Abstract

Excerpted From: Sophia Smith, The Attack on Critical Race Theory in Schools: An Analysis of Oklahoma House Bill 1775 and Free Speech in the Classroom, 48 Oklahoma City University Law Review 81 (Winter 2023) (203 Footnotes) (Full Document)

In the American public educational system, “[e]ducation is primarily a State and local responsibility” with little oversight from the federal government. The last few years have seen state and local leaders turn the public education system into their own political playground, creating more division and confusion for educators, parents, and students. Since January 2021, thirty-five states have introduced over one hundred new bills regulating the content of public school curriculum in relation to race, gender, and sexual orientation. These new state policies vary, but they serve a similar purpose for many of the legislators authoring these bills: to rid the classroom of Critical Race Theory--or what these legislators perceive Critical Race Theory to be--under the guise of forging an environment of equality.

Critical Race Theory (or “CRT”) is defined as “an academic and legal framework that denotes that systemic racism is part of American society.” Early Critical Race Theory scholars rooted their framework in the following tenets:

the belief that racism is a fundamental part of American society, not simply an aberration that can be easily corrected by law; that any given culture constructs its own social reality in its own self-interest, and in the United States this means that minorities' interests are subservient to the system's self-interest; and that the current system, built by and for white elites, will tolerate and encourage racial progress for minorities only if this promotes the majority's self-interest.

This theory developed within the legal community during the 1970s and 1980s as a response to the belief that the Civil Rights Movement had accomplished its goal and ended racism in the United States. More specifically, Critical Race Theory “challenges the ability of conventional legal strategies to deliver social and economic justice and specifically calls for legal approaches that take into consideration race as a nexus of American life.”

Kimberlé Williams Crenshaw, the professor accredited with giving Critical Race Theory its name, has been quoted as saying

“[Critical Race Theory] is a way of seeing, attending to, accounting for, tracing and analyzing the ways that race is produced, ... the ways that racial inequality is facilitated, and the ways that our history has created these inequalities that now can be almost effortlessly reproduced unless we attend to the existence of these inequalities.”

Despite Critical Race Theory developing in the 1970s, most Americans had never heard of it until presidential candidates in 2020 began using it in their stump speeches around the country. Since the term Critical Race Theory entered the common vernacular, its meaning has become distorted.

Critical Race Theory rests on the idea that systems and practices within American society are deeply embedded with racism due to the manner in which they were created, not because individual Americans are inherently racist. However, many people, especially those authoring the pieces of legislation banning Critical Race Theory, struggle to separate themselves from those systems and view the theory as calling all white people inherently racist. Jennifer Victor, a political scientist at George Mason University, stated in an interview with PBS that “Republicans' focus on critical race theory is a part of [a] cycle of backlash. Critical Race Theory is a convenient, although largely misplaced, villain for anyone seeking to challenge the idea that racism is systemic in American society.”

Many Republican-controlled state legislatures around the country have implemented, or are trying to implement, legislation that bans what they believe is Critical Race Theory. Critics of Critical Race Theory allege that the theory “leads to negative dynamics, such as a focus on group identity over universal, shared traits; divides people into 'oppressed’ and 'oppressor’ groups; and urges intolerance.” These laws have targeted “discussions about systemic racism, ban[ned] the truthful teaching of American history, and reverse[d] progress toward racial justice.” Professor Crenshaw has said that these laws and the surrounding “rhetoric allows for racial equity laws, demands[,] and movements to be framed as aggression and discrimination against white people.” The attacks on Critical Race Theory seem to stem “from fear among critics that students-- especially white students--will be exposed to supposedly damaging or self-demoralizing ideas.”

On May 7, 2021, Governor Stitt signed an emergency education bill known as Oklahoma House Bill 1775 (“H.B. 1775”) into law, thus authorizing it to go into effect on July 1, 2021. H.B. 1775 expressly states concepts related to diversity topics that are now prohibited from being taught in the classroom or included in trainings put on by public schools. This Note will analyze this new restriction in the classroom. Parts II, III, and IV will describe H.B. 1775 and the public reaction to its passage. Part V will present legislation or executive orders passed in other states that have a similar purpose to H.B. 1775. Part VI will look at the challenges brought against the law in federal court. Part VII will address the constitutionality of the bill and its implementation.

[. . .]

The increased polarization of political parties in the United States and the recent politicizing of the classroom resulted in the passage of legislation across the country. This legislation restricted the ability to teach curriculum related to diversity, equity, and inclusion within the kindergarten through twelfth grade classroom, the college classroom, and in trainings related to public education. In Oklahoma specifically, the legislature passed H.B. 1775 to ban eight concepts related to race and gender from being included in curriculum, trainings, and orientations in public schools across the state. From the time it was authored, H.B. 1775 has faced criticism from various groups including teachers, students, and parents.

The primary challenges made against H.B. 1775 and similar laws around the country have been on First Amendment and vagueness claims. While the First Amendment challenges have the potential of being successful, these claims must face the fact that curriculum is generally left in the purview of state and local officials. It seems that the vagueness challenges have a clearer path to viability, as the restrictions generally do not define the concepts banned and the Bill leaves educators uncertain as to whether their lessons are allowed. Because these laws around the country are still in active litigation, it remains unclear which of these arguments--if any--will be deemed enough by the courts to strike down bills that are wreaking havoc on our nation's public education system.

Juris Doctor candidate, Oklahoma City University School of Law, May 2024.