By: Sharon Foster
Critical race theory has become a political flashpoint as minorities fight against systemic discrimination.[1] Critical race theory critiques misunderstand it to “admonish all white people for being oppressors while classifying all Black people as hopelessly oppressed victims.” As a result, “school boards and state legislatures from Tennessee to Idaho” are moving to ban teaching about racism in classrooms. The Arizona legislature has followed suit. S.B. 1532, sponsored by Representative Michelle Udall, seeks to ban controversial topics relating to race, sex, and ethnicity unless the teacher presents competing perspectives. S.B. 1532 recently passed out of the Arizona House of Representatives and was narrowly defeated on the Senate floor vote. The bill later passed in the Senate on a motion to reconsider.[2]
Representative Udall believes the bill will prevent “‘children in our public schools [from being] taught that their skin color or ethnicity or sex somehow determines their character or actions. . . . Biased teaching needs to be stopped.’ ” Opponents of the bill argue no teachers in Arizona credibly teach that white students are responsible for America’s racist past.
Indeed, the law, is facially reasonable. It requires teachers who discuss “controversial” topics,[3] including race and sex (gender), to provide “diverse and contending perspectives.” Additionally, the law prohibits teaching (1) the superiority of any race or gender (2) that a person’s race, ethnicity, or gender makes them deserving of discrimination or (3) that race, sex, or ethnicity determines a person’s moral character. Everyone can agree Arizona teachers should never tell students their race or gender makes them invaluable or deserving of discrimination. To do so violates, at least, the spirit of the Fourteenth Amendment and Title XI of the federal Education Amendments Act of 1972. But, the law also includes some questionable provisions on discussing implicit bias. Teachers cannot encourage conversations about whether “an individual, by virtue of the individual’s race, ethnicity or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” A teacher wishing to bridge racial divisions or reconcile visible racism in their classroom is unlikely to address racial bias in the inflammatory way this bill’s language suggests.
Constitutionally, teachers, as state employees, likely can be subject to the provisions of this law. Under the First Amendment, “[t]o be protected, a public employee’s speech must be on a matter of public concern and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to the State’s interest.” See Waters v. Churchill, 511 U.S. 661, 668 (1994). Here, a court likely would decide Arizona’s interest in students’ mental welfare and education (or indoctrination, as the case may be) outweighs the teacher’s interest in expressing views on matters of public importance.[4] In Garcetti v. Ceballos, the Supreme Court held that government employees’ speech, while on the job and as part of their duties, is not protected under the First Amendment even if of public importance. 547 U.S. 410, 421 (2006). Since teachers would presumably facilitate a discussion on these topics in the classroom, they would be subject to the Garcetti holding.
While constitutionally permissible, this bill is unwise and ineffective. This law is likely to have little practical effect in protecting non-white or female students from discrimination. Teachers and other students make their biases known in subtle ways that may not be evident to those not subject to such discrimination. The bill allows white students to avoid the discomfort of recognizing that past racism has profoundly shaped their lives. It will do nothing to prevent the discomfort minority students feel at having their experiences ignored and discounted. It is evident that the bill, even if well-intentioned, serves only white fragility.
Schools should be safe spaces for students to express their perspectives and share their experiences. That does not mean educational institutions need to tolerate racism, sexism, or ethnocentrism. The bill’s provisions banning meaningful discussions about implicit bias will likely make Arizona schools a safe space for racist attitudes rather than a deterrent on them. This is because “implicit bias is a passively formed idea, often based largely on stereotypes. Implicit biases generally run contrary to people’s conscious values and beliefs.” As even the bill shows, external support for equality does not necessarily mean that a person always acts consistent with that belief. The most effective way to raise anti-racist, anti-sexist, and anti-ethnocentric Arizonans is to have open and honest conversations within the safety of educational institutions. Avoiding race, sex, and ethnicity will simply make Arizonan students culturally incompetent.
Further, what is the competing perspective of the women’s movement? That women should not have the right to individual autonomy? That a woman’s only purpose is to “tend house” and raise children? These perspectives are in tension with the bill’s anti-discriminatory intent. Teaching a competing perspective, in this case, reaffirms that female students’ sex does determine their actions by creating a presumption that they must become a wife and mother. What is the opposite perspective of the Black Lives Matter movement? That all lives matter? But can African American children believe their lives matter as much as white students when they see Tamir Rice and Trayvon Martin murdered with impunity? These students also see Dylann Roof[5] taken into police custody, alive, after murdering nine African Americans and Kyle Rittenhouse strolling past police after committing a double murder. We do not have to say anything. Minority students are quite capable of understanding the reasons for this inequity despite the silence. To ignore inequity is to perpetuate inequity. By requiring teachers to provide competing perspectives, the bill requires teachers to account for racist and sexist views. As a result, the bill will have a contrary effect to its intended purpose.
Representative Udall’s bill appears to be a good faith attempt to address racism and sexism in Arizona schools, but it falls far short. As currently presented, the bill is likely to do more to insulate students who harbor misguided racist and misogynistic views than prevent discrimination. The bill will do nothing to protect racial minorities or women from the effects of such attitudes and instead presumes their feelings of being discriminated against are unfounded. Perhaps having an open, honest conversation about privilege and unconscious bias would be a more efficient way of achieving the goal of the Unbiased Teaching Act.
[1] Fox News mentioned critical race theory 1,300 times over four months.
[2] The bill’s status is available on the Arizona Legislature’s website by searching according to bill number and year: https://apps.azleg.gov/BillStatus/BillOverview?SessionID=123.
[3] Perhaps, racism and sexism are “controversial” subjects because they require people to confront privilege and unconscious bias. But race and sex are inherent characteristics that every person possesses, which also suggests a person’s mere existence could be considered controversial.
[4] The author submits race, gender, sex, and ethnicity are topics of public importance.
[5] Dylann Roof ultimately received a death sentence for his crime.
Sharon (she/her) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of law. Her legal interests focus on issues of race and gender equality. Her personal interests include traveling, cooking, and sharing pictures of her 2 adorable cats.
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