Since 2021, twelve states have passed laws designed to prohibit the teaching of “divisive concepts” such as Critical Race Theory, an academic concept developed in the 1980s that gained recent notoriety in the wake of George Floyd and the rise of the Black Lives Matter movement. These bills dictate how teachers may instruct rather than limiting the subject matter being taught.
While recent scholarship contesting these laws has challenged them on the grounds that they are curricular in nature, a new article from education law expert Matthew Shaw suggests a pedagogical approach may prove more effective.
In his article “Much Ado About Critical Race Theory,” recently published in Washington & Lee Law Review, Shaw, Associate Professor of Law at Vanderbilt Law School, suggests we think of these laws as imposing “pedagogical censorship,” a novel framework he introduces for understanding how states can abuse their authority over teaching methods to accomplish idea suppression without directly targeting viewpoints themselves. He then proposes a “workable constitutional rule” that would give challengers an opportunity to call into question the “legitimate pedagogical concerns” these Anti-CRT laws attempt to address. The rule cites Justice John Marshall Harlan’s dissent in Tinker v. Des Moines Independent Community School District.
“(U)pon the showing of clear and convincing evidence that the state’s action ‘was motivated by other than legitimate school concerns’ or in pursuit of an invalid educational purpose, the presumption would appropriately be rebutted, and the state’s education action would appropriately be deemed unconstitutional,” Shaw writes.
To prove that “Anti-CRT” laws are not motivated by legitimate concerns or in pursuit of a valid education purpose, Shaw suggests that challengers turn to education science on teaching and learning. Such an approach does not require the introduction of new laws, allows the courts to defer to experts in the field, allows for debate, and facilitates the incorporation of education science into the fields of knowledge that inform law. “Our constitutional law of education has much to learn from education science,” the paper notes.
Shaw applies this rule to Florida’s Individual Freedom Act, which bans “instruction that espouses, promotes, advances, inculcates, or compels [students toward certain] belief[s]” in “divisive concepts.” Offering a comprehensive overview of major schools of education scholarship, he finds that, “with breathtaking uniformity,” the field of education science finds the Individual Freedom Act pedagogically illegitimate, or irreconcilable with any reasonably accepted teaching methodology. While scholars debate which teaching approaches most effectively stimulate learning, there is a consensus that the development of critical thinking skills and engaging with different points of view are “hallmarks of good pedagogy,” and approaches that actively suppress these competencies aren’t pedagogy at all.
“There is but one conclusion: these laws mandate miseducation, which can never be legitimate or valid,” Shaw writes. The Individual Freedom Act and others like it, he writes, were designed to halt students’ development of “skills necessary to critique and challenge lawmakers’ preferred world view.”
The paper concludes by noting how the legacy of “anti-CRT” laws may ultimately boil down to the mainstream awareness they have generated for a pedagogical theory that existed in obscurity for almost half a century.
“That the culminating outcome of these states anti-pedagogy efforts ultimately might be – and should be – the substantive diffusion of critical race theory content and pedagogy in our Nation’s schools is ironic, fitting, and instructive.”
“Much Ado About Critical Race Theory” is now available in Washington & Lee Law Review.