Over the past three years, state legislatures have introduced and passed hundreds of laws restricting speech on race and racism in public schools. Broadly classified as “Anti-CRT” laws, these bills aim to ban lessons derived from the tenets of critical race theory, which posits that race is a social construct embedded in legal systems and policies, creating systemic inequalities that should be evaluated to correct past and present racial injustices. The laws impose broad and often vague prohibitions on speech, mostly without reference to critical race theory.
In her paper “(E)racing Speech in School,” Francesca Procaccini, Assistant Professor of Law at Vanderbilt Law School, offers a First Amendment analysis of Anti-CRT laws. She finds that while the First Amendment may not protect teachers or parents opposed to such laws, it will often protect students’ rights to receive the information that Anti-CRT laws seek to chill.
“The deeper and more provocative insight of these conclusions is that they rest on the same sound constitutional reasoning: that the First Amendment works to protect democratic governance and good citizenship,” Procaccini writes.
Limits on Free Speech for Teachers
To protect democratic governance, the First Amendment permits reasonable regulations on speech of public-school teachers when speaking in their capacity as government employees. “Without the authority to dictate what teachers teach, the task of public education would be inconsistent, arbitrary, and idiosyncratic, not to mention void of meaningful democratic oversight and accountability,” she writes.
In the two-pronged test used to govern the free speech rights of teachers, courts must weigh whether the teacher is speaking as a citizen on a matter of public concern, and if so, is there no reasonable justification for treating that teacher’s speech rights differently from other citizens. “In the case of teaching critical race theory (or not) as part of a school’s designated curriculum, it is clear teachers don’t satisfy either prong,” she writes.
Limits on Free Speech for Parents
“Generally, parents do not have a right under the free speech clause of the First Amendment to determine what their children hear or learn,” writes Procaccini.
This lack of protection serves two purposes: 1) it ensures that no single parents has the power to veto school assessments or curricula, and 2) it enhances a child’s protection to “develop beyond the confines of their parents’ views and teachings, which is integral to the First Amendment’s protection of individual enlightenment,” the paper explains. While the Supreme Court has not explicitly defined children’s speech rights as such, Procaccini points out that it has relied on children as future citizens to reject parental speech rights.
Students’ First Amendment Rights
“The right to receive information is inherent in the First Amendment’s protection of political participation and democratic self-government,” the paper argues. “It is at its most salient when the government attempts to withhold or manipulate the free flow of information between citizens and where there is informational dependence between the speaker and listener.”
In situations where a power asymmetry exists between the speaker and listener, the right to receive information is extremely important for democratic decision-making. This holds true in the teacher-student relationship. When the information at hand involves “an education that is sensitive to issues of structural racism in our society,” the paper states, it can factor into how children make informed choices. The Supreme Court has explicitly made this connection in Ambach v. Norwick.
Procaccini argues that this right to receive information in public school educations means “the state may not prohibit the teaching and classroom discussion of information that is integral to learning to participate as an informed citizen in a pluralistic democracy,” with exceptions for legitimate pedagogical concerns like age, demography, and resources. She uses this argument to craft “the anti-orthodoxy rule,” which holds that “laws that prohibit all classroom instruction of age-appropriate critical race theory topics in public schools violate students’ First Amendment right to receive information.”
“Ensuring against the imposition of a state-sponsored political orthodoxy is integral to protecting the ability of citizens to meaningfully participate in democratic self-governance,” the paper concludes. it is integral to their having the baseline knowledge, information, and communicative avenues to make informed political, economic, and social choices that shape our communities.”
“(E)Racing Speech in School” is published in the Harvard Civil Rights-Civil Liberties Law Review.
