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The Anti-“Critical Race Theory” Campaign –

Classroom Censorship and Racial Backlash
by Another Name

Leah M. Watson*

This Article explores the rise of the anti-“critical race theory” movement,
arguing that it is backlash to progress towards racial justice. Instruction on
racism, culturally relevant teaching methods, and critical race theory—collec-
tively, race conscious instruction—improve students’ comprehension, engage-
ment, analytical skills, and social development. Conservatives attacked race
conscious instruction under the banner of “critical race theory,” intentionally
misrepresenting the pedagogical approaches to strike fear in a vocal minority
troubled by the loss of societal control. This Article tracks the evolution of the
anti-“critical race theory” movement from a one-man crusade to political rally-
ing cry across the country, as well as efforts to erase race conscious instruction
at the federal or state level. Conservatives stoked hysteria about “critical race
theory” in workplaces and schools to maintain (and expand) political power,
favoring inaccurate representations and a narrow gloss of patriotism over well-
researched pedagogical approaches and honest engagement about systems of
oppression. Then, they offered censorship as a solution to the manufactured
emergency, introducing legislation in 45 states to limit instruction on systemic
racism and sexism in schools, known as educational gag orders. This Article
analyzes the scope of educational gag orders, compares the various approaches
to censorship and enforcement, and identifies the resultant culture of fear and
intimidation. Finally, this Article builds upon the author’s experience challeng-
ing educational gag orders through litigation in in Florida, Oklahoma, and New
Hampshire under the First and Fourteenth Amendments.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 R
II. EFFORTS TO ADVANCE RACIAL JUSTICE . . . . . . . . . . . . . . . . . . . . 492 R
a. Changes in Workplaces & Schools After the 2020 Racial
Reckoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 R
b. Race Conscious Instruction that Preceded the 2020
Racial Reckoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 R

* I am a Senior Staff Attorney in the Racial Justice Program at the American Civil Liber-
ties Union (ACLU) and a graduate of Harvard Law School. I am a member of the ACLU team
that filed the first case to challenge this type of classroom censorship legislation, and I am
currently litigating these issues in Florida, Oklahoma, and New Hampshire. I am so grateful to
my family, friends, and colleagues for their insight and support. To the editors of the Harvard
Civil Rights-Civil Liberties Law Review, thank you for this opportunity and for the valuable
feedback. To my colleagues on the ACLU classroom censorship litigation team and our co-
counsel, I am honored to be in this fight with you. To Alice Abrokwa, Genevieve Bonadies-
Torres, Shaylyn Cochran, Whitney Dupreé, Sarah Hinger, and Hamida Labi, thank you for
your unwavering support and thoughtful edits. To Eden, Isaac, Israel, and Zion, my four favor-
ite students, I hope you feel seen and celebrated in every school you attend.
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488 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

i. Instruction on Racism . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 R

ii. Culturally Responsive Teaching Methods . . . . . . . . . . 497 R
iii. Critical Race Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 R
III. THE ANTI-“C RITICAL RACE THEORY” MOVEMENT . . . . . . . . . . 500 R
a. Intentional Misrepresentations of “Critical Race
Theory” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 R
b. Censorship of Discussions of Race and Sex
Discrimination in the Workplace . . . . . . . . . . . . . . . . . . . . . . 503 R
c. Federal Censorship Efforts to Exclude Race Conscious
Instruction Before the 2020 Election . . . . . . . . . . . . . . . . . . 507 R
d. State-based Classroom Censorship Strategy After the
2020 Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509 R
IV. EDUCATIONAL GAG ORDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 R
a. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 R
b. Type of Censorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 R
c. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516 R
d. Resultant Culture of Fear & Intimidation . . . . . . . . . . . . . 518 R
V. LITIGATION CHALLENGING EDUCATIONAL GAG ORDERS . . . . . 521 R
a. Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 R
b. Legal Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 R
i. First Amendment Claims . . . . . . . . . . . . . . . . . . . . . . . . . 525 R
ii. Fourteenth Amendment Claims . . . . . . . . . . . . . . . . . . . 539 R
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547 R

I. INTRODUCTION

“Ignorance allied with power is the most ferocious enemy justice can have.”
– James Baldwin

Since the racial reckoning of 2020 following the killings of George

Floyd, Breonna Taylor, and Ahmaud Arbery, references to “critical race the-
ory” in schools have become a rallying cry for conservatives who seek to
keep students ignorant of racism and oppression in America. I use quotations
because the phrase “critical race theory” has been co-opted by conservatives
to misleadingly reference a range of speech describing race, the systemic
nature of racism, and anti-racism efforts. Critical race theory is a framework
primarily utilized in higher education to track and challenge the ways racism
is built into American institutions.1 Critical race theorists do not teach stu-
dents to hate any group, seek to divide Americans, or reduce complex identi-

1
Race, Reform & Retrenchment Revisited: Can States Ban Learning About Our Full His-
tory?, AM. BAR ASS’N AND AFR. AM. POL’Y FORUM (Feb. 2, 2022), https://
www.americanbar.org/content/dam/aba/administrative/crsj/webinar/february-2022/aapf-crt-re-
sources-feb2022.pdf [https://perma.cc/Y6C6-LNMM]; Gary Peller, Opinion: I’ve Been a Crit-
ical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point for Us, POLITICO
(June 30, 2022), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-
lightning-rod-opinion-497046 [https://perma.cc/S74M-Y8K4].
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2023] The Anti-“Critical Race Theory” Campaign 489

ties only to racial classifications.2 But, this fight isn’t limited to critical race
theory. Conservatives seek to erase all meaningful discussions of race or
racism in schools, including (1) classroom instruction on systemic discrimi-
nation that helps students process the events they study and the world around
them; (2) culturally responsive teaching, which builds upon students’ lived
experiences to further academic engagement, develop positive social iden-
tity, and foster critical thinking skills; and (3) critical race theory.3 Collaps-
ing these three concepts, collectively “race conscious instruction,” under the
banner of “critical race theory” is a deliberate effort by conservatives to
minimize the wide range of speech they seek to censor.
Legislation prohibiting race conscious instruction has been introduced
in 45 states since January 2021.4 Censorship efforts spread like wildfire in
2022, with the number of bills introduced increasing by more than 250 per-
cent compared to 2021.5 By January 2022, 35 percent of all primary and
secondary (K-12) students, or 17.7 million students, attended districts that
experienced some form of a local campaign to end “critical race theory” in
classrooms.6 These efforts were not limited to K-12 classrooms; 30 percent
of 2021 classroom censorship bills and 39 percent of 2022 classroom censor-
ship bills applied to higher education.7 This movement has significantly re-
duced, or altogether silenced, discussions of racism and sexism in
classrooms, essentially operating as an educational gag order on these topics.
As a former teacher and attorney currently litigating the constitutional-
ity of educational gag orders in Florida, Oklahoma, and New Hampshire, I
strongly believe that any discussions of classroom censorship must begin
with the impact on students and establish why it is important to continue to
incorporate race conscious instruction in schools. The Supreme Court has
recognized that public schools play an important role “in the preparation of
individuals for participation as citizens, and in the preservation of the values
on which our society rests.”8 Contrarily, the current classroom censorship
campaign deprives students of the opportunity to accurately understand the

2
Mica Polluck, John Rogers, Alexander Kwako, Andrew Matschiner, Reed Kendall, Cic-
ely Bingener, Erika Reece, Benjamin Kennedy, & Jaleel Howard, The Conflict Campaign:
Exploring Local Experiences of the Campaign to Ban “Critical Race Theory” in Public K-12
Education in the U.S., 2020-2021, UCLA/IDEA PUBLICATIONS 1 (2022), https://
idea.gseis.ucla.edu/publications/the-conflict-campaign/ [https://perma.cc/6W9Z-ZU8J].
3
Jenny Muñiz, Culturally Responsive Teaching: A 50-State Survey of Teaching Standards,
NEW AM. 1, 9 (Mar. 2019), https://files.eric.ed.gov/fulltext/ED594599.pdf [https://perma.cc/
E4HT-E6RQ].
4
PEN America Index of Educational Gag Orders, PEN AM. (Mar. 16, 2023), https://
docs.google.com/spreadsheets/d/1Tj5WQVBmB6SQg-zP_M8uZsQQGH09TxmBY73v23zp
yr0/edit#gid=267763711 [https://perma.cc/W9KJ-N8V9].
5
Jeremy Young & Jonathan Friedman, America’s Censored Classrooms: Key Findings,
PEN AM. (Aug. 17, 2022), https://pen.org/report/Americas-censored-classrooms/ [https://
perma.cc/K5WZ-WUEV].
6
Polluck et al., supra note 2, at 11.
7
Young et al., supra note 5.
8
Ambach v. Norwick, 441 U.S. 68, 76 (1979).
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490 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

multicultural society in which they live and its history, while reinforcing the
dominant, white male narratives that discount, and often completely exclude,
the perspectives of people who identify as Black, Indigenous, People of
Color (BIPOC), Lesbian, Gay, Bisexual, Transsexual, Queer (LGBTQ+),
and/or women. To effectuate this goal, educational gag orders violate the
constitutional rights of students and educators alike.
The push to keep students and future generations ignorant of the histori-
cal and current manifestations of racism in America is, in my view, a thinly
veiled attempt of a vocal minority of predominantly white people to main-
tain control amidst shifting demographics.9 This issue is not clearly split
along racial lines; not all white people are perpetuating these efforts. Fur-
thermore, not all white people are racist, despite the institutional privilege
their race affords. A small group, however, is using classroom censorship as
a pawn in their game to hoard control and to prevent societal progress. In
2017, for the first time in the history of this country, white students became
the minority in public schools.10 The percentage of white public school stu-
dents dropped from 61 percent in 2000 to 48 percent in 2017.11 “Rapid dem-
ographic change is the strongest single predictor of whether or not districts
have been impacted” by anti-“critical race theory” efforts.12 The districts
where white student enrollment declined by 18 percent or more were three
times more likely to be impacted by a push to remove “critical race theory”
from schools than districts with less rapid demographic shifts.13 Districts im-
pacted by anti-“critical race theory” efforts are more likely to be racially
mixed or majority white and located in communities that are politically con-
tested (no presidential candidate won more than 49 percent of the vote in the
2020 election).14 The hysteria about “critical race theory” in schools isn’t
motivated by a desire to improve the academic success and social develop-
ment of students; I argue it is racial gaslighting, primarily driven by a fear of
a vocal minority that white people are losing societal control, stoking con-
cerns that have persisted for centuries.
Throughout America’s history, hard-fought progress towards racial jus-
tice has been immediately followed by retrenchment to perpetuate the hierar-
chies of the status quo. After the emancipation of enslaved people, states
passed the Black Codes, laws to control formerly enslaved people through

9
Press Release, United States Census Bureau, 2020 Census Statistics Highlight Local
Population Changes and Nation’s Racial and Ethnic Diversity (Aug. 12, 2021), https://
www.census.gov/newsroom/press-releases/2021/population-changes-nations-diversity.html
[https://perma.cc/TN8C-KNXR].
10
The Condition of Education 2020: Racial/Ethnic Enrollment in Public Schools, NAT’L
CENTER FOR EDUC. STAT. 1, 1 ( 2020), https://nces.ed.gov/programs/coe/pdf/coe_cge.pdf
[https://perma.cc/A9YU-AJMF].
11
Id.
12
Polluck et al., supra note 2, at 93.
13
Id. at 11.
14
Id.
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2023] The Anti-“Critical Race Theory” Campaign 491

the restriction of their independence and economic autonomy.15 Reconstruc-

tion also ushered in the Jim Crow era of sanctioned terror on Black commu-
nities.16 The War on Drugs, an affirmative attack on Black communities,
trailed the passage of the Civil Rights Act of 1964 and the Voting Rights Act
of 1965.17 After the historic turnout of young voters and voters of color in
the 2008 election of President Barack Obama, state legislatures and election
officials passed a number of restrictions on voting. In an effort to limit ac-
cess to the polls, at least 25 states narrowed voter identification laws, cir-
cumscribed voter identification policies, and/or shortened the early voting
period.18 Research demonstrated that strict voter identification laws, limita-
tions on Sunday voting, longer wait times on Election Day, and polling place
consolidation disproportionately harmed voters of color.19 These efforts re-
doubled following the heightened voter turnout and unprecedented votes by
mail during the 2020 presidential election. States passed laws that restricted
the availability of mail ballots, implemented stricter signature requirements
or voter identification for mail ballots, and limited in-person voting.20 They
also aggressively purged voter rolls, eliminated same day registration, and
prevented the addition of polling places and early voting days.21
The pattern of progress followed by retrenchment continued with the
2020 racial reckoning. After George Floyd’s murder in May 2020, protests in
support of racial justice occurred across the world. In the weeks following
Floyd’s death, approximately 15 to 26 million people in the United States
reported that they protested, making Black Lives Matter the largest move-
ment in America’s history.22 On a single day, half a million people attended

15
Black Codes, HISTORY.COM (Jan. 1, 2022), https://www.history.com/topics/black-his-
tory/black-codes [ https://perma.cc/5BLA-XJ3U].
16
Olivia B. Waxman, The Legacy of the Reconstruction Era’s Black Political Leaders,
TIME (Feb. 7, 2022, 4:16 PM), https://time.com/6145193/black-politicians-reconstruction/
[https://perma.cc/4BXV-YGDB].
17
Candace Watts Smith, After the Civil Rights Era, White Americans Failed to Support
Systemic Change to End Racism. Will They Now?, THE CONVERSATION (Aug. 13, 2020, 8:10
AM), https://theconversation.com/after-the-civil-rights-era-white-americans-failed-to-support-
systemic-change-to-end-racism-will-they-now-141954 [https://perma.cc/KS3M-Z3PQ].
18
Voting Laws Roundup: May 2021, BRENNAN CTR. FOR JUST. (May 28, 2021), https://
www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2021 [https://
perma.cc/WU4Z-5SFY]; New Voting Restrictions in America, BRENNAN CTR. FOR JUST. (Nov.
19, 2019), https://www.brennancenter.org/our-work/research-reports/new-voting-restrictions-
america [https://perma.cc/S5GX-HK95]; see, e.g., H.B. 538, 2021 Leg. Sess. (Ala. 2021);
S.B. 643, 90th Leg. Sess. (Ark. 2015), S.B. 1485, 55th Leg. Sess. (Ariz. 2021); S.B. 90, 2021
Leg. Sess. (Fla. 2021), S.B. 202, 2021 Leg. Sess. (Ga. 2021); S.B. 169, 2021 Leg. Sess. (Mont.
2021); H.B. 75, 66th Leg. Sess. (Wyo. 2021); S.F. 413, 2021 Leg. Sess. (Iowa 2021); H.B.
176, 2021 Leg. Sess. (Mont. 2021).
19
The Impact of Voter Suppression on Communities of Color, BRENNAN CTR. FOR JUST.
(Jan. 10, 2022), https://www.brennancenter.org/our-work/research-reports/impact-voter-sup-
pression-communities-color [https://perma.cc/3Y6H-UWVP].
20
Voting Laws Roundup: May 2021, supra note 18.
21
Id.
22
Larry Buchanan, Quoctrung Bui, & Jugal K. Patel, Black Lives Matter May Be the
Largest Movement in U.S. History, N.Y. TIMES (July 3, 2020), https://www.nytimes.com/inter
active/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/N5L4-729J].
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492 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

Black Lives Matter protests in nearly 550 places across the United States.23
Black Lives Matter protests were held in over 40 percent of counties.24 Soon
thereafter, at least 90 bills were introduced in 35 states to restrict protestors
and/or civil disobedience, including bills to make it illegal to insult police
while extending immunity to drivers who hit protestors with their cars.25
Many bills targeted tactics used by movements led by people of color.26 This
legislation will likely be “disproportionately enforced against movements by
people of color or focused on issues of racial and social justice.”27
The first section of this article discusses the efforts to advance racial
justice that precipitated this backlash; highlights the value of race conscious
instruction; and describes the difference in the three forms of race conscious
instruction. The second section demonstrates how the anti-“critical race the-
ory” movement is a politically motivated attack that is at odds with the best
interests of students. In an effort to thwart progress towards racial justice,
conservatives intentionally misrepresented critical race theory as a threat to
white people and democracy; demanded censorship to remedy this contrived
threat; and coordinated federal and state-based strategies to silence speech
that addresses inequality. The third section focuses on educational gag or-
ders, and outlines the scope and type of censorship, enforcement mecha-
nisms, and the resultant culture of fear and intimidation to coerce
compliance. The fourth and final section analyzes litigation challenging the
ways this censorship violates the First and Fourteenth Amendment rights of
educators and students.

