Critical Race Theory Law Runs Into Legal Trouble in Arizona

By Eesha Pendharkar — October 08, 2021 3 min read
Arizona Republican Gov. Doug Ducey speaks during a bill signing in Phoenix on April 15, 2021. Ducey signed legislation banning government agencies from requiring training in so-called "critical race theory" as he begins considering the remaining bills from the legislative session that ended last week.
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The Arizona Supreme Court next month is set to determine whether a sweeping new law that severely restricts classroom conversations about race was passed by the legislature in a constitutional manner.

It’s the first legal challenge that the series of so-called “critical race theory” laws, now passed in 12 states, has faced. Twenty-six other states in the coming months are set to consider passing similar laws, which effectively ban the ways teachers can discuss with students topics such as white supremacy, systemic racism, and sexism, among other things.

Late last month, just two days before Arizona’s controversial ban was set to go into effect, a county judge ruled that the state’s Republican-led legislature tucked the law into a broader budgetary bill in a deceptive manner, violating a constitutional rule that requires titles of bills to reflect what the proposed legislation is about.

Along with the critical race theory bill, the court also struck down a statewide ban on districts requiring masks and employees to be vaccinated.

“We will appeal this ruling,” Arizona Attorney General Mark Bronvich, a Republican, said in a statement. “It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory … I will continue to stand for the rule of law and the people of Arizona.”

The Arizona School Board Association, one of the organizations behind the lawsuit, said local officials should determine how teachers talk to students about issues such as systemic racism—not state lawmakers.

“It has a profoundly chilling effect on educators and I believe that that is its intent,” said Chris Kotterman, director of governmental relations for Arizona’s School Board Association.

Last week, Arizona’s appeals court rejected the attorney general’s request for the bill to remain enforceable while the state’s courts determined its legality.

Arizona’s supreme court on Oct. 1 agreed to the state’s request to bypass the appeals court and hear the case next month.

For now, the law remains unenforceable, according to the state’s department of education.

Arizona’s law would have banned teachers from teaching that, among other things, an individual by the virtue of their race or sex “bears responsibility for actions committed by other members of their race, ethnic group or sex” or that they “should feel discomfort, guilt, anguish or any other form of psychological distress because of their race, ethnicity or sex.”

If a teacher violated the law, they could have their teaching certificate suspended or revoked. The attorney general would have also held the right to sue a school district or charter school that they perceived as violating the law.

“If you pass a bill that makes educators scared to talk about stuff, because you can potentially go after their license, then they’re not going to walk up to that line,” Kotterman said. “And that’s what the proponents of the bill actually want.”

A spokesman for Arizona’s department of education said in an e-mail that it supports the county court ruling.

“The Department believes the lower court ruling should stand, and our schools should be allowed to focus on the more critical issues at hand,” said spokesman Morgan Dick.

The law has caused widespread confusion among superintendents and teachers alike.

“I think there were a bunch of people that were ready to start filing complaints against districts,” Kotterman said. “The number of things that actually violated the statute are probably very small but the number of things that people think violate the statute are almost limitless, and so it will bury school districts in complaints and paperwork.”

In order to provide clarity, Arizona’s state department in June issued a five-page document to district administrators and teachers explaining how the law would impact history and social studies standards. The guidance broke down each banned concept from the law and provided examples of how teachers could legally continue teaching about racism.

“Avoid activities that focus on issues of privilege like privilege walks and activities that have students examine their explicit and implicit bias,” the document suggested.

Several districts Education Week reached out to said the law’s ban didn’t impact their efforts to include more voices of color in their curricula and fight racism within the classroom.

A spokesperson for the Chandler Unified School district, which has had ongoing fights about race and identity this year, said it will keep in place several initiatives to close opportunity gaps between white students and students of color. The district has a director of equity and inclusion, an “equity road map,” and provides teachers professional development to build cultural responsiveness.

A version of this article appeared in the October 20, 2021 edition of Education Week as Critical Race Theory Law Runs Into Legal Trouble in Arizona


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