Properly crafted legislation can empower parents
One of the side effects of the “virtual” schooling imposed on students across much of the country in the last year and a half was to offer American parents a unique window into modern educational pedagogy. Many parents didn’t like what they saw — especially when it came to how schools were teaching their children about race. In the 2020–21 school year, “critical race theory” in education became the latest flashpoint in the culture wars.
So far in 2021, legislators in at least 25 states have introduced bills aimed at curtailing various forms of racial instruction and indoctrination in public schools. Several of these have become law, including enactments in Arizona, Arkansas, Idaho, Iowa, New Hampshire, Oklahoma, Tennessee, and Texas. In addition, the Florida Board of Education adopted a new rule clarifying its education standards and limiting the teaching of certain racially charged theories and materials. More legislation and rulemaking is almost certain to follow.
The legislative response has been fast and furious because most Americans oppose teaching certain racially divisive concepts in public schools. To be sure, most people lack a strong opinion on critical race theory itself — unsurprisingly, since the term describes what was, at least until recently, a relatively obscure academic niche centered in law schools. Randi Weingarten, president of the American Federation of Teachers, is doubtless correct when she claims that “critical race theory is not taught in elementary schools or high schools” — if by that we mean literally assigning such young students the law-review writings of Derrick Bell, Richard Delgado, or Kimberlé Crenshaw.
But that hardly means that there’s nothing afoot in the public schools at all — that the uproar against critical race theory is merely the product of Fox News reporting, “astroturf” campaigns, or the like. Parental concerns that have roiled school-board campaigns and prompted lawsuits around the country are founded on actual occurrences. A public school in Cupertino, Calif., actually did require third-graders — in math class — to “deconstruct” their racial identities and rank themselves according to their “power and privilege.” A public school in Philadelphia really did make fifth-graders march across an auditorium stage bearing signs that read “Jail Trump” and “Black Power Matters” in a rally celebrating “black communism.” And a Buffalo school district did adopt an “emancipatory curriculum” instructing students through its “pedagogy of liberation” that “all white people play a part in perpetuating systemic racism.”
These sorts of exercises — not the teaching of historical facts about American slavery or Jim Crow segregation — form the basis of most parental objections to racially charged schooling. And when it comes to specifics, Americans really do know what they don’t like. An April 2021 survey by Competitive Edge Research found that 88 percent of Americans opposed schools’ “assign[ing] White students the status of ‘privileged’ and assign[ing] nonwhite students the status of ‘oppressed.’” And 74 percent of Americans opposed schools’ teaching “that White people are inherently privileged, while Black and other people of color are inherently oppressed and victimized.”
Americans’ overwhelming opposition to such teachings, however, is not echoed by the education establishment. Eschewing Randi Weingarten’s evasion, leaders of the other major teachers’ union in the United States, the National Education Association (NEA), passed a resolution this summer affirming its commitment to a “curriculum . . . informed by . . . critical race theory.” Teachers and administrators coming through our leading schools of education are steeped in attacks on “colorblindness, meritocracy, deficit thinking, linguicism, and other forms of subordination” in the education context, to use the framing of critical-race education scholar Gloria Ladson-Billings. According to leftist academic Peter McLaren, a leader in the adjacent field of “critical pedagogy,” “knowledge should be analyzed on the basis of whether it is oppressive or exploitative, and not on the basis of whether it is ‘true.’”
It’s hard to exaggerate how dominant a role these ideas have assumed in university schools of education. In 1995, Ladson-Billings and fellow professor William F. Tate IV at the University of Wisconsin–Madison wrote an article titled “Toward a Critical Race Theory in Education.” Their ideas are now ascendant. Ladson-Billings was the most-assigned author at the education schools at three leading public universities — the University of Michigan–Ann Arbor, the University of North Carolina–Chapel Hill, and the University of Wisconsin–Madison — according to a 2019 study by the James G. Martin Center for Academic Renewal. And Ladson-Billings is not alone: Other critical-race and critical-pedagogy authors dominate these schools’ assigned-reading lists as well.
The entrenchment of critical-race-laden concepts in the educational establishment makes turning the tide a challenge for elected officials. It’s no doubt tempting for some legislators to embrace heavy-handed top-down remedies with draconian enforcement mechanisms. And some bills introduced around the country have indeed followed this path — prompting pushback against overreach and raising genuine constitutional concerns. (As a general rule, though, the reforms that have become law have been far less sweeping than some of those introduced but not enacted.) Against this backdrop, I crafted model legislation that I hope can guide legislatures in tackling this issue while staying true to broader conservative principles.
