Equity & Diversity Opinion

You Can’t Legislate Away Black and Gay Educators and Students

It’s time for advocates to sue
By Rafael Walker — October 05, 2021 5 min read
Conceptual illustration of a large pencil erasing a member of a community.
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This academic year, conservative states have asked students and teachers to keep their politics and their identities—but not their germs—to themselves. Many have followed Tennessee’s example of attempting to block mask mandates and yet have demanded another kind of masking—an ideological muzzling that threatens untold numbers of teachers and students. I’m referring to the curricular purges sweeping conservative state legislatures, all emblematic of the current culture war. The first target of these purges was critical race theory (or, rather, strawman versions of it). You’ve likely read how states have proposed penalties for educators who teach CRT, with Tennessee suggesting fines as steep as $5 million. The second target is LGBTQ history, already banned in Tennessee and on the chopping block in its cousin states—from Alabama to Arizona.

How must it feel, as a teacher or student, to walk into a classroom five days a week knowing that your identity is a subject so taboo that the state has banned all reference to it, placing million-dollar bounties on the head of any educator who dares to broach it in class? This sounds like the stuff of nightmare, the kind of thing conceivable only in totalitarian regimes—certainly not a scenario possible in the United States in 2021. Yet this has become the day-to-day reality in this country for thousands of students and teachers who identify as LGBTQ or Black.

This new order effectively pretends that these groups don’t exist as a means to suggest that they shouldn’t. And this strategy, if permitted to stand, is fail-proof. I don’t mean that people will stop being Black or gay; I mean that these individuals will not exist in schools. It is needless for me to wheel out the statistics detailing what everyone, including state legislators, already knows—that both LGBTQ and Black students are more likely to drop out of school than other students. This fact was true even before states passed such hateful legislation. It can only get worse.

I feel the sting of this unwelcome development personally from virtually every angle imaginable. I am a teacher at a public college in the nation’s most diverse city, New York. Much of my research and teaching center on race, gender, and sexuality. Moreover, since I am both Black and gay, I am watching my own existence negated doubly by this legislative attack. And, before becoming a professor, I had to be a student for a very long time.

The college professor in me could not imagine talking about the works of Shakespeare or Walt Whitman without referring to same-sex desire. Or examining the internal politics of the civil rights movement or the women’s movement without discussing, respectively, Bayard Rustin’s or Audre Lorde’s sexuality. The teacher in me could not imagine looking daily into the faces of students who have entrusted me with their educations, only to repay their trust with coldhearted omissions implying that only some of their histories matter. When I look back at my school days in Texas, I painfully recall how the whitewashed, default-straight map of human history that I received, even from Black teachers, persuaded me to associate whiteness and heterosexuality with power and value and to regard everything else as inherently inferior, irredeemable aberrations from the gold standard. But I also remember the joy I felt in college when these misconceptions were corrected, when I was immersed in the mind-blowing achievements of humans of all walks of life—gay, straight, Black, Latinx, trans. The world opened up before me, and that people like me were an integral part of that world became clear as day.

The current generation of nonwhite and LGBTQ children shouldn’t have to wait until they are adults to feel at home in the world. It may appear that, short of flipping seats in state legislatures, little can be done about these discriminatory bans. But, as the recent overturning of such bans in South Carolina suggests, the courts may hold the remedy. It’s time to start pressing advocacy groups, such as the American Civil Liberties Union, to take legal action. And one way that such organizations might approach this litigious question is through the anti-discriminatory Titles IX and VI, which, respectively, protect on the basis of sex and on the basis of race, color, and national origin in education institutions that receive federal funding.

This new order effectively pretends that these groups don’t exist as a means to suggest that they shouldn’t.

The conflict between the restrictive policies that have been signed into law in eight states and Title IX seems clear: There simply are important historical figures whose same-sex desires figured meaningfully in their careers (again, Shakespeare, Whitman). There are also major historical events that hinge on sexuality and had implications throughout culture, such as the Stonewall uprising and the military’s “Don’t Ask, Don’t Tell” policy to name only a few. To omit such historical figures, the relevant facts of their sexuality, or LGBTQ-centered historical events would be discriminatory since one wouldn’t do the same for other figures or historical events. LGBTQ students and teachers forced into curricula that prohibit the teaching of historical personages and events related to LGBTQ life are “subjected to discrimination under [an] education program or activity receiving federal financial assistance”—precisely the treatment against which Title IX defends.

The conflict with Title VI seems almost equally clear: CRT enables us to look beyond individual actors to institutions to identify racism. CRT exposes how racism, a prejudice that nonwhite people provably endure, continues to rear its ugly head even in medicine and, yes, classrooms.

The objection most frequently adduced for banning CRT is that it is divisive. But schools are full of divisive activities—band competitions, spelling bees, sports—where, we believe, students are learning how to manage challenging emotions and good sportsmanship. If divisiveness is what those on the right worry about, I am at a loss to understand the perennial survival of debate—an activity that compels students to argue over some of the nation’s most contentious questions. Banning CRT from curricula on the grounds of its perceived divisiveness is hypocritical and legally inconsistent. The only thing distinguishing it from these other activities is that it deals with race. CRT is being banned on the basis of race, just what Title VI was designed to prevent.

All children deserve to see themselves reflected in what they are learning. Adults deserve workplaces that acknowledge they exist. These are very modest accommodations, and it’s embarrassing that people like me are still having to ask for them. But, if asking isn’t enough, it’s time to fight.

A version of this article appeared in the October 06, 2021 edition of Education Week as You Can’t Legislate Away Black And Gay Educators and Students


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