Is banning critical race theory in schools unconstitutional? Lawsuit in Oklahoma seeks to prove it.

·8 min read

A lawsuit filed Tuesday is challenging Oklahoma’s law against school discussions of racism and sexism, the first federal suit to allege that a conservative state’s so-called “critical race theory” ban is inherently unconstitutional.

Last summer, Oklahoma became the second state to pass such a law. (Idaho was the first such state). Another half dozen states have since followed.

The laws were passed ostensibly to eliminate instruction about critical race theory, an obscure legal concept about the ongoing impacts of slavery and racism in the U.S. that’s rarely taught in K-12 schools. But the laws almost never mention the theory, and teachers say the new laws limit important lessons on history and current events.

Now, a complaint filed in federal court by the American Civil Liberties Union and the Lawyer’s Committee for Civil Rights Under Law alleges the restrictions in Oklahoma violate students’ and educators’ rights under the First Amendment and 14th Amendment. The state’s law, the lawsuit says, has had a chilling effect on the terminology and lesson plans teachers incorporate into their instruction – content that helps to ensure historically marginalized students have an equitable education.

The Republican lawmakers who sponsored the Oklahoma bill touted it as an effort to combat racism and sexism in schools. But the intention – and the outcome – has been to stifle discussion of those topics, the lawsuit argues.

In promoting the bill, its lead authors denounced teaching about concepts such as “implicit bias" and “systemic racism,” according to the ACLU.

As with its counterparts in other states, the law itself is vague and at times hard to dissect. Educators are prohibited from teaching, for example, that “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.” Nor can they make any individual “feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”

“People who are subject to the law have no way of knowing what’s prohibited and what’s not,” said Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project.

That’s a due process problem, he said. The vagueness also “opens up the door to arbitrary and discriminatory enforcement by officials. ... A lot of these laws are written in such a confusing way as to say essentially, ‘Don’t say anything racist.’ But the subtext is: ‘Don’t talk about racism.’”

'It's like walking a tightrope': Critical race theory bans are adding more anxiety to stressed teachers

In mid-July, Oklahoma’s Board of Education passed administrative rules outlining how school districts are to comply with the law. Under the guidance, educators could see their licenses suspended – and schools could see their accreditation docked – if they teach any of the banned concepts. Parents and private citizens can file reports against teachers they believe are violating the law.

The impact has been swift: Some districts have prohibited teachers from using terms including “diversity” and “white privilege,” according to the ACLU, while a number of schools have scaled back or all together eliminated diversity, equity and inclusion staff trainings or initiatives.

One of the plaintiffs, teacher Regan Killackey, was told to avoid incorporating certain race-related concepts, phrases and books in his curriculum. He no longer engages his students in conversations about race and gender, according to the lawsuit.

“It’s inevitable that there is some amount of discomfort in learning about difficult things,” Sykes said. Students of color, he noted, feel bad about themselves when they don’t see their own communities and narratives reflected in what they’re learning. The law “puts teachers in an impossible position. You're damned if you do, and you're damned if you don’t.”

This is the first federal suit to challenge one of the statewide bans facially. That means it alleges Oklahoma’s law is unconstitutional as it’s written – not just in how it’s being applied. And chances are it won’t be the last. Other state laws restricting classroom discussions tend to use language similar to the Oklahoma law.

Another lawsuit against one such ban has already been successful, but in that case on procedural grounds. Arizona’s ban, whose language was almost identical to Oklahoma’s, was tucked into a broader reconciliation bill along with other school-related policy changes. A Maricopa County judge struck down the law in September, ruling that it violated a provision of the Arizona Constitution requiring bill titles reflect what the legislation is actually about. The case now heads to the state Supreme Court.

“This is a big cultural and historical reckoning that we’re dealing with, a societywide issue that we’re working on in lots of different ways,” Sykes said. “One piece of it is litigation.”

