Equity & Diversity

Censoring Race and Racism Lessons Defies Best Practice and May Be Unlawful, Report Argues

By Eesha Pendharkar — September 29, 2022 7 min read
Sabin Middle School student Marvionna J., center, works with classmates Marcus Q. and Aaron A. to identify evidence from the indentured servant letter.
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When students from all backgrounds, particularly historically marginalized ones, see their culture represented in curricula and feel a sense of belonging, their educational experience improves.

Taking away these opportunities may be running afoul of federal law.

That’s the case made by the National Education Association and the Law Firm Anti Racism Alliance, a collaboration of about 300 law firms formed to promote racial equity, in a new report. The two groups reviewed academic papers, historical context, and federal laws to understand the legality and importance of culturally responsive and inclusive education.

The report amasses evidence of the positive academic and social emotional impacts of culturally responsive teaching and racially inclusive education and it contends that inclusive education is supported by the U.S. Constitution’s First Amendment, the equal protection clause of the 14th Amendment, and the Civil Rights Act of 1964.

The laws and regulations being passed across the country restricting certain conversations about race and racism in the classroom are most likely unlawful, the report says. Republican lawmakers in 17 states have imposed these restrictions through laws or department of education policies, and 42 states have introduced similar bills, according to an Education Week analysis.

“Policymakers and lawmakers across the country are really attempting to censor teachers, attempting to prohibit the kind of classroom instruction that we know is the best educational approach,” said Danielle Davis, staff counsel for the NEA. “They’re stoking unlawful discrimination or prohibiting honest conversations in the classroom about our history, I think, with the goal of undermining public education and our nation’s educators.”

She said she hopes the new report can be useful to members who want to “stand up for students’ rights to a full and complete education they need to thrive as citizens in our multi-racial democracy” or challenge efforts to “silence certain voices and histories in our schools.”

Proponents of these laws have held that certain conversations about race and racism “indoctrinate children.” A lawsuit filed by a parent group in Williamson County, Tenn., complains, for example, that the Wit and Wisdom curriculum the district is using is “replete with racial discrimination, age-inappropriate material that causes children guilt, anguish, and other forms of psychological harm, it discusses the United States as an irredeemably racist country, and is overall hyper-focused on racial indoctrination.”

Students in ethnic studies classes have better academic outcomes, report says

Students of color who participate in ethnic studies are “more academically engaged, develop a stronger sense of self-efficacy and personal empowerment, perform better academically and graduate at higher rates,” according to the report, which quotes almost a dozen studies over the past three decades that analyzed the academic performance of different racial and ethnic groups when culturally responsive teaching was applied to literature, social studies, and even math curricula.

Culturally responsive education includes educational practices and curricula that promote all cultures, not just the dominant culture. For example, Mexican-American studies or Asian-American studies, which offer a different context as opposed to a general history class.

Culturally responsive education is not the same as critical race theory, which is an academic framework developed to explain the systemic nature of racism and how it impacts different aspects such as education, housing, and the criminal justice system. “Critical race theory” became a term co-opted by proponents of these laws in early 2021 to describe what they’re opposing despite the fact that a vast majority of schools don’t teach the academic framework directly to students.

In culturally responsive classes, studies show that students developed a stronger sense of personal empowerment and performed better academically and graduated at higher rates, the studies found.

“Of course, it has positive effects for students of color, but all students actually benefit in those ways,” Davis said. “It’s important to emphasize that this is something that educators have long known.”

Being culturally inclusive while teaching also helps all students develop critical thinking because they ask students to examine presuppositions, to be cognizant of social problems, and even to engage in action to address these issues, the report says. By doing this, the lessons also promote students viewing education as a tool that can be used to overcome societal issues that might be affecting them.

Some proponents of the laws that aim to restrict conversations about race and racism have claimed that these discussions make white students “hate themselves” or feel guilty about actions committed by other members of their race in the past.

But the report argues that anti-racist education is not based on making anyone feel discriminated against or guilty, but on fostering “an inclusive and equitable educational environment.”

The purpose of education that reflects perspectives and voices of people from different backgrounds, and particularly historically marginalized people, is “designed to enable students to remedy the effects of past discrimination against BIPOC communities, for '[t]he history books do not tell stories of white children struggling to attend black schools,’” the report says.

Long legal roots for inclusive, culturally responsive education

The First and Fourteenth Amendments and the Civil Rights Act all encourage access to diverse perspectives, freedom from discrimination based on race and ethnicity, and the right to an equitable classroom environment, the report says, based on analyses of court cases and the laws themselves.

Twenty-six states also have equal rights guaranteed in their constitutions that go above and beyond the equal protection clause of the 14th Amendment.

“To the extent an argument is being made that inclusive education is unlawful, that is false,” Davis said.

The dozens of successful and unsuccessful legal attempts made over the past year to censor educators and create a chilling effect on any discussions of race and racism likely violate the same laws that protect culturally responsive and racially inclusive education, the report argues.

While K-12 educators have limited First Amendment rights while in the classroom because states and school boards generally control curriculum, students continue to have rights to “receive information and ideas” under the First Amendment and the right not to be treated differently because of their race under the equal protection clause of the 14th amendment, Davis said. These new state laws run the risk of violating those rights, she said.

Wisconsin Institute of Law and Liberty, a conservative law group, does not support the anti-CRT bills, but a group spokesperson took issue with some of the new report’s assertions. Cory Brewer, an associate counsel with the group, said the equal protection clause must be colorblind, so “any curriculum that teaches that people are substantially defined by their race, or that their perspectives are substantially formed by their race, would fail to treat children as unique individuals deserving of respect and dignity.”

Brewer also said she thought the report mischaracterizes the First Amendment protections.

“It’s a mischaracterization to say that the First Amendment and equal protection clause require that you either talk about the existence of slavery or not at all,” she said. “There’s a way to provide a full and honest education in a way that is reflective of all U.S. history.”

Some state laws explicitly ban The 1619 Project, an effort by the New York Times to reframe history and focus on the legacy of slavery.

While states can control curriculum, they can’t censor it for political reasons that oppose what’s best for students based on pedagogy, according to the NEA and lawyers group. That suggests a solid basis to argue that laws that ban specific curricula like the 1619 project “run afoul of this basic requirement,” they conclude.

Another common critique of the restrictive-speech laws, made in lawsuits filed against them in Arizona, Oklahoma, and other states, have called the laws vague and overbroad, with plaintiffs and legal experts claiming they’re often written that way by design. The report bolsters that objection, noting that the U.S. Supreme Court has set precedent that where laws invite “wholly subjective judgments” without well-defined meaning or boundaries, they run afoul of constitutional guarantees, the report says.

“It’s causing a lot of confusion and fear. And that’s kind of the point, right?” Davis said. “Fortunately for us, we know there’s a body of case law that says if a law is so vague, such that someone can’t determine whether or not their behavior is lawful, then that law is impermissible.”


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