If 2020 was a year of racial reckoning for the United States, 2021 is shaping up to be one of backlash.
A concerted campaign against efforts to address persistent racial inequality has consolidated under the watchword of “critical race theory” (CRT). Once a relatively obscure academic framework for examining the ways in which racism was embedded in US laws and institutions, CRT has been recast by rightwing activists as an omnipresent and omnipotent ideology, one that is anti-American, anti-capitalist and anti-white.
The campaign has been astonishingly effective. Legislation seeking to limit the teaching of CRT or related concepts has been introduced in 22 states in 2021, according to an analysis by the African American Policy Forum, a thinktank led by one of the founders of critical race theory, Kimberlé Crenshaw. Arkansas, Idaho, Iowa, Oklahoma, Tennessee and Texas have all passed anti-CRT laws, and Florida, Georgia and Utah have passed resolutions. Legislators in Alabama and Kentucky have already pre-filed anti-critical race theory bills for the 2022 legislative sessions.
Heated political battles over education have flared up repeatedly throughout US history, according to Adam Laats, a professor of history and education at Binghamton University who said he was nevertheless “surprised by how many local and state laws are getting involved”.
Latts compared the anti-CRT movement to a “similar spate of confused outrage and legislative action” against the theory of evolution in the 1920s, when 21 states debated 53 bills seeking to ban the teaching of evolution. Five states – Oklahoma, Florida, Tennessee, Mississippi and Arkansas – ultimately passed laws or resolutions, paving the way for the 1925 Scopes trial, in which the American Civil Liberties Union (ACLU) defended a high school science teacher who had been charged with violating Tennessee’s anti-evolution law.
Now the ACLU is gearing up for a new iteration of that earlier fight. Emerson Sykes, an ACLU staff attorney who specializes in first amendment free speech issues, spoke to the Guardian about the plans to fight back against what the rights group has deemed “a nationwide attempt to censor discussions of race in the classroom”.
This interview has been edited for length and clarity.
Many people are confused about the extent to which these laws against CRT fit within the first amendment. Are these laws constitutional?
I would start by saying that this is much beyond a legal issue. It’s a social, cultural, political issue. It’s about our country reckoning with racism and other aspects of its past and present. There has been a concerted effort to try to censor speech about race and gender in public schools, and this is a bigger problem than just whether any particular bill is constitutional or not.
The other point is that these bills, as much as they are part of a unified effort, vary widely. Some of them cover government agencies, some of them cover contractors, some of them cover higher education. Almost all of them cover K-12 education. But there’s a huge number of proposals, and there have been different iterations. Now we’re seeing these types of debates happening in school boards across the country, and in many ways, I think that’s where we’re actually going to see the impact on children and in classrooms.
But to get to your question. We do think that some of the bills are vulnerable to litigation and the constitutional challenge. The particulars of each bill indicate which claims are most likely to be successful, but we think that there are first amendment claims, potential vagueness claims, and potential equal protection claims – basically, racial discrimination claims – in some of these cases, as well.
Just to illustrate the point, the first amendment claims that you might bring on behalf of a public employee, on behalf of a university professor, on behalf of the university’s students, on behalf of a K-12 teacher, or on behalf of a K-12 student are all distinct, first amendment doctrinal areas.
There are very strong first amendment protections for academic speech in higher education. Some of those protections have been recognized for K-12 teachers, but to a much lesser degree. There are also cases that recognize K-12 students’ right to receive information, and those are relatively narrow cases. But we do think there’s some good precedent at least acknowledging that K-12 students have a first amendment interest in receiving information through curriculum.
I’ve been struck by how quickly this movement went from Donald Trump’s executive order banning anti-racism trainings to dozens of bills being introduced and statewide school boards passing resolutions against CRT. Does this stand out to you?
The activity at the state legislature level was dramatic during a state legislative session that many people have characterized as legendarily bad in terms of voting rights, protesters rights, transgender rights, all manner of things. And in some ways I think these race censorship laws snuck under the radar for a lot of folks.
