Do Bills Restricting ‘Divisive Concepts’ in Public Schools Raise Constitutionality Questions?

About the Author: Kathleen Burns is a first-year law student at American University Washington College of Law. Kathleen graduated from University of Denver with a triple major in Anthropology, Political Science, and Chinese and a minor in Writing Practices. Her interests are in international heritage law, administrative law, and litigation.

 

On March 17, 2020, the Alabama House of Representatives passed a bill on “divisive concepts.”[1] As of March 30, 2022, the bill is pending approval in the Alabama Senate.[2] In general, although the bill does not prohibit public schools from teaching history in a “historically accurate way,” the bill prohibits public schools from “teaching certain concepts relating to race, sex, or religion,” including the idea that the United States is “inherently racist or sexist.”[3] The bill further grants state agencies, political subdivisions, and schools authority to “discipline or terminate certain employees.”[4] This comes as another in a series of bills signifying a concerning trend towards classroom censorship. From the “Don’t Say Gay” Bill in Florida[5] to Virginia’s ban on critical race curriculum,[6] over thirty-three states have proposed legislation that would restrict classroom topics, discussions, and lessons plans that might portray the United States in a historically accurate manner.[7]

Representative Ed Oliver, the Republican Representative who introduced the bill, said the bill will create a “nice, safe environment for kids to learn without distractions that may not be age appropriate.”[8] Although, according to researcher Jeffery Sachs, these bills are “a way essentially of preventing teachers . . . from being honest about a lot of the uglier sides of American history and contemporary society.”[9]

The constitutionality of bills such as the one passed in Alabama is a hotly debated subject. As Alice O’Brien, the general counsel of National Education Association (NEA), argues, the measures forwarded by the Alabama House of Representatives violate the Fourteenth Amendment’s Equal Protection Clause.[10] The bill prohibits “divisive concepts” relating specifically to race, religion, and gender.[11] The language of the bill may appear viewpoint neutral, but it will likely have a discriminatory impact of race, religion, and gender when it is easy to infer which race, religion, and gender is favored by a bill that supposedly prevents teaching a “sense of guilt” because of their race and gender.[12]

The First Amendment is the center of discussion on “divisive concepts” bills that would restrict teachers’ ability to incorporate certain ideas into their curriculums.[13] When teachers and other government employees engage expressive activity outside of the scope of their employment, they do so as private citizens with private speech protected by the First Amendment.[14] Yet the Supreme Court has held that such expressive activity done within the scope of an employee constitutes government speech, not private speech.[15] Government speech is not beholden to the First Amendment. Thus, public school teachers are not protected by the First Amendment because they are essentially government employees.[16]

Yet restricting public school curriculums goes beyond mere regulation of government speech. It is inconsistent with the long history of Supreme Court cases regarding freedom of speech in schools. Tinker v. Des Moines, for example, the Court held teachers and students alike do not shed their Constitutional protections when they enter the classroom.[17]The classroom is a “marketplace” of ideas.[18] The purpose of the First Amendment is to protect the free exchange of ideas in such a marketplace; it would be a violation of the First Amendment to restrict a teacher’s expression of a certain idea without evidence that such a restriction is actually necessary to avoid “material and substantial interference with schoolwork or discipline.”[19]

Alabama, like the thirty-three other states that have tried to justify such bills, will likely argue that discussion of “divisive concepts” does materially and substantially interfere with schoolwork or discipline, but the opposite is true. In Keyishian v. Board of Regents, the Supreme Court further found the First Amendment does not “tolerate laws that cast a pall of orthodoxy over the Classroom.”[20] In other words, the Court in Keyishian decided that teachers could not be forced to avoid certain utterances or acts under threat of termination, reasoning that such a policy would be stifling to the very teachers that are given certain creative and academic freedoms for the sake of knowledge.[21] This is essentially the “chilling” effect many educators fear would result from a bill that prohibits teachers from discussing certain topics. Such an effect would interfere with schoolwork and discipline when students are deliberately refused the ability to engage with contemporary ideas about race, religion, and sex. [22]

That is not to say that this bill and those like it will absolutely restrict educational materials. Schools and teachers have some ability to create and follow curriculums that discuss these “divisive concepts” at a distance.[23] Decisions to do so must simply be based on “sound educational principles” with the intent to improve student learning.[24] In essence, educators must show a “legitimate pedagogical rationale” for including such discussion.[25] Given the United States’ history of racial, religious, and gender-based bias, it should be easy to show the pedagogical purpose of discussing these divisive concepts as they have developed alongside the “accurate history” of the United States.[26] It is certainly more legitimate that the alternative: a weak attempt to create a “nice, safe environment” for students that are not already exposed to the racial, religious, and gender-based discrimination of the real word. Even that argument, however, may encounter pushback from schools or parents who might contend that an “accurate” telling of American history does not necessarily demand such discussion and that a child-friendly history lesson can include conversations about race, religion, and sex without disparaging the United States government. Ultimately, the fight for the Alabama “divisive concepts” bill is up to the Senate, but activists, community leaders, and educators are still pushing against it by raising these questions of constitutionality and the impacts such a bill might have on curriculums that encourage a free market exchange of political ideas on race, religion, and sex.

