.

Schools are often the first place young students learn about race, America's racial history, and their own racial identity. Research indicates that teachers have a very important role to play in educating their students: “[e]arly childhood educators can support the unlearning of racism--and minimize later breathing in of racism--by intentionally teaching about race and related issues.” In addition, “[t]eachers who intentionally plan curricula that affirm children's racial identities have seen the benefits this produces in supporting children's growth and learning across many domains of development.”

One way teachers may aim to educate their students about race and racial history in the United States is through incorporating elements of Critical Race Theory (CRT) in the classroom. CRT emphasizes the systemic and enduring nature of racism in the United States. The theory “argues that historical patterns of racism are ingrained in law and other modern institutions, and that the legacies of slavery, segregation and Jim Crow still create an uneven playing field for Black people and other people of color.” As racial issues remain a topic of public concern and receive media attention, schools have been incorporating information about systemic racism and equitability, concepts that fall in line with CRT's teachings, within classroom settings. However, this has recently received strong pushback, particularly from conservative states.

Since January 2021, 42 states have introduced bills or taken other steps to restrict or limit the ability of teachers to discuss racism and sexism, particularly through the lens of CRT. At least 17 of these states have imposed restrictions limiting or banning CRT itself; though it is worth noting that these conservative states often use CRT as an “all-encompassing umbrella term that covers seemingly any racial issue[.]” These laws target the discussion and orientation that the U.S. is inherently racist and any conversations “about conscious and unconscious bias, privilege, discrimination, and oppression.” The Heritage Foundation, an outspoken critic of CRT, believes it should not be taught in schools because it “demoralizes K through 12 students, polarizes higher ed students, guilts on working Americans, and condones cancel culture. [CRT] stokes grievances with the purpose of creating victims.” With this perspective in mind, notable conservatives have made it abundantly clear that CRT is unwelcome in public school classrooms. For example, Republican Governor of Florida, Ron DeSantis stated: “In Florida we are taking a stand against the state-sanctioned racism that is [C]ritical [R]ace [T]heory .... We won't allow Florida tax dollars to be spent teaching kids to hate our country or to hate each other.”

These targeted aims at CRT in schools by conservative states and politicians are an indirect result of the Garcetti decision and its explicit failure to take a stance on the First Amendment's freedom of speech rights for public school educators. If the Court had carved out an exception for school teachers, distinguishing their First Amendment rights from other government employees, there would be less room for ambiguity and debate on the issue of incorporating elements of CRT into lesson plans. There are dangerous implications of Garcetti's failure to explicitly protect teachers' speech in the classroom: the holding allows politicians to whitewash American history and impose ignorance on a new generation. These implications indicate at the very least, the Garcetti framework must be altered or replaced altogether in the educational context to protect the freedom of speech rights of K-12 public school teachers and their ability to educate students about the issues of race and racism in America.

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Critical Race Theory is a decades-old school of thought rooted in important and widely recognized historical movements and philosophies. The public school system has a distinct duty to equip its students with access to information so they can develop and shape their own personal opinions. This duty includes access to subject matter like CRT. Beyond a distinct failure in their responsibility to their students, when officials and school boards decide to ban students from accessing information or ideas with which the school board disagrees, they act unconstitutionally. Despite this act being described as unconstitutional by decades-old cases such as Board of Education v. Pico, K-12 teachers may still face serious consequences, such as losing their job, if they choose to teach, or even mention CRT in their classrooms. Given the subject matter of CRT, and those who have been disciplined for teaching it, this issue has and will continue to have a disproportionate effect on students and teachers of color.

This point of contention between long-standing Supreme Court case precedent and modern conservative legislation is in large part due to Garcetti's failure to carve out a needed exception for public school teachers. Ironically, in Garcetti, the Court specifically recognized teachers and their unique situations in comparison to other government employees. Even so, the Court skirted the responsibility of resolving this predicament, instead deciding that simply pointing out the problem would be sufficient.

Until the Supreme Court decides to remedy the discrepancy it created, students and teachers are left to the mercy of creative lawyering and legal loopholes. Two promising remedies stand out. First, a teacher may succeed against one of the newly instituted anti-CRT laws with a potential claim of unconstitutional vagueness under the Due Process Clause. Second, students may succeed in a suit against anti-CRT legislation by relying on their First Amendment right to have access to information. Lawsuits using these techniques may become more commonplace as conservative lawmakers continue to pass anti-CRT laws. Even so, without a change to K-12 teachers' First Amendment rights under Garcetti, the ability to teach students about CRT in public K-12 schools remains in serious danger.

Hannah Daigle, Staff Member, First Amendment Law Review, University of North Carolina School of Law.