Abstract

Excerpted From: Erin M. Carr and Nabil Yousfi, “Anti-Wokeism” & Authoritarianism: A Renewed Call for Constitutional Protections for Education, 74 Syracuse Law Review 971 (2024) (320 Footnotes) (Full Document)

Fellow citizens, we cannot escape history. - Abraham Lincoln

Billed by Florida legislators as the “strongest legislation of its kind,” the Stop the Wrongs to Our Children and Employees Act (commonly referred to as the “Stop W.O.K.E. Act”) purports to “protect” students and teachers from “discrimination and woke indoctrination” by prohibiting the substantive teaching of topics related to unconscious bias or systemic racism. This law was one of numerous restrictive state measures enacted in the wake of the murder of George Floyd, as well as the growing prominence and power of the Black Lives Movement, aimed at censoring educational and historical topics deemed “divisive” by predominantly conservative legislators. As this Article seeks to illustrate, anti-literacy laws, such as those memorialized in the Stop W.O.K.E. Act and similar “anti-critical race theory”(“anti-CRT”) measures, are emblematic of a protracted legacy of restricting the acquisition of knowledge as a means of instantiating legal norms that reinforce multi-layered forms racial subordination.

Critically, the Stop W.O.K.E. Act is not an anathema, nor have the countless constitutional challenges that have plagued it since its inception discouraged other state and local governments from enacting similar anti-literacy measures. Since September 2020, more than 200 local, state, and federal entities have introduced over 750 policies specifically aimed at restricting educational access to truthful content surrounding race and structural racism. With the exception of Delaware, “anti-CRT” policies have been introduced in every state. Between 2021 and 2022 alone, governments proposed a total of 563 “anti-CRT” measures, with nearly half enacted into law. The vigor of “anti-wokeism” has continued its momentum seemingly unabated. The number of “anti-CRT” measures in 2023 has been greater or equal to those proposed in 2021 and 2022, with states dominated by conservative legislatures accounting for more than 63% of the proffered bills.

Notably, the vast majority of these measures have targeted the educational and speech freedoms of public school youths and their teachers. According to data compiled by the UCLA School of Law, more than 91% of introduced and 94% of enacted “anti-CRT” measures have been specifically directed at K-12 schools. Consequently, more than 22 million children--almost half of all public school students--are subjected to state-censored education that explicitly prohibits inclusive pedagogy, a factually accurate teaching of American history, and ultimately, a high-quality public education essential to a functioning democratic society.

This Article situates the Stop W.O.K.E. Act and its progeny within a dual framework of authoritarian governance and a history and tradition of racially motivated anti-literacy legislation. Part I begins with a historic overview of the weaponization of educational restrictions as a means of deterring civic engagement, highlighting the ensuing resolve of enslaved and oppressed individuals to conquer the extreme anti-literacy barriers that were pervasive across the United States for the majority of the nation's history. Part II then discusses the antidemocratic means and motivations that have undergirded such state actions, drawing parallels to modern anti-literacy laws that are merely disguised as “anti-woke” or “anti-CRT” laws yet embody the same authoritarian rationales as antecedent educational restrictions. Part III observes the present consequences of modern anti-literacy efforts, identifying both practical repercussions, such as the demoralization of educators who must learn to navigate through frustratingly ambiguous curricula, and theoretical repercussions, such as the obstruction of roughly fifty years of academic progress in discerning the relationship between race and law.

The Article concludes with a discussion of several constitutional pathways for enhancing federal protections for education to remedy the social regression caused by “anti-woke” and “anti-CRT” efforts. In documenting a national history and tradition of anti-literacy, this Article does not presuppose a judicial disposition on the part of the current Supreme Court to enshrine a public right to education. However, it nonetheless advances the argument that socio-political and historical conditions necessitate and justify more robust educational protections.

[. . .]

People are trapped in history, and history is trapped in them. - James Baldwin

Pluralistic, representative democracies demand diverse perspectives, an educated and well-informed citizenry, and a free and open exchange of knowledge. A resurgence of anti-literacy restrictions has assumed renewed virulence in the form of modern “anti-woke” laws that threaten the functioning of our democracy and the learning of future generations. Though these educational suppression measures represent a novel challenge to educational and racial equality, they must also be appreciated and understood within a broader historical continuum of racially oppressive state action designed to limit the full civic and economic participation of minoritized communities.

As argued in this Article, antidemocratic state actions in the form of “anti-woke laws” are antithetical to constitutional guarantees of national citizenship and undermine a republican form of governance. These laws contribute to educational inequities, undermine state and national citizenship, and pose significant risks to the health of a modern, multicultural democracy. The vague goal of preventing “indoctrination” by prohibiting the teaching of “woke” concepts represents both an oxymoron and an abuse of power. “American history” and “African-American history” are one and the same, and neither can be taught accurately without discussing the race-related topics that have influenced the laws and political processes that are now being weaponized to limit this centrally important knowledge.

Consequently, there is both a need and a constitutional basis for the recognition of more robust federal protections for education. Building on the earlier work of legal scholars, this project offers several potential pathways to bolster legal protections for public education. Central to the constitutional theories presented in support of stronger federal protections for public education is the notion of a citizenship-based theory of education. Though this Article does not presuppose a judicial disposition on the part of the modern Supreme Court to enshrine a public right to education, it nonetheless advances the position that socio-political and historical conditions necessitate and justify more robust educational protections.

All children--but especially racially minoritized children--are failed when federal courts exercise excessive deference to state legislatures on matters of educational adequacy. Acceding to states' antagonism to educational access to protect the citizenship and educational rights of students is the functional equivalent of allowing the fox to guard the hen house. The antidote to “anti-woke” authoritarianism is, in fact, greater constitutional protections for education.

Erin M. Carr, Assistant Professor at Seattle University School of Law.

Nabil Yousfi, J.D. candidate, Seattle University School of Law, 2024.