Law & Courts

Legal Challenges to ‘Divisive Concepts’ Laws: an Update

By Eesha Pendharkar — October 17, 2022 6 min read
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Since last year, states have passed legislation restricting discussions about race and racism in the classroom or limiting professional development about anti-racism, and many more have proposed similar laws.

But in four of the 17 states that have enacted laws, legal challenges to these laws have been filed in federal court. Most of these laws have the same eight or so “divisive concepts” listed, which, in many cases, are so vague it’s hard to tell what exactly they’re banning, educators and experts across the country have said.

Under the new laws, teachers can’t tell students that anyone because of their race or sex is “inherently racist, sexist or oppressive, whether consciously or unconsciously,” that anyone “bears responsibility for actions committed in the past by other members of the same race or sex,” or that they “should feel discomfort, guilt, anguish or any other form of psychological distress” because of their race or sex.

But most teachers haven’t been teaching those ideas in classrooms, anyway. It’s the fear caused by the vague wording of the laws and the threat of consequences that’s causing teachers to self-censor. Some teachers who have not censored their teaching have faced punitive action from their districts. Some districts have also been penalized by states.

“School districts are having great difficulty just explaining to educators what educators are supposed to be doing or not doing in response to these bills. And, you know, educators need support,” said Alice O’Brien, an attorney for the National Education Association, which was involved in the lawsuits in two of the four states.

“They don’t need to spend their time trying to split hairs about what a legislative enactment means,” she said. “It’s impossible to understand exactly what conduct is prohibited and isn’t prohibited.”

Here are quick summaries of the lawsuits challenging divisive concepts laws that have been filed so far:

In Arizona, a successful, precedent-setting lawsuit

The first challenge to a divisive concepts law was issued in Arizona last fall, before the state’s law even went into effect.

The Arizona School Boards Association and the Arizona Teachers Union were among the major organizations that challenged the law, arguing that Gov. Doug Ducey, a Republican, had put a number of substantive provisions into a budget bill in violation of the Arizona constitution, which requires titles of bills to reflect what the proposed legislation is about.

A county judge ruled in favor of the plaintiffs, and Attorney General Mark Bronvich appealed. In a statement to Education Week in October 2021, he said that “it’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory.” The divisive concepts laws were commonly introduced to replace critical race theory, which was misused an an umbrella term for any lessons on race and racism. The actual theory examines the systemic nature of racism and is typically a college-level class, and is not taught in most K-12 schools.

Arizona’s Supreme Court eventually upheld the county court’s decision, and the law was repealed less than three months after the litigation was filed. So far, that has been the only entirely successful challenge to a divisive concepts law, and it succeeded on the grounds of its unique claim of violating the Arizona Constitution.

A challenge to Oklahoma’s law and its enforcement

In October 2021, the American Civil Liberties Union brought a lawsuit against Oklahoma’s HB 1775, one of the first divisive concepts laws passed in the country.

Students and educators from different districts in Oklahoma joined the lawsuit, claiming the law was vague, violated students’ right to receive information, and at the higher education level, imposed a viewpoint restriction, according to the O’Brien, the NEA lawyer.

As a result of the law, some school districts in Oklahoma instructed teachers to no longer use certain terms, including “diversity” and “white privilege” in their classrooms and removed titles such as To Kill a Mockingbird and “Raisin in the Sun” from their list of “anchor texts,” according to plaintiffs.

The law prevents students from having an open and complete dialogue about American history, the ACLU claimed.

Recently, when the stateboard of education dinged the accreditation of the Tulsa and Mustang school districts for violations of HB 1775, the plaintiffs supplemented their pleading for a preliminary injunction with the additional evidence on how enforcement was being carried out, O’Brien said.

“I think it was surprising to many people that the state school board would view the Oklahoma law as sweeping that far,” O’Brien said. “And it raises real concerns about what the relevant state enforcement authorities in Oklahoma intend to do to enforce the law.”

No decision has been issued on the case yet.

Merged lawsuits in New Hampshire

New Hampshire’s divisive concepts law is particularly harsh on individual educators: Teachers found to have violated the state’s law could potentially lose their teaching credentials based on a determination by the state board of education.

“That is a factor that weighs in favor of a court intervening at this juncture and saying that the laws are impermissibly vague,” O’Brien said. “Because people are really guessing about their professional futures, when they’re making decisions about how they’re going to talk about racism and sexism in the country.”

There were two separate lawsuits filed against this law in New Hampshire, which have since been consolidated. The primary claim in both the lawsuits is that the vagueness of the law violates the 14th Amendment of the U.S. Constitution.

The New Hampshire attorney general moved to dismiss the case, and there was a hearing on that motion a few weeks ago. No conclusion has been reached yet, but meanwhile, the first complaint against a teacher for violating the law has been filed as the legal battle continues, according to New Hampshire Public Radio.

In Florida, a partial victory against the “Stop W.O.K.E” law

Florida’s Stop-W.O.K.E law, pushed by Gov. Ron DeSantis, a Republican, throughout last year, is the subject of four different lawsuits, only one of which addresses K-12 education. DeSantis first introduced a legislative proposal in December 2021 titled the “Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act” to “fight back against woke indoctrination.” A separate but similar bill was passed by the legislature and signed into law.

The law forbids diversity, equity and inclusion training for employees, both private and public, and lessons for students on any banned divisive concepts about race and racism. The four different lawsuits include two that only pertain to higher education and allege viewpoint discrimination, one which represents both K-12 and higher education plaintiffs, and one brought by private employers that offer diversity training to employees.

The private employers’ case is the only one that has seen successful so far. In August, a federal judge ruled to block part of the law that’s applicable to private employers and their training.

“The ‘Stop W.O.K.E’ Act, unlike a number of these statutes, is aimed at the private sector, too, and that’s important because people generally have broad First Amendment protections against the government telling them what they can say or not say,” O’Brien of the NEA said.

“If the government tells you you can’t train on racial and implicit bias, can’t conduct diversity, equity, and inclusion training, then the government is trying to restrict your speech in a way that the First Amendment flatly prohibits,” she added.

A ruling in this case in favor of the plaintiffs would help set a precedent for courts to ban more of these laws because of vague wording, O’Brien said.


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