Teaching in the Upside Down: What Anti-Critical Race Theory Laws Tell Us About the First Amendment.

• Author: Bissell, Tess

Abstract. Since January 2021, forty-two states have introduced "anti-critical race theory" (anti-CRT) bills that restrict discussions of racism and sexism in public schools. As teachers, administrators, and civil rights organizations scramble to interpret these bills, many wonder: How can this be constitutional? At the heart of this broader question is a legal problem that remains unaddressed by both scholars and the Supreme Court: Is K-12 teacher speech, particularly instructional speech, protected under the First Amendment? This Note seeks to fill this gap in legal scholarship and jurisprudence, using anti-CRT laws as a lens through which to evaluate the constitutional protections afforded to K-12 teacher speech.

Part I of this Note provides a qualitative survey of anti-CRT laws, unpacking the speech and activity that the laws restrict. Part II reviews the major doctrinal approaches available to courts for analyzing K-12 teacher speech. Part III analyzes how those existing doctrinal approaches apply to anti-CRT laws, concluding that existing doctrine is inadequate for the task. Education law and policy operate under the implicit assumption that the government may regulate the "what" of teaching by setting curriculum, but the "how" of teaching is largely left up to teachers as certified professionals. Anti-CRT laws, however, represent a sharp departure from that approach. In making that departure, they impermissibly infringe on K-12 teachers' First Amendment rights. This Note argues that courts can remedy this problem by making the implicit doctrinal distinction between the "what" and the "how" of teaching explicit and striking down anti-CRT laws as unconstitutional in violation of the First Amendment.

Table of Contents Introduction I. Unpacking Anti-Critical Race Theory Laws A. State Anti-CRT Laws: A Brief History B. A Qualitative Survey of State Anti-CRT Laws 1. Banned concepts 2. Do these laws ban CRT? a. "More a verb than a noun": defining CRT b. Is CRT taught in K-12 public schools? c. Confronting the "do nothing" hypothesis d. Do the state laws ban CRT, and if not, what activities or speech do they target? II. Doctrinal Approaches Available to Federal Courts for Analyzing K-12 Teacher Speech A. Approach # 1: Pure Garcetti B. Approach #2: Pre-Garcetti Pickering Balancing C. Approach #3: Tailoring Hazelwood to Teacher Speech D. The Future of Teacher Speech III. A New Approach to Analyzing K-12 Teachers' Instructional Speech A. Hypothetical: Teaching the Tulsa Race Massacre Under Oklahoma's Anti-CRT Law B. Evaluating Teacher Speech Under Existing First Amendment Doctrine 1. Under Garcetti, none of the teacher's speech is protected 2. Pre-Garcetti Pickering balancing leaves much instructional speech unprotected 3. Hazelwood protects instructional speech in theory, but not always in practice 4. Existing First Amendment teacher-speech doctrine is inadequate C. A New First Amendment Standard for K-12 Instructional Speech 1. States can and do regulate the content of K-12 teaching, but teachers decide how to communicate that content to students 2. Under this proposed standard, anti-CRT laws violate K-12 teachers' First Amendment rights a. Anti-CRT laws are a form of viewpoint discrimination b. Anti-CRT laws are unconstitutionally vague and overbroad Conclusion Appendix Introduction

In the popular television series Stranger Things, the "upside down" describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.

--Chief Judge Mark E. Walker, Northern District of Florida (1)

When Anthony Crawford, a high school English teacher in Oklahoma City, learned his state had passed H.B. 1775, it felt personal. (2) H.B. 1775 is an "anti-critical race theory" (anti-CRT) law that restricts teaching about the concepts of racism and sexism in public schools. (3) "I felt like it was a shot at teachers like me who really want to see Black and brown kids really do something with their lives," said Crawford. (4) "Because they need this part of history. They need to understand what happened to their people." (5)

The story of the anti-CRT laws is a story of many things. It is a story of a national political debate, (6) a story of a brewing legal battle, (7) and a story of a distraction. (8) For hundreds of thousands of K-12 educators and students in forty-two states, however, it is also a deeply personal story. (9) And to the extent that the laws force us to ask fundamental questions about how we understand and teach our nation's history, and how our government treats its educators and students, the laws are personal to us all.

