Excerpted From: Kindaka Sanders, The Red Pill: Critical Race Theory, Ostrich Laws, and the 14th Amendment Right to Free and Equal Thought and Dignity, 55 Saint Mary's Law Journal 147 (2024) (835 Footnotes) (Full Document)

KindakaJamalSandersThomas Jefferson wrote in 1787, “fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a god; because, if there be one, he must approve the home of reason, than that of blindfolded fear.” Current bans on Critical Race Theory, race education, and African-American history are assaults “to the progress of civilization itself.” That is, ostrich laws that prohibit education focusing on critical thinking about race are simply flanking attacks on all critical thinking. But critical thinking is not the ultimate enemy. The ultimate enemy of the thought class behind anti-education ostrich laws is the most empirical form of critical thought: science, facts, evidence, and reason.

The anti-education thought class does not represent a modern phenomenon. The thought class has existed since time immemorial. And its target has always been the inevitable: the future. Galileo was indicted and jailed for demonstrating that the earth was not the center of the universe “after it ha[d] been declared and finally decreed contrary to the Holy Scripture” to do so. Shawn Lawrence Otto notes that Galileo was really imprisoned because “his evidence-based arguments--look through my telescope and see for your-self--were compelling” adding that “[k]nowledge is power, and that power is political.”

Chief among the ostrich laws banning the teaching of America's racial history is Florida's Stop WOKE Act and Florida Governor Ron DeSantis's recent decision to block AP African-American studies. The Florida Governor signed the Stop WOKE Act into law in April of 2022. The Act restricts race education on all levels, including secondary, collegiate, postgraduate, and in the workplace. It prohibits workplace training or school instruction that teaches that some racial groups are: (1) “inherently racist, sexist, or oppressive, whether consciously or unconsciously;” (2) that classes of people are oppressed or privileged on the basis of race, gender, or national origin; (3) or that individuals bear “personal responsibility for and must feel guilt, anguished, or other forms of psychological distress” for past actions committed by that individual's racial or gender group. The Act also prohibits educational material that reflects “unfairly upon persons because of their race, color, creed, national origin, ancestry, gender, [or] religion.” Additionally, the law bans lessons and trainings exhibiting the notion that individuals “should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” Thus, this regulation stipulates that educational institutions and employers are prohibited from advancing the concept that colorblindness and meritocracy “were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.”

The Stop WOKE Act has already had a chilling effect on education in Florida. Schools and colleges have begun canceling civil rights and other courses addressing race. In fact, Florida's Osceola County School District “canceled a workshop for teachers about the civil rights movement 'in light of the current conversations ... about critical race theory.”’ Moreover, the Florida Department of Education (Department) rejected certain mathematic books, fearing backlash and potential violations of education-related laws. The Department took issue with one book because it included statistical data and graphs, documenting racial prejudice by age and political leaning. In other words, the Department banned the book because it presented facts that conflicted with Governor DeSantis's conservative narrative.

Seemingly, the Stop WOKE Act's only saving grace is its obscure “savings clause,” which allows professors to discuss the outlawed concepts but only “in an objective manner” and “without endorsement of the concepts.” The major problem with the “savings clause” is that it even quails “objective” discussion of the prohibited concepts because educators are at risk of being deemed unobjective, even if they are not. In other words, who is to determine whether the concepts have been introduced objectively? In fear of authorities categorizing their presentations as subjective, many objective instructors will choose not to teach the concepts. However, the savings clause provision may prove pivotal in an issue bound for the Supreme Court, a Court dominated by justices ideologically aligned, at least in other areas, with Florida and other conservative state governments that have adopted similar ostrich laws. In other words, the Supreme Court is likely to uphold most provisions of the legislation because the savings clause provides cover for justices who are ideologically opposed to race education in any form.

In November of 2022, a federal district court in Florida declared Stop Woke Act unconstitutional despite the “savings clause,” calling the law “positively dystopian.” The court held the law violated the First Amendment because it targeted “certain viewpoints that offend the powers that be ... while permitting unfettered expression of the opposite viewpoints.”

