Law & Courts

Critical Race Theory Law Violates Teachers’ Free Speech, ACLU Argues in New Lawsuit

By Stephen Sawchuk — October 19, 2021 4 min read
Oklahoma Gov. Kevin Stitt, above, is named in a new lawsuit alleging that the state's recent law restricting teaching on race and sex is unconstitutional.
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Newly passed Oklahoma legislation banning how race and gender can be taught in classrooms is vague, sweeping, arbitrary—and unconstitutional, alleges a new lawsuit filed in federal court.

The lawsuit contends that the law will have a chilling effect on what K-12 teachers, as well as higher education faculty, choose to teach. And it will likely result in arbitrary penalties for teachers, like having their licenses pulled.

All that impermissibly deprives them of their free-speech and equal protection rights, the lawsuit claims.

“The [law’s] vague, overbroad, and viewpoint discriminatory provisions leave Oklahoma educators with an impossible—and unconstitutional—choice: avoid topics related to race or sex in class materials and discussions or risk losing their teaching licenses for violating the law,” the complaint reads. “ … Its application has also chilled and censored speech that strikes at the heart of public education and the nation’s democratic institutions. Educators at all levels are blacklisting books by diverse authors and adapting their instructional approaches to avoid raising complex questions about race and gender.”

More than a dozen states have passed legislation similar to Oklahoma’s or regulations with the same intent, and the lawsuit is the first of what’s likely to be other legal challenges to those laws. Dozens of local school districts nationwide have also considered or passed similarly worded bans on what teachers can teach regarding race.

Filed in the U.S. District Court for the Western District of Oklahoma, the suit is being brought by the American Civil Liberties Union, its Oklahoma chapter, and the Lawyers Committee on Civil Rights on behalf of a Black student organization at Oklahoma University, the state’s NAACP chapter, and groups representing the state’s Native Americans and college professors, among other parties.

It names the state’s Republican governor, John O’Connor, along with state Superintendent of Education Joy Hofmeister, the Oklahoma state school board, the state attorney general, and the regents of Oklahoma’s two state university systems.

Lawyers argue that the law that weakens students’ knowledge of the state’s history

In general, the lawsuit argues that Oklahoma’s H.B. 1775, passed in May, unlawfully proscribes what educators can address in the classroom in pursuit of a political agenda that complicates teachers’ ability to teach dark moments in the state’s history, like the Tulsa Race Massacre; makes schools less welcoming to LGBTQ students and Black students; and weakens students’ knowledge of the state’s Native American and Indigenous communities.

Already, it claims, teachers have removed books like Zora Neale Hurston’s Their Eyes Were Watching God and Maya Angelou’s I Know Why the Caged Bird Sings from their reading lists in fear of running afoul of the law.

Principals are frightened of including unconscious bias among the topics for staff training. Higher education professors are avoiding certain theoretical readings. And librarians aren’t sure what books they can order, it says.

Those consequences deprive teachers of their first amendment rights to provide students with a multitude of viewpoints that help them develop as citizens and interferes with college professors’ academic freedom.

In addition, the lawsuit says, the law is so vaguely written that it “invites arbitrary and discriminatory enforcement” against teachers, depriving them of equal protection under the law. And finally, the lawsuit claims, the law and successive regulations were passed with racial and partisan intent in mind that would harm students of color.

The lawsuit faces a steep battle ahead

The lawsuit comes as the next salvo in what has been an unusually disruptive six months in American public education.

School districts nationally are ground zero for hotly charged debates over race and over COVID-19 mitigation policies like masking, resulting in tense, raucous school board meetings, and even threats of violence against superintendents and school board members.

Educators in states that have passed the curriculum-restriction laws, meanwhile, have variously described feeling either defiant, resigned, or frightened about them.

The two national teachers’ unions have said they will aggressively defend members who are targeted under the news laws, and a coalition of curriculum groups have also launched a collective effort to fight back, underscoring the importance of “hard history.”

And all that’s occurring in the midst of confusion over the term “critical race theory.” In general, it refers to an analytical framework used mainly by legal and policy scholars. But conservative activists have ascribed a number of other things to the term, including cultural competency training, culturally relevant teaching, popular anti-racist best-sellers, “action civics” in K-12 classrooms, and diverse children’s books.

It’s not clear what kind of reception the lawsuit might find in the courts. Some legal scholars have pointed out the sweeping language in the laws, but others have noted that state legislators typically have wide latitude to set educational standards, including the content of what schoolchildren learn.

Plus, teachers and students alike do not maintain the same free-speech rights when in classrooms that they do as private citizens.

The full effect of the laws on everyday teaching and learning still isn’t clear. But they have already led to some high profile, troubling examples.

One Tennessee district has received complaints about a children’s book relaying the history of Ruby Bridges, who helped integrate New Orleans schools in 1960, for instance, and Texas teachers in another district have been asked to cull their classroom libraries.

The case is Black Emergency Response Team et. al. v. O’Connor.

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