The Constitutionality of Orthodoxy: First Amendment Implications of Laws Restricting Critical Race Theory in Public Schools
Abstract
The past two years have seen a proliferation of state laws that restrict how race may be discussed in public schools. Among other topics, these laws commonly ban presentation of the viewpoint that the U.S. government—or legal system—is racist. But such policies raise important First Amendment questions: while it is well accepted that school boards and state legislatures retain great discretion to promulgate curricula, the exact scope of that authority is unclear. The Supreme Court case most closely related to this question, Hazelwood School District v. Kuhlmeier, addresses only when school districts may permissibly regulate student speech in curricular contexts. Hazelwood does not resolve the antecedent question of whether local educational authorities may constitutionally constrict the range of permissible political viewpoints in curricula.
This Comment argues that existing doctrine supports recognizing a student right to be free from political orthodoxy in public education. It proposes a burden-shifting test for vindicating that right. First, courts should evaluate whether curricular decisions restrict discussion of political viewpoints. Second, the government should have the opportunity to show that the restriction serves a legitimate interest, in part pursuant to the test laid out in Tinker v. Des Moines Independent Community School District. Finally, plaintiffs should be able to prove that the government’s restriction was based on impermissible animus. This Comment concludes by arguing that certain provisions in recently passed critical-race-theory laws should be considered unconstitutional because they restrict political discussion without legitimate justification.