Few legal challenges to laws limiting lessons on race, gender

In July 2021, the American Federation of Teachers said it had at least $12.5 million “ready to go” to defend teachers from proliferating state laws restricting education on race, gender and sexuality. The same month, the American Civil Liberties Union said “multiple organizations are actively exploring litigation. ... It’s important to do it sooner rather than later.”

Nearly two years later, at least 25 states are enforcing laws that have made it easier to remove books from school libraries, blocked certain lessons on race, gender and sexuality, restricted the rights of transgender students and cost teachers their jobs, according to a Washington Post analysis.

Yet few lawsuits have emerged targeting the raft of new curriculum laws — and only one suit has been successful. The paucity and slow pace of legal challenges reflect the broad power states have to shape curriculums, experts say, and the lack of favorable precedent in a relatively unexplored territory of law.

To date, at least four states — Arizona, Oklahoma, New Hampshire and Florida — have seen such lawsuits, brought by free-speech advocacy groups, teachers associations including the AFT and civil rights organizations including the ACLU. One has been resolved, a suit filed in part by the Arizona School Boards Association and the Arizona Education Association challenging a law that prohibited certain ways of teaching about race. In November 2021, the Arizona Supreme Court struck down the law, finding its manner of enactment violated the state constitution.

One reason lawsuits are sparse is it’s difficult for plaintiffs to show that curriculum restrictions violate other laws, the U.S. Constitution or precedent, said Derek Black, a University of South Carolina professor of constitutional law. Although the Supreme Court has found that students have a First Amendment right to voice their opinions at school, teachers do not, Black said. Nor do they benefit from the wide-ranging academic freedom accorded to university professors.

“With limited resources, civil rights advocates have to make strategic choices about where to file,” Black said. “Assuming the first suits work out favorably to plaintiffs, you might see a whole bunch of suits filed thereafter.”

Several suits are still in preparation.

An explosion of culture war laws is changing schools. Here’s how.

Georgia is about to face a legal challenge to its law forbidding the teaching of “divisive concepts.” In November, the Georgia Association of Educators, in partnership with the National Education Association and the Southern Poverty Law Center, sent a letter to the state’s attorney general sharing its intent to sue.

Representatives for leading civil rights and teachers associations said more lawsuits are in the works, although they declined to provide specifics or a timeline. Emerson Sykes, senior staff attorney at the ACLU, said “we and others continue to work up related cases in Florida and elsewhere.”

Alice O’Brien, general counsel for the National Education Association, said her group has lawsuits “coming down the pipeline,” but cautioned it will take time to find people who have been affected by state laws limiting education — and who are willing to take their stories public.

“These lawsuits are not easy to put together,” O’Brien said. “Educators are scared in the current environment. A lot of these laws are enacted in states where educators have very few protections.”

Over the past three academic years, amid national debate over education and how it intersects with moral, societal and cultural values, at least 64 laws have passed in half the country reshaping what students can learn and do at school, per a Post analysis. The laws related to curriculums restrict what teachers can say about race, racism and American history, and/or constrain lessons on gender identity, sexuality and LGBTQ issues. Eighteen states have passed laws or policies in the first category, per a tally kept by Education Week, while eight states have passed a total of 15 laws in the second category, per The Post’s analysis.

Conservative politicians, pundits and parents argue these laws are necessary to protect children from ideological indoctrination from the left, including lessons that focus on the role of race in history and present-day society, as well as those that explore a variety of gender identities and sexualities. Liberal educators and activists counter that, to reach all children, modern-day educators must acknowledge students’ racial and socioeconomic backgrounds and take note of the histories and voices of marginalized peoples.

Legal arguments against these laws touch on issues ranging from First Amendment concerns to allegations of racial animus.

The strongest of these, said University of South Carolina professor Black, is probably the argument that vaguely worded laws are having a chilling effect on free speech by rendering teachers unsure of what they are permitted to teach. The laws’ vagueness also leaves them vulnerable to the claim that they violate teachers’ right to due process under the 14th Amendment to the Constitution, Black said.

“As a matter of due process, it is not fair to pass laws that citizens are confused as to how to comply with,” Black said. “The only downside of this sort of claim is, the state could come back later and make it clearer what they are prohibiting — so victory now, but potentially new laws later.”

The vagueness argument is “the lead claim” in the ACLU’s lawsuits against education laws in New Hampshire and Oklahoma, Sykes said.

New Hampshire’s law forbids educators from discussing race, gender identity and sexual orientation in certain ways, including barring teachers from telling students that people “cannot and should not attempt to treat others without regard” to race, sex, gender identity and sexual orientation. The lawsuit in that state, brought in December 2021 by lawyers from the ACLU, the NEA and a host of other advocacy groups on behalf of New Hampshire school administrators and the state’s chapter of NEA, is headed for a trial after the U.S. District Court rejected the state’s attempt to dismiss it in mid-January.