 

 

[1] H.R.312, 2022 Leg., Reg. Sess. (Ala. 2022).

[2] Kim Chandler, Alabama Advances ‘Divisive Concepts’ Bill on Race, Gender, U.S. News (Mar. 17, 2022), https://www.usnews.com/news/best-states/alabama/articles/2022-03-17/alabama-advances-divisive-concepts-bill-on-race-gender.

[3] H.R.312, supra, note 1.

[4] Id.

[5]See Matt Lavietes, Here’s What Florida’s ‘Don’t Say Gay’ Bill Would and Wouldn’t Do, N.B.C News (Mar. 16, 2022), https://www.nbcnews.com/nbc-out/out-politics-and-policy/floridas-dont-say-gay-bill-actually-says-rcna19929; see alsoKatherine Fung, Don’t Say Gay Bill Aimed at Florida Teachers May Violate Students’ Right to Free Speech, News Week (Jan. 1, 2022), https://www.newsweek.com/dont-say-gay-bill-aimed-florida-teachers-may-violate-students-right-free-speech-1673272.

[6] Kate Masters, Virginia House Passes Legislation aimed at Banning ‘Divisive’ Concepts in Public Schools, Virginia Mercury (Feb. 15, 2022), https://www.virginiamercury.com/2022/02/15/virginia-house-passes-legislation-aimed-at-banning-divisive-concepts-in-public-schools/.

[7] Tyler Kingkade et al., Critical Race Theory Battle Invades School Boards – With Help From Conservative Groups, N.B.C. News (Jun. 15, 2021), https://www.nbcnews.com/news/us-news/critical-race-theory-invades-school-boards-help-conservative-groups-n1270794?icid=related.

[8] Chandler, supra note 2.

[9] Terry Gross, From Slavery to Socialism, New Legislation Restricts What Teachers Can Discuss, Nat. Pub. Radio (Feb. 3, 2022), https://www.npr.org/2022/02/03/1077878538/legislation-restricts-what-teachers-can-discuss.

[10] Mark Walsh, If Critical Race Theory is Banned, Are Teachers Still Protected by the First Amendment?, Education Week (Jun. 10, 2021), https://www.edweek.org/policy-politics/does-academic-freedom-shield-teachers-as-states-take-aim-at-critical-race-theory/2021/06.

[11] H.R.312, supra, note 1

[12] Chandler, supra, note 2.

[13] Walsh, supra, note 9.

[14] See Garcetti v. Ceballos, 547 U.S. 410, 411-412 (2006).

[15] See id.

[16] See id.; see also Pleasant Grove City v. Summum, 129 U.S. 1125, 1131 (2009).

[17] Tinker v. Des Moines, 393 U.S. 503, 507-13 (1969).

[18] Id. at 513.

[19] Id. at 510.

[20] Keyishian v. Board of Regents, 385 U.S. 589, 602-04 (1967).

[21] See id. at 604.

[22] Bill Would Ban Teaching of ‘Divisive Concepts’, A.P. News (Feb. 23, 2022), https://apnews.com/article/alabama-united-states-race-and-ethnicity-racial-injustice-d0a20c7f7c5561e42ed47e2b8ac64218.

[23] See H.R. 312, 2022 Leg., Reg. Sess. (Ala. 2022).

[24] The First Amendment in Schools, National Coalition Against Censorship (Aug. 9, 2021).

[25] Id.

[26] See Meilan Solly, 158 Resources to Understand Racism in America, Smithsonian Magazine (Jun. 4, 2020), https://www.smithsonianmag.com/history/158-resources-understanding-systemic-racism-america-180975029/; Kenneth C. Davis, America’s True History of Religious Tolerance, Smithsonian Magazone (Oct. 2010) https://www.smithsonianmag.com/history/americas-true-history-of-religious-tolerance-61312684/; Christina B. Hanhardt; Queer History, The American Historian (2019) https://www.oah.org/tah/issues/2019/may/queer-history/.