Plaintiffs in the Oklahoma suit include a student; two teachers; the Black Emergency Response Team at the University of Oklahoma; the University of Oklahoma chapter of the American Association of University Professors; the NAACP of Oklahoma; and the American Indian Movement Indian Territory.

Among the defendants are Oklahoma's governor, attorney general and superintendent of public instruction. “It’s par for the course that when something goes against the left’s liberal agenda activist groups attempt to come into Oklahoma and challenge our laws and our way of life but [Oklahoma Governor Kevin Stitt] stands by his decision to sign HB1775 and ban teaching our children that one race or sex is inherently superior to another race or sex," said Carly Atchison, a spokesperson for the governor, in response to the suit.

US history is complex: Scholars say this is the right way to teach about slavery, racism.

Law affects colleges, too

What makes Oklahoma’s law particularly problematic, according to Sykes, is that it’s so far-reaching. The law applies not only to schools, but also to public colleges and universities. The Supreme Court has previously ruled that the First Amendment has special protections for academic freedom in higher education.

BERT, one of the plaintiffs, formed in 2019 in response to a string of racist incidents at the University of Oklahoma. The group convinced the university administration to establish a mandatory diversity training course for students. The initiative – which was met with outcry – was set to launch in the fall. But the school dropped the requirement after the implementation of the law, which specifically bans colleges from requiring diversity trainings.

“We believe all students deserve to have a free and open exchange about our history – not one that erases the legacy of discrimination and lived experiences of Black and brown people, women and girls, and LGBTQ+ individuals,” said Lilly Amechi, plaintiff and representative for BERT, in a statement.

‘In search of problems that don’t exist': Republicans try to ban critical race theory in colleges

Oklahoma’s racial history – marked by events such as the 1889 Land Run and 1921 Tulsa Massacre – also underscores its students’ need for “honest conversations” about such topics, the plaintiffs argue. Surveys suggest most Oklahomans were never taught about the massacre.

Anthony Crawford, a plaintiff and English and creative writing teacher at a predominantly Black high school in Oklahoma City, didn’t learn about African American history growing up and has sought to incorporate such lessons into his instruction.

The law’s passage took an emotional toll on both Crawford, who is Black, and his students.

“Knowing Black history helps them, empowers them and encourages them to be better,” he said. “They’re like, ‘OK, now what?’ What are they going to learn now? What are they going to do in order to feel that empowerment? How are they going to figure out who they are, where they came from, what their ancestors did? How they can go on moving forward to improve their lives, their position here in society?”

Crawford, who at first thought he’d have to throw out his entire curriculum, considers himself lucky because his superintendent told him not to worry, helping him evaluate his lesson plans and ensure everything tied back to the state’s academic standards. The irony, he says, is that the law – at least the way he and many other educators interpret it – contradicts many of those standards.

“What do they want us to stop doing? What do they want us to do?” Crawford said. “That’s where my confusion became frustration because now I just feel like ... politicians are trying to eradicate history, to eradicate what happened to Black folks in history.”

Oklahoma’s law “is an unvarnished attempt to silence the experiences and perspectives of Black, Indigenous and LGBTQ+ people, and other groups who have long faced exclusion and marginalization in our institutions, including in our schools,” said Genevieve Bonadies Torres, associate director of the Educational Opportunities Project with the Lawyers’ Committee for Civil Rights Under Law, in a statement.

“Every student in Oklahoma deserves an equitable education that reflects the rich diversity of the state and provides a full, fact-based discussion of the state’s checkered history of racism, sexism and discrimination.”

Contact Alia Wong at (202) 507-2256 or awong@usatoday.com. Follow her on Twitter at @aliaemily.

More on critical race theory:

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Parents want kids to learn about ongoing effects of slavery – but not critical race theory. They're the same thing.

Schools keep talking about critical race theory and DEI. What do those terms really mean?

This article originally appeared on USA TODAY: Is critical race theory unconstitutional? Lawsuit seeks to prove it.

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