The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Various states have enacted laws limiting the teaching of "critical race theory" by various government institutions. Florida has recently limited "classroom instruction by school personnel or third parties on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."
Keith Whittington has written about some of these laws as applied to universities; I'll speak about that in a separate post. But I thought I'd talk more about the big picture, and particularly K-12 teaching at government-run schools (though similar arguments arise as to internal training by government offices and the like).
[A.] Let me start with three hypotheticals, just to put the matter into broader perspective.
[1.] A state tells public schools (and therefore teachers) that they can't teach "critical race theory," defined for instance as "the theory that racism is not merely the product of learned individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality." (I'm quoting here a North Dakota statute enacted recently.)
[2.] There's a movement to teach students Coastal Elites Theory, a theory that various coastal elites (in national government, higher education, Wall Street, Hollywood, and other such institutions) have been wrongfully exploiting Heartland Americans in what some label "flyover country." This has gone on, the theory goes, from the 1700s to now; "heartland" Americans have resisted it at various times throughout (note the echoes here, for instance, of complaints about New York financiers in Alexander Hamilton's day), but the oppression continues.
There is also a countermovement that argues that, though there are some plausible arguments for some such complaints, the theory—especially when taught in K-12 schools—is (1) in various respects mistaken, (2) exaggerates the magnitude of the problem, (3) foments divisions both among Americans generally and within each school (since in all places some students and families may be more linked to supposed Coast Elites and some to Heartland Americans), and (4) counterproductively undermines the education even of the students it aims to benefit, by causing them to focus on grievances and obstacles rather than on opportunities. As a result, a state tells public schools that they can't teach Coastal Elites Theory.
[3.] There's a movement to teach students Free-Market Capitalism, the theory that on balance economic liberty is a huge boon for mankind, and that regulations of free markets are usually counterproductive. (I should add that I think this is an important and respectable theory, and I'm inclined to think that it's mostly correct, though the question is always which regulations, however rare, are necessary.) But many in the Legislature disapprove of it, and tell public schools that they can't teach Free-Market Capitalism.
[B.] Now naturally one can conclude that one or more of these proposals is a bad idea because the underlying theory is a good theory and should be taught. But from a legal and constitutional perspective, they strike me as similar.
Someone has to make the decision about what the government says and does—what public schools teach, what training government employers require, and the like. Usually it's done by administrators within the relevant government agency: school boards and principals in education, department heads in other departments. Sometimes it's done by line employees, for instance if a school gives teachers considerable authority over a particular class (common in universities, less so in K-12 schools, I think). Sometimes it's done by local officials, such as city or county governments or school boards.
And sometimes it's done by the legislature, either in the first instance or, more often, in reaction to what executive officials have done. In my view, this is a complicated policy question, with no one answer being clearly the right one as a matter of general principle.
For instance, most legislators (and even often local school boards officials) don't have much experience with educating people; principals and individual teachers generally do. On the other hand, legislators and school board members are more representative of the people, including people who are paying for the schools and who are sending their children to the schools. School board members are generally closer to the voters than state legislators. State legislators can provide more statewide uniformity, which is sometimes helpful (and perhaps sometimes not).
Perhaps the right solution might be to leave most decisions to teachers or principals, and to have school boards or legislatures step in only in rare situations where the elected officials think the lower-level decisions are far wrong. Or perhaps it might be to do something else. But again some government officials have to decide what is going to be taught in government-run schools. The question is which government officials they should be.
[C.] But whatever the sound policy might be, the First Amendment generally doesn't speak to these questions (except in the narrow and different context of the teaching of evolution or intelligent design, which has been governed by Establishment Clause principles, see Epperson v. Arkansas (1968) and Edwards v. Aguillard (1987), and which I set aside here). While teachers have considerable rights, for instance, to say what they want outside class, when they are teaching on behalf of the school, their speech in class is the government's speech, and they have no special First Amendment right to dictate what that speech would be. To quote some federal appellate courts,
- "Teachers do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students…. '[N]o court has found that teachers' First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates.'" "The right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made 'pursuant to' their official duties."
- "[P]ublic-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority)…. [A teacher does] not have a constitutional right to introduce his own views on the subject but must stick to the prescribed curriculum—not only the prescribed subject matter, but also the prescribed perspective on that subject matter."
- "[T]he school, not the teacher, has the right to fix the curriculum."
- "[T]he concept of academic freedom … has never conferred upon teachers the control of public school curricula."
In very rare cases, courts have struck down such curriculum restrictions as being not "reasonably related to legitimate pedagogical concerns"; most prominently, the Ninth Circuit so held as to an Arizona law that "prohibits courses and classes that '[a]re designed primarily for pupils of a particular ethnic group.'" But even that decision reaffirmed the government's broad authority over the curriculum, upholding, for instance, other provisions that forbade public school classes that "[p]romote resentment toward a race or class of people" or "[a]dvocate ethnic solidarity instead of the treatment of pupils as individuals."
Again, it may sometimes be unwise to micromanage teachers on their choices of what and how to teach. But if higher-ups, whether principals, school boards, the state board of education, or the legislature, wants to control such speech, the federal Constitution doesn't constrain them.
Nor is there a First Amendment problem with a state legislature asserting control over the curriculum rather than leaving it to local school boards. Generally speaking, from the perspective of the First Amendment and the rest of the federal Constitution, local governments are subdivisions of the state, and subject to control by the state:
"Political subdivisions of States … never were and never have been considered as sovereign entities." They are instead "subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." State political subdivisions are "merely … department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit."
Indeed, this is true even of charter schools, when those schools are operated as government schools:
The First Amendment's speech clause does not … give … charter school teachers, Idaho charter school students, or the parents of … charter school students a right to have primary religious texts included as part of the school curriculum. Because [the] charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the [state] government….. A public school's curriculum … is "an example of the government opening up its own mouth," because the message is communicated by employees working at institutions that are state-funded, state-authorized, and extensively state-regulated. Because the government's own speech is not subject to the First Amendment, plaintiffs have no First Amendment right to compel that speech.
[D.] Finally, it's possible that a state constitution may give some institutions some autonomy from the state legislature, but I set that state separation-of-powers question aside for this post. And again it's possible that it's wiser or fairer to leave such questions at the local level rather than at the state level, a question that of course arises as to a vast range of public policy and not just school curricula.
But I don't see why in principle the state government, which often pays a huge portion of the cost of public education, shouldn't have a say here—and, indeed, given the constitutional structure of our states, the ultimate control. (Whether federal government should exercise such control, including with conditions on federal funds, is a more complicated matter, because the Constitution doesn't generally view states as just subdivisions of the federal government, the way it views local entities such as school boards as subdivisions of states.)
UPDATE: I added the parenthetical that briefly mentions the evolution / intelligent design cases, which are governed by specialized Establishment Clause rules related to the religion-related motivation for the laws involved in those cases.