Laws Against Teaching Critical Race Theory in College are Unconstitutional

Across the United States, state legislatures are showing a newfound interest in — and aversion to — critical race theory, or CRT, an academic movement that systematically considers how even seemingly neutral laws, regulations and social norms can have different impacts on particular racial and ethnic groups. It examines how legislatures at times target racial minorities for adverse treatment — such as recent voter suppression laws in Arizona, Georgia and Iowa — and, at other times, are simply indifferent to how new laws will impact those outside the majority.

CRT originated in U.S. law schools in the 1970s and remains well established and widely accepted there. But in recent weeks, some Republican-dominated state legislatures have adopted laws that ban the teaching of critical race theory in public schools. Some, such as the laws in Idaho and Oklahoma, even restrict the use of CRT in public colleges and universities. Other states, including Georgia and Utah, are actively considering similar legislation or administrative action. A bill has even been introduced in the U.S. House (where the Democratic majority presumably will reject it).

These laws are both misguided and unconstitutional; they constitute bad educational policy, and in the higher education context, they violate the First Amendment. At a time when we desperately need to have more frank and open conversations about race, class, social justice and the concept of “the other,” they hamstring educators charged with preparing young people to live and work in an increasingly diverse society.

Oklahoma’s new law, H.B. 1775, is illustrative. It flatly bans the teaching of CRT concepts in the public schools — prohibiting any “teacher, administrator or other employee of a school district, charter school or virtual charter school” from requiring CRT concepts as “part of a course.” The law also prohibits diversity and inclusiveness training programs in the state’s institutions of higher learning, banning “any form of mandatory gender or sexual diversity training or counseling,” as well as “any orientation or requirement,” that includes CRT critiques.

In Idaho, H.B. 377 broadly defines “tenets … often found in ‘critical race theory’” and proceeds to forbid any “course of instruction or unit of study” that requires any public school, charter school, college or university student to “affirm, adopt, or adhere to” them.

As applied to public K-12 schools, these laws might survive judicial review, because states enjoy broad constitutional authority over the curriculum. Public universities, however, are a different kettle of fish.