II. EFFORTS TO ADVANCE RACIAL JUSTICE

a. Changes in Workplaces & Schools After the 2020 Racial Reckoning

After the killings of George Floyd, Breonna Taylor, and Ahmaud

Arbery in 2020, a short-lived racial reckoning ensued that sought to incorpo-
rate anti-racism into workplaces and schools. Grounded at home due to
widespread COVID-19 closures, Americans saw the horrific violence Black
people face daily from police and private citizens. The racial disparities of

23
Id.
24
Id.
25
See Devin Dwyer, George Floyd Protests Trigger Wave of GOP ‘Anti-Riot’ Laws, ABC
NEWS (Apr. 29, 2021, 9:07 PM), https://abcnews.go.com/Politics/george-floyd-protests-trig-
ger-wave-gop-anti-riot/story?id=77365229 [https://perma.cc/P39C-TBLE]; Crimes and Pun-
ishments; rioting; making certain acts unlawful; codification; effective date, H.B. 1674, 2021
Leg. Sess. (Okla. 2021) (immunizing Oklahoma drivers from criminal or civil liability for the
injury or death of a protestor if “fleeing from a riot . . . under a reasonable belief that fleeing
was necessary to protect the motor vehicle operator from serious injury or death.”).
26
See Nora Benavidez, James Tager, & Andy Gottlieb, Closing Ranks: State Legislators
Deepen Assaults on the Right to Protest, PEN AM., https://pen.org/closing-ranks-state-legis
lators-deepen-assaults-on-the-right-to-protest/ [https://perma.cc/DT2Y-4FW8] (last visited
Sept. 6, 2022).
27
Id.
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2023] The Anti-“Critical Race Theory” Campaign 493

the pandemic, where Black people were three times more likely to die of
COVID-19,28 coupled with violence at the hands of police highlighted sys-
temic inequalities of Black life.29 Support for the Black Lives Matter move-
ment skyrocketed, with two-thirds of Americans expressing some form of
agreement.30
Many sectors of society responded to the growing public demand to
confront systemic racial inequality. In the private sector, companies pledged
support for the Black Lives Matter movement, donated to organizations
dedicated to addressing racial justice, and committed to fostering inclusive
working environments.31 Various companies announced intentional efforts to
increase the racial diversity of staff, leadership, and merchandise partners.32
Other companies vowed to provide anti-racism training within their work-
places.33 These efforts were not misplaced. Diverse companies have more
than double the cash flow per employee and inclusive teams perform 30
percent better in high-density environments.34 Diverse and inclusive organi-
zations have increased collaboration, innovation, and engagement.35 They
are significantly more likely to make better decisions, to bring products to
market, and to capture new markets.36
Many schools and educators responded to concerns about racial justice
by incorporating curricula, instruction, and training that addressed systemic
inequality.37 Demand for anti-racist materials, instruction, and conversations
increased, and these topics were discussed more at conferences for educa-

28
Ed Pilkington, Black Americans Dying of Covid-19 at Three Times the Rate of White
People, THE GUARDIAN (May 20, 2020, 12:50 PM), https://www.theguardian.com/world/2020/
may/20/black-americans-death-rate-covid-19-coronavirus [https://perma.cc/788T-VCMN].
29
Michelle Garcia, The Monumental Impact of George Floyd’s Death on Black America,
NBC NEWS (May 25, 2021, 10:52 AM), https://www.nbcnews.com/news/nbcblk/monumental-
impact-george-floyds-death-black-america-rcna1021 [https://perma.cc/4ZSP-VLPY].
30
Juliana Menasce Horowitz, Support for Black Lives Matter Declined After George
Floyd Protests, but has Remained Unchanged Since, PEW RSCH. CTR. (Sept. 27, 2021), https://
www.pewresearch.org/fact-tank/2021/09/27/support-for-black-lives-matter-declined-after-
george-floyd-protests-but-has-remained-unchanged-since/ [https://perma.cc/UDQ3-HFGR].
This number dropped to 55 percent by June 2020 and has remained stable since. Id.
31
Yume Murphy, One Year After #BlackoutTuesday, What Have Companies Really Done
for Racial Justice?, VOX (June 2, 2021, 8:30 AM) https://www.vox.com/the-goods/22463723/
blackout-tuesday-blm-sephora-starbucks-nike-glossier [https://perma.cc/S7U6-W98U].
32
Id.
33
Id.
34
Kellie Wong, Diversity and Inclusion in the Workplace: Benefits and Challenges,
ACHIEVERS (Sept. 14, 2020), https://www.achievers.com/blog/diversity-and-inclusion/ [https://
perma.cc/ZTN8-PRQE].
35
The Importance of Inclusion in the Workplace, KORN FERRY, https://
www.kornferry.com/insights/featured-topics/diversity-equity-inclusion/the-importance-of-in-
clusion-in-the-workplace [https://perma.cc/GCW6-DUD8] (last visited Sept. 7, 2022).
36
See id.
37
See Muñiz, supra note 3, at 6-7; Daniella Silva, Amid a racial reckoning, teachers are
reconsidering how history is taught, NBC NEWS (Aug. 8, 2020), https://www.nbcnews.com/
news/us-news/amid-racial-reckoning-teachers-are-reconsidering-how-history-taught-n1235806
[https://perma.cc/XK94-5R8A].
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494 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

tors.38 Educators created new courses focused on oppression and social jus-
tice while others intentionally incorporated BIPOC perspectives into the
curricula to reflect students’ identities.39 There was renewed debate about the
classroom materials and lesson plans from The 1619 Project, a Pulitzer Prize
winning initiative that shows the continuing legacy of slavery and traces
social inequalities in traditions and modern institutions back to slavery.40
Connecticut required high schools to provide African American Studies, La-
tino Studies, and Native American Studies in the social studies curriculum.41
Delaware required all K-12 public schools to teach a Black history curricu-
lum.42 Illinois mandated instruction on Asian American history, including
the internment of Japanese Americans.43 The California Department of Edu-
cation approved an ethnic studies curriculum that required high school stu-
dents to complete a one semester course in ethnic studies before
graduation.44 The College Board introduced an Advanced Placement African
American Studies course to earn credit at approximately 35 colleges.45
Additionally, polls indicated that the overwhelming majority of Ameri-
cans believed that schools should teach students about racism. In a 2022
study, 87 percent of parents agreed that “lessons about the history of racism
prepare children to build a better future for everyone as opposed to feeling

38
See Silva, supra note 37; see also Kara Arundel, Study: George Floyd’s murder sparked
teacher demand for anti-racist resources, K-12 DIVE (June 23, 2021), https://
www.k12dive.com/news/study-floyds-murder-sparked-teacher-demand-for-anti-racist-re-
sources/602225/ [https://perma.cc/955C-W98B]; Daylyn Gilbert, Racial Reckoning Within the
Classroom, HARV. POL. REV. (Jan. 6, 2021), https://harvardpolitics.com/racial-reckoning-class-
room/ [https://perma.cc/B49F-B664].
39
See Silva, supra note 37; see also How the Murder of George Floyd Changed K-12
Schooling: A Collection, EDUC. WK., https://www.edweek.org/leadership/how-the-murder-of-
george-floyd-changed-k-12-schooling-a-collection [https://perma.cc/UVU4-Q8AZ] (last vis-
ited Sept. 7, 2022).
40
See The 1619 Project, N.Y. TIMES MAG. (Aug. 14, 2019), https://www.nytimes.com/
interactive/2019/08/14/magazine/1619-america-slavery.html [https://perma.cc/5KV4-TC8D];
Jake Silverstein, The 1619 Project and the Long Battle Over U.S. History, N.Y. TIMES (Nov. 9,
2021), https://www.nytimes.com/2021/11/09/magazine/1619-project-us-history.html [https://
perma.cc/BB5Q-3TMT].
41
See National Education Association & the Law Firm Alliance, The Very Foundation of
Good Citizenship: The Legal and Pedagogical Case for Culturally Responsive and Racially
Inclusive Public Education for All Students, NAT’L EDUC. ASS’N (Sept. 29, 2022) https://www.
nea.org/sites/default/files/2022-09/lfaa-nea-white-paper.pdf [https://perma.cc/KME5-NANG].
42
See id.
43
See id.
44
See Lily Button, Gov. Gavin Newsom signs AB 101, requiring ethnic studies courses in
public high schools, THE DAILY CALIFORNIAN (Oct. 12, 2021), https://www.dailycal.org/2021/
10/12/newsom-signs-ab-101-requiring-ethnic-studies-in-public-high-schools/ [https://
perma.cc/2SDX-DD]; Assembly Bill No. 101, Pupil instruction: high school graduation re-
quirements: ethnic studies (Oct. 8, 2021), https://leginfo.legislature.ca.gov/faces/billTextCli-
ent.xhtml?bill_id=202120220AB101 [https://perma.cc/8Q9L-D5MV].
45
See Olivia B. Waxman, African-American History Finally Gets Its Own AP Class—And
Historians Say It’s More Important Than Ever, TIME (Sept. 1, 2022), https://time.com/
6207652/ap-african-american-history-class/ [https://perma.cc/9HTV-NCM8]].
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2023] The Anti-“Critical Race Theory” Campaign 495

that lessons about racism are harmful to children.”46 One 2021 study found
that more than 70 percent of Americans agreed that high schools should
teach the impacts of slavery (78 percent) and racism (73 percent).47 Another
2021 study concluded “[m]ore than 60 percent of American parents want
their kids to learn about the ongoing effects of slavery and racism as part of
their education.”48 Almost one in four parents believed that instruction about
racism should begin in kindergarten and a majority agreed it should start in
elementary school.49 While conservatives frame their censorship efforts as a
parents’ rights movement, these studies demonstrate that this campaign is
driven by a vocal minority.

b. Race Conscious Instruction that Preceded the 2020 Racial Reckoning

i. Instruction on Racism

Instruction about racism has always been necessary in classrooms to

accurately portray history and society and to equip students to process the
world around them. It is part of good teaching. School-aged children are able
to process discussions about race and racial discrimination. A study found
that adults typically underestimate children’s capacity to understand race by
about four and a half years.50 Pretending racism does not exist reinforces the
salience of discrimination and perpetuates bias. Instead of avoiding discus-
sions of race, children who “learn to talk about race and ethnicity construc-
tively . . . develop empathy for others, learn about new perspectives,
understand their own identity, avoid engaging in practices that reproduce
structural inequality, and even exhibit less racial bias.”51 Furthermore, “les-
sons teaching about racism, and about successful challenges to it, improve
racial attitudes among White children, allowing them to see how racism af-
fects everybody and offering a vision for addressing it,” and lead students to
value racial fairness and to engage in less stereotyping.52 Ignoring race alto-

46
See Most parents want classrooms to be places of learning, not political battlegrounds,
IPSOS (Sept. 21, 2022), https://www.ipsos.com/en-us/news-polls/most-parents-want-class-
rooms-be-places-learning-not-political-battlegrounds [https://perma.cc/NT9C-Q8K3].
47
See Reuters/Ipsos Poll: Critical Race Theory, IPSOS (July 15, 2021), https://
www.ipsos.com/en-us/news-polls/reuters-ipsos-poll-critical-race-theory-07152021 [https://
perma.cc/T5SX-REEA].
48
Erin Richards & Alia Wong, Parents want kids to learn about ongoing effects of slavery
– but not critical race theory. They’re the same thing, USA TODAY (Sept. 10, 2021), https://
www.usatoday.com/story/news/education/2021/09/10/crt-schools-education-racism-slavery-
poll/5772418001/ [https://perma.cc/7M63-HQLQU7YD-RT5W].
49
See id.
50
Jessica Sullivan, Leigh Wilton, & Evan P. Apfelbaum, Adults delay conversations about
race because they underestimate children’s processing of race, 150 J. EXPERIMENTAL PSYCH.
GEN. 395, 1 (2021) (citations omitted).
51
Id.; see also GENEVA GAY, CULTURALLY RESPONSIVE TEACHING: THEORY, RESEARCH,
AND PRACTICE 15 (2d ed. 2010).
52
Christine E. Sleeter and Miguel Zavala, What the Research Says About Ethnic Studies,
NAT’L EDUC. ASS’N https://www.nea.org/sites/default/files/2020-10/What%20the%20Research
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496 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

gether has a negative impact. “Colorblindness is associated with a greater

level of prejudice, both unconscious/implicit and conscious/explicit, and is
often used as a justification for inequality.”53
Students need to discuss racism to process current and historical events.
When I taught about the Fourteenth Amendment in Political Science class,
there was no way to accurately discuss the circumstances precipitating the
law without addressing racism and inequalities in society. Why else would a
law be passed to secure and protect the constitutional rights of Black people
if they were never subordinated? Why didn’t the Bill of Rights apply to
Black people when the country was founded? Students need context to pro-
cess current events, including racially motivated violence and the rescission
of historically afforded constitutional protections. For example, a white su-
premacist gunned down ten people and injured eleven more in a supermarket
in a Black neighborhood in Buffalo, New York because he “care[d] for the
future of the White race.”54 In the wake of this tragedy, students asked ques-
tions that would require discussion of racism.55 Erasing race and racism from
classroom discussions reduces racial violence to “bad men doing bad
things,” distorting the nature of racism as “de-institutionalized and discon-
nected from the maintenance of racial inequities in the U.S.”56 A study of
elementary and middle school textbooks underscored the need for this in-
struction, as racial violence was devoid of context for the ways social, eco-
nomic, and political systems supported racism.57
The focus on systemic, as opposed to individual, discrimination is cru-
cial. The threat motivating the anti-“critical race theory” movement is not
that a student will think one individual person who lived hundreds of years
ago was racist; it is that the student will see the current manifestations of that
racism throughout America’s institutions. The lens encouraged by the move-
ment is not race neutral, despite representations to the contrary. Their con-

%20Says%20About%20Ethnic%20Studies.pdf [https://perma.cc/577Q-5ARM] (last accessed

June 15, 2023); National Education Association & the Law Firm Alliance, supra note 41 at 15.
53
Nicholas Sorensen, Biren (Ratnesh) A. Nagda, Patricia Gurin, & Kelly E. Maxwell,
Taking a “Hands On” Approach to Diversity in Higher Education: A Critical-Dialogic Model
for Effective Intergroup Interaction, 9 ANALYSES OF SOC. ISSUES AND POL. POL’Y 3, 15 (2009)
(citations omitted).
54
Minyvonne Burke, Buffalo shooting suspect said he carried out attack ‘for the future of
the White race,’ federal complaint says, NBC NEWS (June 16, 2022), https://
www.nbcnews.com/news/us-news/buffalo-shooting-suspect-said-carried-attack-future-white-
race-federal-rcna33886 [https://perma.cc/T7AK-E92T].
55
See Mike Hixenbaugh, Laws restricting lessons on racism are making it hard for teach-
ers to discuss the massacre in Buffalo, NBC NEWS (May 18, 2022), https://
www.nbcnews.com/news/us-news/buffalo-shooting-teachers-racism-laws-rcna29500.
56
Christopher L. Busey, Kristen E. Duncan, & Tianna Dowie-Chin, Critical What What?
A Theoretical Systematic Review of 15 Years of Critical Race Theory Research in Social Stud-
ies Education, 2004-2019, REV. OF EDUC. RSCH. (July 19, 2022), https://journals.sagepub.com/
doi/abs/10.3102/00346543221105551?journalCode=Rera [https://perma.cc/D2EF-VJ7Q];
Keffrelyn D. Brown & Anthony L. Brown, Silenced Memories: An Examination of the Soci-
ocultural Knowledge on Race & Racial Violence in Official School Curriculum, EQUITY &
EXCELLENCE IN EDUC. 147 (2010).
57
See Brown et al., supra note 56, at 150.
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2023] The Anti-“Critical Race Theory” Campaign 497

cern is not that any student will feel uncomfortable discussing oppression;
BIPOC students have long felt uncomfortable about their portrayal (or lack
thereof) in educational spaces. These efforts distort, and often altogether
erase, the lived experiences of BIPOC people in an ill-conceived effort to
protect white students from guilt.
Instruction about systemic racism is fundamental for processing the
country in which we live. Today’s students will not question, as I did,
whether they will live to see a Black president or vice president, or whether
a Black woman will ever become a justice on the Supreme Court. Proclama-
tions that this country is a post-racial society have inevitably followed each
of these accomplishments. Without a doubt, representation matters. How-
ever, representation does not erase racism. The monumental presidency of
Barack Obama was followed by that of Donald Trump, who implemented
policies and made statements to denigrate Blacks, Latinx, Native Americans,
Muslims, Jews, immigrants, women, and people with disabilities.58 Students
need to understand how a Black person can hold the nation’s highest office
and simultaneously be more than three times more likely to be killed in a
police encounter.59 Without the ability to discuss racism and other systemic
inequalities, today’s students will lack the tools to dismantle these
institutions.

ii. Culturally Responsive Teaching Methods

To respond to the growing call to promote racial justice, many schools

and educators increased their reliance on culturally responsive (or relevant)
teaching, well-established pedagogical approaches identified in the 1990s.60
Instead of limiting instruction to the white male narrative, culturally respon-
sive teaching uses “the cultural knowledge, prior experiences, frames of ref-
erence, and performance styles of ethnically diverse students to make
learning encounters more relevant to and effective for them.”61 Culturally
responsive teaching prepares students to:
Reflect on one’s cultural lens; recognize and redress bias in the
system; draw on students’ culture to shape curriculum and instruc-
tion; bring real-world issues into the classroom; model high expec-

58
See David A. Graham et al., An Oral History of Trump’s Bigotry, THE ATL. (June 2019),
https://www.theatlantic.com/magazine/archive/2019/06/trump-racism-comments/588067/
[https://perma.cc/DE98-KH2X].
59
See Black people more than three times as likely as white people to be killed during a
police encounter, HARV. T.H. CHAN SCH. OF PUB. HEALTH (June 24, 2020), https://
www.hsph.harvard.edu/news/hsph-in-the-news/blacks-whites-police-deaths-disparity/ [https://
perma.cc/ZZ96-A7HN].
60
See Felicia Moore Mensah, Culturally Relevant and Culturally Responsive: Two Theo-
ries of Practice for Science Teaching, 58 SCIENCE AND CHILDREN 10 (Mar./Apr. 2021) (noting
that the terms “culturally responsive teaching” and “culturally relevant teaching” are used
interchangeably).
61
GAY, supra note 51, at 31.
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498 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

tations for all students; promote respect for student differences;

collaborate with families and the local community; [and] commu-
nicate in linguistically and responsive ways.62
Culturally responsive teaching prioritizes academic success and social
development.63 It values students’ histories while inviting them to combine
their knowledge and skills into learning.64 Student engagement and learning
improved through “a wide range of positive outcomes such as academic
achievement and persistence, improved attendance, greater interest in
school, among other outcomes.”65 Culturally responsive teaching results in
higher grade point averages, school attendance rates, standardized test
scores, and graduation rates for all students.66 Various studies found im-
proved literature, math, science, and history proficiency and engagement
when instruction was based on cultural and social experiences.67
Culturally responsive teaching cultivates a strong racial identity, which
has been linked to “higher self-esteem, academic attitudes, well-being, and
the ability to navigate discrimination.”68 Positive self-identification with an
ethnic-racial group does not require, or even encourage, hostility towards
other groups.69 To the contrary, adolescents who are secure in their ethnic-
racial identity are more interested in learning about and befriending people
of other groups.70
While culturally relevant teaching aids all students, some students are
disproportionately harmed by its exclusion. BIPOC students and students
with intersecting identities, such as social class, English proficiency, disabil-
ity status, and LGBTQ+ status especially “benefit from ‘mirrors’ that allow
them to view themselves, their experiences, and their communities in
school.”71

