Excerpted From: Matt Urban, The Way of the Dodo: On the Origin of Specious Anti-critical Race Theory Laws, 53 University of the Pacific Law Review 798 (November, 2022) (377 Footnotes) (Full Document)


MattUrbanIn the heart of his campaign for re-election, President Donald J. Trump issued Executive Order 13950, which required federal programs to exclude any diversity and inclusion training that imparted “divisive concepts.” His administration interpreted Critical Race Theory (“CRT”)--which is not diversity or inclusion training but rather a body of scholarship that originated in legal academia--as “divisive.” The September 2020 announcement stirred a flurry of interest, but focus on CRT waned until the Biden Administration took office and immediately rescinded the order. A resurgence of attention from conservative think tanks and political organizations both large and small followed, attempting to reduce the rich, academic tradition of CRT down to a buzzword boogeyman, representing all controversial views involving race. Between May and mid-July 2021, Fox News--the most-watched news network in the country--mentioned CRT over 1,900 times on air. Meanwhile, COVID-19 continued to disproportionately affect communities of color, in part due to the very systemic inequities that CRT highlights.

After the 2020 election, energized anti-CRT advocates were left with few outlets at the national level, so local venues became an increasingly attractive and immediately gratifying arena for identity politics. Legislation enacted in several states and considered in many more set out to prohibit the instruction of concepts that politicians and pundits associate with CRT. Despite a lack of substantial evidence that CRT is a part of any K-12 curricula, some school boards started adopting policies and ordinances that resembled Trump's executive order. Many school boards unsympathetic to anti-CRT advocacy faced challenges to their incumbents, often from political newcomers trained at “academies” organized by national conservative groups. In an era rewarding unruly behavior with airtime, downloads, and followers, anti-CRT advocates descended on school boards, not normally exposed to such partisan forces. Politicized debates over CRT combined with pandemic mask policies in schools lead to a “disturbing spike in harassment, intimidation, and threats of violence” against school board members.

Amidst the furor, school boards across the country attempted to ban the discussion of--or otherwise “resolve”--what they called “Controversial Topics.” Attempting to interpret state and local measures, educators and administrators across the country began to struggle with questions that would previously have seemed absurd: such as whether they had to present views that opposed the factual existence of the Holocaust, or whether they were allowed to make any references at all to rainbows in any context. Nevertheless, the strategy achieved some desired results as discussion of CRT appeared to drive some moderate electoral victories for Republicans. For instance, despite the complex political landscape in 2021, many pundits credited Glenn Youngkin's gubernatorial victory in Virginia to his campaign's focus on CRT. When Governor Youngkin took office, he used his first executive order explicitly target CRT and “end the use of inherently divisive concepts” in K-12 public schools.

This Comment argues that measures at various levels of government targeting CRT are unconstitutional because they are motivated by illegitimate purposes, impose impermissible viewpoint discrimination, and infringe on teachers' and students' First Amendment rights to impart and receive information. Part II provides the legal background that shapes the arguments in the conflict over anti-CRT action. Part III reviews CRT and distinguishes the legal academic tradition from the targets of politicians and pundits. Part IV describes the government action that political animus spurred across the country. Part V provides an overarching constitutional analysis of the measures that target CRT and use the language of Executive Order 13950. Part VI concludes that empowering the underprivileged through access to information is a policy the First Amendment protects.

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Amidst all the anti-CRT rhetoric of 2021, Juneteenth officially became a federal holiday. Juneteenth celebrates the day that the United States military informed the last enslaved people in Galveston, Texas that they had been freed--over two years earlier--under the Emancipation Proclamation. While the President of the United States had issued an order declaring all enslaved people free, the practical reality was that not all people in the United States were free until that day. Juneteenth reminds us that oppression continues to persist where information emancipating the underprivileged fails to reach its target. Similarly, CRT warns us: “The truth is that racism and white supremacy still live in the interstitial activities of the law and in legal education, and if we cannot point out that fact, change is not possible.” Yet as 2022 began, Governor Glenn Youngkin assumed office in Virginia and issued Executive Order One, directing the Superintendent of Public Instruction to take steps to “end the use of inherently divisive concepts, including Critical Race Theory” and closely copying seven of Executive Order 13950's “divisive concepts.” Youngkin promoted the enforcement of Executive Order One by going on conservative talk radio. He noted a recent report that a local high school asked students to play a game called “Privilege Bingo,” whose game board identified “military kid” as a type of privilege. Youngkin seized on the misstep and took the opportunity to announce a new email address where parents could report incidents “where they feel that their fundamental rights are being violated, where their children are not being respected, where there are inherently divisive practices in their schools .... We're going to make sure we catalogue it all.”

Black cultural and civic leaders leapt up in criticism of Youngkin's tip line for reporting teachers. Popular musician John Legend called on Black parents to “flood” the address with complaints about silencing Black history, while others sent in fake (often humorous) reports of racism aiming to sabotage the tip line's data collection. Despite the outrage and mockery in Virginia and elsewhere, conservative furor showed no signs of slowing down, as lawmakers nationwide weighed dozens of proposals in the opening weeks of 2022 to limit the discussion of historical topics in classrooms.

As CRT scholars emphasized in diverging from CLS, acknowledging inequity in the present day--rooted in actions from the past--demands taking concrete steps to redress. Requirements at the secondary level for ethnic studies, while distinct from CRT, may expose students to historical facts and perspectives earlier in their education. Encountering outside perspectives in educational environments helps prepare students to participate in our increasingly contentious and pluralistic society. However, even with a state ethnic studies law like California's in place, local school boards are vulnerable to attacks on race-aware programs. Regardless of the preferred definition of CRT, culture-war mongers will continue to attack education because education is the strongest weapon against their agenda.

Restricting educators from instructing students on topics that politicians categorize as CRT is a direct threat to students' rights to access information and educators' rights to impart it. Anti-CRT measures appear in several forms, but they all lack legitimate educational purpose and place an undue burden on students' and educators' First Amendment rights to receive and impart information. Protecting access to educational information enables students to freely exercise their constitutional rights, liberate themselves, and empower the underprivileged in our nation that strives for equality. Courts should act swiftly to strike anti-CRT measures down, and government actors should cease from enacting and enforcing them.

J.D., University of the Pacific, McGeorge School of Law, 2022; B.F.A., Theatre, New York University, 2001. 2021 Stauffer Charitable Trust Research Fellow.