However, Governor DeSantis and Florida Republicans did not end their efforts to curtail race education at the Stop WOKE Act. In January 2023, the DeSantis administration blocked Florida secondary schools from teaching an AP African-American history course. The Florida Department of Education explained to the College Board, which oversees AP coursework, that the proposed AP African-American history course was “inexplicably contrary to Florida law and significantly lacks education value.” The Department added that the course was problematic because it taught “activism” and “intersectionality.” The Department claimed that intersectionality, a framework for analyzing how an individual's various social identities combine to create unique modes of disadvantage and privilege, was objectionable because it is “foundational to Critical Race Theory.” The Florida Department of Education also took issue with the AP African-American history course because it advocated African American reparations--a movement focused on repairing structural damages to the African American community deriving from an unbroken chain of historical discrimination, including but not limited to slavery, Jim Crow, Cointel Pro, mass incarceration, and other “human rights violations.” White House press secretary Karine Jean-Pierre noted, “[l]et's be clear. They didn't block AP European history. They didn't block our art history. They didn't block our music history.”

Although Florida ranks high among states prohibiting books from classrooms and libraries--over 357 books--Texas, by far, is the most draconian state by banning over 438 books. Moreover, Texas law possesses harsh restrictions on how teachers may discuss controversial issues restrictions that are without the equivalent of a savings clause.

Texas Senate Bill 3 prohibits teachers from teaching that slavery was a cornerstone of the nation's founding; requiring, instead, that teachers describe slavery and racism as outliers, “a deviation” from America's founding principles. Specifically, Senate Bill 3 prohibits instructors from teaching that “slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.”

Texas Senate Bill 3 is Texas's second bill banning what it terms Critical Race Theory. The first bill, House Bill 3979, required schools to assign works authored by people of color in Texas and teachers to teach “the history of white supremacy--including .... institutions such as slavery, the eugenics movement, and the Ku Klux Klan, and the ways in which it is morally wrong.” Senate Bill 3 removes these requirements, yet still requires teachers and administrators to undergo civics training to remain politically unbiased in the classroom. Senate Bill 3 also removed a previous provision mandating schools to teach the history of the civil and voting rights movements and Native American history. Previously, House Bill 3979 had required schools to teach about civil rights historical figures like Martin Luther King Jr., Frederick Douglass, Cesar Chavez, and Dolores Huerta.

Texas's current prohibitions on race education and African-American history are a part of the state's rich history of trying to sanitize American history. In 2015, Texas received heat for having a social studies book in its curriculum that referred to enslaved African-Americans as “workers.” After Senate Bill 3 was passed, nine Texas educators proposed to the Texas State Board of Education that slavery be termed “involuntary relocation.” Evidently, the right-wing's war on history will not be ending anytime soon as conservative political action committees are financing the membership of conservatives on Texas school boards “who promise to get rid of curriculum and programs they consider divisive and make white children feel bad.”

The obvious effect of these laws is to maintain the racial status quo. However, for America to develop into a more equitable nation and adhere to its founding principles, an informed citizenry is essential. Pretending racism does not exist, or worse, acknowledging its existence but providing no means of ameliorating it, ensures its continued propagation. This is especially true for conservatives, who typically reject other avenues for blunting the effect of historical racism, like affirmative action, slavery reparations, and the like. Because modern American conservatives have not offered viable alternatives to repairing America's statistical racial divide, it is not illogical to conclude that race conservatives have become complacent and that the party of order supports racial anarchy. The larger issue at hand, however, is that this “complacent” mindset is perilous as systemic disparities drag our country down. Simply put, a nation's metaphorical chain is only as strong as its weakest link.

Critics of ostrich laws, like Amy Turkel, director of Florida's American Civil Liberties Union, argue that these laws are “part of a nationwide trend to whitewash history and chill free speech in classrooms and workplaces,” noting that such laws “will infringe on teachers' and employers' First Amendment rights and chill their ability to use concepts like systematic racism and gender discrimination to teach about and discuss important American history.”

