Abstract

Excerpted From: Alex H. Serrurier, Indigeneity in the Classroom: Avenues for Native American Students to Challenge Anti-Critical Race Theory Laws, 57 Columbia Journal of Law and Social Problems 543 (2024) (227 Footnotes) (Full Document)

In late 2021, a public elementary school in South Texas punished a Native American kindergartener for violating a school district policy prohibiting long hair for male students. The five-year-old, who wore his hair long because of his cultural heritage and religious beliefs, was penalized with an in-school suspension and isolated from his peers for over a month. The school district subsequently denied the student's request for a religious exemption from the short-hair policy, requiring his family to “prove” Native American ancestry and genuine religious beliefs. This is just one of many contemporary examples of a longstanding pattern of Native students being alienated from educational institutions for their backgrounds, beliefs, and appearances.

There are approximately 600,000 Native Americans students in U.S. public schools, comprising roughly 1.2% of the country's total public-school student population. Those 600,000 students represent slightly more than 90% of Native American school-age youth, with most of the remaining 10% attending tribal schools operated by the Bureau of Indian Education (BIE). Public schools and BIE schools have different forms of governance, which has implications for curricular implementation. Public schools are funded and governed by states and their subunits, while BIE schools are under the purview of a federal agency that funds 183 elementary and secondary schools spread across sixty-four reservations in twenty-three states. Many BIE schools are tribally controlled and operated under BIE contracts or grants. Although the BIE has drawn criticism for providing substandard education, it operates under the mission of providing Native students with “quality education opportunities ... in accordance with a tribe's need for cultural and economic well-being.” There is no similar mandate for public schools, many of which have historically failed to recognize and preserve the cultural and religious heritage of their Native students.

Native students in public schools academically underperform relative to their non-Native peers in nearly every metric traditionally used to measure scholastic achievement. In 2015, the Education Trust found that, unlike outcomes for other major ethnic groups in the United States, educational achievement for Native students has “remained nearly flat in recent years” as they fall even further behind their white peers.

Underlying this achievement gap is the reality that Native students face unique, well-documented barriers to educational success, including a lack of cultural and historical knowledge from their peers and educators. Many American children enter elementary schools conceptualizing Native Americans as “warlike” and “savage,” a depiction frequently stemming from cartoons and Hollywood depictions. Students' knowledge of Native culture generally plateaus around fifth grade when history lessons turn to the American Revolution and subsequent development of the nation. The lack of culturally appropriate education creates an environment where peers of Native students feel entitled to make racist comments and where educators and school districts implement racist policies, often without the intent to do so. School districts throughout the country have enacted discriminatory policies, such as enforcing dress and grooming codes against indigenous students, preventing Native athletes from wearing their hair in specific traditional styles, and banning religious and culturally significant regalia at school graduations. If educational institutions became more knowledgeable about the cultural context surrounding indigenous peoples and nations, they would likely gain a better understanding of the diverse and varied backgrounds of their students and develop strategies to create better learning environments.

Despite indications that implementing Native American history in public school curricula would lead to better academic performance and a more positive educational environment for Native students, several states have been moving in the opposite direction by passing legislation that prevents or limits discussions of race and inequality in classrooms. This process has been designed by its political advocates to, in the words of Florida Governor Ron DeSantis, ban “the state-sanctioned racism that is critical race theory [CRT].” While critical race theorists come from a variety of academic fields, they share a common belief that racism is entrenched in the fabric of our society and that American institutions of power function to maintain the status quo of white privilege at the expense of people of color. Therefore, curricula structured around critical race theory aim to identify the ways in which white supremacy oppresses people of color, help students to identify and critique causes of social inequality, and describe “what is and what ought to be” in American society. By banning discussions of race and inequality, advocates for such action (henceforth referred to as “anti-CRT” legislation) intend to prevent such pedagogy in the classroom regardless of its positive effect on the learning environment of minority students. Anti-CRT legislation also has the secondary effect of limiting diversity and representation in classroom curricula. Because so much of Native American history is intertwined with settler colonialism and oppression, banning lessons about the racism entrenched in American society effectively bans teaching an accurate portrayal of Native American history in the United States.

One of the most prominent examples of anti-CRT legislation, Oklahoma House Bill 1775 (2021), states in part that classroom lessons are prohibited from making students “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” Enacted in a state with a particularly dark history regarding its treatment of both Native American and Black communities, this vague provision is structured to silence discussion of a large part of Oklahoma's history, giving students an incomplete picture and rendering the curriculum less accessible for members of minority groups. Because critical race theory calls attention to how the color-blind conception of formal equality has been used to oppose governmental efforts to improve conditions for nonwhite Americans, anti-CRT laws further ensure that students have a harder time recognizing, and therefore combating, such political discourse.

Other legislators of states with large Native populations have made similar statutory proposals, although most have yet to actually enact the same kind of sweeping legislation as Oklahoma. For example, Arizona Senate Bill 1412 (2022) would have banned teachers and guest speakers from providing instruction to students or other employees that promotes or advocates for numerous concepts relating to the topics of race or ethnicity. While the legislation stalled in the Arizona Senate, it foreshadows future attempts to limit discussions of race and inequality in the state with the third-largest population of Native Americans in the country. Meanwhile, Montana, which has the fifth-largest population of Native Americans as a proportion of state population, is governed by a legally binding 2021 state attorney general opinion banning critical race theory and “antiracism” in public schools. Texas' Senate Bill 3 and Florida's “Stop W.O.K.E. Act” are further examples of state legislation purporting to ban the teaching of critical race theory and related concepts in public school classrooms. Overall, between January 1, 2021, and June 13, 2023, forty-four states introduced bills or took other steps restricting critical race theory pedagogy or limiting how teachers can discuss racism and sexism in the classroom, with eighteen of those states actually imposing restrictions through legislation or other avenues. This Note argues that anti-CRT legislation may violate the Fourteenth Amendment equal protection and substantive due process rights of Native American students, as well as the right to a basic minimum level of education provided in state constitutions. Part I details the importance of culturally competent school curriculum for Native students and their educational success. Part II highlights the effect that anti-CRT legislation has on ethnic studies and the subsequent harm caused to Native students in public schools. Part III proposes potential causes of action that could be brought as a response to the passage of anti-CRT legislation.

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This Note has provided an analysis of the adverse effect of anti-CRT legislation on Native American youth in public schools. It has likewise offered preliminary analyses of potential legal challenges to such laws under the Fourteenth Amendment of the U.S. Constitution and various state constitutions. Although implementation and enforcement of anti-CRT laws are still in a nascent stage, these policies will likely lower the quality of public education for Native students across the country. Advocates should therefore consider bringing challenges to these laws under the Fourteenth Amendment or state constitutional provisions to protect the educational rights of Native students.

J.D. Candidate 2024, Columbia Law School.