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State Legislation Countering Critical Race Training: Focus on K-12 and Conduct

State Legislation Countering Critical Race Training: Focus on K-12 and Conduct

Some preliminary thoughts as I prepare my speech for the ALEC Annual Meeting.

State legislation regarding Critical Race Theory and its variants playing out in training and instruction (such as misleadingly-named “antiracism” and “equity”) is a hot political issue. Numerous examples of abusive eduational and workplace trainings that devolve into race-shaming and racial abuse have stoked public anger at CRT as it is practiced.

The landscape of state legislation is varied and still developing. Thousands of teachers have pledged to defy any laws restricting their teaching of CRT, and the National Education Association is fully behind the push to expand CRT in K-12.

The messaging against opposition to CRT, including legislative action, is organized, well-financed, and scripted, as I documented in Union-Linked Coalition Scripts ‘Messaging’ To Counter Parental Pushback Against Critical Race Theory.

What is the proper role of state legislatures, and what type of legislation is appropriate?

I was invited to speak on the topic of state legislation at the ALEC Annual Meeting in late July in Salt Lake City. My thoughts and presentation will not be complete, if my history is any guide, until sometime around 3 a.m. that morning.

I will have a lot more to say than is written here, but two aspects I’ve been focused on and wanted to put out there are (1) the distinction between K-12 and higher ed, and (2) how legislative findings under existing anti-discrimination laws may be a key, even in higher ed.

K-12 Legislation Is Most Compelling

Legislation is most appropriately and easily directed at K-12. That’s not to say higher ed is completely off the table for legislative action, but K-12 is the easier and more compelling case. Controlling the curriculum is a legitimate state interest.

First, we are talking about CHILDREN, and the case is more compelling the younger the grade level. Government action to protect children is more justifiable, whether it’s from physical or educational abuse.

Second, at the elementary and secondary level, attendance is compelled by law. It’s a captive audience. That’s not the case in higher ed.

Third, K-12 curriculum in public schools always has been subject to government approval and control, so state action is not new or unusual. Even private school curricula need to meet state standards. The notion of academic freedom as it exists in higher ed also has limited application to K-12. The issue is who controls the curriculum.

Fourth, there already is outside interference in school curricula through a massive infrastructure of left-leaning and union organizations, so local autonomy has been eroded, justifying state-level intervention.

Fifth, school curricula are not marketplaces of ideas, even if speech by K-12 students is protected to varying degrees.

None of the factors above apply to higher ed, so don’t confuse the two, it will only help muddy the waters.

I’ll add a Sixth reason to keep K-12 separate. K-12 can be won. Higher ed is mostly lost, with the victors scouring the landscape to finish off the survivors. (Okay, maybe I’ve overstated how dire higher ed is, it varies from campus to campus, please don’t give up the fight.)

Focus On Existing Anti-Discrimination Laws

In addition to focusing on the curriculum, one key to winning K-12 (which also could apply to higher ed) is to focus on conduct, and the interaction between school (and campus) conduct and the existing anti-discrimination laws.

At Cornell University, where I teach in the law school, hundreds of faculty, students and staff signed a list of demands that included race-based hiring and promotion. Those demands, which the Faculty Senate wisely never even considered, would have violated state and federal anti-discrimination laws (and Cornell’s own anti-discrimination policies). So to fight that proposal involved not “banning” the ideas, but enforcing existing law.

Take that concept and expand it. States don’t need new anti-discrimination laws, but they may need to make the educational conduct covered by those laws more explicit through legislative findings. Legislatures can take existing anti-discrimination laws and provide more specific findings of conduct that would be deemed to be a violation, or at least create a rebuttable presumption of a violation, in the educational context.

What that would look like I still need to think through, but there should be consensus, for example, that requiring students or faculty to separate by race or ethnicity for various activities is a form of discrimination that violates the law. I’m sure that additional instances of conduct can be articulated, but the key is to create legislative findings and presumptions that address the problem of CRT as it is practiced.

The advantage of using existing anti-discrimination laws is that most (or all) of those state laws provide private rights of action. While ideally students should not have to sue to obtain protection in school, lawsuits will inevitably be needed. Legislative findings as to what constitutes a violation of the law could be very helpful in that regard. Additionally, state and federal funding often is contingent on compliance with anti-discrimination laws, so better articulating prohibited discriminatory conduct could have an impact in deterring that conduct.

The focus on conduct not concepts is why we named our separate website Critical Race Training In Education. Stick with that focus on conduct.

Once again, these are just some preliminary thoughts, and by no means exclusive. And they will not be finalized until about 3 a.m. the day of my ALEC speech.


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Having gone through the Texas law (HB 3979 here: )

What strikes me is the focus on what should be taught, with a focus on covering the great debates of the abolition movements.

Major prohibitions are on teaching that students have or even can have racial or sexual guilt merely because of the race or sex.

Further prohibitions are on schools offering incentives to engage in political activity, and a requirement that when presenting current controversial events, that multiple sides of the debate must be presented.