Texas Senate Bill 3 and similar ostrich laws derive from the same form of information tyranny that spawned the European Enlightenment which, ironically, provided the foundation for American democracy and bedrock constitutional rights like the First Amendment right to free speech. A central theme of the European Enlightenment was the search for truth “by the new methods of science and by the examination of ancient knowledge.” In addition, a key idea to both the European and American Enlightenments is “the concept that humans through empirical observation and reason, could ascertain 'truth in the universe.”’ Thus, the attacks on Critical Race Theory, African-American history, and the theory of systemic racism are simply un-American when viewed through the lens of the Enlightenment tenants that formed country's foundation.

The current ostrich movement threatens to begin anew the thousand-year Dark Ages, “the age of ignorance” out of which natural philosophers (scientists) and Enlightenment thinkers had to usher Europe. Italian scholar Petrarch called the early Middle Ages “dark” in comparison to what he considered to be the “light” of classical antiquity. According to Petrarch, darkness connoted “ignorance” and “error,” while light signified “knowledge” and “understanding.” The Dark Ages began after ignorant Franco-Germanic hordes overran the Roman empire. The invaders destroyed many of the world's greatest books and philosophical tracts, and “[a]s the barbarians took hold of the west, piece by piece, learning slowly died with the empire.” The wisdom of the ancients was lost.

Enlightenment ideals included the centrality of human happiness and, most importantly, the pursuit of knowledge through reason and sensory evidence. Some scholars trace the beginning of the Enlightenment to Rene Descartes's Discourse on the Method in 1637 in which he announced the now famous philosophical tenant, “Cogito, ergo Sum” (I think, therefore I am). At the heart of the Enlightenment was “critical thinking,” which posed a “powerful threat” to the Church and civil authority's “absolute sovereignty.” Enlightenment thinkers began to question “the rights of kings to govern men, and clergy to govern souls.” Christopher L. Hodapp notes that “[W]ith the Enlightenment, an increasing number of political, religious, and philosophical upstarts began asking 'Why?”’ That simple three-letter word “would topple kings from thrones and wrest half of a continent away from their previous landlords.”

America's Founders were ardent students of the Enlightenment as well as the classical antiquities that preceded the Dark Ages. America's experiment in democracy is a direct result of the Enlightenment. The Enlightenment, a product of the scientific revolution, was the social and political version of the scientific method. To argue that the United States Constitution does not protect critical thinking and the scientific method is to argue that the Constitution does not protect our experiment in democracy.

Considering the country's origins, bans on any critical thought, Critical Race Theory or otherwise, and potential bans on scientific theories like the Big Bang Theory, are profoundly unconstitutional. Bans on critical thought challenge the foundation of democracy itself. These bans violate the fundamental American right to seek the truth through empirical data and reasoning, and, by extension, the right to think freely in quest of the truth.

The right to seek objective truth is different from the First Amendment right to receive information which arguably covers the right to believe, including religious belief. The right to seek objective truth is limited by current case law which turns on the educational value of the information balanced against a state's interest in indoctrinating primary and secondary students. The right to free thought, on the other hand, is premised on reason, facts, evidence, and the scientific method, finding its roots in the Fourteenth Amendment's Substantive Due Process Clause. The right to equal thought and dignity hinges upon equal access to identity-protecting information and equal protection against identity-damaging information, and is thus rooted in both the First Amendment and the Equal Protection Clause. The right to equal thought and dignity requires states to not only consider the harmful effects of critical race history on White students, but also the effect the absence of that information has on the self-esteem and emotions of black students. Critical race history helps explain the African-American community's social and economic predicament. Without this knowledge, black students are more susceptible to believing African-Americans are inferior. A presumption of inferiority affects self-esteem and the prospects of life success.

This Article is divided into eight parts. Part II explores what Critical Race Theory is and summarizes the arguments for and against it. Part III surveys ostrich laws banning Critical Race Theory and related concepts around the country. Part IV discusses the Age of Enlightenment and Enlightenment tenets that support the constitutional right to free and equal thought and dignity. Part V describes the American Matrix (America's counter-rationale subculture) out of which current ostrich laws extend. Part VI discusses the First Amendment right to receive information and its shortcomings regarding race education. Part VII covers the Fourteenth Amendment grounds for the right to free and equal thought. The section also applies the Substantive Due Process Clause and Equal Protection Clause to ostrich laws banning Critical Race Theory and African-American history. Part VIII concludes the Article.