Share this articleShare

The suit is now in a discovery period, during which attorneys for the plaintiffs plan to seek documents revealing how state agencies track and explore complaints against teachers filed under the law, according to the New Hampshire Bulletin.

Oklahoma’s law similarly outlaws certain content about race and sex, including teaching that “meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.” Little has so far happened in the lawsuit there, filed in October 2021 by the national ACLU, its Oklahoma chapter and the Lawyers Committee for Civil Rights Under Law.

The plaintiffs and the state have traded motions for and against preliminary injunction, dismissal of the case and initiation of limited discovery. But the judge has not issued a single decision, Sykes of the ACLU said.

“It is pending, but it has not been moving,” Sykes said. “The judge has been taking his time.”

The Georgia suit, yet to be filed, will probably also center on allegations of vagueness, said Gerry Weber, an attorney representing the Georgia Association of Educators. Georgia’s curriculum law stipulates that schools cannot teach a list of ideas related to race including the notion that “one race is inherently superior to another” or that “the United States of America is fundamentally racist.”

“The Georgia statute kicks it to the school districts to develop their own policies, and we are seeing a crazy quilt,” Weber said. “Teachers are looking at these and are not sure whether they can talk about the Three-Fifths Compromise, or aspects of slavery, or even apartheid.”

Weber said his group will be filing suit “in coming months” on behalf of both teachers and students affected since the law took effect in July. The association is gathering anecdotes from across Georgia and has submitted dozens of records requests to counties and to the state, Weber said.

Another possible challenge centers on the argument that laws infringe on educators’ academic freedom — but this tactic is more likely to work at the level of higher education, where professors benefit from broad protections.

In Florida, the ACLU offered a version of that argument in its August lawsuit challenging the Stop Woke Act, which outlaws certain ways of teaching about race, including instructing students that “an individual, by virtue of his or her race ... bears personal responsibility for and must feel guilt” for the past. In November, a federal judge agreed with the ACLU, blocking the enforcement of the act in the realm of higher education.

But the law is still in effect for kindergarten through 12th grade, at least for now. The ACLU is considering legal challenges to the law in the K-12 environment, Sykes said.

Suzanne Eckes, an education professor at the University of Wisconsin at Madison, said it will be tough to prove that laws like Florida’s Stop Woke Act infringe on K-12 teachers’ academic freedom — largely because such freedom does not exist, at least according to the courts.

“Historically, courts have deferred to the states and to local school districts in determining what is going to be taught in the curriculum,” Eckes said.

States must comply with the Constitution by adopting education policies that serve a “legitimate pedagogical purpose” and do not discriminate on the basis of protected characteristics such as race or ethnicity, Eckes said. But it will be hard for plaintiffs to prove new curriculum laws fail to meet these requirements, she said, unless they can show that legislators adopted the measures specifically to advance racial discrimination.

And that would require a very high level of proof, such as incriminating and very specific texts between legislators, Eckes said.

She added that the U.S. Supreme Court has not given a definitive ruling on who gets to shape curriculums: states, school districts, teachers or parents. But a string of cases decided by lower courts from the late 1800s through today, she said, have favored school districts’ ability to set curriculums over parents’ ability to limit them.

For example, an 1886 ruling by the Supreme Court of Indiana found that a school district could require students to attend music classes despite parental objections. In 2003, the U.S. Court of Appeals for the 2nd Circuit ruled that a Connecticut school district could mandate health and family life education classes, contravening a parent’s claim that the lessons infringed on his right to raise his child in accordance with his values. And in 2008, the U.S. Court of Appeals for the 1st Circuit concluded that a Massachusetts district was justified in providing books to young students that featured same-sex marriage, even though parents labeled the book repugnant to their religious beliefs.

Eckes said she has no idea how the current Supreme Court, dominated by a conservative supermajority, would rule on the issue if one of the lawsuits challenging curriculum laws wends its way to the nation’s highest judicial body.

“Are they going to tip the balance in favor of parental rights more so than they’ve done in the past?” Eckes said. “I don’t have any indication.”

But, she added, she would understand if some left-leaning advocacy groups fear the worst: “Maybe that’s another reason they are not filing suits right now.”

ncG1vNJzZmivp6x7uK3SoaCnn6Sku7G70q1lnKedZLKlwcKaq6KnnmR%2FcX6SaGdsZ2FsfK2xxpqjZpuYlrmtsc2gnKxll5q7pbHRZpqroaSesKK4jKuYnJ1dqbWmu9GyZg%3D%3D

JadeVibe

Few legal challenges to laws limiting lessons on race, gender