Thursday, May 27, 2021

New Restrictions on “Teaching” Critical Race Theory, and the Use-Mention Distinction Again

Mark Tushnet


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.

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