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The Fourteenth Amendment protects Critical Race Theory, African-American history, and race education generally. The Amendment's Substantive Due Process Clause protects a student's right to receive and a teacher's right to teach many of the tenets of Critical Race Theory, while the Equal Protection Clause protects minority students' right to equal access to information and equal dignity.

The Substantive Due Process Clause contains the unenumerated right to use the scientific method--bolstered and implied by the Bill of Rights. Science and the scientific method were critical to the nation's founding and subsequent success. Indeed, American democracy itself is the result of the scientific method, hence the popular adage that America is the longest running democratic experiment. America is the first-born nation of the European Enlightenment. At the heart of the European Enlightenment was intellectual freedom, social philosophy, and political theory. Enlightenment thinkers sought to construct the social and political version of the Scientific Revolution that preceded it. Thus, they centered empiricism and reason as the moral compass of the age. America's Founders were heavily influenced by the European Enlightenment and sought to create a secular nation where reason in the form of natural law was king. Monarchies, with their focus on bloodline and tradition, and not competence, became anathema. Many Founders were also Freemasons, an organization premised on critical thought and self-discovery. So, to say that critical thought and the scientific method is not a fundamental American right is to deny the fundamentality of representative democracy in American government. That is, America is an experiment itself inspired by the scientific method, and since the very nature of the country is scientifically inspired, it would be difficult to argue that an individual right to employ the scientific method, the right to free thought, is not fundamental.

In the end, so long as the tenets of Critical Race Theory are subject to and testable through the scientific method, they are protected by the Fourteenth Amendment. To the extent that various tenets constitute opinion or hypothesis devoid of empirical support, they are not protected. The major premises of Critical Race Theory are not demonstrably false and are statistically testable. The two primary theories are the systematic nature of racism and the notion of implicit bias. Many, if not all, statistics support a theory that America's historical policies and laws are responsible for statistical disparities between minorities and White men--the only real majority. The only other theory for racial disparities is what race conservatives call a culture of poverty, criminality, deviance, and immorality. Besides the theory's obvious racist implications, it is problematic for other reasons. While it is arguable that the theory that accentuates racial disparities as the exclusive product of cultural units is not demonstrably false (thus protected under the Fourteenth Amendment), it is a scientifically inferior position because it fails to account for the probability that if such a culture actually exists (which itself is subject to dispute and debate), it derives from historical racism perpetuated by American institutions. And because the culture theory is scientifically inferior, it cannot support bans on educational packages that feature implicit bias and institutional racism. Similarly, implicit bias is not just a belief or opinion. It too has been tested and proven.

To the extent that Critical Race Theory claims that individuals are born racist (though it is not formally claimed, some individuals have adopted this belief), the claim cannot be protected. Why? Such a conclusion is demonstrably false since science has proven that race does not exist on a biological level.

The Equal Protection Clause protects Critical Race Theory and African-American history. More specifically, it protects the dignity interests of African-American students and, in concert with the First Amendment right to receive information, their right to equal access to information. Ostrich laws banning race education and AP African-American history courses privilege the dignity interest and emotional health of White students over African-American students. That is, at bottom, supporters of anti-education policies cite White guilt and maintaining national pride as justification for ostrich laws. They ignore the potential Black guilt deriving from un-combated racial stereotypes and the lack of information regarding historical African-American success stories. Without learning how historical discrimination has informed the present Black condition, Black students might be more susceptible to the myth of Black inferiority. Furthermore, in the absence of positive African-American history Black students may form the belief that African-Americans have not contributed substantially to the nation, starving them of the type of racial pride that helps foster academic success. Similarly, the lack of historical role models and stories of inspiration can affect an individual's academic and life success.

The bottom line is that ostrich laws banning race education are unconstitutional. Whether they will be adjudged unconstitutional by a Supreme Court ideologically aligned with the laws' purveyors is a different matter.

Kindaka Sanders is an Associate Professor at Texas Southern University, Thurgood Marshall School of Law.