Legal Matters: September 2022
In recent years, school districts have engaged in unprecedented shifts to promote equity, diversity, and inclusion—particularly racial equity. At the same time, opposition efforts have gained momentum in school districts and state legislatures around the country. Such efforts have largely centered on the allegation that students learn about critical race theory (CRT) in public schools. CRT, however, is a specific framework used to study education and law, as opposed to a curriculum taught in pre-K–12 schools, and it is distinct from equity, diversity, and inclusion work. This article specifically focuses on “anti-critical race theory” and “divisive concepts” legislation—and the implications for racial equity.
Differing Legal Perspectives
The role of courts in addressing race and racism has long been a topic of education debates, most notably in 1954 when racial segregation was outlawed in public schools in the landmark Brown v. Board of Education decision. The current sociopolitical context is connected to larger disagreements about the role of race in society and the ways to address racism. An exchange between two current Supreme Court justices helps to illustrate this divide, specifically the extent to which explicit engagement with race either undermines or promotes racial equity. In response to Chief Justice John Roberts’ position that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Justice Sonia Sotomayor stated: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination” (Schuette v. Coalition to Defend Affirmative Action, 2014). These two disparate perspectives are on display nationally as states enact legislation that places restrictions on discussions of race and racism in schools, despite growing efforts to promote racial equity in education.
What Is Critical Race Theory?
Before getting to the specifics of legislation and related lawsuits, it is crucial to have a shared understanding of important concepts or theories. In this article, the term “racial equity” or “racial justice” in education means systemic action to promote fairness and equity for all races.
Critical race theory (CRT), on the other hand, is a specific theory that is discussed in law schools and graduate schools to better illuminate the ways in which systemic racism permeates society. It is not a new theory; in fact, scholars have used this theory for decades (George, 2021). CRT functions as a lens for researchers to examine policies and practices. Also, it has multiple tenets, including explicit acknowledgment of the social construction of race, recognition that progress often occurs when it is in the best interest of the majority (referred to as “interest convergence”), and a focus on the stories of individuals who have historically been marginalized (referred to as “counter-storytelling”).
To provide an example, the application of CRT would lead a researcher studying student discipline policies to interview students of color, rather than include only dominant narratives often told by white students or teachers.
State Laws and District Policies
State legislatures have passed or proposed a range of policies related to discussions of race and racism in the curriculum. Some laws and policies specifically address CRT, while others place restrictions on feelings of “discomfort,” critiques of meritocracy, or the idea that one race or sex is superior to another race or sex, which reflects language from an executive order issued by the Trump administration in 2020.
According to the CRT Forward Tracking Project at UCLA, as of May 2022, 16 states have passed legislation placing limitations on discussions of race and racism. While much of the attention has focused on state legislation, some school districts have crafted parallel policies at the local level. For example, the project reports that Pennsylvania’s Penncrest School District revised its “Current Events/Controversial Issues” policy in March of 2022 to include language from the Trump administration’s executive order in its definition of divisive concepts.
Lawsuits Challenging Anti-CRT Legislation
In response to this recent wave of anti-CRT legislation, lawsuits emerging from Oklahoma, New Hampshire, and Florida argue that state “banned concepts” laws interfere with students’ ability to receive a well-rounded education. In each state’s respective lawsuit, plaintiffs argue that the legislation is unconstitutionally vague. Resulting from the laws’ unclear terms and broad language, educators are left wondering what sort of classroom speech and strategies for historical analysis are legally permissible in relevant states.
To seek clarification, plaintiffs have laid out several relevant questions brought on by the ambiguity of the statutes. In one New Hampshire case, Local 8027 et al. v. Frank Edelblut et al., some questions included: Would a student-initiated and student-led discussion on the relevance and impact of the Aryan race’s believed superiority over the Jewish population be deemed as part of a course in which it is taught that one race is inherently superior to another? If a student feels uncomfortable during a lesson on the Holocaust because it is an emotionally charged topic with racial dimensions, have they experienced the “psychological distress” that teachers are banned from “inflicting” upon students?