Those who have been pushing these bills have been incredibly successful, and it’s our aim, in collaboration with other national organizations and local organizations in the various states, to try to push back in an equally coordinated and strategic way. My particular role as a first amendment litigator is trying to figure out where and when and how we can bring federal litigation, and we’re actively exploring that. But this was a massive campaign that has borne fruit in very dramatic fashion and so it’s going to take a massive campaign to try to push back against that as well.
It does seem like this campaign arose very quickly without much in the way of organized opposition. What can you tell me about the coalition that is coming together now to oppose this movement?
There’s been a lot going on and we’ve all been stretched thin, but it’s true that not enough attention was paid to it. But it’s worth noting that a lot of the coalition building happened around Trump’s executive order, and there was successful litigation that struck that order down in the ninth circuit that was brought by Lambda Legal. So it’s true that we’re on the back foot a little bit, but we do have a very positive federal appellate court ruling on this already.
A lot of the folks who were active on the executive order are also now working together – the usual suspects such as the NAACP Legal Defense Fund and the Lawyer’s Committee for Civil Rights Under the Law.
I hesitate to get too much into detail of any particular legal strategy, but I think it’s definitely fair to say that multiple organizations are actively exploring litigation. My own opinion is that it’s important to do it sooner rather than later. We need to be strategic in bringing the right case in the right court with the right claims. But these curricular decisions are also being made over the next month or so in preparation for the fall. Ideally, we’d like to get courts to weigh in to block these things before the impact is really felt in the classroom, either in K-12 or in higher ed.
That said, one legal decision in one state is not going to be the solution, or the whole solution. I think that public advocacy and public education around this are also key in terms of spreading the news and making people aware of these developments.
You’ve been very explicit in talking about this movement as an effort to censor.
The irony is that so many of these legislators styled themselves as free speech advocates. But what we know from the legislative history, from the public statements, from the research reports put out by the proponents of these types of bills, is that they are uncomfortable with discussions about race and gender in public schools. They would prefer that we not ask hard questions about why and how people have been treated in this country, or be critical of our country. I think they have a very distorted sense of what is healthy for kids to learn and what patriotism looks like in education.
There’s outright censorship but then there’s also a chilling effect. As we look for people to cite these laws as the reason for cancelling a class or changing a curriculum, that will be an obvious enforcement of the law and we can bring a legal challenge. But the other consequence of the law is that people are going to self-censor and be hesitant to engage in these types of discussions because they don’t want to run afoul of these really vague and really broadly written laws. And that kind of chilling effect often can go unnoticed. That’s why it’s even more important that we bring a strong legal challenge, because we know that the impact is actually far broader than we’ll be able to see in any particular enforcement action.
The language in these bills is often quite vague and seemingly neutral. But many of the lawmakers have been explicit in saying that they want to ban a particular school of thought – critical race theory. Will that make any difference when it comes to court battles?
Where law or policy is unclear, courts will look to the legislative history to try to get the intent, and I think a lot of these laws are unclear. Those statements by legislators are going to be useful in terms of first amendment, and viewpoint and vagueness issues, but also around equal protection and racial discrimination. None of these laws on their face say they only apply to Black people or only apply to white people or anything like that, but we think that there have been, at least in some places, some hints of racial animus and discrimination in statements by legislators. We think that can potentially play into the into the lawsuits.
I recently spoke with a historian who compared this current movement to the anti-evolution laws in the 1920s, which the ACLU played a major role in opposing, culminating in the Scopes trial. Do you think that’s a fair comparison?
The ACLU has been fighting this kind of thing for over 100 years. There are those who doubt our commitment to the first amendment, but they often leave out our work on this type of case, which we’re really dedicating a lot of resources to.
It is in the ACLU’s DNA to try to fight government censorship, whether it’s 1920 or 2020.