Arkansas AG: “Instituting Practices Based On Critical Race Theory” In Education Violates Anti-Discrimination Laws
“Any effort to take account of race in a way that differently accords benefits or opportunities or creates a hostile environment in an educational institution is almost certainly unlawful”
The Arkansas Attorney General Leslie Rutledge has issued an advisory Opinion that certain aspects of Critical Race teaching violate anti-discrimination law. It’s not clear that this opinion has the force of law, but it does reflect an increasing focus on how CRT is implemented through “antiracism” and similar practices that create racially hostile environments.
We previously covered how the Montana Attorney General Ruled Many Aspects of Critical Race and “Antiracism” Training Are Unlawful.
The Arkansas Opinion was issued in response to the following request from a state legislator:
Does the introduction of practices based on “antiracism” and critical race theory in Arkansas public schools and universities violate Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Article II of the Arkansas Constitution, or other applicable nondiscrimination laws?
The AG answered the question as follows:
The answer to your question is yes. With certain qualifications set forth below, instituting practices based on critical race theory, professed “antiracism,” or associated ideas can violate Title VI, the Equal Protection Clause, and Article II of the Arkansas Constitution.
What follows is an extensive discussion, including the history of CRT. Here are key excerpts from the analysis:
Any effort to take account of race in a way that differently accords benefits or opportunities or creates a hostile environment in an educational institution is almost certainly unlawful under the Equal Protection Clause and Title VI. This includes overt racial segregation or other discrimination, however well intended,38 as well as any form of racial stereotyping or scapegoating. 39 A racially hostile environment could also be created through curricula, instruction, or other programs or activities that communicate the following ideas: 40
• that an individual, by virtue of race, deserves praise or criticism for taking or failing to take some action or stand, or for supporting, opposing, or failing to support or oppose some cause;
• that certain character traits or beliefs are proper to individuals of some races but not others;
• that an individual, simply by virtue of race, is oppressive or oppressed, privileged or victimized, whether consciously or unconsciously;
• that an individual, simply by virtue of race, should feel discomfort, resentment, guilt, or distress;
• that an individual’s moral character, standing, status, or worth depends on one’s race;
• that an individual is personally accountable for actions committed in the past by other individuals of the same race; or
• that an individual, simply by virtue of race, should be discriminated against or adversely treated. 41
The existence of a racially hostile environment “must be determined from the totality of the circumstances.”42 In many instances, instituting pedagogical practices based on critical race theory, “antiracism,” or associated ideas will violate the law. But it is important to note that the unlawfulness of such practices does not preclude teaching the history of racial injustice or our Nation’s longstanding and continuing efforts to realize what Dr. Martin Luther King, Jr. recognized as the dream expressed in our founding creed: We hold these truths to be self-evident, that all men are created equal. 43 Thus, the law does not prohibit teaching about the history of slavery, Jim Crow laws, the eugenics movement, and the Ku Klux Klan. Nor does it prohibit teaching about the Constitution and the abolition of the slave trade, the abolitionist movement, the Civil War, Abraham Lincoln and the Emancipation Proclamation, the Civil War Amendments, and the civil-rights movement. These are indispensable topics for history and civics education.
Critical race theory and “antiracism,” as recent developments, have very little to do with this history. That said, there may be some legitimate pedagogical uses of these ideas in the university setting. At a high level, for example, greater clarity might be gained by contrasting the civil-rights movement’s grounding in the Founders’ classically liberal vision of individual natural rights44 with critical race theory’s grounding in a broadly socialist vision of conflict based on group interest and identity. 45 Further, because a theory need not be accepted as an integrated whole, it is possible that critical race theory could generate discrete insights that may be useful for certain limited purposes.
So the Opinion does not categorically say that teaching CRT is violates the anti-discrimination laws, it focuses the how it is implemented.
Consider this further evidence of the increasing divide between red and blue states, something I noted in an op-ed in June at The Washington Examiner, Critical race theory school battles are deepening the red-blue divide.DONATE
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