One thing legislatures can and should do to rein in noxious race essentialism in public schools is to facilitate greater transparency — to inform parents about lesson plans and assignments, as happened more than ever this year with widespread online schooling. As a general matter, such transparency should be the norm, not the exception. Ensuring that parents are fully informed about schools’ curricula, initiatives, and trainings in this context will offer built-in feedback — informing the electorate and elected officials alike.
Transparency alone is not enough. Not all parents will be well equipped to push back against school administrators or school boards, through either the courts or the ballot box. My model legislation would clarify for school boards and administrators what constitutes prohibited compelled speech in the public schools and afford dissenting parents the right to withhold their children from racially charged pedagogy.
In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court struck down a West Virginia requirement that students salute the American flag and recite the Pledge of Allegiance in public schools. While many conservatives naturally support such acts of patriotism, the Supreme Court was wise to emphasize that it is a “fixed star in our constitutional constellation . . . that no [government] official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That “fixed star” serves us well when school administrators embrace critical-race orthodoxy.
Given the Supreme Court’s clear pronouncement in Barnette, shouldn’t school administrators already view as anathema many of the race-essentialist exercises embraced by many diversity-equity-and-inclusion consultants? Well, yes — which is why we’ve seen First Amendment litigation involving such pedagogy springing up around the country. But the lines can be blurry for school boards and administrators. Schools necessarily compel student speech all the time: Students have to write papers and take tests; and assignments and answers are graded as good or bad, right or wrong. Where does the line lie between assessing facts and reasoning and “prescribing orthodoxy” in politics or matters of opinion?
Rather than relying exclusively on ex post litigation to rein in abuses, it’s wholly appropriate for state legislatures to establish guardrails for school officials. My model legislation would forbid public schools to require students (or faculty) to classify themselves as intrinsically racist or “oppressive” based on their race, to ascribe personal responsibility or moral character based on race, or to affirm worldviews holding that the United States is fundamentally or irredeemably racist. Whatever the merits or demerits of these ideas (count me a skeptic), they are much more akin to matters of political opinion or orthodoxy — like reciting the Pledge of Allegiance — than to explaining the Lincoln–Douglas debates, the Emancipation Proclamation, or the Civil Rights Act of 1964.
My model legislation — like that enacted in Idaho and vetoed by the governor in North Carolina — clarifies what constitutes prohibited compelled speech; but it also affords students and faculty the ability to “opt out” of certain racially charged exercises, much as many states allow parents to hold their children out of state-mandated sex-education lessons. The goal here is again to empower parent choice — and afford safety valves for families living in areas where critical-race progressives control the government-monopoly school apparatus.
Some states have gone further and tried to limit the teaching of certain critical-race concepts, at least if presented as right-and-wrong propositions rather than academic theories. The wisdom of such rules depends on their sweep, but state legislatures necessarily are the ultimate arbiters of school curricula. As a legal matter, it’s clear that teachers performing their official roles are acting as agents of the state — essentially giving voice to government-approved speech. Thus, state legislatures and other elected government officials have significant constitutional authority to direct such speech — including by preventing public-school teachers from engaging in offensive classroom speech such as using racial epithets or presenting age-inappropriate material. (Broadly speaking, legislatures have significantly less ability to direct the pedagogical choices of state-funded universities, which is why I limited my model bill to K–12 schools — though state universities themselves cannot constitutionally compel student, staff, or faculty speech on matters of political orthodoxy.)
Legislatures tackling racially divisive instruction in public schools should be sensitive to local control of schools and educational pluralism — the conservative principle of decentralizing power to states and localities to limit government abuse and facilitate dissenting individuals’ ability to exit by “voting with their feet.” My model legislation affords broader latitude to government charter schools that parents affirmatively choose and resists the temptation to tie the hands of private schools that receive some state funding, including through voucher programs. That’s not because private schools don’t embrace bad curricular choices; but when parents have options, we should resist state meddling — the very sort of resistance to meddling that would allow parents to send their children to religious schools with “statement of faith” requirements for enrolled students.
Finally, in crafting enforcement remedies, legislatures should be sensitive to overreach. Creating broad new private-enforcement mechanisms — i.e., lawsuits for money damages — could in effect delegate public-school decision-making to plaintiffs’ attorneys. The threat of shakedown lawsuits could indeed chill legitimate academic instruction, as well as potentially strain tax-funded school budgets.
Overwhelming majorities of Americans oppose the most aggressive applications of critical race theory in our public schools. Elected officials can — and should — rein in abuses of the educational establishment while remaining sensitive to conservative principles such as government transparency and accountability, local control, educational pluralism, and parental choice.
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James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. He is the author of “The Unelected: How an Unaccountable Elite is Governing America.” Follow him on Twitter here.
This piece originally appeared in National Review