The Battle Over Student Rights and Race

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Scholar suggests that public school students have a right to receive critical race theory education.

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Since January 2021, Republican legislators in 44 states have introduced bills banning the teaching of race in public school classrooms. 18 states have adopted such legislation, prohibiting teachers from even introducing race-related lessons in U.S. history.

In a recent article, Francesca Procaccini, a professor at Vanderbilt Law School, argues that anti-“critical race theory” laws infringe students’ constitutional rights to access and receive information. Procaccini concludes that these laws violate a core principle embedded in the First Amendment of the U.S. Constitution that prohibits government officials from restricting free speech to fulfill a partisan agenda.

Critical race theory acknowledges racial disparities, scrutinizes racial hierarchies, and offers strategies to counter racism in modern culture. Experts say that secondary public school curriculums do not currently include critical race theory and that right-wing media have widely mischaracterized critical race theory as any teaching related to race and American history— including concepts such as equity and anti-bias training for teachers.

Public school students have the constitutional right to receive accurate and relevant information necessary for informed democratic decision-making, according to Procaccini. She claims that a diverse society in the United States necessitates students learning about race and racism to become capable participants in American democratic society.

Currently, the federal government and state governments establish rules for public school curricula. These requirements call for public schools to provide information relevant to American democracy unless a reasonable pedological or educational purpose exists for excluding such information.

Procaccini argues that laws restricting teaching related to race in public schools are unconstitutional because they promote a conservative ideological movement and partisan agenda while failing to meet the overarching mission of public schools. These anti-“critical race theory” laws hinder the mission of public schools to provide a well-rounded education that fosters awareness of societal issues and instills fundamental values for a healthy American democracy without prioritizing ideological movements, contends Procaccini.

An “anti-orthodoxy” approach to public education is crucial for advancing a student’s full and equal participation in democratic self-government, proposes Procaccini. She claims that this anti-orthodoxy approach aligns with First Amendment values, such as equal participation in democratic self-government. She also suggests that school policies aligned with this approach would ensure students have the right to receive information critical to their participation in democratic self-governance.

Procaccini notes that public school teachers’ First Amendment rights are constrained due to their status as government employees. She explains that teachers’ speech is subject to a balancing test that considers whether they speak as citizens on public concerns and if there is a justifiable reason to treat their speech differently from ordinary citizens. Procaccini claims that this restriction aims to balance individual speech rights with the government’s interest in promoting efficient public services, particularly crucial in education, where curriculum decisions reflect broader power dynamics and societal values.

Parents also lack First Amendment protection over their children’s speech rights, which ensures that no individual parent can veto democratic decisions about school curricula, contends Procaccini. She notes that loosening parental control over children’s speech rights is intended to cultivate a well-informed society, enabling children to evolve beyond their parents’ perspectives and teachings. This then encourages personal enlightenment and civic participation, suggests Procaccini.

Procaccini maintains that the constitutional objection to anti-“critical race theory” laws must be rooted in students’ rights rather than those of teachers or parents.

Procaccini warns that U.S. public school systems that have designed anti-“critical race theory” curricula violate the anti-orthodoxy principle within First Amendment because they ignore students’ rights to race education that addresses key issues, such as systemic racism and how race affects the United States today. Students in schools subject to these restrictions are deprived of valuable race education and, importantly, of vital tools for democratic self-governance and core constitutional values, Procaccini concludes.