Different states have passed laws restricting the teaching of critical race theory by 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’s article has discussed some of these laws applied to universities. However, I wanted to talk about the bigger picture and K-12 education at government-run schools. Similar arguments can be made regarding internal government training.
[A.]To put it in a broader context, let me begin with three scenarios.
[1.] The state informs teachers and public schools that they cannot teach critical race theory. This is defined as the belief that racism is a systemic feature of American society that facilitates racial inequalities. This is a North Dakota statute I am quoting.
[2.] Students are being taught Coastal Elites Theory by a group called the “flyover nation” movement. It is a theory that coastal elites, including those in higher education and national government have exploited Heartland Americans. It has continued since the 1800s. “Heartland” Americans have been resisting it at times throughout the history (remember those complaints against New York financiers Alexander Hamilton had in his day). But the oppression does not stop.
There is also a countermovement, which suggests 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. Consequently, a state informs public schools that they are unable to teach Coastal Elites Theory.
[3.] Free-Market Capitalism is being taught to students by a group called Free-Market Capitalism. This theory states that economic liberty on balance is a great boon for humanity and regulations that restrict free markets can be counterproductive. Although I believe this theory is important and worthy of respect, I am inclined to agree with it. The question, however, is which regulations are required. Many in the Legislature disagree with it and say that public schools can’t learn Free-Market Capitalism.
[B.] One can easily conclude that any one of these ideas is bad, but the theory behind them is good and should be taught. They seem very similar from both a legal perspective and a constitutional standpoint.
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. It’s usually done by the appropriate government agencies, such as principals and school board members in education or heads of departments in other departments. If a school has a large amount of power over teachers in a class, it may be handled by employees. This is common at universities but less in K-12 schools. It may also be done by officials from the local government, like city and county governments or school board members.
Sometimes it is done by legislatures, whether in response to executive officers’ actions or in the first instance. I find this a difficult policy issue, and no single answer is the best.
The majority of legislators, and sometimes even local school board members, don’t have any experience in teaching people. However principals and individual educators do. On the contrary, lawmakers and school board members tend to be more representative of people. They include people who support the schools, and those who send their children. State legislators are more likely to be closer to school board members than those on the state legislatures. The state legislators are able to provide greater statewide uniformity which can sometimes be helpful, but not always.
One solution is to give most of the decisions to principals or teachers, with school boards and legislatures only stepping in when elected officials feel the decisions at lower levels are wrong. It might also be possible to try something different. Again Some government officials must decide what will be taught at government-run schools. Now the question is: Which government officials should they be?
[C.] Regardless of the good policy, however, these are questions that the First Amendment does not address. Teachers have a lot of rights. They can say whatever they like outside the classroom, but only when they’re teaching for school. They are subject to the speech of government in class, so they don’t have an exclusive First Amendment right as to what their class speech should 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]A court has ruled that the First Amendment rights of teachers extend to their choice in curriculum and classroom management practices, even if they are not following school policies or directives. The First Amendment’s right to freedom of speech does not protect teachers who are ‘pursuant’ to their professional 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]It is the school that has the power to change the curriculum and not the teacher.
- “[T]he concept of academic freedom … has never conferred upon teachers the control of public school curricula.”
Courts have only occasionally ruled against such restrictions on curriculum because they are not “reasonably connected to legitimate pedagogical issues.” The Ninth Circuit affirmed this decision in regard to the Arizona law “prohibiting courses and classes that'[a]”Redesigned primarily for pupils from a specific ethnic group.” Even that decision did not confirm the government’s authority over the curriculum. The government upheld, for example, other provisions prohibiting public school classes from “…”[p]”romote hostility toward one race or group of people” (or “[a]Encourage ethnic solidarity rather than treating pupils as individuals.
It may not be wise to control teachers’ choices about what or how they teach. However, if the higher-ups (principals, state boards of education or legislature) want to restrict such speech, they can’t do so under the federal Constitution.
A state legislature can also exercise control over the curriculum and not let it be left to local school boards, which is in accordance with the First Amendment. The First Amendment and other federal Constitutions generally view local governments as subdivisions within the state and therefore subject to the control of the state.
“Political subdivisions of States … never were and never have been considered as sovereign entities.” Instead, they are “subordinate government instrumentalities” that were created by the state to aid in carrying out its governmental functions. State political subdivisions are “merely … department[s]The State can withhold, deny, withdraw, or grant powers and privileges to the State as it sees appropriate.”
This is also true for charter schools that are run 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]Chart schools are public entities. They present a curriculum that isn’t the work of parents or teachers but rather the product of government. [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. Plaintiffs do not have the First Amendment right of compel the speech of the government, as it isn’t subject to First Amendment.
[D.] A state constitution could give institutions more autonomy than the state legislature. But, that is a hypothetical question. It’s also possible to be wiser and fairer not to have such questions raised at the state but at the local level. This question is relevant to many areas of public policy, including school curriculum.
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. This is because it doesn’t view states in the Constitution as being just parts of federal government. It also does not consider local entities, such as schools boards, as subordinates of state governments.