But this personal story--the story of K-12 educators and students--has gone largely untold in the legal arena. Scholars have argued that anti-CRT laws are unconstitutional as applied to higher education. (10) So far, at least one court has agreed. College professors and students challenging Florida's anti-CRT law won a partial preliminary injunction against the law in November 2022. (11) In a scathing opinion, the district court called the law "positively dystopian," writing that "the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark." (12) However, while the constitutionality of anti-CRT laws as applied to K-12 public schools remains uncertain, scholars have assumed that the laws may survive in this context given states' "broad constitutional authority" over curriculum. (13) "I am reluctant to come to this conclusion," stated one former law professor, "but in the K-12 sector, teachers do not really have any academic freedom." (14)

The assumption that anti-CRT laws are valid as applied to K-12 education stems from the Supreme Court's ruling in Garcetti v. Ceballos, where the Court dramatically circumscribed public-employee speech protections. (15) As one commentator put it, "[w]hen workers sign in, rights--mostly--sign out." (16) Thus, when teachers engage in instructional speech--"speech by which teachers present the curriculum to students" in the classroom (17)--the First Amendment "seems unlikely to rescue a teacher fired for teaching a forbidden subject." (18)

Is this a fair assessment? I argue that it is not. Scholars have been too quick to assume that K-12 teachers have no First Amendment recourse. Their arguments ignore a central, though often implicit, tenet of education law and policy: The government may regulate the "what" of teaching by setting curriculum, but the "how" of teaching is largely left up to teachers as certified professionals. (19) AntiCRT laws represent a sharp departure from this approach, reaching beyond mere curriculum to regulate the very words that come out of a teacher's mouth. Legal scholarship has yet to grapple with how this important and troubling aspect of anti-CRT laws may impact their constitutionality under the First Amendment. That is the gap this Note seeks to fill. (20)

Part I of this Note provides a qualitative survey of anti-CRT laws, tracing their shared history and unpacking the kinds of speech the laws restrict. Part II reviews the major doctrinal approaches available to courts for analyzing K-12 teacher speech. Part III then asks how these doctrinal approaches apply to anti-CRT laws, concluding that existing legal tests are inadequate for the task. Part III therefore argues for a new First Amendment theory of K-12 teacher instructional speech: Courts should make explicit the doctrinal distinction between the "what" and the "how" of teaching and strike down anti-CRT laws as unconstitutional in violation of the First Amendment.

It is a strange moment to be an educator in America. (21) In the context of a challenge to Florida's anti-CRT law, a federal district judge referred to the state as "a First Amendment upside down"--a distorted, parallel dimension where even the basics of constitutional law are inverted. (22) It is an apt metaphor. This Note advocates for a new First Amendment framework. But perhaps more importantly, it asks courts to step into the reality educators face: the reality of teaching in the upside down.

1. Unpacking Anti-Critical Race Theory Laws

   1. State Anti-CRT Laws: A Brief History

      The story of state anti-CRT laws begins not in a social studies classroom in Texas, nor on the floor of the Oklahoma State Legislature, but on Fox News.

      On September 1, 2020, conservative scholar Christopher Rufo appeared on Fox News to sound the alarm: A "cult" had "pervaded every institution in the federal government. " (23) This "default ideology of the federal bureaucracy" was "now being weaponized against the American people." (24) The "cult" in question: critical race theory. (25)

      The next morning, Rufo received a phone call from President Donald Trump's chief of staff: The President had seen Rufo's segment on Fox News and he was ready to act. (26)

      On September 4, the Trump Administration released a memo adopting much of Rufo's language. (27) The memo called CRT "divisive, false, and demeaning propaganda ... [that] is contrary to all we stand for as Americans and should have no place in the federal government." (28)

      Rufo responded to the President's memo via Twitter, stating: "On Tuesday, I called on the President to abolish critical race theory in the federal government. Tonight, he delivered. This executive action is the first successful counterattack against critical race theory in American history. Tonight, we celebrate; tomorrow, back to war." (29)

      On September 22, President Trump signed Executive Order 13,950 (EO 13,950), which Rufo had helped draft. (30) The order's stated purpose was to "combat offensive and...