62
Muñiz, supra note 3, at 13.
63
See id. at 7.
64
See Mensah, supra note 60, at 12.
65
Muñiz, supra note 3, at 11.
66
See National Education Association & the Law Firm Alliance, supra note 41, at 9, 14.
67
See Summer Wood & Robin Jocius, Combatting “I Hate This Stupid Book!: Black
Males and Critical Literacy, 66 READING TEACHER 661, 664 (2013); Brittany Aronson & Jud-
son Laughter, The Theory and Practice of Culturally Relevant Education: A Synthesis of Re-
search Across Content Areas, 86 REV. OF EDUC. RSCH. 163, 188-91 (2016).
68
Muñiz, supra note 3, at 11.
69
See Saul Mcleod, Allport’s Intergroup Contact Hypothesis: Its History And Influence,
SIMPLY PSYCH. (Feb. 8, 2023), https://www.simplypsychology.org/contact-hypothesis.html
[https://perma.cc/84ZH-KCLY].
70
See Deborah Rivas-Drake, Identities Aren’t Going Away, Nor Should They, PSYCH. TO-
DAY (Mar. 17, 2019), https://www.psychologytoday.com/us/blog/american-me-american-we/
201903/identities-arent-going-away-nor-should-they [https://perma.cc/CS5H-6WFH].
71
Muñiz, supra note 3, at 11; see also Aronson & Laughter, supra note 67, at 178-96.
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2023] The Anti-“Critical Race Theory” Campaign 499

iii. Critical Race Theory

Critical race theory has been misrepresented as harmful rhetoric for stu-
dents to justify the exclusion of all race conscious instruction in schools. In
the 1980s, Kimberlé Crenshaw, Neil Gotanda, Stephanie Phillips and other
scholars built on the work of Derrick Bell and Alan Freeman in the 1970s to
center race in intellectual inquiry.72 They coined the term critical race theory,
which Crenshaw described as,
[A] way of seeing, attending to, accounting for, tracing and ana-
lyzing the ways that race is produced, the ways that racial inequal-
ity is facilitated, and the ways that our history has created these
inequalities that now can be almost effortlessly reproduced unless
we attend to the existence of these inequalities.73
Critical race theory is more than a passing reference to race, racism, or
even systemic racism. It focuses on the ways that legal rules facilitate the
social construction of race by using whiteness as a normative baseline for
colorblind analysis.74 “If one is not permitted to see the social consequences
of policies in terms of race, then the disparate racial effects of policies sim-
ply become invisible. . . . The way to end racial subordination is to end it in
fact, not to define it away.”75 Critical race theory focuses on the “decon-
struction of oppressive structures and discourses, reconstruction of human
agency, and construction of equitable and socially just relations of power.”76
Key tenets include 1) recognition that race is socially constructed, not a bio-
logical reality; 2) acknowledgement that racism is embedded in systems and
institutions that replicate racial inequality; 3) acceptance of the systemic na-
ture of racism as responsible for racial inequality instead of reducing racism
to a few bad apples; and 4) recognition of the relevance of the lived exper-
iences of people of color, including storytelling and scholarship.77 Impor-

72
Gloria Ladson-Billings, Just What Is Critical Race Theory and What’s It Doing in a
Nice Field Like Education? 11 INT’L J. OF QUALITATIVE STUD. IN EDUC. 7, 10 (1998);
Kimberlé Williams Crenshaw, The First Decade: Critical Reflections, or “A Foot in the Clos-
ing Door” 49 UCLA L. REV. 1343, 1345 (2002).
73
Race, Reform & Retrenchment Revisited, supra note 1.
74
Kimberlé Williams Crenshaw, Race Liberalism and the Deradicalization of Racial Re-
form, 130 HARV. L. REV. 2298, 2318 n. 96 (2017).
75
Peller, supra note 1.
76
Ladson-Billings, supra note 72, at 9.
77
Janel George, A Lesson on Critical Race Theory, AM. BAR ASS’N (Jan. 11, 2021), https:/
/www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-
reimagining-policing/a-lesson-on-critical-race-theory/ [https://perma.cc/JWS6-WZJB]; see
also Ladson-Billings, supra note 72, at 11-12 (enumerating the following tenets of critical race
theory: 1) exposing the various permutations of racism; 2) integrating the experience of op-
pressions through storytelling to analyze the myths, presuppositions, and received wisdoms; 3)
acknowledging the need for sweeping reforms beyond the incrementalism available under cur-
rent legal paradigms; and 4) recognizing that civil rights legislation has primarily benefitted
white people so it is more fruitful to focus on the areas where the interests of white and BIPOC
people converge.).
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500 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

tantly, critical race theorists do not “teach ‘hate’ of any social group, nor
seek to ‘divide’ Americans, nor oversimplify complex identities.”78
Per its terms, critical race theory is targeted towards higher education
and legal discourse. Discerning the limitations of civil rights approaches to
“transforming racial power in American society [is] a complex critique that
wouldn’t fit easily into a K-12 curriculum.”79
While instruction on racism, culturally relevant teaching, and critical
race theory are not interchangeable terms, squabbling over whether a lesson
is actually critical race theory misses the point. The classroom censorship
efforts to exclude “critical race theory” are not limited to the actual tenets of
the framework or to the educational settings where it is taught. The anti-
“critical race theory” movement is an unprecedented effort to remove all
discussions of race from schools.80 Characterizing the enemy as “critical
race theory” is just political propaganda designed to minimize the scope of
this attack. I do not believe that any of these instructional methods should be
excluded from all classrooms. Schools and educators at all levels should
discuss race, racism, and oppression. These are not taboo topics that warrant
banishment from classrooms altogether or restriction to the highest levels of
academic achievement.

III. THE ANTI-“C RITICAL RACE THEORY” MOVEMENT

a. Intentional misrepresentations of “critical race theory”

Momentum in the racial justice movement ignited misplaced concerns

within a vocal minority that progress towards racial justice comes at the
expense of white people and “critical race theory” became the scapegoat. At
the extreme, some believe the “great replacement” theory that BIPOC
groups “are part of a plot designed to undermine or ‘replace’ the political
power and culture of white people.”81 The perceived social threat is not only
based on the changing racial demographics; it is bolstered by the increasing
public voice of BIPOC groups in spheres of power where they were previ-

78
Polluck et al., supra note 2.
79
Peller, supra note 1.
80
See, e.g., Debra Hale-Shelton, Conway School Board Considering Frightening Policy to
Ban Teaching of Dozens of Concepts, ARKANSAS TIMES (Oct. 24, 2022), https://arktimes.com/
arkansas-blog/2022/10/24/conway-school-board-considering-frightening-policy-to-ban-teach-
ing-of-dozens-of-concepts [https://perma.cc/4HXN-Y8WA]; 5.5.2 Use or Display of Instruc-
tional Materials, https://arktimes.com/wp-content/uploads/2022/10/5.5.2-Use-Or-Display-Of-
Instructional-Materials-3.pdf [https://perma.cc/5YWT-2YH9] (Conway School Board propos-
ing the censorship of over 80 tenets of “critical race theory” in primary and secondary
schools).
81
The ‘Great Replacement’ Theory, Explained, NAT’L IMMIGR. F., https://immigra-
tionforum.org/wp-content/uploads/2021/12/Replacement-Theory-Explainer-1122.pdf [https://
perma.cc/DR4Y-WE62].
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2023] The Anti-“Critical Race Theory” Campaign 501

ously invisible, such as politics and business.82 The danger posed by adher-
ents to this principle, a vocal minority attempting to preserve the power of
white people, cannot be overstated.83
Stoking these concerns in the attack against “critical race theory” pro-
pelled independent journalist Christopher Rufo from relative obscurity to
prominence with conservatives, including engagements with the White
House, members of Congress, and governors; a senior position with the
Manhattan Institute, an influential think tank; appointment to the Board of
Trustees during a hostile takeover of a Florida liberal arts college;84 and
countless media appearances. As discussed further below, Rufo manufac-
tured the frenzy about “critical race theory” through appearances on Fox
News claiming that white people, particularly white men, were under attack
in governmental diversity trainings and, by extension, education.85 Rufo co-
opted “critical race theory” to reference any racial ideology that examined
social institutions and human psychology through the lens of race.86 He mis-
leadingly described “equity,” “social justice,” “diversity and inclusion,”
and “culturally responsive teaching” as euphemisms for “critical race the-

82
See Katheryn Russell-Brown, “The Stop WOKE Act”: H.B. 7, Race, and Florida’s 21st
Century Anti-Literacy Campaign, N.Y. UNIV. R. OF L. & SOC. CHANGE (forthcoming) (manu-
script at 14) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4219891 [https://perma.cc/
X9QL-N5MF]). Prof. Russell-Brown contends that the attack on “critical race theory” is fron-
tlash to resist “[t]he feared change. . . [stemming from] an increase in a particular racial
group’s population size, an increase in political power, an increase in their media presence, or
an increase in a racial group’s cultural relevance.” Id. at 18. Whether framed as frontlash or
backlash, the anti-“critical race theory” movement spawned from concerns about the progress
towards racial justice; see id.
83
See Monique Beals, Buffalo Shooting Pushes ‘Great Replacement Theory’ into National
Spotlight, THE HILL (May 15, 2022), https://thehill.com/policy/national-security/3489423-buf-
falo-shooting-pushes-great-replacement-theory-into-national-spotlight/ [https://perma.cc/
5WPC-FS6M] (noting that Payton Gendron cited the great replacement theory in an online
manifesto before he killed 13 people in a Buffalo, New York grocery store in an area with a
significant Black population).
84
See Press Release, Governor Ron DeSantis, Governor Ron DeSantis Appoints Six to the
New College Board of Trustees (Jan. 6, 2023), https://www.flgov.com/2023/01/06/governor-
ron-desantis-appoints-six-to-the-new-college-of-florida-board-of-trustees/ [https://perma.cc/
LS9D-RFZC].
85
See Nuclear Lab Execs Forced to Deconstruct Their “White Male Culture”: Christo-
pher Rufo on Fox News, FOX NEWS CHANNEL (Aug.14, 2020), https://video.foxnews.com/v/
6180994318001#sp=show-clips [https://perma.cc/J4TZ-NVNV] (video of Christopher Rufo
on Tucker Carlson Tonight); The Heritage Found., Critical Race Theory Has Infiltrated the
Federal Government: Christopher Rufo on Fox News, YOUTUBE (Sept. 2, 2020), https://
www.youtube.com/watch?v=RBXRdWflV7M [https://perma.cc/J4TZ-NVNV] (video of
Christopher Rufo on Tucker Carlson Tonight); see also Benjamin Wallace-Wells, How A Con-
servative Activist Invented the Conflict over Critical Race Theory, NEW YORKER (June 18,
2021), https://www.newyorker.com/news/annals-of-inquiry/how-a-conservative-activist-in-
vente.d-the-conflict-over-critical-race-theory [https://perma.cc/A2A3-GENU]; Trip Gabriel,
He Fuels the Right’s Cultural Fires in Florida, N.Y. Times (Apr. 24, 2022), https://www.ny
times.com/2022/04/24/us/politics/christopher-rufo-crt-lgbtq-florida.html [https://perma.cc/
3MTL-TA7C]; Sam Dorman, Chris Rufo calls on Trump to end critical race theory ‘cult
indoctrination’ in federal government, FOX NEWS (Sept. 1, 2020), https://www.foxnews.com/
politics/chris-rufo-race-theory-cult-federal-government [https://perma.cc/27NY-EZNC].
86
Wallace-Wells, supra note 85.
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502 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

ory,” which sought, on his telling, “race-based redistribution of wealth,

group-based rights, active discrimination, and omnipotent bureaucratic au-
thority.”87 He warned that “white fragility,” “unconscious bias,” and “white
supremacy” were terms associated with critical race theory.88 Rufo’s (inten-
tional) error was that he conflated antiracist efforts with anti-white rhetoric.
To be anti-racist or to support racial justice does not mean someone is anti-
white. He depicted “critical race theory” as a synonym for what he views as
reverse racism.89
Rufo’s use of “critical race theory” and the adoption of the term by
conservatives is a caricature of the actual definition, with intentional distor-
tions at every turn.90 He inaccurately claimed “critical race theory” teaches
that all white people are racist, even though its focus is on systemic and
institutional policies, not individual bigotry.91 “Critical race theory” was
mischaracterized as instruction to teach students to hate America, in
fabricated contrast to “patriotic” education.92 Ironically, this misrepresenta-
tion assumes that anyone who knows the truth about America’s sordid his-
tory with race would hate this country, begging the question whether Rufo
and conservatives are themselves ignorant of the history they wish to ex-

87
Christopher F. Rufo, The Courage of Our Convictions: How to Fight Critical Race
Theory, CITY J. (Apr. 22, 2021), https://www.city-journal.org/how-to-fight-critical-race-theory
[https://perma.cc/YS6S-KQSM].
88
Id. Other terms associated with “critical race theory” include “Civics; Social Emotional
Learning (SEL); Culturally responsive teaching; Abolitionist teaching; Affinity groups; Anti-
racism, Anti-bias training; Anti-blackness, Anti-meritocracy; Obtuse meritocracy; Centering or
de-centering; Collective guilt; Colorism; Conscious and unconscious bias; Critical ethnic stud-
ies; Critical pedagogy; Critical self-awareness; Critical self-reflection; Cultural appropriation/
misappropriation; Cultural awareness; Cultural competence; Cultural proficiency; Cultural rel-
evance; Cultural responsiveness; Culturally responsive practices; De-centering whiteness;
Deconstruct knowledges; Diversity focused; Diversity training; Dominant discourses; Educa-
tional justice; Equitable; Equity; Examine ‘systems;’ Free radical therapy; Free radical self/
collective care; Hegemony; Identity deconstruction; Implicit/Explicit bias; Inclusivity educa-
tion; Institutional bias; Institutional oppression; Internalized racial superiority; Internalized ra-
cism; Internalized white supremacy; Interrupting racism; Intersection; Intersectionality;
Intersectional identities; Intersectional studies; Land acknowledgment; Marginalized identities;
Marginalized/Minoritized/Under-represented communities; Microaggressions; Multicultural-
ism; Neo-segregation; Normativity; Oppressor vs. oppressed; Patriarchy; Protect vulnerable
identities; Race essentialism; Racial healing; Racialized identity; Racial justice; Racial
prejudice; Racial sensitivity training; Racial supremacy; Reflective exercises; Representation
and inclusion; Restorative justice; Restorative practices; Social justice; Spirit murdering;
Structural bias; Structural inequity; Structural racism; Systemic bias; Systemic oppression;
Systemic racism; Systems of power and oppression; Unconscious bias; White fragility; White
privilege; White social capital; White supremacy; Whiteness; [and] Woke.” See Polluck, et al.,
supra note 2, at 40-41.
89
Peller, supra note 1; Jasmine Geonzon & Madeleine Davidson, By the Numbers: A Year
of Conservative Media Fearmongering Over “Critical Race Theory,” MEDIA MATTERS FOR
AM. (Dec. 28, 2021, 9:12 AM) https://www.mediamatters.org/critical-race-theory/numbers-
year-conservative-media-fearmongering-over-critical-race-theory [https://perma.cc/J2PU-
ASDH].
90
See Polluck, et al., supra note 2, at 3.
91
Wallace-Wells, supra note 85; see Race, Reform & Retrenchment Revisited, supra note
1.
92
See Polluck et al., supra note 2, at 37.
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2023] The Anti-“Critical Race Theory” Campaign 503

clude or driven by their own abhorrence for America. Rufo exaggerated that
“critical race theory” was once limited to universities and academic journals
but now can be found throughout the government, schools, and companies.93
According to Rufo, “critical race theory” is an amorphous bogeyman pre-
sent everywhere in American society. Conservative politicians, including
former President Trump and members of his administration, adopted this
framing.94
Distorting the meaning of “critical race theory” wasn’t enough; Rufo
sought to make the term a scapegoat for all societal ills. After rejecting “po-
litical correctness,” “cancel culture,” and “woke” as terms to attack, Rufo
concluded, “‘critical race theory’ [was] the perfect villain. . . [and] a prom-
ising political weapon . . . [because] its connotations [were] all negative to
most middle-class Americans. . . and ‘critical race theory’ connote[d] hos-
tile, academic, divisive, race-obsessed, poisonous, elitist, anti-American.”95
Rufo advertised that debates over “critical race theory” allowed conserva-
tives “to politicize the bureaucracy” and “create rival power centers within
[corrupted state agencies].”96 Celebrating the success of his campaign
against “critical race theory,” Rufo wrote,
We have successfully frozen their brand—“critical race theory”—
into the public conversation and are steadily driving up negative
perceptions. We will eventually turn it toxic, as we put all of the
various cultural insanities under that brand category.97

