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ACLU Lawsuit Says Banning Discussions About Race is Unconstitutional

— October 25, 2021

Prohibiting students from learning about critical race theory perpetuates intergenerational racism, lawsuit asserts.

In summer 2020 Oklahoma passed a law restricting discussions of racism and sexism in its schools.  Six more states followed its lead.  However, while the ban may have been well-intended, not everyone sees it that way.  In fact, many believe completely banning race theory from schools and eliminating discussions of race is unconstitutional and perpetuates the ongoing, intergenerational impact of slavery and the marginalization of some students.  The laws also tend to be so obscure that it’s difficult for teachers to determine what they can teach without putting their licenses on the line.  Thus, many have decided to eliminate these discussions altogether, which seems to ensure societal issues regarding race and sexism continue.

To address this, a new lawsuit brought by the American Civil Liberties Union (ACLU) and the Lawyer’s Committee for Civil Rights Under Law, accuses the Oklahoma law of being too “vague and hard to dissect,” and having a “chilling effect on the terminology and lesson plans teachers incorporate into their instruction.” The suit also states that the law “discriminates against historically marginalized students.”  This is the first federal lawsuit to challenge the ban and allege it’s unconstitutional.

ACLU Lawsuit Says Banning Discussions About Race is Unconstitutional
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The suit alleges further that the restrictions in Oklahoma “violate students’ and educators’ rights under the First Amendment and 14th Amendment.”  While the Republican lawmakers sold the bill as an effort to combat racism and sexism in schools, the real “intention – and the outcome – has been to stifle discussion of those topics,” the lawsuit argues. “In promoting the bill, its lead authors denounced teaching about concepts such as implicit bias and systemic racism.”

Oklahoma’s law (as well as those of the states who followed) asserts that educators are prohibited from teaching that “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.”  They also cannot make any individual “feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”

Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project says, “People who are subject to the law have no way of knowing what’s prohibited and what’s not.  That’s a due process problem.  The vagueness also opens up the door to arbitrary and discriminatory enforcement by officials.  A lot of these laws are written in such a confusing way as to say essentially, ‘Don’t say anything racist.’  But the subtext is: ‘Don’t talk about racism.’”

In mid-July, Oklahoma’s educators were also told they could have their licenses revoked (and schools could have their accreditation taken away) if they teach any of the banned concepts.  Private citizens can file reports against teachers if they believe they are in violation, which opens them up to a very subjective and unfair situation.  Some districts have barred teachers from using terminology including “diversity” and “white privilege,” according to the ACLU, “while a number of schools have scaled back or all together eliminated diversity, equity and inclusion staff trainings or initiatives.”

“It’s inevitable that there is some amount of discomfort in learning about difficult things,” Sykes said. “Students of color feel bad about themselves when they don’t see their own communities and narratives reflected in what they’re learning.  The law puts teachers in an impossible position.  You’re damned if you do, and you’re damned if you don’t.”  He added, “This is a big cultural and historical reckoning that we’re dealing with, a society-wide issue that we’re working on in lots of different ways.  One piece of it is litigation.”


Is banning critical race theory in schools unconstitutional? Lawsuit in Oklahoma seeks to prove it.

Oklahoma critical race theory ban is unconstitutional, ACLU says in federal lawsuit

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