The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Legislature May Choose What Viewpoints May or May Not Be Taught in Public Schools
From today's decision in Walls v. Sanders, by Eighth Circuit Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender (which I think is generally correct):
[T]he government's own speech "is not restricted by the Free Speech Clause," so it is free to "choose[ ] what to say and what not to say." …
[Arkansas law, "Section 16,"] directs the Arkansas Secretary of Education to ensure the Arkansas Department of Education complies with Titles IV and VI of the 1964 Civil Rights Act by reviewing its communications and materials to see if they "promote teaching that would indoctrinate students with ideologies such as Critical Race Theory, otherwise known as 'CRT', that conflict with the principle of equal protection under the law or encourage students to discriminate" based on someone's protected characteristics. The Secretary must also "amend, annul, or alter" any "rules, policies, materials, or communications that are considered prohibited indoctrination" and "review and enhance the policies that prevent prohibited indoctrination." "Prohibited indoctrination" is defined as:
communication by a public school employee, public school representative, or guest speaker that compels a person to adopt, affirm, or profess an idea in violation of Title IV and Title VI of the Civil Rights Act of 1964, including that:
(1) People of one color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law are inherently superior or inferior to people of another color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law; or
(2) An individual should be discriminated against or receive adverse treatment solely or partly because of the individual's color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law.
Section 16 expressly excludes from its prohibition: (1) discussions about "[i]deas and the history of concepts described" in the "prohibited indoctrination" definition; and (2) discussions about "[p]ublic policy issues of the day and related ideas that individuals may find unwelcome, disagreeable, or offensive." A teacher who violates Section 16 by engaging in "prohibited indoctrination" "could be punished (up to losing his or her license) by the State Board of Education."
Students challenged Section 16 on Free Speech Clause, but the Eighth Circuit rejected that argument:
Though a listener's right to receive information means the government cannot stop a willing private speaker from disseminating his message, that right cannot be used to require the government to provide a message it no longer is willing to say. After all, "[w]hen the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say," unrestrained by the Free Speech Clause. The government is ultimately accountable to its citizens for its speech through elections, so the government may change the message it promotes in response to the political process.
Students do not possess a supercharged right to receive information in public schools that alters these principles. Just as ordinary citizens cannot require the government to express a certain viewpoint or maintain a prior message, students cannot oblige the government to maintain a particular curriculum or offer certain materials in that curriculum based on the Free Speech Clause.
The court also rejected an academic freedom claim (a claim that some courts have accepted as to public higher education, but that has generally not been accepted as to K-12 education):
Board of Education v. Pico (1982) …, which dealt with a school board's decision to remove certain books from school libraries, is of little help to [the students';] cause…. Pico lacks any holding as to the First Amendment ….
Even considering the persuasive value of the principal plurality opinion which concluded students had a right to receive books previously added to a school library, it distinguished the school library from the classroom and recognized that the government has a "claim of absolute discretion in matters of curriculum" and "the compulsory environment of the classroom" to carry out its "duty to inculcate community values." The other Pico opinions that discussed the First Amendment's Free Speech Clause also cast doubt on the Clause's role as a check on curriculum choices. Here, we deal not with books in a library, but instead with in-classroom instruction and materials in a high school. If Pico is any guide, Arkansas has substantial, if not absolute, discretion in selecting what materials and information to provide in its public school classrooms.
[Pratt v. Indep. School Dist. No. 831 (8th Cir. 1982)] is closer to the present case. There, we concluded "school boards do not have an absolute right to remove materials from the curriculum" if the removal "was intended to suppress the ideas expressed" in the removed materials…. [But] Pratt, which was decided in 1982, predates the numerous Supreme Court decisions holding that the government is permitted to engage in viewpoint discrimination when it speaks. Since Pratt, the Supreme Court has instructed that a court must consider "principles applicable to government speech" when the issue involves "speech by an instructor or a professor in the academic context."
The present case deals directly with such in-classroom instructional speech, as all parties agree. Pratt omitted the crucial step of considering whether the speech at issue was the government's and therefore not subject to the Free Speech Clause's restrictions. Indeed, its test resembles the one applied to the government's regulation of student speech in school-sponsored settings. We have not reaffirmed Pratt's application to a Free Speech Clause challenge since the proliferation of the government speech doctrine. In similar circumstances where subsequent Supreme Court cases have demonstrated that our earlier panel decision engaged in "only half of the analysis" required to address the issue, we concluded we were not bound to reach the same result as our prior precedent.
Despite the clear incompatibility of Pratt's imposition of a viewpoint discrimination limitation and the Supreme Court's government speech doctrine, the students argue we should still follow it in the narrow circumstance where the government is alleged to have changed a pre-existing curriculum for "partisan or political" reasons. But "virtually all educational decisions necessarily involve 'political' determinations," so any time something is removed from the curriculum based on the decision of a democratically elected government entity, it could be characterized as a "partisan or political" choice.
We see no basis in the Free Speech Clause to conclude the students would have a right to prevent something from being removed from the curriculum based on ideology if they do not also have a right to require the school to add materials. And the students reasonably concede they lack the latter right. Given that this asserted right only runs in one direction, the students' proposition would create an incumbency bias that erodes democratic accountability for government speech. Any time the government seeks to alter the curriculum by removing materials, it would face potential challenges that it is doing so for perceived ideological reasons.
By applying this test only when materials are removed, we essentially assume that the preexisting curriculum reflects some neutral ideal. If the removed materials were added to the curriculum for "partisan or political" reasons, future governments should surely be free to remove those materials to reflect new priorities based on voters' wishes. Nevertheless, under the students' proposed rule, the government is stuck with those materials unless it can sufficiently convince a court that it is removing them for non-ideological reasons. And removing materials because those materials were added to promote "partisan interests" could itself be classified as suppressing a particular ideological viewpoint from the classroom and therefore an improper ideological motivation for modifying the curriculum.
{ Indeed, this case suggests how such an explanation would likely result in litigation. While the Arkansas officials dispute that Section 16 prohibits teaching about CRT, their brief argues they could remove such materials even under the students' test because the materials promote an "ideolog[y] that … urg[es] openly race-based policies"—in other words, they view teaching about CRT as inculcating a certain ideological position.
Ultimately, if we followed the students' approach, a government could not successfully defend its decision to change the curriculum by arguing that it was responding to the electorate and the political process. Such an outcome runs headlong into the Supreme Court's government speech cases, which repeatedly emphasize the role of the political process and elections in regulating government speech. Typically, "[i]f the citizenry objects, newly elected officials later could espouse some different or contrary position." Thus, we usually permit changes in government speech motivated by the political process, rather than declare them unconstitutional.
It would be odd to treat government speech in schools differently since "the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." We decline the students' invitation to make the school curriculum uniquely static and unaccountable. We therefore conclude that Pratt's test has been abrogated by the Supreme Court.
We do not minimize the students' concern—whether in this case or in the abstract—about a government that decides to exercise its discretion over the public school curriculum by prioritizing ideological interests over educational ones. But the Constitution does not give courts the power to block government action based on mere policy disagreements. The right to receive information cited by the students in support of the preliminary injunction does not authorize a court to require the government to retain certain materials or instruction in the curriculum of its primary and secondary public schools, even if such information was removed for political reasons. Since the speech belongs to the government, it gets to control what it says….
The court also rejected a vagueness objection to the law, on procedural grounds.