The goal is to have the public read something crazy in the newspa-
per and immediately think “critical race theory.” We have decodi-
fied the term and will recodify it to annex the entire range of
cultural constructions that are unpopular with Americans.98

b. Censorship of discussions of race and sex discrimination in the

workplace

After they manufactured panic over the alleged indoctrination of “criti-

cal race theory” in workplaces (and later, classrooms), conservatives offered

93
See Rufo, supra note 87.
94
See President Donald Trump, Remarks at the White House Conference on American
History (Sept. 17, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-
president-trump-white-house-conference-american-history/. [https://perma.cc/97LX-N6BJ];
OMB Director of White House’s Crackdown on “Critical Race Theory,” FOX BUSINESS
(Sept.23, 2020), https://video.foxbusiness.com/v/6193906908001#sp=show-clips [https://
perma.cc/KV3T-44SX] (video of Russell Vought on Fox Business).
95
Wallace-Wells, supra note 85.
96
Id.
97
Christopher F. Rufo (@realchrisrufo), TWITTER (Mar. 15, 2021, 3:14 PM), https://twit-
ter.com/realchrisrufo/status/1371540368714428416 [https://perma.cc/N7RV-256V].
98
Christopher F. Rufo (@realchrisrufo), TWITTER (Mar. 15, 2021, 3:17 PM), https://twit-
ter.com/realchrisrufo/status/1371541044592996352 [https://perma.cc/GYF2-G6GY].
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504 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

censorship as a solution.99 Rufo leveraged Twitter and Fox News to exagger-

ate examples of “critical race theory” in the federal government, which
fabricated an urgency to justify the extraordinary censorship he sought.100 On
August 12, 2020, Rufo tweeted that executives from Sandia National Labo-
ratories, which researched and developed nuclear weapons, attended a
mandatory training called “White Men’s Caucus on Eliminating Racism, Se-
xism, and Homophobia in Organizations” to expose their white privilege
and to deconstruct white male culture.101 In reality, the program was volun-
tary and participants volunteered various assumptions about white men, but
Rufo ignored the positive terms and instead highlighted the most negative
associations.102 Additionally, he inaccurately claimed that participants were
forced “‘to write letters of apology to women and people of color’” when
they were instead asked to explain the meaning of the event.103 Rufo charac-
terized the training as a “race-segregated, taxpayer-funded session”104 and
announced a goal to “pass legislation to ‘abolish critical race theory’ in the
federal government.”105 He appeared on Fox News’ Tucker Carlson Tonight
and declared a “one man war against critical race theory.”106 Hyperbolically,
Rufo asserted that “critical race theory” had spread under the radar “like
wildfire” from schools to the federal government.107 On September 1, 2020,
Rufo appeared on Tucker Carlson Tonight again and advanced unsupported
claims that “critical race theory” infiltrated various government agencies.108
According to Rufo, a diversity trainer for the Treasury Department said in a
seminar that America was fundamentally a white supremacist country; “vir-
tually all white people [upheld] the system of racism and white superior-
ity.”109 However, the document prepared for the Treasury training did not

99
See Polluck, et al., supra note 2, at 6.
100
See Laura Meckler & Josh Dawsey, Activist Christopher Rufo Fuels GOP’s Critical
Race Theory Fight, WASHINGTON POST (June 21, 2021, 6:22 PM), https://
www.washingtonpost.com/education/2021/06/19/critical-race-theory-rufo-republicans/ [https:/
/perma.cc/823W-Z9QC].
101
Christopher F. Rufo (@realchrisrufo), TWITTER (Aug. 12, 2020, 1:40 PM), https://twit-
ter.com/realchrisrufo/status/1293603172842221570 [https://perma.cc/S9TX-H7TD]; Christo-
pher F. Rufo (@realchrisrufo), TWITTER (Aug. 12, 2020, 1:41 PM), https://twitter.com/
realchrisrufo/status/1293603545522900993 [https://perma.cc/NZ6C-B8P9].
102
Christopher F. Rufo (@realchrisrufo), TWITTER (Aug. 12, 2020, 1:43 PM), https://twit-
ter.com/realchrisrufo/status/1293604006904782849 [https://perma.cc/MP3L-HKRV]; see also
Meckler & Dawsey, supra note 100; Christopher Rufo, Nuclear Consequences, CHRISTOPHER-
RUFO.COM (Aug. 12, 2020), https://christopherrufo.com/nuclear-consequences/ [https://
perma.cc/D7VY-QF5B].
103
Meckler & Dawsey, supra note 100; see also FOX NEWS CHANNEL, Aug. 14, 2020,
supra note 85; Rufo, Nuclear Consequences, supra note 102.
104
Christopher F. Rufo (@realchrisrufo), TWITTER (Aug. 12, 2020, 1:55 PM), https://twit-
ter.com/realchrisrufo/status/1293607106822594561 [https://perma.cc/6FJ7-6SDM].
105
Christopher F. Rufo (@realchrisrufo), TWITTER (Aug. 12, 2020, 1:40 PM), https://twit-
ter.com/realchrisrufo/status/1293603172842221570 [https://perma.cc/3B7Z-7DCB].
106
FOX NEWS CHANNEL, (Aug. 14, 2020) supra note 85.
107
Id.
108
FOX NEWS CHANNEL, Sept. 1, 2020, supra note 85.
109
Id.
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2023] The Anti-“Critical Race Theory” Campaign 505

make these assertions and it did not ask [w]hite people to accept ‘their
white racial superiority.’” 110 Rufo asserted that the Federal Bureau of Inves-
tigation was holding weekly seminars on intersectionality “that reduce[d]
people to a network of racial, gender and sexual orientation identities [that]
intersect in complex ways and determine[d] whether you are an oppressor
or oppressed.”111 He added that white straight men were at the top of the
“pyramid of evil” and that people were being judged based on their group
identity.112 The training flier he posted did not support these claims.113
In response to his own spurious claims, Rufo challenged then President
Trump to unilaterally end the use of “critical race theory”:
And I’d like to make it explicit, the President or the White House,
it’s within their authority and power to immediately issue an exec-
utive order abolishing critical race theory trainings from the fed-
eral government. And I call on the President to immediately issue
this executive order and to stamp out this destructive, divisive,
pseudoscientific ideology at its root.114
The White House heeded Rufo’s call. Rufo said Mark Meadows, Presi-
dent Trump’s Chief of Staff, called the next day to share that the President
saw Rufo’s segment and instructed Meadows to take action.115 Meadows
asked Rufo to consult and Rufo flew to Washington D.C. soon after to con-
tribute to an executive order to censor federal contractors’ discussions of
“critical race theory.”116 Just three days after the Fox News segment aired,
Office of Management and Budget Director Russell Vought issued a memo-
randum directing heads of executive departments and agencies to cancel
funding for any trainings or propaganda that teach “critical race theory,”
“white privilege,” “that the United States is an inherently racist or evil
country or [sic] that any race or ethnicity is inherently racist or evil.”117
Within days, government officials began canceling events in accordance
with this directive.118
On September 22, 2020, President Trump issued Executive Order
13950, entitled “Combating Race and Sex Stereotyping,” (“EO 139950” or

110
Meckler & Dawsey, supra note 100.
111
FOX NEWS CHANNEL (Sept. 1, 2020), supra note 85.
112
Id.
113
See Meckler & Dawsey, supra note 100; Christopher Rufo, The Federal Bureau of
Intersectionality, CHRISTOPHERRUFO.COM (Oct. 6, 2021), https://christopherrufo.com/the-fed-
eral-bureau-of-intersectionality/ [https://perma.cc/TCT9-GP7R].
114
FOX NEWS CHANNEL (Sept. 1, 2020), supra note 85.
115
Wallace-Wells, supra note 85; Am. Legis. Exch. Council, Workshop: Against Critical
Theory’s Onslaught: Reclaiming Education and the American Dream, YOUTUBE (Dec. 7,
2020), https://youtu.be/yxzLohOPEr8 [https://perma.cc/3LEG-6CUZ].
116
Wallace-Wells, supra note 85; Meckler & Dawsey, supra note 100.
117
Memorandum from Russell Vought, Director of the Office of Management and Budget,
on Training in the Federal Government (Sept. 4, 2020), https://www.whitehouse.gov/wp-con-
tent/uploads/2020/09/M-20-34.pdf [https://perma.cc/856Q-VEEX].
118
Meckler & Dawsey, supra note 100.
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506 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

“the Order”).119 That the Order parroted many of Rufo’s claims should be no
surprise given Rufo assisted in drafting it.120 The Order posited that work-
place diversity trainings “perpetuate[ ] racial stereotypes and division and
can use subtle coercive pressure to ensure conformity of viewpoint.”121 Most
of the examples in the purpose section pertained to systemic racism though
the Order’s exclusions were much broader. The Order did not separately ex-
plain its prohibition on discussions of systemic sexism. It instead decried the
notion “that racial and sexual identities are more important than our com-
mon status as human beings and Americans.”122 The exclusion of discus-
sions of systemic sexism without further explanation ironically invites the
type of inquiry into the intersection of race and sex discrimination, a concept
coined as “intersectionality” by Professor Crenshaw, that the Order prohib-
ited from trainings.123
Executive Order 13950 announced a list of so-called “divisive” con-
cepts that were prohibited from instruction, training, or courses for the
United States Uniformed Services and from workplace trainings by govern-
ment contractors that “inculcate” employees.124
“Divisive concepts” means the concepts that
(1) one race or sex is inherently superior to another race or sex;
(2) the United States is fundamentally racist or sexist;
(3) an individual, by virtue of his or her race or sex, is inherently
racist, sexist, or oppressive, whether consciously or unconsciously;
(4) an individual should be discriminated against or receive adverse
treatment solely or partly because of his or her race or sex;
(5) members of one race or sex cannot and should not attempt to treat
others without respect to race or sex;
(6) an individual’s moral character is necessarily determined by his or
her race or sex;
(7) an individual, by virtue of his or her race or sex, bears responsibil-
ity for actions committed in the past by other members of the same
race or sex;
(8) any individual should feel discomfort, guilt, anguish, or any other
form of psychological distress on account of his or her race or sex;
or

119
Combatting Race and Sex Stereotyping, Exec. Order No. 13950, 85 Fed. Reg. 60683
(Sept. 22, 2020), revoked by Advancing Racial Equity and Support for Underserved Commu-
nities Through the Federal Government, Exec. Order 13985, 86 Fed. Reg. 7009 (Jan 20, 2021).
120
Wallace-Wells, supra note 85.
121
Exec. Order No. 13950, supra note 119, § 1.
122
Id.
123
See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U.
OF CHICAGO LEGAL FORUM 139 (1989).
124
Exec. Order No. 13950, supra note 119, §§ 2(a), 3, 4.
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2023] The Anti-“Critical Race Theory” Campaign 507

(9) meritocracy traits such as hard work ethic are racist or sexist, or
were created by a particular race to oppress another race.125
Executive Order 13950 also established a hotline and directed the De-
partment of Labor, through the Office of Federal Contract Compliance Pro-
grams (OFCCP), to investigate complaints.126 Noncompliance could result in
the cancellation, termination, or suspension of the contract, in whole or in
part, and the contractor could be declared ineligible for further government
contracts.127 The contractor could also be subjected to other sanctions author-
ized in Executive Order 11246, including the publication of their name or
recommendation that the Equal Employment Opportunity Commission be-
gin proceedings against the contractor under Title VII of the Civil Rights Act
of 1964.128
The Northern District of California issued a nationwide preliminary in-
junction on December 22, 2020 that enjoined the government from enforcing
EO 13950’s requirements for government contractors and federal grants.129
The court noted that EO 13950 impermissibly restricted “a federal contrac-
tor’s ability to use its own funds, to train its own employees, on matters that
potentially have nothing to do with the federal contract.”130 The Court also
held sections of the Order were so vague that it is “impossible for Plaintiffs
to determine what conduct is prohibited.”131 For example, the Order did not
define what it meant for a federal contractor to “inculcate in its employees”
the prohibited concepts or for a federal grantee to “use federal funds to ‘pro-
mote’” prohibited concepts.132
EO 13950 did not limit discussion in academic instruction if the con-
cepts were presented in an “objective manner and without endorsement.”133
In fact, the order conceded that the “divisive” concepts “may be fashionable
in the academy.”134 However, parallel efforts to censor discussions of race
and sex discrimination in classrooms were underway.

c. Federal censorship efforts to exclude race conscious instruction

before the 2020 election

The current classroom censorship movement began at the federal level

and attempted to mandate an inaccurate portrayal of America’s history with
race deemed to be patriotic by conservatives. Despite statements that stu-

125
Id. at § 2(a).
126
Id. § 4(b).
127
Id. § 4(a)(3).
128
Id.
129
Santa Cruz Lesbian and Gay Cmty. Ctr. v. Trump, 508 F.Supp.3d 521, 550 (N.D. Cal.
2020).
130
Id. at 541-42.
131
Id. at 543.
132
See id.
133
Exec. Order No. 13950, supra note 119, § 10(b).
134
Id. § 1.
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508 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

dents must learn “the history of slavery and its role and impact on the devel-
opment of our country,”135 on July 23, 2020, Senator Tom Cotton (R-
Arkansas) sponsored S. 4292, the Saving American History Act of 2020, to
prohibit the use of federal funds or professional development grants for K-12
schools or districts that taught The 1619 project.136 The bill stalled in the
Senate Committee on Health, Education, Labor, and Pensions and was rein-
troduced by seven senators in 2021.137
Despite the dearth of evidence that critical race theory is taught in pri-
mary and secondary schools, President Trump initiated efforts to defend “the
legacy of America’s founding, the virtue of America’s heroes, and the nobil-
ity of the American character.”138 He also claimed that the Smithsonian In-
stitute published “critical race theory” in a document that “alleged [sic]
concepts such as hard work, rational thinking, the nuclear family, and belief
in God were not values that unite all Americans, but were instead aspects of
‘whiteness.’” 139
On November 2, 2020, President Trump issued Executive Order 13958,
entitled “Establishing the President’s Advisory 1776 Commission” to ensure
patriotic education is “provided to the public at national parks, battlefields,
monuments, installations, landmarks, cemeteries, and other places important
to the American Revolution and the American founding. . . .”140 The Com-
mission would counter claims of systemic racism in America.141 The Com-
mission’s public report on the “core principles of America’s founding” was
widely panned by historians.142
Conservatives at all levels of government followed President Trump’s
lead and referenced “critical race theory” during speeches to engage their
audiences. Rufo spoke to two dozen members of Congress about “critical
race theory” and advised on or drafted language for more than ten bills.143
The 2020 election halted anti-“critical race theory” efforts at the federal
level.

135
Frank E. Lockwood, Bill by Sen. Tom Cotton Targets Curriculum on Slavery, ARK.
DEMOCRAT GAZETTE (July 26, 2020), https://www.arkansasonline.com/news/2020/jul/26/bill-
by-cotton-targets-curriculum-on-slavery/ [https://perma.cc/Z6GM-UVX2].
136
Press Release, Senator Tom Cotton, Cotton Bill to Defund 1619 Project Curriculum
(July 23, 2020), https://www.cotton.senate.gov/news/press-releases/cotton-bill-to-defund-
1619-project-curriculum [https://perma.cc/GNF9-SV35].
137
Id.; Press Release, Senator Tom Cotton, Cotton, McConnell, Colleagues Introduce Bill
to Defund 1619 Project Curriculum (June 14, 2021), https://www.cotton.senate.gov/news/
press-releases/cotton-mcconnell-colleagues-introduce-bill-to-defund-1619-project-curriculum
[https://perma.cc/GNF9-SV35].
138
President Donald Trump, supra note 94.
139
Id.
140
Establishing the President’s Advisory 1776 Commission, Exec. Order No. 13958, 86
Fed. Reg. 7009, § 2(c)(iv) (Jan. 20, 2021).
141
Id. §1.
142
Id.
143
Wallace-Wells, supra note 85.
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2023] The Anti-“Critical Race Theory” Campaign 509

d. State-based classroom censorship strategy after the 2020 election

Conservatives mobilized a state-based strategy to continue the attack on

“critical race theory” in schools following the 2020 election and the revoca-
tion of Executive Orders 13950 and 13958 on President Biden’s first day of
office.144 Most of the classroom censorship bills introduced across the coun-
try were based on (or directly copied from) EO 13950, federal legislation, or
model legislation written by a few conservative organizations.145 After the
2020 election, the American Legislative Exchange Council (ALEC), a con-
servative non-profit known for its closed door meetings with politicians and
its production of model legislation adopted by states, hosted a training with
the Heritage Foundation, a conservative think tank, at its annual summit to
advocate for state legislation to counter The 1619 Project and “critical race
theory” in classrooms and workplaces.146 Attendees were encouraged to de-
mand transparency for curriculum in public schools and to look out for di-
versity trainings in schools.147
The Ethics and Public Policy Center created model state-level legisla-
tion entitled The Partisanship Out of Civics Act.148 The proposed legislation
prohibited compelled “discuss[ions of] current events or widely debated
and currently controversial issues of public policy or social affairs” and re-
quired any discussions to “explore such issues from diverse and contending
perspectives.”149 In addition to banning educators from being compelled “to
affirm a belief in the so-called systemic nature of racism, or like ideas, or in
the so-called multiplicity or fluidity of gender identities, or like ideas,
against his or her sincerely held religious or philosophical convictions,” the
law would prevent instruction or training on a list of concepts that largely
mirrored those in EO 13950.150 Similarly, standards, curricula, lesson plans,
textbooks, instructional materials, or instructional practices, could not incul-

