Since January 2021, forty-two states have introduced “anti–critical race theory” (anti-CRT) bills that restrict discussions of racism and sexism in public schools. As teachers, administrators, and civil rights organizations scramble to interpret these bills, many wonder: How can this be constitutional? At the heart of this broader question is a legal problem that remains unaddressed by both scholars and the Supreme Court: Is K-12 teacher speech, particularly instructional speech, protected under the First Amendment? This Note seeks to fill this gap in legal scholarship and jurisprudence, using anti-CRT laws as a lens through which to evaluate the constitutional protections afforded to K-12 teacher speech.
Part I of this Note provides a qualitative survey of anti-CRT laws, unpacking the speech and activity that the laws restrict. Part II reviews the major doctrinal approaches available to courts for analyzing K-12 teacher speech. Part III analyzes how those existing doctrinal approaches apply to anti-CRT laws, concluding that existing doctrine is inadequate for the task. Education law and policy operate under the implicit assumption that the government may regulate the “what” of teaching by setting curriculum, but the “how” of teaching is largely left up to teachers as certified professionals. Anti-CRT laws, however, represent a sharp departure from that approach. In making that departure, they impermissibly infringe on K-12 teachers’ First Amendment rights. This Note argues that courts can remedy this problem by making the implicit doctrinal distinction between the “what” and the “how” of teaching explicit and striking down anti-CRT laws as unconstitutional in violation of the First Amendment.
* J.D. Candidate, Stanford Law School, 2023; M.A. in Education Candidate, Stanford Graduate School of Education, 2023. This project began during a summer internship at the Lawyers’ Committee for Civil Rights Under Law, where David Hinojosa, Genzie Bonadies Torres, and Bryanna Jenkins were leading the early charge against anti-critical race theory laws. I am so grateful to them for their guidance and trust. This Note represents my own legal theories and research, and not those of the Lawyers’ Committee or any other organization. Professor Bill Koski helped turn a constellation of ideas into cogent arguments and was endlessly generous with his time and feedback. Thank you to my friends Allison Aaronson (my first editor) and Kai Wiggins (who is much better than me at Microsoft Word). A special thank you to Mide Odunsi, Chris Huberty, and the editorial staff at the Stanford Law Review for their insightful revisions. Finally, to the many educators who have changed my life: I am always writing for you. Thank you.
The landscape of anti-CRT laws and related litigation is still shifting under our feet. This Note is up-to-date as of November 19, 2022.