An Eighth Circuit panel unanimously found that democratically elected leaders, not students or teachers, decide what will be taught in public school classrooms — and in Arkansas, that now means students can no longer be indoctrinated with racially divisive ideologies.
As school starts back up, Arkansas will be free to enact its ban on critical race theory (CRT) and indoctrination in discriminatory ideologies following a decision last month by the U.S. Court of Appeals for the Eighth Circuit.
In March 2023, Arkansas implemented the LEARNS Act, which instructs the Arkansas Department of Education to review curriculum to ensure no teaching materials “promote teaching that would indoctrinate students with ideologies such as Critical Race Theory, otherwise known as ‘CRT,’ that conflict with the principle of equal protection under the law or encourage students to discriminate” based on protected characteristics.”
The law bans teaching the notion that any person is inherently superior or inferior based on any characteristic protected by federal or state law. It also bans teaching that any person should be discriminated against due to their belonging to any protected class.
However, the law explicitly excludes from its prohibitions discussions of “[i]deas and the history of concepts described” and “[p]ublic policy issues of the day and related ideas that individuals may find unwelcome, disagreeable, or offensive.”
Teachers who violate the law could face disciplinary action, including the potential revocation of their teaching license.
After the law was passed, two teachers, two students, and the Arkansas State Conference of the National Association for the Advancement of Colored People (NAACP) filed suit to block it. The teachers argued that the law was vague, violated the Fourteenth Amendment’s Due Process Clause, and required them to self-censor. The students claimed the law violated their First Amendment right to receive information.
A district court denied the teachers’ request for an injunction, ruling that the curriculum constituted government speech, but granted the students’ request.
Last month, the Eighth Circuit overturned the injunction, ruling that the students do not have a constitutional right to compel the government to promote specific ideological views in public school curricula.
Writing for a unanimous three-judge panel, Circuit Judge Steven Grasz stated,
“The Arkansas officials appeal the preliminary injunction, arguing the Free Speech Clause does not allow students to compel the government to provide certain classroom materials or instruction in its public schools. We agree with the Arkansas officials.”
Grasz continued:
“The students concede the classroom materials and instruction they seek to receive constitute government speech. This is fatal to their likelihood of success because the government’s own speech ‘is not restricted by the Free Speech Clause,’ so it is free to ‘choose what to say and what not to say.‘
Since the Free Speech Clause does not give the students the right to compel the government to say something it does not wish to, they cannot show a likelihood of success.”
The panel cited Shurtleff v. City of Bostonand Regents of Univ. of Wisc. Sys. v. Southworth, ruling that curriculum decisions fall under government speech and are therefore not subject to compelled-speech claims under the First Amendment.
While students have a general First Amendment right to receive information, the court clarified that this right does not extend to controlling public school curriculum, a point the students themselves recognized.
The court also rejected the notion that Arkansas’s political motives for excluding CRT materials were constitutionally suspect.”
The court noted that “‘virtually all educational decisions necessarily involve ‘political’ determinations,’ so any time something is removed from the curriculum based on the decision of a democratically elected government entity, it could be characterized as a ‘partisan or political’ choice.”
It further reasoned,
“We see no basis in the Free Speech Clause to conclude the students would have a right to prevent something from being removed from the curriculum based on ideology if they do not also have a right to require the school to add materials.
And the students reasonably concede they lack the latter right. Given that this asserted right only runs in one direction, the students’ proposition would create an incumbency bias that erodes democratic accountability for government speech.”
Government speech, the court argued, reflects the will of the people. If courts stepped in on this matter, they would be preventing the democratic process THAT controls government speech. By enacting this “incumbency bias” the court would prevent the democratic process from rectifying earlier partisan decisions made regarding the curriculum.
“Thus, we usually permit changes in government speech motivated by the political process, rather than declare them unconstitutional,” the court stated. “It would be odd to treat government speech in schools differently since ‘the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.’”
For now, Arkansas is free to enforce its narrow restrictions on CRT and other discriminatory ideologies.
“With its ruling today, the 8th Circuit continues to ensure that the responsibility of setting curriculum is in the hands of democratically elected officials who, by nature, are responsive to voters,” Arkansas Attorney General Tim Griffin said.
Attorneys for the students seemed to indicate that they could appeal the decision to the Supreme Court but did not say definitively.
“It gives us pause and concern about a steady erosion of individual rights and protections in this great country,” lawyer Mike Laux stated. “Nonetheless, major aspects of this lawsuit remain viable, and they will proceed in due course.”
Under the new law, Arkansas’ curriculum is narrowly tailored to achieve something that one would think all Americans would appreciate: the elimination of discrimination based on intrinsic and immutable characteristics. Contrary to the claims of activists, the law does not ban instruction about slavery, systemic racist policies like Jim Crow, or controversial public policy debates.
The only ideas that it bans are those that teach students to be discriminatory against whole groups of people.
That’s because critical race theory is not a curriculum, it’s an ideology. And a highly destructive one at that. Effectively, it reframes reality by putting every current and historical belief and event through the lens of race.
As Harvard professor and progressive activist Cornel West has openly stated, CRT is a “comprehensive movement in thought and life,” with the goal to “reinterpret and remake the world.”
Thus, in just one example, the authors of the CRT-inspired 1619 Project went back one of the earliest British settlements in Virginia and concluded that the United States was not actually founded in 1776 to break the bands of British tyranny or to ensure religious liberty or individual rights. Instead, the country could be traced to 1619 for the sole purpose of enslaving black people and ensuring and protecting a nation of white supremacists, among them George Washington and Abraham Lincoln.
In short, according to CRT and any of its offshoots, America is systemically racist, all white people are oppressors and all black people are oppressed.
This is what CRT essentially teaches students in public schools, from kindergarten to 12th grade, and the impact on these children isn’t to make them smarter or more informed or to think critically about controversial topics.
No, the point is to make them feel bad about their country and about themselves — white children are made to feel guilty for something they didn’t do and black children are made to feel like victims with no hope that anything will ever change for the better. And there is no grace nor is there any redemption, as no amount of groveling by white children will grant them forgiveness and no amount of hard work or character will help black children succeed.
In sum, CRT sells nothing but despair, distrust, and divisiveness. And the result has created more racism and more discrimination, not less.
No student has the right to demand that schools teach these ideas.
Imagine a neo-Nazi or an Islamist militant demanding that schools teach that Jews are morally inferior. Or picture a white student demanding that the theory of a master race be taught in public schools.
The very notion is absurd.
Children should be learning core academics like reading and math, critical thinking skills, and American and world history — including the hard parts. What they shouldn’t be taught is how to be racist and to view everything in this life, good or bad, through the lens of race and skin color.
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