144
Exec. Order No. 13950, supra note 119; Exec. Order No. 13958, supra note 140; Max
Eden, Biden Has Embraced “Critical Race Theory”—but You Can Still Fight It, N.Y. POST
(Jan. 26, 2021), https://www.manhattan-institute.org/biden-has-embraced-critical-race-theory-
but-you-can-still-fight-it [https://perma.cc/P8BT-Q8DA].
145
PEN America, EDUCATIONAL GAG ORDERS: LEGISLATIVE RESTRICTIONS ON THE FREE-
DOM TO READ, LEARN, AND TEACH, 26, https://pen.org/report/educational-gag-orders/ [https://
perma.cc/H897-72SV].
146
American Legislative Exchange Council, Workshop: Against Critical Theory’s On-
slaught: Reclaiming Education and the American Dream, YOUTUBE at 18:40 (Dec. 7, 2020),
https://youtu.be/yxzLohOPEr8 [https://perma.cc/C4A9-3LU3]; Molly Jackman, ALEC’s Influ-
ence Over Lawmaking in State Legislatures, BROOKINGS (Dec. 6, 2013), https://
www.brookings.edu/articles/alecs-influence-over-lawmaking-in-state-legislatures/ [https://
perma.cc/8M5R-ENMJ].
147
Id.
148
Stanley Kurtz, The Partisanship Out of Civics Act, NATIONAL ASSOCIATION OF SCHOL-
ARS (Feb. 15, 2021), https://www.nas.org/blogs/article/the-partisanship-out-of-civics-act
[https://perma.cc/A5TB-LQ3S].
149
Id.
150
Id.
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510 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

cate the divisive concepts, including two specifically targeted at The 1619
Project.151
Fox News reinforced Rufo’s public persuasion campaign and resultant
hysteria by flooding its network with nonstop mentions of “critical race the-
ory.” Fox News referenced “critical race theory” more than 3,900 times in
2021.152 Rufo appeared on Fox News more than 50 times since July 2020.153
The extensive media coverage misled viewers to believe that “critical race
theory” was a widespread, urgent threat.154
Manhattan Institute, another conservative think tank, developed model
legislation for the regulation of “critical race theory” in schools in August
2021 and for transparency in school training and curriculum in December in
that same year.155 In October 2021, Rufo released a “critical race theory”
briefing book for parents and policymakers with instructions to win the so-
called “language war,” to use stories to build arguments, and to organize.156
In addition to “critical race theory” bans, Rufo pushed conservatives to
pass curriculum transparency bills. He issued a model curriculum trans-
parency policy for governors and state legislators.157 In a series of tweets,
Rufo outlined his goal for 2022: to pass curriculum transparency bills in 10
states “requiring public schools to make all teaching materials easily availa-
ble to parents via internet.”158 Rufo explained that this strategy would “bait
the Left into opposing ‘transparency,’ which [would] raise the questions:
what are they trying to hide?”159 According to Rufo, “[t]he strategy here is
to use a non-threatening, liberal value— ‘transparency’—to force ideological
actors to undergo public scrutiny. It’s a rhetorically-advantageous position
and, when enacted, will give parents a powerful check on bureaucratic
power.”160

151
Id.
152
Geonzon et al., supra note 89.
153
Id.
154
PEN America, supra note 145, at 30.
155
James Copland, How to Regulate Critical Race Theory in Schools: A Primer and
Model Legislation, MANHATTAN INSTITUTE (Aug. 2021), https://media4.manhattan-insti-
tute.org/sites/default/files/copland-crt-legislation.pdf [https://perma.cc/YJ7X-KXY9]; Chris-
topher Rufo, James R. Copland & John Ketcham, A Model for Transparency in School Training
and Curriculum, MANHATTAN INSTITUTE (Dec. 1, 2021), https://media4.manhattan-insti-
tute.org/sites/default/files/MI_rufo_copland_ketcham_model_legislation.pdf [https://perma.cc/
Y8XL-LKXP].
156
Christopher Rufo, Critical Race Theory Briefing Book, https://christopherrufo.com/crt-
briefing-book/?mc_cid=340fbeafe6&mc_eid=f645157ebf [https://perma.cc/X9YV-2XYY]
(last accessed Feb. 13, 2023); Christopher F. Rufo (@realchrisrufo), TWITTER (Oct. 18, 2021,
11:31 AM), https://twitter.com/realchrisrufo/status/1450122451073961995?lang=EN [https://
perma.cc/9QTC-AQFB].
157
Rufo et al., supra note 156.
158
Christopher F. Rufo (@realchrisrufo), TWITTER (Jan. 7, 2022, 12:56 PM), https://twit-
ter.com/realchrisrufo/status/1479512380400803843 [https://perma.cc/6RLJ-K37K].
159
Christopher F. Rufo (@realchrisrufo), TWITTER (Jan. 7, 2022, 1:13 PM), https://twit-
ter.com/realchrisrufo/status/1479516522896781312 [https://perma.cc/P5NP-L295].
160
Christopher F. Rufo (@realchrisrufo), TWITTER (Jan. 7, 2022, 1:10 PM), https://twit-
ter.com/realchrisrufo/status/1479515716822781952 [https://perma.cc/B67R-F3EL].
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2023] The Anti-“Critical Race Theory” Campaign 511

Republicans followed Rufo’s lead, especially once the campaign against

“critical race theory” mobilized voters. In a statement on the Senate floor,
Senate Minority Leader McConnell (R-Kentucky) said, “The fact that woke
bureaucrats are this terrified by transparency proves exactly, exactly why
parents deserve it.”161 Noting the political benefits associated with the re-
moval of “critical race theory” from schools, Steve Bannon, former Trump
advisor, said, “This is the Tea Party to the 10th power . . . I look at this and
say ‘Hey, this is how we are going to win.’ I see 50 [House Republican]
seats in 2022. Keep this up.”162 Rep. James Comer (R-Kentucky) said “I
think that Republicans have a great issue with education. . . . [W]e’re going
to campaign on that all through 2022, and in 2023, that’s how we’re going to
govern.”163 The gubernatorial election of Republican Glenn Youngkin in Vir-
ginia over incumbent Democrat Terry McAuliffe confirmed for many that
“critical race theory” was a winning electoral issue.164 On the campaign
trail, Youngkin promised to ban “critical race theory.”165 Recognizing that
education was a top issue for its voters, Jim Banks (R-Indiana), Chairman of
the Republican Study Committee, shared lessons learned from Virginia on
election night.166 Half of the items he listed to empower parents pertained to
“critical race theory.”167
The momentum to challenge “critical race theory” in schools continued
after the 2020 election. The first legislation to prohibit the teaching of “criti-
cal race theory” was signed in Idaho in April 2021.168 Montana, Tennessee,
and the Florida Board of Education outlawed instruction on “critical race
theory” and/or The 1619 Project shortly thereafter.169 In late May 2021, 1776
Project, a political action committee (PAC) dedicated to electing school

161
168 CONG. REC. S727 (daily ed. Feb. 16, 2022) (statement of Sen. Mitch McConnell).
162
Theodoric Meyer, Maggie Severns, Meridith McGraw, ‘The Tea Party to the 10th
Power’: Trumpworld Bets Big on Critical Race Theory, POLITICO (June 23, 2021), https://
www.politico.com/news/2021/06/23/trumpworld-critical-race-theory-495712 [https://
perma.cc/29DN-6R49].
163
Nicole Gaudino, Rep. Steve Scalise and 15 Other Republicans Lay out Their Plan to
Use Controversies Over the Teaching of Race and Gender in Schools to Beat Democrats in
2022, BUS. INSIDER (Dec. 17, 2021, 3:46 PM), https://www.businessinsider.com/republicans-
2022-elections-critical-race-theory-education-culture-wars-scalise-2021-12 [https://perma.cc/
M82H-2Y6W].
164
David Smith, How Did Republicans Turn Critical Race Theory Into a Winning Electo-
ral Issue?, THE GUARDIAN (Nov. 3, 2021, 2:28 PM), https://www.theguardian.com/us-news/
2021/nov/03/republicans-critical-race-theory-winning-electoral-issue [https://perma.cc/89AW-
78G5].
165
Memorandum from Chairman Jim Banks to the Republican Study Committee (Nov. 2,
2021), https://banks.house.gov/uploadedfiles/final_virginia.pdf [https://perma.cc/ULY7-
Y8PA].
166
Id.
167
Id.
168
H.B. 377, 66 Leg. 1st Reg. Sess. (Idaho 2021).
169
Press Release, Austin Knudsen, Montana Attorney General, Attorney General Knudson
Issues Binding Opinion on Critical Race Theory (May 27, 2021), https://dojmt.gov/attorney-
general-knudsen-issues-binding-opinion-on-critical-race-theory/ [https://perma.cc/5ULV-
5NPX]; S.B. 623, 2021 Leg. Sess. (Tenn. 2021); FLORIDA ADMIN. CODE r. 6A-1.094124
(2021).
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512 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

board members who would abolish “critical race theory” and The 1619 Pro-
ject in public schools, was launched.170 Rufo reportedly “described ‘the fight
against critical theory’ as ‘the most successful counterattack against B[lack]
L[ives] M[atter] as a political movement.’”171

IV. EDUCATIONAL GAG ORDERS

a. Scope

The impact of the campaign against “critical race theory” in schools

cannot be underestimated; almost 700 efforts to exclude “critical race the-
ory” have been identified at the local, state, and federal levels.172 Almost 300
bills to restrict instruction have been introduced in 45 state legislatures since
January 2021.173 Over 25 laws were passed in 17 states.174 The classroom
censorship movement grew in 2022 with the introduction of 137 bills to
limit instruction and training in K-12 schools, higher education, and state
agencies and institutions, 250 percent higher than 2021.175 Introduction of
classroom censorship legislation continued in 2023.176
Similar to EO 13950, early legislation prohibited discussion of “divi-
sive concepts” pertaining to race and sex discrimination in classrooms.
Forty-two of the initial 54 bills restricted concepts stemming from Trump’s
executive order.177 Eleven bills specifically excluded materials from The
1619 Project and nine mentioned “critical race theory.”178 Twenty-one bills
introduced in 2021 applied to higher education, including three that became
law.179 The focus on higher education spread in 2022, with 39 percent target-
ing colleges and universities and four new laws.180 The literature, curriculum,
and historical accounts banned by these bills silenced the voices of women,
BIPOC, and LGBTQ+ people.181

170
1776 PROJECT PAC, https://1776projectpac.com/ [https://perma.cc/4R2G-U4LX] (last
visited July 1, 2022); Stef W. Kight, Scoop: New Conservative PAC Targets School Board
Elections, AXIOS (May 24, 2021), https://www.axios.com/2021/05/25/pac-critical-race-theory-
school-board-election [https://perma.cc/4PTX-EDYV].
171
Daniel Golden, It’s Making Us More Ignorant, THE ATLANTIC (Jan. 3, 2023), https://
www.theatlantic.com/ideas/archive/2023/01/ron-desantis-florida-critical-race-theory-profes
sors/672507/ [https://perma.cc/K98A-7B72].
172
UCLA School of Law Critical Race Studies, CRT Forward Tracking Project, https://
crtforward.law.ucla.edu/ [https://perma.cc/VSY3-Y8LA] (last visited Oct. 15, 2022).
173
PEN America, supra note 4.
174
PEN America, supra note 4; Young et al., supra note 5.
175
Id.
176
Id.
177
PEN America, supra note 145, at 8.
178
PEN America, supra note 145, at 9.
179
PEN America, supra note 145, at 29.
180
Young et al., supra note 5.
181
PEN America, supra note 145, at 4.
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2023] The Anti-“Critical Race Theory” Campaign 513

Educational gag orders introduced in 2022 also targeted a broader

scope of instruction than the initial legislation.182 Efforts to exclude
LGBTQ+ issues and identities from classrooms were coupled with the
movement to censor instruction or curricula that would advance racial jus-
tice.183 The classic example is Florida’s House Bill 1557, known as the
“Don’t Say Gay” law due to its prohibition on classroom instruction on sex-
ual orientation or gender identity.184 Other states, like Tennessee, required
schools to provide any curriculum involving sexual orientation or gender
identity to parents before instruction and permitted parents to opt out of
those lessons.185 Additionally, social-emotional learning, which “teaches stu-
dents how to manage their emotions, how to make good decisions, how to
collaborate and how to understand themselves and others better,”186 has also
been targeted as a “new variant of the ‘CRT-virus.’” 187 The Florida Depart-
ment of Education mentioned “the unsolicited addition of social emotional
learning” as a reason it rejected more than 40 percent of its math textbooks
in 2022 and explicitly prohibited these principles in social studies instruc-
tional materials.188
Outside of legislation, state censorship of classroom discussions contin-
ued through attorney general’s opinions, governor’s pledges, state education
rules, and executive orders.189 Conservatives pressured school boards, edu-

182
PEN America, supra note 4.
183
Id.
184
H.B. 1557, 2022 Leg. Sess. (Fla. 2022) (prohibiting instruction on sexual orientation or
gender identity from kindergarten to third grade); see H.B. 1069, Fla. 2023 Legislature (ex-
panding prohibitions classroom instruction from kindergarten to eighth grade and permitting
instruction in high school if “age appropriate”).
185
H.B. 529, 112th Leg. Sess. (Tenn. 2021).
186
Meg Anderson, How Social-Emotional Learning Became a Frontline in the Battle
Against CRT, NPR (Sept. 26, 2022), https://www.npr.org/2022/09/26/1124082878/how-social-
emotional-learning-became-a-frontline-in-the-battle-against-crt [https://perma.cc/CZR9-
UMYF].
187
Shane Harris, New Variant of the “CRT-virus”: “Social-Emotional Learning”, ASSOCI-
ATION OF MATURE AMERICANS (Apr. 5, 2022), https://amac.us/new-variant-of-the-crt-virus-so-
cial-emotional-learning/ [https://perma.cc/PWN8-TVQ8].
188
Press Release, Fla. Dep’t. of Educ., Florida Rejects Publishers’ Attempts to Indoctrinate
Students (Apr. 15, 2022), https://www.fldoe.org/newsroom/latest-news/florida-rejects-publish
ers-attempts-to-indoctrinate-students.stml [https://perma.cc/UMB4-AKWB]; Fla. Dep’t. of
Educ., Specifications for the 2022-2023 Florida Instructional Materials Adoption K-12 Social
Studies, https://www.fldoe.org/core/fileparse.php/5574/urlt/SocialStudies-IM-Spec.pdf [https:/
/perma.cc/L2DT-9BJ6] (last visited Oct. 22, 2022).
189
PEN America, supra note 145, at 26; Press Release, supra note 187; Michael Lee,
Noem Signs ‘1776 Pledge to Save Our Schools’ to Restore ‘Patriotic Education’, WASHINGTON
EXAMINER (May 4, 2021); Rule 6A-1.094124, Required Instruction Planning and Reporting,
FLA. BD. OF EDUC. (July 26, 2021), https://www.flrules.org/gateway/ruleNo.asp?id=6A-
1.094124 [https://perma.cc/H4G2-YZQN]; Exec. Order 2022-02, State of South Dakota (Apr.
5, 2022), https://governor.sd.gov/doc/GovNoem-K12CRT-EO.pdf [https://perma.cc/2EKG-
NF6M]; Ending the Use of Inherently Divisive Concepts, Including Critical Race Theory, and
Restoring Excellence in K-12 Public Education in the Commonwealth, Exec. Order 1 (2022),
Commonwealth of Virginia Office of the Governor (Jan.15, 2022), https://
www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/eo/EO-1-
Ending-the-Use-of-Inherently-Divisive-Concepts.pdf [https://perma.cc/W8WJ-28JD].
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514 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

cators, university regents, and state education agencies to censor discussions

of race and sex discrimination.190 PACs formed to elect school board officials
who support classroom censorship.191

b. Type of censorship

While educational gag orders are motivated by a common purpose, they

are not structured uniformly. PEN America, a non-profit that tracks and ana-
lyzes educational gag orders introduced across the country, identified three
ways states censor discussion of race and gender discrimination in class-
rooms: (1) prohibit all references (“inclusion”), (2) prohibit efforts to com-
pel students to believe in enumerated concepts (“compulsion”), or (3)
prohibit educators from promoting any of the enumerated concepts (“promo-
tion”).192 As discussed below, the ACLU has filed litigation challenging each
form of censorship.

i. Inclusion of prohibited concepts

In its purest form, educational gag orders altogether prohibited class-

room discussions of race and sex discrimination.193 For instance, Oklahoma’s
House Bill 1775 stated “[n]o teacher, administrator or other employee of a
school district, charter school or virtual charter school shall require or make
[the divisive concepts from EO 13950] part of a course.”194 This legislation
would prevent an educator from introducing research supporting the exis-
tence of implicit bias. In the higher education context, the law prohibited
“any mandatory gender or sexual diversity training or counseling” as well as
“[a]ny orientation or requirement that presents any form of race or sex ster-
eotyping or a bias on the basis of race or sex.”195 While most states banned
concepts listed in EO 13950, Tennessee Senate Bill 623 and House Bill 2570
restricted additional concepts from instruction, curriculum, seminars, work-
shops, trainings, or orientations.196 Seventy-seven percent of educational gag
orders banned the inclusion of concepts in 2021 but only 40 percent in
2022.197

ii. Compulsion to believe prohibited concepts

After the earliest educational gag orders, the next wave of legislation
attempted to evade constitutional challenge by technically permitting discus-

190
PEN America, supra note 145, at 5.
191
Id.
192
Young et al., supra note 5.
193
Id.
194
H.B. 1775, 2021 Leg. Sess. (Okla. 2021).
195
Id.
196
S.B. 623, supra note 169; H.B. 2670, 2022 Leg. Sess. (Tenn. 2022).
197
Young et al., supra note 5.
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2023] The Anti-“Critical Race Theory” Campaign 515

sion of these concepts but including expansive limitations on the introduc-

tion of this material. One method was to prohibit schools or educators from
requiring students to believe restricted concepts.198 This type of legislation
stated that discussion of the restricted concepts was permissible as long as
students are not required to agree with the concepts. This form of censorship
would allow an educator to teach students about implicit bias as long as
students are not required to agree that it exists. For example, New Hamp-
shire’s House Bill 2 prohibited any “pupil in public [primary or secondary]
school” from being “taught, instructed, inculcated or compelled to express
belief in, or support for” an enumerated list of concepts and announced simi-
lar restrictions on public employers.199 In practice, the level of engagement
with prohibited concepts that constitutes compulsion is unclear, so educators
continue to avoid these topics. A teacher could introduce research on im-
plicit bias, but what student activity could they assign that would not be
interpreted as compulsion? Would requiring students to argue in favor of the
concept in a classroom debate or to write an essay on the merits of the con-
cept cross the line? Prohibitions on the compulsion of concepts constituted
16 percent of educational gag orders in 2021 and 28 percent in 2022.200

iii. Promotion of Prohibited Concepts

Other educational gag orders restricted educators from promoting pro-

hibited concepts.201 This legislation would permit an educator to teach about
implicit bias as long as they did not suggest that theories supporting its exis-
tence or manifestations were valid. Florida’s Stop Wrongs to Our Kids and
Employees (“Stop W.O.K.E.”) Act bans compulsion and promotion. It pro-
hibited subjecting students at all levels of education or employees to “train-
ing or instruction that espouses, promotes, advances, inculcates, or compels”
belief in an enumerated list of restricted concepts that mirrors EO 13950.202
The Stop W.O.K.E. Act specified that the law “may not be construed to
prohibit discussion of the [restricted] concepts. . . as part of a course of
training or instruction, provided such training or instruction is given in an
objective manner without endorsement of the concepts.”203 An educator
could explain the concept of implicit bias but may not lead students to de-
duce its validity based on research. The teacher could either suggest that it
is unclear whether implicit bias exists or argue, despite research to the con-
trary, that implicit bias is not real.