Not seeing much for an honest actor to object to.

Good luck.

It’s certainly important to document the madness in K-12 (which LI does very well). It’s also important to adopt legislation which establishes what is acceptable and what is not. However, I doubt anti-CRT legislation will be enforceable.

Woke teachers will dance on the edge of acceptability and dare you to do something about it. If you are foolish enough to arrest or fire one of them, that person will be portrayed as a saintly victim. Woke administrators, teachers, parents, and students will protest and disrupt. There will be lawfare.

None of this will help students who are stuck in the government schools soon enough to make a difference.

Much better for parents to remove the students from the government schools.

Can people without kids in school sue school board because the taxes they pay?

    The Friendly Grizzly in reply to r2468. | July 7, 2021 at 5:59 am

    I have wondered the same.

    JusticeDelivered in reply to r2468. | July 7, 2021 at 9:16 am

    I don’t know about suing, but we sure as hell can puteffort into defeating millages. Since most are intentionally passed in low turnout elections, they are really a balltle two small groups, Turn out more people, and it is easy to defeat them.

Making the focus on behavior, rather than ideas, but that will leave us chasing after a horse that has left the barn. Behavior or as it is referred to in K-12–performance standards is a manifestation of targeting students at the level of what they feel, want, and lastly, think. It’s what Excellence means in all these Excellence and Equity mandates being pushed going back to the Obama years as a function of the civil rights laws. It goes back to phenomenologist Mihaly Csiksentmihalyi;s Flow work from the 90s. He has now moved on to being a speaker at global Positive Psychology education conferences.

This is a definition from this past month. Education Reimagined is tied to both teachers’ unions and many of the groups tied to the Partnership for the Future of Learning.

Finally, the Learner-Centered Paradigm includes assumptions about what learning is and can be . Learning is understood to be the exercising of our innate capacity to wonder, discover, and make sense of the world around us . It is a natural process going on all the time, beginning when we are born and continuing throughout our lifetimes . We know learning has happened when we are able to interact with the world in new and effective ways. In this paradigm, the most critical form of learning is learning to take ownership of and responsibility for our own learning journey—a journey that will last a lifetime.

Most of the CRT training I have been listening to over the past year has been comng in as social and emotional learning to help, for example, the resilience of each learner. The state legislation totally misses that door.

    Robin in reply to Robin. | July 7, 2021 at 2:15 pm

    This document from April 2021 shows the link I mentioned between Excellence and Equity and then usefully defines Equity in Education as follows:

    ensuring that all students and families have agency to prioritize and receive high-quality, culturally responsive academic experiences and other important youth development opportunities. These opportunities include, for example, social, emotional and physical development; post-secondary and career exploration to cultivate strengths and match them with economic opportunity; and civic awareness and engagement to support a healthy and vibrant democracy.

    That’s my bolding on experiences because that is graspable by ALL students and again gets at the level of what is felt, wished for, and believed. The aim of learning standards is to change the student at a noetic and neural level. The documentation on the latter is nauseatingly detailed.

Learner-centered learning is fantastic for an already self-motivated student without any real behavioral issues. It is a true disservice to anybody else.

That said, I also don’t see how the laws will be enforceable. Laws can’t fix a people problem. Does anybody really think admin will hold woke teachers accountable? A few will make the news, but those sacrificial lambs will be a drop in the bucket.

So, now that the bad orange man is out of power in DC, we’re all supposed to fall for the lie that the new administration should be trusted with our nation’s youth? Try this, it’s eloquently delivered:


The easiest way to stop CRT is to establish standards for teachers and administrators. Anyone who violates this standard would be fired.

1) You should judge people by the content of their character not the color of their skin.

2) Each person should be judged by their actions, evaluated and punished by the justice system.

3) Crime and criminals are not to be tolerated.

I would suggest that you strike at the root of the problem–the teacher unions. Now state legislation cannot prohibit
teachers from joining a union given associational freedom; but there is no question that such legislation can prohibit
school districts and boards from contactual relationship with such bodies.

One of the key differences between primary and secondary education on one hand and tertiary education on the other, is that tertiary students are expected to be sophisticated enough to understand that their professors are speaking for themselves, not for the school, and what they teach is their own opinion, not the school’s. Therefore professors’ speech is treated as private speech and protected by the first amendment. For instance professors are allowed to teach religion and express their own religious opinions, because the students are expected to understand that that’s all they are, and they’re not required to accept them.

School children, however, are not expected to understand that. School children are presumed to assume that whatever their teacher says is the school’s official opinion, which in the case of state schools means the government’s opinion. That’s why state school teachers aren’t allowed to say things that give the impression that the school is endorsing a religious opinion. Students will think they have to accept what the teacher is saying, and that violates the establishment clause. Therefore the teachers’ speech is regarded as government speech, which the government can regulate.

That is why legislatures can stop CRT and other such crap from being taught at primary and secondary schools, without violating the first amendment.