In another case, BERT v. O’Connor, in which Oklahoma students and educators are challenging House Bill 1775, it was also specifically asked if “bear[ing] responsibility” for others’ actions in the past extends to moral or social responsibility, with the plaintiff questioning whether it is “unlawful to discuss reparations for past oppression in class.”
From the plaintiffs’ perspectives, anti-CRT legislation presents a host of complications both in interpreting the legislation and attending to other legal obligations. One complaint argues that New Hampshire’s Divisive Concepts Statute conflicts with the state’s education standards, which require teaching about “intolerance, antisemitism and national, ethnic, racial or religious hatred and discrimination … to prevent the evolution of such practices in the future” (Local 8027 et al. v. Edelblut et al., 2021). In addition, plaintiffs argue that the legislation conflicts with case law, which holds that “illegitimate motives” for curbing speech include “deny[ing] [students] access to ideas with which [the governmental actor] disagree[s]” (BERT v. O’Connor, 2021). Due to the relatively recent implementation of the anti-CRT legislation, it will be important to follow related developments in ongoing litigation.
Lawsuits Upholding Racial Equity Efforts
Despite legislation restricting discussions of race and racism in the curriculum, courts have issued decisions that reinforce districts’ efforts to promote equity, diversity, and inclusion. For example, in 2017, an Arizona district court ruled against legislation that targeted Tucson Unified School District’s Mexican American Studies Program, finding ample record that the legislation was motivated by animus (Gonzalez v. Douglas).
In January of 2022, a federal district court upheld a Virginia district’s efforts to promote racial equity (MENDERS v. Loudoun County School Board, 2022). The court was analyzing the Loudoun County School Board’s creation of an Action Plan to Combat Systemic Racism. Specifically, the plan created a bias report form and a Student Equity Ambassador program, which had specific criteria for participation. Finding that the district’s practices did not violate the speech rights of the plaintiffs, lacked discriminatory intent or impact, and instead embodied “legitimate pedagogical purposes,” the court upheld the district’s efforts to promote racial equity.
Consistent with this case, in April 2022, a district court dismissed a lawsuit challenging another Virginia school district’s newly enacted antiracism policy and its implementation (C.I. v. Albemarle County School Board, 2022). The plaintiffs unsuccessfully argued that the policy of the Albemarle County School Board infringes on parental rights under Virginia law, amounts to discrimination, and violates freedom of speech guarantees of the Virginia Constitution. These cases illustrate the important role that courts can play in reinforcing equity work.
In light of the evolving legislation and cases presented in this article, it is important for school leaders to stay up to date on this area of law. Litigation is unfolding and may vary depending on jurisdiction.
Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Gabriella Achampong is a junior at Pennsylvania State University, where she is studying education and public policy, with a specific interest in equity and civil rights.
Black Emergency Response Team (BERT) v. O’Connor, No. 5:21-cv-01022-G (W.D. Okla. Oct. 19, 2021).
C.I. v. Albemarle County School Board, No. CL21001737-00 (Cir. Ct. Albemarle Cnty. Jun. 1, 2022).
Falls et al. v. DeSantis et al., No. 4:22-cv-00166 (N.D. Fla. Apr. 22, 2022).
George, J. (2021). A Lesson on Critical Race Theory. American Bar Association. americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory
Gonzalez v. Douglas, 269 F. Supp. 3d 948 (D. Arizona, 2017).
Local 8027 et al. v. Edelblut et al., No. 1:21-cv-01063 (N.H. Dist. Ct. Dec. 13, 2021).
Mejia et al. v. NH Department of Education, No. 1:21-cv-01077 (N.H. Dist. Ct. Dec. 20, 2021).
MENDERS v. Loudoun County School Board, Civil Action No. 1: 21-cv-669 (E.D. Va. Jan. 19, 2022).
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014).
UCLA School of Law (2022). CRT forward tracking project [Map]. crtforward.law.ucla.edu
The White House. (2020). Executive order on combating race and sex stereotyping. trumpwhitehouse.archives.gov/presidential-actions/executive-order-combating-