Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
New Restrictions on “Teaching” Critical Race Theory, and the Use-Mention Distinction Again
Statutes described as restricting the teaching of critical
race theory are both ignorant and stupid. Are they unconstitutional, though? That’s
not as clear to me as it appears to be to others.
As with many things constitutional, details matter. The
Oklahoma statute says that schools can’t “make part of a course” seven listed
concepts, including that “an individual, by virtue of his or her race or sex,
is inherently racist, sexist or oppressive, whether consciously or
unconsciously” (the other “concepts” are similarly described).
What exactly does this bar? On its face, teaching the truth
of that concept but not (again on its face) describing the arguments some
analysts (“critical race theorists”) have made about U.S. society and history.
Roughly speaking, a teacher can mention the concepts but can’t use them.
The Idaho statute forbids any course from requiring students
to “affirm, adopt, or adhere” to a number of “tenets” defined as part of
critical race theory. Again, teaching about those tenets isn’t barred by
the face of the statute.
Frankly, as a now-retired teacher, I’d be – and I think I
was – more than reluctant to require my students to “affirm, adopt, or adhere
to” anything – including the idea that the First Amendment was overall a
good or a bad thing, much less that some specific decision was right or wrong.
I understand, though, that some teachers might reasonably think
that getting students to forcefully advocate for a position (with which they
might disagree) is a good way to get them to understand the position. And, it
might be that under some interpretations of the statutes that pedagogic
practice might be subject to sanction. In light of constitutional concerns they
shouldn’t be interpreted to do so.
But, finally, uncertainty about the scope of the statutes
might make them unconstitutionally vague (in a First Amendment context) or
(more problematically) overbroad (more problematic because the statutes are
readily subject to narrowing constructions that rely on the use-mention
distinction as I have above).
My bottom line is that the statutes might be unconstitutionally vague but that they aren't obvious violations of the substantive First Amendment principle barring the government fro imposing sanctions on speech because of its content.