States

How Will Bans on ‘Divisive’ Classroom Topics Be Enforced? Here’s What 10 States Plan to Do

By Eesha Pendharkar — July 14, 2021 5 min read
In this April 15, 2021, photo, Arizona Republican Gov. Doug Ducey speaks during a bill signing in Phoenix. Ducey, on July 9, 2021, signed legislation banning government agencies from requiring training in critical race theory.
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In Arizona, teachers who talk about racism and sexism in violation of a new state law can have their certification revoked by the state. Tennessee will take money away from the teacher’s school district. And, in New Hampshire, parents will be allowed to directly sue the school district.

That’s according to an Education Week review of the so-called “critical race theory” laws that 10 states have passed this year and which will go into effect as soon as the end of this month.

Responding to critics’ claims that teachers are indoctrinating students to hate white people and accept LGBTQ cultural norms, legislatures are moving to censor or place often-ambiguous conditions on classroom discussions of divisive concepts, using a combination of financial penalties, state-mandated professional development reviews, and the threat of tangling administrators up in court and red tape, according to the review.

“It’ll be interesting to see what state regulators do with defining what constitutes ‘divisive,’” said Francisco Negrón, Chief Legal Officer at the National School Boards Association. “There’s going to need to be some more clarity about what those terms actually mean, and how courts [and regulatory agencies] are interpreting them in various states.”

District lawyers in states where so-called “critical race theory bills” have passed have spent the past several weeks poring over the language of the laws and fielding questions from administrators about how to comply.

Critical race theory is an academic framework describing the systemic nature of racism. Only three out of 10 states actually ban critical race theory in their recently passed legislation.

But while much of the language in the laws is vague, Joy Surrat Baskin, the director of legal services of the Texas Association of School Boards, said they have a very specific intent.

“This sends that message that a teacher will get in trouble if you do something that fits in one of these categories, or a parent will file a complaint that a teacher did something in one of these categories,” said Baskin. “The main concern is that there’s a chilling effect on just basic instruction.”

A district investigation if students claim they feel uncomfortable in class

Education Week reviewed the text of the laws, reached out to state departments who will be tasked with enforcing them, and talked with district lawyers to get a better understanding of what administrators should look out for.

Of the 10 states that have passed laws restricting classroom discussions on race and sex, only Oklahoma’s state department has so far issued rules detailing how the law will be enforced.

The six-page document released this week by the state department outlines the penalties districts might face for breaking the law. It requires districts to establish a procedure for parents to report violations of the law, and then for administrators to investigate those complaints and send a report to the state department.

Educators could have their teaching licenses suspended or revoked, and schools could lose accreditation if the investigation finds evidence that they taught banned concepts about racism and sexism.

The new rules also allow parents and legal guardians to now “have the right to inspect curriculum, instructional materials, classroom assignments, and lesson plans to ensure compliance.”

In some states like New Hampshire and Montana, the laws empower parents to file lawsuits and encourage formal complaints against schools if they believe the law has been violated.

New Hampshire’s law states that “any person claiming to be aggrieved by a violation of this section, including the attorney general, may initiate a civil action against a school or school district in superior court for legal or equitable relief, or with the New Hampshire commission for human rights.” Teachers will be deemed by the state to have violated the state’s teacher code of conduct if they fall afoul of the law.

Arizona’s bill, which Republican Gov. Doug Ducey signed into law last week, allows the state attorney general or county attorney to file a civil suit against a school district for violating the law. It also allows the state to take away or suspend a teacher’s certification for a violation.

Districts face stiff fines if they violate ‘critical race theory’ laws

In Arizona and Tennessee, legislators have directed their state departments to financially punish school districts that violate their censorship laws.

Arizona’s law says that for every violation, the county court can penalize the school district for a maximum of $5,000.

Tennessee’s law requires the commissioner to withhold state funds “in an amount determined by the commissioner.”

Tennessee’s state department is working on a framework for enforcing the law which will be made publicly available “when it’s ready,” according to department spokesman Brian Blackley.

In Montana, asking students to reflect on their race is “discrimination”

Even in states that don’t have financial or legal implications written into the law, school districts can expect a higher level of scrutiny from parents and community members when they talk about several social issues in the classroom.

Utah’s law mandates that districts make the content of their professional development for staff freely available to parents upon request. The district will also have to include a rubric explaining how the materials adhere to the requirements of the state department’s rules.

In late May, Montana’s Attorney General Austin Knudsen issued an opinion about the state’s ban on discussing racism and sexism in the classroom, deeming critical race theory illegal. He also condemned anti-racism training as “discriminatory.”

Asking students to reflect on their racial identities and privilege is an example of the “race-based discrimination” that Knudsen said parents or students can file complaints about.

“The Montana Office of the Attorney General and Montana Department of Justice stand ready to assist OPI and parents, students, employees or other individuals with complaints of unlawful race-based discrimination,” he said.

In at least one state, a complaint has already been filed.

Meanwhile in other states, parents have already started filing complaints.

On June 30, a parent group from Tennessee wrote to the commissioner of education stating that, among other things, a lesson on Ruby Bridges, the first Black child to desegregate an elementary school in Louisiana, made white students feel uncomfortable and violated the “critical race theory law.”

“Targeting elementary age children with daily lessons on fighting past injustices as if they were occurring in present day violates Tennessee law and will sow the seeds of racial strife, neo-racism (and) neo-segregation,” Robin Steenman, the chair of the Williamson County chapter of Moms for Liberty wrote in the complaint.

Commissioner Penny Schwinn wrote in a letter to a Tennessee legislator that the department is in the process of building an enforcement framework, ensuring them that the department is “committed to enforcing the CRT law as the legislature designed it.”

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