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Ohio critical race theory requirements in school could violate state constitution

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COLUMBUS, Ohio — Ohio's top attorney doesn't support teaching critical race theory in K-12 schools, but he can't say for certain whether an anti-racist resolution violated state or federal laws.

"As the legal opinion points out, a generally permissible goal (an accurate teaching of history) may be accomplished by impermissible means ...," Attorney General Dave Yost wrote in a letter to Ohio's State Board of Education. "The devil is in the details."

Here's what happened.

A few weeks after George Floyd was murdered by a Minnesota police officer, the State Board of Education passed a resolution to "condemn racism and to advance equity and opportunity" for minority students.

Some board members disagreed with the resolution, saying it opened the door to teaching controversial topics like critical race theory.

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The board argued about the issue for months before voting in July to have Yost tell them "whether the resolution as adopted confirms with state and federal laws and is within the legal authority of the board."

The attorney general took about two months to answer, and his response could be summed up in one word: Maybe.

The resolution, according to Yost's 10-page opinion, had a lot of symbolic language that could be legal in theory but illegal in practice.

For example, it directed the Ohio Department of Education to reexamine its curricula and "make recommendations to the State Board of Education as necessary to eliminate bias and ensure that racism and the struggle for equality are accurately addressed.”

That's well within the bounds of state and federal law, but the specific ways that unfolded might not be.

"What I can say is this: the curricula and standards will be contrary to law if they treat students differently on the basis of race," Yost wrote. That kind of lesson plan would violate the U.S. Constitution, Ohio Constitution and the federal Civil Rights Act of 1964.

Supporters define critical race theory as a way of understanding how biases (even unconscious ones) can slip into our public institutions. But opponents say it's true purpose is to divide people based on the color of their skin and teach kids that they are either oppressors or the oppressed.

It's a contentious issue, and Yost himself acknowledged the divide over CRT's definition. He wrote that he "won't use that term because of the disagreement about what it is."

The resolution also directed education department employees and contractors to take mandatory training "to identify their own implicit biases.”

Missing other black stories, voices: History curriculum, books were written by and for white people. What about kids of color?

Yost said that's OK for state employees, but the board doesn't have the authority to mandate training for private contractors.

And when it comes to what's in that kind of training, Yost warned against using material that "imputes collective guilt, moral deficiency or racial bias to entire swaths of people based solely on the immutable characteristic of skin color."

Board member John Hagan, who put forward the resolution asking for the legal opinion, did not immediately respond to a request for comment.

Yost's opinion mirrors what Republicans in the Ohio House and Senate have been saying for months. They support the teaching of history but not critical race theory. And they've introduced two bills to ban the teaching of what they call "divisive concepts."

But state board of education member Meryl Johnson strongly disagrees. She's been an outspoken critic of both House bills 322 and 327.

"How can a child develop a trusting relationship with a teacher who isn't allowed to teach the truth," Johnson asked during a recent press conference. "Are there people who are so ashamed of our country’s history that they are afraid to teach it?"

Follow Anna Staver on Twitter: @AnnaStaver.

This article originally appeared on The Columbus Dispatch: Ohio AG questions constitutionality of teaching critical race theory

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