198
PEN America, supra note 145, at 9.
199
H.B. 2, 2021 Leg. Sess. (N.H. 2021).
200
Young et al., supra note 5.
201
Id.
202
H.B. 7, 2022 Leg. Sess. (Fla. 2022).
203
Id.
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516 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

Other legislation required balanced teaching of “controversial” top-

ics.204 In addition to prohibiting requirements that restricted concepts were
part of a course and attempts to inculcate or adopt restricted concepts, Texas
Senate Bill 3 also mandated that instruction on “controversial issues of pub-
lic policy or social affairs” be taught “from diverse and contending perspec-
tives without giving deference to any one perspective.”205 Problematically,
the law provided no guidance on what’s considered controversial. In prac-
tice, educators could be required to share debunked information or to justify
the rhetoric of genocide. Based on this law, a school administrator in Texas
instructed educators to teach a book with opposing perspectives if they teach
a book about the Holocaust.206 In 2021, 61 percent of educational gag orders
included prohibitions on the promotion of enumerated concepts, but this
share dropped to 46 percent in 2022.207

c. Enforcement

Enforcement mechanisms for educational gag orders ranged from pun-

ishments directed to individual educators, school officials, schools and dis-
tricts. In Oklahoma, public schools could lose their accreditation status due
to failure to correct deficiencies.208 After the Oklahoma Board of Education
downgraded Tulsa Public Schools’ accreditation due to an implicit bias train-
ing for teachers, the Superintendent explained that the downgrade hampered
recruiting during a staff shortage and further demotion could lead to loss of
funding or takeover by the state.209 Non-compliance might also result in indi-
vidual penalties for Oklahoma “superintendents of schools, principals, su-
pervisors, librarians, schools, classroom teachers or other personnel,”
including suspension or revocation of the license or certificate.210 Violations
of New Hampshire’s banned concepts law may be punishable by certification
suspension or revocation.211 A substantiated violation of Florida’s Stop
W.O.K.E. Act rendered an institution in the State University System ineligi-
ble for performance funding the next fiscal year.212 Monetary fines or loss of

204
PEN America, supra note 145, at 9.
205
S.B. 3, 87th Tex. Leg. Sess. (Tex. 2021).
206
Mike Hixenbaugh and Antonia Hylton, Southlake School Leader Tells Teachers to Bal-
ance Holocaust Books with “Opposing Views,” NBC NEWS (Oct. 14, 2021), https://
www.nbcnews.com/news/us-news/southlake-texas-holocaust-books-schools-rcna2965 [https://
perma.cc/JCN-3KPM]; S.B. 3, 87th Tex. Leg. Sess. (Tex. 2021).
207
Young et al., supra note 5.
208
OKLA. ADMIN. CODE § 210:10-1-23 (2021).
209
Hannah Natanson, Clara Ence Morse, Anu Narayanswamy, & Christina Brause, An
Explosion of Culture-War Laws is Changing Schools. Here’s How, WASHINGTON POST (Oct.
18, 2022), https://www.washingtonpost.com/education/2022/10/18/education-laws-culture-
war/?s=09 [https://perma.cc/GU7F-MXXG].
210
OKLA. ADMIN. CODE § 210:10-1-23 (2021).
211
H.B. 544, 2021. N.H. Leg. Sess. (2021); N.H. CODE ADMIN. R. Ed. 511.02 (2021); see
also H.B. 2670, 2022 Leg. Sess. (Tenn. 2022)
212
H.B. 7, 2022 Leg. Sess. (Fla. 2022).
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2023] The Anti-“Critical Race Theory” Campaign 517

state funding was included as a punishment in 26 percent of 2021 and 2022

classroom censorship bills.213 Professional discipline was a punishment in 15
percent of 2021 classroom censorship bills and 22 percent of 2022
counterparts.214
Various educational gag orders created private rights of action for stu-
dents, parents, and even unrelated parties to sue schools for violations and
authorized suits by attorney general or county attorney.215 This approach,
borrowed from state legislation that authorizes suits against medical provid-
ers, and even drivers, who facilitate abortion or trans care, has never been
utilized in education.216 Civil suits rose in popularity as a penalty, from 19
percent in 2021 classroom censorship bills to 35 percent in 2022.217 On the
whole, the bills introduced in 2022 were more punitive than the 2021 legisla-
tion, with higher fines, escalated professional discipline, and broader stand-
ing for civil suits.218 In addition to the aforementioned punishments, some
unsuccessful 2022 bills even proposed criminal charges for
noncompliance.219
A number of so-called transparency bills were introduced after the edu-
cational gag orders to police educators for compliance by requiring class-
room materials to be posted online.220 These bills generally required
educators to post curricula and instructional materials.221 Some bills went
even further and would allow parents to opt out of lessons or assignments.222
Several bills were introduced to monitor teachers, under the guise of trans-
parency. Indiana House Bill 1231 proposed requiring “each school corpora-
tion or applicable school to adopt a policy to allow a taxpayer to observe
classroom instruction at any time requested by the taxpayer.”223 At least four
states allowed or required video cameras in classrooms, but these laws were

213
Young et al., supra note 5.
214
Id.
215
PEN America, supra note 145, at 47; H.B. 2, 2021 Leg. (N.H. 2021).
216
S.B. 8, 87th Leg. Sess. (Tex. 2021); TEX. HEALTH AND SAFETY CODE § 171.001 (2021);
H.B. 1570, 93rd Gen. Assemb., Reg. Sess. (Ark. 2021).
217
Young et al., supra note 5.
218
Id.
219
Id.
220
Breccan F. Thies, 2022: Republicans Across America Push For Classroom Trans-
parency, Democrats Try to Keep Parents in the Dark, BREITBART (Feb. 23, 2022), https://
www.breitbart.com/politics/2022/02/23/2022-republicans-across-america-push-for-classroom-
transparency-democrats-try-to-keep-parents-in-the-dark/ [https://perma.cc/C69H-SG38].
221
Dale Chu, The Curriculum Transparency Trap, THOMAS B. FORDHAM INSTITUTE (Feb.
2, 2022) https://fordhaminstitute.org/national/commentary/curriculum-transparency-trap
[https://perma.cc/B84Q-G8ZL].
222
Id.; see also Claudette Riley, Critical Race Theory Opponents Back Classroom Cam-
eras, School Choice, Attendance Strikes, SPRINGFIELD NEWS-LEADER (July 28, 2021), https://
www.news-leader.com/story/news/education/2021/07/28/critical-race-theory-opponents-urge-
springfield-missouri-parents-fight-back-classroom-cameras-school/8074174002/ [https://
perma.cc/86QL-H6VJ].
223
H.B. 1231, 2022 Leg. Reg. Sess. (Ind. 2022).
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typically limited to the special education context.224 The expanded focus of

these efforts to include general education classrooms in the context of cen-
sorship is clear: intimidation of educators. A Mississippi bill that would re-
quire cameras in classrooms was introduced to “hold[ ] teachers
accountable” for teaching “critical race theory.”225 A Florida bill would re-
quire educators to wear microphones and classrooms to be livestreamed or
recorded for review and objections from parents.226 They are thinly veiled
efforts to further the chilling effect of the educational gag orders.227

d. Resultant culture of fear & intimidation

Once described as the “marketplace of ideas,” schools have become

instructional minefields due to the hysteria around “critical race theory.”228
A Texas study of classroom censorship laws found that they resulted in
“weakened quality curriculum; lower teacher, staff, and student morale; lim-
ited real-world learning and leadership opportunities for students; and threats
to students’ civil rights and safe school climates.”229 More than half of edu-
cators surveyed restricted discussions, curriculum, or content as a result of
the laws, despite a desire from students to learn about censored topics.230
“[N]early two thirds [of educators surveyed] said their students specifically
request lessons on race, history, current events and forms of discrimination
that they have experienced.”231 More than half of educators reported that the
laws negatively impacted their relationships with students, parents, or col-
leagues, and described feeling “pervasive fear,” “judgment and distrust,”

224
Joe Kelley, Texas, Georgia, Louisiana All Approve Installation of Cameras in Public
School Classrooms, NEWSBREAK (Aug. 24, 2021), https://www.newsbreak.com/news/23506
56047850/texas-georgia-louisiana-all-approve-installation-of-cameras-in-public-school-class-
rooms [https://perma.cc/5NGL-GHEU]; Barnini Chakraborty, Parents and Teachers at Odds
Over Push for Cameras in Classrooms, WASHINGTON EXAMINER (Aug. 23, 2021), https://
www.washingtonexaminer.com/news/parents-teachers-at-odds-push-cameras-classrooms
[https://perma.cc/4P3K-49MM]; H.B. 614, 2016 Leg. Sess. (Ga. 2016); S.B. 261, 2022 Leg.
Sess. (W.V. 2022); TEX. ED. CODE § 29.022; S.B. 86, 2021 Leg. Sess. (La. 2021).
225
J.T. Mitchell, Mississippi representative wants cameras in public school classrooms,
SUPER TALK MISSISSIPPI MEDIA (Jan. 17, 2022), https://www.supertalk.fm/mississippi-repre
sentative-wants-cameras-in-public-school-classrooms/ [https://perma.cc/77XU-UD9T].
226
H.B. 1055, 2022 Leg. Sess. (Fla. 2022).
227
The ACLU strongly supports transparency from government bodies but no student or
teacher should be placed under nonstop surveillance. Examining teachers under a microscope
to “catch” them violating laws inevitably chills speech.
228
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969) (quoting
Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
229
Intercultural Development Research Association, IDRA Presents Preliminary Findings
Showing Negative Impact of Classroom Censorship, IDRA (Aug. 19, 2022), https://
www.idra.org/resource-center/17-states-have-classroom-censorship-policies/ [https://
perma.cc/48KT-386E].
230
Intercultural Development Research Association, Recent State Policy on Curriculum
Leads to Classroom Censorship in Schools (July 26, 2022), https://www.idra.org/wp-content/
uploads/2022/07/7.26.22-Testimony-Monitoring-SB3-Interim-Charge.pdf [https://perma.cc/
TT7S-MEMY].
231
Id.
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2023] The Anti-“Critical Race Theory” Campaign 519

and a “chilling effect” on teaching.232 Educators and students also stated that
they felt less safe in schools, as they did not feel comfortable reporting dis-
crimination in schools or discussing racially motivated violence in society.233
In another study of almost 300 educators across the country, educators,
particularly educators of color, described “hostile environments for discuss-
ing issues of race and racial inequality and more broadly, diversity, equity,
and inclusion” (DEI) due to subgroups of vocal parents and politicians.234
Educators faced constant surveillance, scrutiny and second-guessing.235 They
“preventatively delet[ed] topics from classrooms or trainings to avoid con-
flict.”236 They were pressured to stop their DEI efforts.237 They felt “terrified,
confused and/or demoralized.”238
The threat against educators isn’t imagined; conservatives unleashed a
campaign of terror in the name of “critical race theory.” Various states es-
tablished websites or hotlines to report educators.239 Moms for Liberty New
Hampshire offered a $500 bounty for the first person who caught a public
school teacher breaking the law prohibiting instruction on “critical race the-
ory.”240 Anxious about violations of the law (and wrongful accusations), ed-
ucators censored themselves, avoiding topics involving racism or sexism,
even if they were not prohibited by the law, solidifying the chilling effect of
these laws.
Furthermore, the quest to eradicate “critical race theory” has prompted
a resurgence of McCarthy era book bans extending far beyond books that
address issues of race. According to the American Library Association, there
were more than 330 book challenges in the fall of 2021, double the chal-
lenges in all of 2020.241 In 2022, bills were introduced to exclude books that
address LGBTQ+ issues or identities and to penalize access to materials that
referenced sex or sexuality.242 A Texas state representative requested that the
Texas Education Agency ban 850 books due to their perceived focus on race

232
Id.
233
Id.
234
Polluck et al., supra note 2, at 11, 54.
235
Id. at 8.
236
Id. at 12; Olivia B. Waxman, Anti-‘Critical Race Theory’ Laws Are Working. Teachers
Are Thinking Twice About How They Talk About Race, TIME (June 30, 2022), https://
time.com/6192708/critical-race-theory-teachers-racism/ [https://perma.cc/HZ25-THFM].
237
Polluck et al., supra note 2, at 8.
238
Id.
239
Young et al., supra note 5 (noting a tipline for classroom censorship violations in West
Virginia and Virginia and similar proposals in Alaska, New Jersey, and Oklahoma).
240
Moms for Liberty NH (@Moms4LibertyNH), TWITTER (Nov. 12, 2021, 9:28 AM),
https://twitter.com/Moms4LibertyNH/status/1459166253084467205 [https://perma.cc/2Z4L-
DF99].
241
Josh Moody, How K-12 Book Bans Affect Higher Education, INSIDE HIGHER ED (Feb.
10, 2022), https://www.insidehighered.com/news/2022/02/10/how-k-12-book-bans-affect-
higher-education [https://perma.cc/Y59U-MTWS].
242
Young & Friedman, supra note 5; S.B. 1142, 2022 Leg. Sess. (Okla. 2022); S.B. 1654,
2022 Leg. Sess. (Okla. 2022).
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520 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

and sexuality.243 Foundational instructional materials like Harper Lee’s To

Kill A Mockingbird, Alice Walker’s The Color Purple, or Toni Morrison’s
The Bluest Eye have been targeted as well as recently added culturally rele-
vant texts.244 Book bans disproportionately excluded marginalized and un-
derrepresented people, such as BIPOC, women, and LGBTQ+ authors.245
Educational gag orders also produced a culture of fear and intimidation
in higher education. Educators were forced to decide to censor discussions
of racism and sexism in their classroom instruction, exams, and/or research
or to decline to offer courses altogether.246 Reducing the number of race-
related courses offered may dissuade students from studying these academic
programs, “delegitimize race scholarship and race scholars,” and “en-
courage skepticism of work done by scholars with race-related expertise. . .
[by classifying] race scholarship as racist, biased, and as a form of indoctri-
nation.”247 The impact will be felt most acutely by faculty without tenure and
“faculty of color who are disproportionately engaged in race-related scholar-
ship and teaching” and may trigger academic flight from states with educa-
tional gag orders.248 Students, particularly those majoring in social sciences,
reported concerns that they will not learn the full scope of information nec-
essary for their career because educators will avoid topics that could violate
the law, even when widely accepted in their discipline.249
The impact of educational gag orders in higher education was not lim-
ited to classroom instruction. As a result of these laws, colleges and univer-
sities cancelled or modified mandatory diversity and sexual harassment
trainings for students.250 In Florida, the educational gag order laid the
groundwork for Gov. Ron DeSantis’ plan to block all funding for DEI initia-
tives in higher education.251

243
Brian Lopez, Texas House committee to investigate school districts’ books on race and
sexuality, THE TEXAS TRIBUNE (Oct. 26, 2021), https://www.texastribune.org/2021/10/26/
texas-school-books-race-sexuality/ [https://perma.cc/F2RJ-Z8JM].
244
Kate Cray, The Books Briefing: The Fight Over What Kids Can Read, THE ATLANTIC
(Apr. 8, 2022), https://www.theatlantic.com/books/archive/2022/04/banned-books-critical-
race-theory-1619-project/620394/ [https://perma.cc/3FSA-UMMF]; Moody, supra note 240.
245
Id.
246
Russell-Brown, supra note 82, at 32; Declaration of University of Oklahoma Chapter
of American Association of University Professors at ¶ 14, Black Emergency Response Team v.
O’Connor, No. 5:21-cv-01022 (W.D. Okla. Oct. 29, 2021).
247
Russell-Brown, supra note 82, at 32-33.
248
Id. at 33; Declaration of University of Oklahoma Chapter of American Association of
University Professors at ¶ 14, Black Emergency Response Team v. O’Connor, No. 5:21-cv-
01022 (W.D. Okla. Oct. 29, 2021).
249
Declaration of Black Emergency Response Team at ¶ 13, Black Emergency Response
Team v. O’Connor, No. 5:21-cv-01022 (W.D. Okla. Oct. 29, 2021).
250
H.B. 1775, 2021 Leg. Sess. (Okla. 2021); Ian Richardson, Iowa Gov. Kim Reynolds
signs law targeting critical race theory, says she’s against ‘discriminatory indoctrination,’ DES
MOINES REGISTER (June 9, 2021) https://www.desmoinesregister.com/story/news/politics/
2021/06/08/governor-kim-reynolds-signs-law-targeting-critical-race-theory-iowa-schools-di-
versity-training/7489896002/ [https://perma.cc/CW8R-WJEX].
251
Andrea Chu, DeSantis unveils higher education plan to remove ‘indoctrination’ from
state universities, WTSP (Jan. 31, 2023), https://www.wtsp.com/article/news/politics/desantis-
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2023] The Anti-“Critical Race Theory” Campaign 521

Teaching informed my perspective on the remarkable threat these cen-

sorship efforts pose and motivated my desire to utilize my legal skills as a
racial justice attorney to challenge educational gag orders. The next section
of this article pivots from the details of the classroom censorship campaign
to litigation as a method to counter it.

