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Can Academic Freedom Survive the 'Critical Race Theory' Backlash in Legislatures?

By Richard Dahl on June 01, 2021

What, exactly, is “academic freedom"?

It’s a term that refers to teachers’ somewhat limited rights of free speech under the First Amendment. The concept has been around for a long time, but it has gained fresh urgency in recent weeks because several states have passed laws restricting how teachers can teach about race-related subjects, and several more states are considering it.

Specifically, lawmakers in these states have targeted a concept called “critical race theory," a concept that assumes that racism is a fundamental part of American society and should be examined from that perspective.

Its supporters say that critical race theory is an effective tool for teaching students the role that racial suppression has played throughout U.S. history. Its opponents argue that the theory is itself racist and is really propaganda to encourage students to turn against the country.

The laws and bills vary somewhat – some mention critical race theory by name while others don't – but they all seek to restrict teaching that addresses race in a way that might be considered an unduly critical examination.

Looking at Tennessee's Law

Tennessee's law, signed by Governor Bill Lee on May 24, for instance, flatly states that schools “shall not include or promote" teaching concepts that “this state or the United States is fundamentally or irredeemably racist or sexist."

The law takes pains to say that it is not muzzling discussions about race. It says that “(i)mpartial discussion of controversial aspects of history" is still allowed. It also says that restrictions on teachers' speech will not apply if they are responding to a student's questions or referring to a historic group or historic figure.

But it does appear that Tennessee public-school teachers could be on thin legal ice any time they talk about race in the classroom. If they are found to have violated the new law, the price could be steep: The education commissioner is empowered to withhold state funds from any school found to be in violation.

Who Decides Curricula?

So, returning to the topic at hand: What about academic freedom? Don't teachers have strong First Amendment rights of free speech in the classroom?

To answer that question, it first depends on whether we are talking about K-12 public-school teachers or those in higher education. There is a difference.

The curricula in K-12 public schools are largely dictated by school districts.

Writing in the professional journal Phi Delta Kappan, University of Wisconsin professor Julie Underwood says that curricula decisions are a “balancing act" between the state, local school districts, parents, and others.

“The state, in fulfillment of its authority to regulate for the well-being of its residents, and in fulfillment of its obligation to create and maintain public schools, has the authority to impose limits and obligations on both local school districts and parents," writes Underwood, who teaches education law. “In turn – and as long as they remain within those limits – school districts … have the authority to make educational decisions for their schools, including decisions about the curriculum."

The content taught by teachers must be relevant and consistent with the teacher's responsibilities, and they cannot promote a personal or political agenda.

The 'Scopes Monkey Trial'

In other words, “academic freedom" for K-12 teachers is already limited. And if lawmakers want to pressure school districts to change curricula, it appears that they can.

But it can backfire – and nobody should know this any better than a Tennessean with a good knowledge of the state's history.

Tennessee was the scene of the famous “Scopes Monkey Trial" in 1925, when teacher John Thomas Scopes was found guilty of violating the state's Butler Act, which forbade the teaching of evolution. The state Supreme Court overturned the ruling on a technicality, however, and today the story of that legal fight against close-mindedness is taught to children around the world.

Different Rules for Higher Education

While academic freedom for K-12 teachers might be limited, it appears to be much more expansive for those in higher education. In at least two states that have recently passed laws, Idaho and Oklahoma, the laws state that teachers in the states' public universities are included. Teachers who are found to be teaching critical race theory are subject to a penalty. Their schools will be docked state funding.

Ronald J. Krotoszynski Jr., a professor at the University of Alabama School of Law and author of “The Disappearing First Amendment," wrote in The Washington Post that these laws and bills are unconstitutional violations of the First Amendment.

“As applied to public K-12 schools, these laws might survive judicial review because states enjoy broad constitutional authority over the curriculum," he wrote. “Public universities, however, are a different kettle of fish."

He points out that since the 1950s Red Scare, when lawmakers tried to ban the teaching of communist or socialist theories in state educational institutions, the U.S. Supreme Court has been clear that universities and professors enjoy strong First Amendment rights to exercise academic freedom.

Attorneys General Respond

Meanwhile, the controversy has moved in a new direction nationally, with a unified group of state attorneys general who oppose critical race theory weighing in. In April, the U.S. Education Department proposed providing grants for schools to include the “1619 Project," another controversial teaching tool that aspires to show how slavery has shaped American society, in their curricula.

That proposal has drawn heat from 20 attorneys general, who sent a letter on May 19 to Education Secretary Miguel Cardona in opposition to the 1619 Project and critical race theory alike. The signers contend that federal education grant programs were established by Congress “to advance a traditional understanding of American history, civics, and government," and that critical race theory and the 1619 Project fall outside that definition and harm students.

In the end, all this controversy sounds like a great subject for civics teachers to pursue when classes resume this fall. But you've got to wonder how many will have the nerve to try it.

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