V. LITIGATION CHALLENGING EDUCATIONAL GAG ORDERS

I am a member of the team of racial justice and First Amendment attor-

neys at the ACLU that leads litigation and investigations to challenge educa-
tional gag orders around the country. Our team filed the first challenge in the
country to an educational gag order in Oklahoma with the ACLU of
Oklahoma, Lawyers’ Committee for Civil Rights Under Law, and Schulte,
Roth & Zabel LLP.252 The team also filed a challenge to the higher education
provisions of Florida’s Stop W.O.K.E. Act with the ACLU of Florida,
NAACP Legal Defense Fund, and Ballard Spahr.253 Finally, the team serves
as co-counsel in a consolidated New Hampshire challenge brought by the
ACLU of New Hampshire, the National Education Association and the
American Federation of Teachers, the two largest teachers unions, and a
number of other organizations.254 We worked in partnership with coalitions
of national and state organizations engaged in or considering similar litiga-
tion, which were invaluable resources to track developments across the
country, discuss arguments and obstacles to litigation, ensure consistent
framing, and coordinate efforts.
Litigation is an important tool but only one strategy to counter class-
room censorship; policy, organizing, advocacy, and public education efforts
also play integral roles. Because I am currently litigating challenges to edu-
cational gag orders, I will share the lessons learned from this method and
explain the legal claims we have brought.

university-college-plan-woke-indoctrination/67-2a4fbf3c-32c9-44bb-a23e-daa1e0eb495b
[https://perma.cc/UB89-4F85]; S.B. 266, Higher Education, 2023 Fla. Leg. Session (Fla.
2023).
252
Black Emergency Response Team, No. 5:21-cv-01022 (W.D. Okla. filed Oct. 19,
2021); Press release, ACLU, ACLU of Oklahoma, Lawyers Committee File Lawsuit Challeng-
ing Oklahoma Classroom Censorship Bill Banning Race and Gender Discourse (Oct. 19,
2021, 11:30 AM), https://www.aclu.org/press-releases/aclu-aclu-oklahoma-lawyers-commit-
tee-file-lawsuit-challenging-oklahoma-classroom [https://perma.cc/FT7P-R3FL].
253
Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. filed Aug. 18, 2022);
Press Release, ACLU, Florida Educators and Students File Lawsuit Challenging “Stop
W.O.K.E.” Censorship Law (Aug. 18, 2022, 9:15 AM), https://www.aclu.org/press-releases/
florida-educators-and-students-file-lawsuit-challenging-stop-woke-censorship-law?redirect=
press-releases/florida-educators-and-students-file-lawsuit-challenging-stop-woke-censorship-
bill. [https://perma.cc/X96MN6C3]. The case name was subsequently amended to Pernell v.
Lamb.
254
Mejia v. Edelblut, No. 1: 21-cv-01077 (D.N.H. filed Dec. 20, 2021); Ethan Dewitt,
ACLU Joins NEA to File Second Lawsuit Against ‘Divisive Concepts’ Law, N.H. BULLETIN
(Dec. 20, 2021, 2:10 PM), https://newhampshirebulletin.com/briefs/aclu-joins-nea-to-file-sec-
ond-lawsuit-against-divisive-concepts-law/ [https://perma.cc/X5P5-52SD]. Mejia was consol-
idated with another challenge: Local 8027 v. Edulbut, No. 21-CV-01077 (D.N.H.).
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522 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

a. Lessons learned

i. Racial justice context

Centering racial justice within the classroom censorship litigation is

crucial. We described local or statewide racial justice efforts.255 We also in-
corporated statements from government officials about the speech and social
progress they hoped to thwart with the legislation to contextualize claims as
backlash to advances towards racial justice and the racial reckoning of
2020.256 Litigation presents an opportunity to uplift the narratives of a di-
verse group of plaintiffs who have experienced the harm disproportionately
inflicted on marginalized groups.
Proponents of educational gag orders misleadingly use terms and
phrases commonly associated with anti-discrimination laws and concepts
historically supported by civil rights advocates to effectuate their discrimina-
tory goals.257 The context for this censorship has been intentionally misrepre-
sented by conservatives as an effort to protect students and their First
Amendment rights amidst a cultural debate. For example, Florida’s Stop
W.O.K.E. Act redefined discrimination to include the promotion or compul-
sion of the prohibited concepts. The State claimed its censorious legislation
was merely an extension of federal anti-discrimination law, which has been
found not to violate the First Amendment.258 Noting that federal anti-dis-
crimination law regulates conduct while the educational gag order regulated
speech, the court said, “Defendants try to dress up the State of Florida’s
interest as a public employer and educator as prohibiting discrimination in
university classrooms, but this does not give Defendants a safe harbor in
which to enforce viewpoint-based restrictions targeting protected speech.”259

ii. Impact on students

Our litigation highlighted the effect on students as a central theme. Ed-

ucation should serve the best interests of students; it should not sway dra-
matically from election to election. Instead, politically motivated censorship
deprives students of an accurate, comprehensive education, critical thinking
skills, and social development opportunities. Because the political posturing
about educational gag orders debates ideology, litigation should re-center the

255
Amended Complaint, Black Emergency Response Team, No. 5:21-cv-01022, (W.D.
Okla. Nov. 9, 2021); Amended Complaint, Pernell, No. 4:22-cv-304 (N.D. Fla. Dec. 9, 2022).
256
Id.
257
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 41, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
258
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 97-
98, Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022); Transcript of Preliminary Injunction
Proceedings at 89:18-90:5, Pernell, No. 4:22-cv-304 (N.D. Fla. Oct. 13, 2022).
259
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 97-
99, Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
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2023] The Anti-“Critical Race Theory” Campaign 523

focus on students. The risk educational gag orders pose to students cannot be
overemphasized, as they attend school for limited periods of time and may
never learn the information denied to them by the classroom censorship
movement.

iii. Individual consideration of each educational gag order & its

impact

Classroom censorship measures often share core motivations, but there

is no universal litigation strategy because all educational gag orders are not
equal. The impact of educational gag orders must be assessed through the
plain text of the legislation and consideration of its impact, through outreach
to educators and students.
The ACLU classroom censorship litigation team works with co-counsel
to conduct extensive investigations before filing litigation to ensure chal-
lenges accurately reflect the experience of educators and students. During
the investigation phase, the role of the lawyers is to listen in order to identify
the various impacts of the classroom censorship measure. In the challenge to
Florida’s Stop W.O.K.E. Act, we represented individual professors and one
student. In the litigation involving Oklahoma’s House Bill 1775, we repre-
sented a number of organizational plaintiffs that focused on education and/or
served BIPOC communities. These organizations were comprised of stu-
dents, educators, and/or parents in addition to individual plaintiffs. Identifi-
cation of defendants is also not a cursory exercise. At least one court parsed
the traceability and redressability factors of Article III standing finely to
dismiss defendants that lacked enforcement authority and to deny a motion
for preliminary injunction that required “multiple layers of inferences.”260
The legal claims should be based on the respective text and impact of
the educational gag orders. Section III described a range of classroom cen-
sorship that prohibits the inclusion, compulsion, and/or promotion of con-
cepts related to racial justice. Legal claims depend on the type of censorship
and the educational setting. The scope of constitutional infringement may
hinge on whether the plaintiff is an educator or student and whether they are

260
Order Granting in Part and Denying in Part Motion to Dismiss, Falls v. DeSantis, No.
4:22-cv-00166 (N.D. Fla. July 8, 2022) (dismissing claims against party that lacked “any en-
forcement authority” for educational gag order); see Order Granting in Part and Denying in
Part Motions for Preliminary Injunction at 69-85, Pernell, No. 4:22-cv-304, (N.D. Fla. Nov.
17, 2022) (finding Plaintiffs’ allegations established traceability and redressability at the mo-
tion to dismiss stage while noting a heightened burden to prove standing later in the case); see
Order Denying Preliminary Injunction in Part, Falls, No. 4:22-cv-00166 (N.D. Fla. June 27,
2022) (denying motion for preliminary injunction against Board of Education where Plaintiffs
argued that the Board of Education’s withholding of funding for classroom censorship viola-
tions would cause the school board to withhold funding or otherwise pressure teachers at those
schools); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (noting that a
plaintiff must establish “that (1) he or she has suffered an injury in fact; (2) there is a causal
connection between the injury and the conduct complained of; and (3) it is likely that the
injury will be redressed by a favorable decision.”).
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524 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

in primary, secondary, or higher education. It is imperative to distinguish the

rights asserted on behalf of, and harms experienced by, students and
educators.

iv. Importance of timing

Decisions pertaining to when to file, including whether to bring a pre-

or post-enforcement challenge, also depend on the scope and impact of the
educational gag order. Curricular changes, instructions to avoid topics or
terminology, removal of books, circumscribed standards, and any chilling
effect may begin before a law goes into effect. While pre-enforcement chal-
lenges may circumvent (or at least limit) constitutional infringement, oppo-
nents may frame the challenge as a hyperbolic characterization of the scope
of the law.261 A court may be reluctant to recognize the broad impact of
classroom censorship laws. For example, the University of Oklahoma argued
that House Bill 1775 did not impact its classroom instruction or academic
study at all, despite contradictory evidence from educators and students.262
By prioritizing post-enforcement actions to show constitutional violations in
the application of the law, advocates can demonstrate the impact of the laws.
The downside is that students and educators experience constitutional depri-
vation. Ultimately, the team filed a pre-enforcement challenge in Florida and
a post-enforcement action in Oklahoma.
Additionally, the timing of litigation within the school year could mat-
ter. Our pre-enforcement litigation filed before the school year was chal-
lenged as premature while our post-enforcement action filed after the
beginning of the school year was attacked as an impractical effort to upend
established plans for the academic year.263

b. Legal claims

Educational gag orders generally utilize vague, sweeping language and

create a larger context of intimidation to silence discussions of race and sex
discrimination in classrooms. This type of censorship runs directly counter
to the Supreme Court’s observation that, “The vigilant protection of constitu-
tional freedoms is nowhere more vital than in the community of American
schools.”264 This section highlights constitutional claims under the First and

261
See Defendants, Board of Regents for the University of Oklahoma, Michael Cawley,
Frank Keating, Phil Albert, Natalie Shirley, Eric Stevenson, Anita Holloway and Rick Nagels’,
Motion to Dismiss Plaintiffs’ Amended Complaint & Brief in Support at 6-10, Black Emer-
gency Response Team, No. 5:21-cv-01022 (W.D. Okla. Nov. 23, 2021).
262
Id. at 9.
263
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 41, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022); Defendants’ Response in Opposi-
tion to Plaintiffs’ Motion for Preliminary Injunction at 4, Black Emergency Response Team,
No. 5:21-cv-01022 (W.D. Okla. Dec. 16, 2021).
264
Shelton v. Tucker, 364 U.S. 479, 487 (1960).
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2023] The Anti-“Critical Race Theory” Campaign 525

Fourteenth Amendments brought by the ACLU classroom censorship litiga-

tion team. The list of claims is by no means exhaustive. State statutes and
constitutions may offer greater protections than federal constitutional rights.
At the time of writing, all of our classroom censorship litigation is
ongoing. Our team argued Florida’s Stop W.O.K.E. Act violated educators’
right to speak free of viewpoint-based discrimination, students’ right to learn
free of viewpoint-based discrimination, the vagueness protections of the
Fourteenth Amendment, and the Equal Protection Clause.265 We obtained a
preliminary injunction blocking the State from enforcing the higher educa-
tion provisions of the Stop W.O.K.E. Act. The order was issued on the
viewpoint-based discrimination, right to information, and vagueness
grounds.266 The State appealed the order to the Eleventh Circuit Court of
Appeals.267 In Oklahoma, the team argued that House Bill 1775 was uncon-
stitutionally vague, a violation of students’ right to receive information, an
overbroad and viewpoint-based restriction on academic freedom, and moti-
vated by a racially discriminatory purpose.268 We are awaiting orders on out-
standing motions to dismiss, for preliminary injunction, and for judgment on
the pleadings. We challenged New Hampshire’s House Bill 2 as unconstitu-
tionally vague.269 Our claims survived a motion to dismiss.

i. First Amendment Claims

Students and educators have First Amendment rights in the school envi-
ronment. “It can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate.”270 However, expression of these rights may be limited.271 Judicial in-
tervention in the public education system, particularly with the daily opera-
tion of schools, is discouraged unless basic constitutional rights are
implicated, especially free speech and inquiry.272

265
Complaint at ¶¶ 211-42, Pernell, No. 4:22-cv-304 (N.D. Fla. Aug. 18, 2022).
266
See Order Granting in Part and Denying in Part Motions for Preliminary Injunction at
130, Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022). The court issued a joint order for
Pernell and Novoa, et al. v. Diaz, et al., a case filed by the Foundation for Individual Rights
and Expression, though the cases were not consolidated. The preliminary injunction on the
right to information claim was issued in Novoa, but not Pernell, due to standing.
267
On appeal, Pernell (case no. 22-12992) was consolidated with Novoa (case no. 22-
13994).
268
Amended Complaint at ¶¶ 156-89, Black Emergency Response Team, No. 5:21-cv-
01022 (N.D. Okla. Nov. 9, 2021).
269
Complaint at ¶¶ 154-59, Mejia, No. 1: 21-cv-01077 (D. N.H Dec. 20, 2021).
270
Tinker, 393 U.S. at 506; see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266
(1988).
271
See Hazelwood Sch. Dist., 484 U.S. at 266, 271; Pickering v. Bd. of Ed. of Twp. High
Sch. Dist. 205, Will County, Illinois, 391 U.S. 563, 568 (1968) (recognizing educators cannot
“constitutionally be compelled to relinquish the First Amendment rights they would otherwise
enjoy as citizens to comment on matters of public interest in connection with the operation of
the public schools in which they work.”).
272
Epperson v. State of Ark., 393 U.S. 97, 104 (1968).
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526 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

The breadth of First Amendment protections differs for students and

educators and depends on the learning environment. It is axiomatic that local
and state authorities largely control public education.273 However, primary
and secondary educators have less control than their higher education coun-
terparts over what they teach. Students are vulnerable due to their age and
are captive audiences because school attendance is compulsory.274 School
districts and state school boards set curricular standards to ensure
consistency.275
The scope of educators’ First Amendment rights to challenge state poli-
cies has been hotly contested in our classroom censorship litigation. Nota-
bly, “a State cannot condition public employment on a basis that infringes
the employee’s constitutionally protected interest in freedom of expres-
sion.”276 The Supreme Court has wrestled with the appropriate standard to
apply when considering the First Amendment rights of educators and public
employees more broadly.
We argued that the court must balance the interests of educators and the
state when determining whether the government may “curtail the speech of
its employees” through educational gag orders.277 In Pickering v. Board of
Education of Township High School District 205, Will County, a teacher was
dismissed after he wrote a letter to a local newspaper criticizing a proposed
tax increase to build new schools.278 The Supreme Court sought to “balance
the interests of the teacher, as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.”279 The
Court first considered whether the public employee spoke pursuant to their
official duties and then whether they spoke on a matter of public concern.280
The Court also noted that the letter did not impede his “proper performance
of his daily duties in the classroom” or “interfer[e] with the regular opera-
tion of the school generally.”281 Ultimately, the Court held, “absent proof of
false statements knowingly or recklessly made by him, a teacher’s exercise
of his right to speak on issues of public importance may not furnish the basis
for his dismissal from public employment.”282 The Supreme Court clarified,
in Connick v. Myers, that the Pickering balancing test only applied to a pub-
lic employee’s speech if it pertained to “a matter of public concern [as]
determined by the content, form, and context of a given statement, as re-

273
Id. at 104.
274
Mayer v. Monroe Cnty. Comm. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007).
275
Id. at 479-80; see Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986).
276
Connick v. Myers, 461 U.S. 138, 142 (1983).
277
Lane v. Franks, 134 S. Ct. 2369, 2377 (2014).
278
Pickering v. Bd. of Ed. of Twp. High Sch. Dist, 391 U.S. 563, 563 (1968).
279
Id. at 568.
280
Id. at 563; see Garcetti v. Cebellanos, 547 U.S. 410, 418 (2006).
281
Pickering, 391 U.S. at 572-73.
282
Id. at 574.
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2023] The Anti-“Critical Race Theory” Campaign 527

vealed by the whole record.”283 Speech that “can be fairly considered as

relating to any matter of political, social, or other concern to the community,
or [sic] a subject of general interest and of value and concern to the public”
is considered a matter of public concern under Pickering-Connick.284
On the other hand, states sought to enforce educational gag orders by
arguing educators’ speech not entitled to First Amendment protection.285 In
Garcetti v. Ceballos, the Supreme Court again considered whether public
employees had a First Amendment right to speak on matters of public con-
cern.286 “The critical question under Garcetti is whether the speech at issue
is itself ordinarily within the scope of an employee’s duties, not whether it
merely concerns those duties.”287 The Court held, “when public employees
make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employee discipline.”288 The
Garcetti court expressly noted that employee-speech jurisprudence, and its
opinion, may implicate additional constitutional interests when applied to
academic scholarship or classroom instruction, but declined to decide the
applicability of that analysis.289
Disagreement about the scope of educators’ First Amendment rights has
arisen most acutely in Pernell, our challenge to the higher education provi-
sions of Florida’s Stop W.O.K.E. Act. We argued that Garcetti proscribed
the speech rights of K-12 teachers but did not apply in higher education,
where students are adults, a position adopted by various circuit courts.290
Instead, the Eleventh Circuit follows a case-by-case approach announced in
Bishop v. Aronov, a case that affirmed a university’s prohibition on a profes-
sor’s speech about religious views during his instruction on exercise physiol-
ogy.291 The Bishop court balanced,
(1) “the context,” (2) “the University’s position as a public em-
ployer which may reasonably restrict the speech rights of employ-
ees more readily than those of other persons,” specifically with

283
Connick v. Myers, 461 U.S. 131, 147-48 (1983).
284
Lane v. Franks, 134 S. Ct. 2369, 2380 (2014).
285
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 10-18, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022); De-
fendants’ Response and Objection to Plaintiffs’ Motion for Preliminary Injunction at 4, Emer-
gency Response Team v. O’Connor No. 5:21-cv-01022 (W.D. Okla. Dec. 16, 2021).
286
Garcetti v. Ceballos, 547 U.S. 410 (2006).
287
Lane, 134 S. Ct. at 2379.
288
Garcetti, 547 U.S. at 418; see Pickering, 391 U.S. at 563.
289
Garcetti, 547 U.S. at 425.
290
Plaintiffs’ Reply in Support of Their Motion for a Preliminary Injunction at 3, Pernell,
No. 4:22-cv-304 (N.D. Fla. Oct. 4, 2022); see Meriwether v. Hartop, 992 F.3d 492, 505 (6th
Cir. 2021); Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550,
564-65 (4th Cir. 2011); Demers v. Austin, 746 F.3d 402, 411-412 (9th Cir. 2014); Buchanan v.
Alexander, 919 F.3d 847, 852-53 (5th Cir. 2019) (considering the constitutionality of a univer-
sity professors’ speech under Pickering, not Garcetti).
291
926 F.2d 1066 (11th Cir. 1991).
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528 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

respect “to reasonably control[ling] the content of its curriculum,

particularly that content imparted during class time,” and (3) “the
strong predilection for academic freedom as an adjunct of the free
speech rights of the First Amendment.”292
Despite the fact that the Supreme Court reserved judgment on whether
Garcetti applied to higher education, the State of Florida astonishingly ar-
gued that all classroom instruction is government speech, so educators had
no First Amendment rights: “Where, as here, a State prescribes or restricts
the curricular instruction taught in its schools and the in-class conduct of its
educators, nothing but government speech is in play, and the First Amend-
ment has no application.”293 In support of its argument, the State of Florida
pointed to a Third Circuit opinion written by then Judge Samuel Alito con-
cluding, “a public university professor does not have a First Amendment
right to decide what will be taught in the classroom.”294
Ultimately, the district court in Pernell held Bishop was the applicable
standard in the Eleventh Circuit and declined the State’s invitation to extend
Garcetti to higher education.295 Upon balancing, the court concluded that the
First Amendment rights of educators outweighed the state’s interest in
“targeting pure expression to combat racism.”296 Eliminating educators’ First
Amendment rights under Garcetti would have authorized complete, unprece-
dented control over instruction by the State, making students vulnerable
pawns for politicians who wish to manipulate their learning.297
In addition to the question of whether educators have a First Amend-
ment right to teach the information prohibited by educational gag orders, the
proper standard for the state’s exclusion of this information has been at issue.
The Supreme Court recognized, in Hazelwood School District v. Kuhlmeier,
that student expression can be limited for “legitimate pedagogical concerns”
in primary and secondary schools.298 “It is only when the decision to censor
a. . . vehicle of student expression has no valid educational purpose that the
First Amendment is so directly and sharply implicated as to require judicial
intervention to protect students’ constitutional rights.”299 The Supreme Court
has not determined whether this standard applies at the university level as

292
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 89-
90, Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022) (quoting Bishop, 926 F.2d at 1074-75).
293
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 17, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
294
Edwards v. Calif. Univ. of Penn., 156 F.3d 488, 491 (3d Cir. 1998).
295
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 30,
Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
296
Id. at 106-07.
297
See Transcript of Merged Preliminary Injunction Proceedings at 32:12-16, Pernell, No.
4:22-cv-304, and Novoa v. Diaz, No. 4:22-cv-324 (N.D. Fla. Oct. 13, 2022), 32:12-16 (empha-
sizing that without the Pickering balancing test, adopted by Bishop, 926 F.2d at 1074-75), the
state could require professors to read from transcripts verbatim in classrooms because it would
have “absolute control” over what they say and how they say it.).
298
484 U.S. 260, 273 (1988).
299
Id. at 273.
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well.300 Educational gag orders should fail this test because they serve no
legitimate pedagogical purpose. They merely limit discussion of discrimina-
tion, censoring viewpoints the legislature disfavors, instead of preventing
actual discriminatory acts.
When considering First Amendment claims, courts are particularly con-
cerned with voluntary self-censorship of protected speech, known as “chill.”
“The threat of sanctions may deter almost as potently as the actual applica-
tion of sanctions. The danger of that chilling effect upon the exercise of vital
First Amendment rights must be guarded against by sensitive tools which
clearly inform teachers what is being proscribed.”301 The government’s bur-
den is higher because educational gag orders chilled “speech before it
happens.”302
The ACLU classroom censorship litigation team identified four ways
educational gag orders violate the First Amendment: 1) viewpoint-based re-
striction, 2) encroachment on students’ right to information, 3) infringement
upon academic freedom, and 4) overbreadth.
1. Right to be free of viewpoint-based restriction

In our classroom censorship litigation, the parties disagree over whether

educational gag orders regulate the content of courses or the viewpoints ex-
pressed therein. The state’s ability to limit speech depends on this distinction.
Content discrimination permits the State to set boundaries in a limited public
forum it created, so the State may decide to exclude discussion of certain
topics or a class of speech.303 In Rosenberger v. Rectors and Visitors of the
University of Virginia, the Supreme Court explained,
[W]hen the State is the speaker, it may make content-based
choices. When the University determines the content of the educa-
tion it provides, it is the University speaking, and [the Supreme
Court has] permitted the government to regulate the content of
what is or is not expressed when it is the speaker or when it enlists
private entities to convey its own message.304
The Court continued, “when the government appropriates public funds to
promote a particular policy of its own it is entitled to say what it wishes.”305

300
See id. n.7.
301
Keyishian v. Bd. of Regents, 385 U.S. 589, 604 (1967) (internal citations omitted); see
Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (emphasizing that uncertain meanings cause peo-
ple to “steer far wider of the unlawful zone than if the boundaries of forbidden areas are
clearly marked.”) (internal citations omitted).
302
U.S. v. Nat’l Treasury Emps. Union, 513 U.S. 454, 468 (1995).
303
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30 (1995).
304
Id. at 833.
305
Id.
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530 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

To justify content discrimination, the exclusion must serve a compelling

government interest and be narrowly tailored towards that end.306
The government may not limit speech based on the message it conveys
or target particular viewpoints on a subject; such viewpoint discrimination is
presumed to violate the First Amendment.307 While it has some discretion,
the State cannot discriminate against speech that otherwise fits within the
forum’s limitations because of its viewpoint.308 For example, a public univer-
sity can decide not to offer a course, but it cannot authorize the course then
cherry pick instruction from certain viewpoints.309 Restrictions may not be
based on the government’s hostility or favoritism towards a message.310 The
principal inquiry is “whether the government has adopted a regulation of
speech because of disagreement with the message it conveys.”311
We argued that educational gag orders are viewpoint-based restrictions,
and thus subject to heightened scrutiny, because they blatantly authorize cer-
tain viewpoints about race and sex discrimination and prohibit others. Based
on EO 13950, Oklahoma’s House Bill 1775 and Florida’s Stop W.O.K.E. Act
excluded instruction that supported the existence of systemic racism and se-
xism while permitting denials.312 For example, both acts prohibited instruc-
tion that a person “by virtue of his or her race or sex is inherently racist,
sexist, or oppressive, whether consciously or unconsciously.”313 This provi-
sion would not allow instruction on the pervasiveness of unconscious bias or
white privilege, despite decades of research support.314 It would require edu-
cators to abandon established, foundational principles in their discipline or to
inaccurately portray them as actively debated. Similarly, Florida and
Oklahoma banned instruction that “an individual, by virtue of his or her race
or sex, bears responsibility for actions committed in the past by other mem-
bers of the same race or sex.”315 While educators could not teach about the
need for affirmative action or other initiatives to remedy past racial discrimi-

306
Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).
307
Rosenberger, 515 U.S. at 828-89; see Ark. Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 230 (1987) (quoting Consol. Edison Co. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 530,
537 (1980)); Ashcroft v. ACLU, 535 U.S. 564, 573 (2002); Ashcroft v. ACLU, 542 U.S. 656,
660 (2004); R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992); Texas v. Johnson, 491 U.S. 397, 414
(1989).
308
Rosenberger, 515 U.S. at 829-30.
309
See Widmar, 454 U.S. at 277.
310
R.A.V., 505 U.S. at 386; see Rosenberger, 515 U.S. at 828.
311
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1981); see Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 763 (1994) (When determining content neutrality, courts con-
sider “whether the government has adopted a regulation of speech without reference to the
content of the regulated speech.”).
312
See H.B. 7, 2022 Leg. Sess. (Fla. 2022); H.B. 1775, 2021 Leg. Sess. (Okla. 2021).
313
H.B. 7, 2022 Leg. Sess. (Fla. 2022); H.B. 1775, 2021 Leg. Sess. (Okla. 2021).
314
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 28-
29, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. Aug. 24, 2022).
315
H.B. 1775, 2021 Leg. Sess. (Okla. 2021); H.B. 7, 2022 Leg. Sess. (Fla. 2022).
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2023] The Anti-“Critical Race Theory” Campaign 531

nation, they could condemn these measures.316 These laws forbade 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.”317 This restriction limited educators’ ability to introduce research dem-
onstrating that implicit bias is built into these concepts and the decades of
disciplinary consensus amongst academics on these topics, but would permit
an educator to teach the opposite, despite these positions being long-discred-
ited.318 Beyond the text of educational gag orders, the legislative histories
indicated an expressed intention to exclude certain types of speech support-
ing the existence of “privilege,” “oppression,” “systemic racism,” “diver-
sity,” “implicit bias,” “equity,” “white supremacy,” “whiteness,” and
“intersectionality.”319
We also argued that the very title of Florida’s censorship law, the Stop
W.O.K.E. Act, indicates its viewpoint discriminatory intention to exclude
“woke” speech, which is defined as “alert to racial or social discrimination
or injustice.”320 Silencing disfavored views about racism or sexism is cer-
tainly not a compelling governmental interest and the sweeping language of
educational gag orders to effectively exclude most, if not all, classroom dis-
cussions of race or sex is not narrowly tailored.
The State of Florida claimed the right to regulate the viewpoints on the
subject matter of courses as part of the “content of the education it pro-
vides,” consistent with Rosenberger.321 According to the State, “anything
professors utter in a state university classroom during ‘in-class instruction’ is
government speech, and thus, the government can both determine the con-
tent of that speech and prohibit the expression of certain viewpoints.”322 The
State relied on case-specific language in Bishop that the university must
have the “final say” in a disagreement with a professor about the content of

316
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 30,
Pernell, No. 4:22-cv-304 (N.D. Fla. Aug. 24, 2022).
317
H.B. 1775, 2021 Leg. Sess. (Okla. 2021); H.B. 7, 2022 Leg. Sess. (Fla. 2022).
318
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 31-
32, Pernell, Case No. 4:22-cv-304 (N.D. Fla. Aug. 24, 2022).
319
See, e.g., 2/1/22 House State Affairs Committee at 01:02:00-01:02:29.070, THE FLOR-
IDA CHANNEL (Feb. 1, 2022), https://thefloridachannel.org/videos/2-1-22-house-state-affairs-
committee [https://perma.cc/R46A-UTK7]; Amended Complaint at ¶¶ 44 n. 10, 120 n. 49,
Black Emergency Response Team v. O’Connor No. 5:21-cv-01022 (W.D. Okla. Nov. 9, 2021)
(quoting Press Release, Bill Prohibiting “Critical Race Theory” Curriculum Passes House,
Okla. H.R. (Apr. 29, 2021), https://bit.ly/3vTcDSh [https://perma.cc/CRM7-YKQP]); April
29th Okla. House Session at 12:35:59-12:36:15 PM; April 29th House Session at 12:08:20 PM
(Rep. Humphrey); Okla. S. 44, 58th Leg. 1st Reg. Sess. (April 21, 2021, 11:29:19-11:29:23
PM) (Sen. Bullard), https://oksenate.gov/live-chamber [https://perma.cc/T9XK-7BBU].
320
Woke, OXFORD ENGLISH DICTIONARY (3d ed. 2017), https://public.oed.com/appeals/
woke/ [https://perma.cc/U99P-9VWL] (last visited Jun. 14, 2023).
321
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 9, 27, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
322
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 19,
Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
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532 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

a course.323 Implicit in this argument is the assumption that all powers attrib-
uted to public universities also belong to the State, presenting a larger ques-
tion of whether courts should defer to the whims of politicians in the same
way as the judgment of educational professionals.
The district court, in Pernell, rejected the State’s attempts to conflate
viewpoint and content discrimination and clarified that viewpoint discrimi-
nation is a “more blatant” and “egregious form of discrimination.”324
Describing the Stop W.O.K.E. Act as “positively dystopian,” the court
agreed that the law was an unconstitutional viewpoint restriction: “The law
officially bans professors from expressing disfavored viewpoints in univer-
sity classrooms while permitting unfettered expression of the opposite view-
points.”325 The court emphasized that the law prevented inviting a guest
speaker to argue the merits of affirmative action in a debate, even in a law
school course.326 The law limited educators to discussing affirmative action
as a “historical fact” or to condemning it.327 While the court deferred to the
State’s “curricular decision to permit instructors to discuss these concepts in
its university classroom,” there was no authority requiring deference to the
State’s viewpoint-based restrictions.328 The court was unequivocal: “[T]he
State of Florida, as an employer and educator, cannot restrict university em-
ployees from expressing a disfavored viewpoint about a matter within the
established curriculum while instructing on that curriculum.”329
2. Right to information

According to the Supreme Court, the “right to receive information and

ideas, regardless of their social worth, is fundamental to our free society.”330
The First Amendment “rests on the assumption that the widest possible dis-
semination of information from diverse and antagonistic sources is essential
to the welfare of the public. . . .”331
Students’ right to receive information is not limited to messages that the
government approves. “In our system, students may not be regarded as
closed-circuit recipients of only that which the State chooses to communi-
cate. . . . [S]chool officials cannot suppress ‘expressions of feeling with

323
Bishop v. Aronov, 926 F.2d 1066, 1076 (11th Cir 1991).
324
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 14,
Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022) (quoting Reed v.
Town of Gilbert, 576 U.S. 155, 168 (2015)).
325
Id. at 2.
326
Id. at 9.
327
Id. at 10.
328
Id. at 95.
329
Id. at 107.
330
Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted) (citing Winters v. New
York, 333 U.S. 507, 510 (1948)); see Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 76
(1976) (Powell, J. concurring). The First Amendment protects the sender and recipient of infor-
mation; see also Bd. of Ed., Island Trees Union Free Sch. Dist. No. 26, v. Pico, 457 U.S. 853,
867 (1982).
331
Associated Press v. United States, 326 U.S. 1, 20 (1945).
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2023] The Anti-“Critical Race Theory” Campaign 533

which they do not wish to contend.’” 332 Access to ideas “prepares students
for active and effective participation in the pluralistic, often contentious so-
ciety in which they will soon be adult members.”333 While local school
boards have “significant discretion to determine the content of their school
libraries,” they cannot exercise the discretion “in a narrowly partisan or po-
litical manner.”334 In Board of Education, Island Trees Union Free School
District No. 26, v. Pico, the Supreme Court considered if suppression of
ideas was the motivation behind the removal of library books: “If petition-
ers intended by their removal decision to deny respondents access to ideas
with which petitioners disagreed, and if this intent was the decisive factor in
petitioners’ decision, then petitioners have exercised their discretion in viola-
tion of the Constitution.”335
We argued that educational gag orders violate the students’ right to in-
formation by removing topics from classroom discussion for partisan or po-
litical purposes. This effort is not driven by pedagogical concerns. To the
contrary, research showed that students perform better as a result of the in-
struction on systemic discrimination and culturally responsive teaching tech-
niques that are excluded by educational gag orders. A high school student
plaintiff in Oklahoma explained the way that House Bill 1775’s exclusion of
culturally relevant texts reduced their ability to engage and inhibited their
ability to learn: “I find it most difficult to connect with subjects and materi-
als when texts lack depth or nuance, or adequate representation of histori-
cally marginalized communities.”336 The student desired to learn about “the
histories of BIPOC communities in a more historically accurate manner
. . .[and] to learn more about systemic racism and critical race theory.”337
The student added that instruction was necessary “for all students to under-
stand that oppression is something that is experienced on a structural level,
rather than just on an individual basis, so they can begin to think critically
about how to combat it when they come across it.”338 The student noted the
importance of this instruction for high school students, writing, “we are at
the age where some of us are about to become adults and others already are,
making any effort, to shield us from critical issues impacting the ‘real
world,’ [is] infantilizing.”339 Ultimately, a court need not agree that cultur-

332
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (quoting Burnside v.
Byars, 363 F.2d 744, 749 (5th Cir. 1966).
333
Pico, 457 U.S. at 868.
334
Id. at 870; see also West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943)
(“Free public education, if faithful to the ideal of secular instruction and political neutrality,
will not be partisan or enemy of any class, creed, party, or faction.”).
335
Pico, 457 U.S. at 871 (footnote omitted).
336
Declaration of the S.L. at ¶ 6, Black Emergency Response Team v. O’Connor No. 5:21-
cv-01022 (W.D. Okla. Oct. 29, 2021).
337
Id. at ¶ 10.
338
Id. at ¶ 12.
339
Id. at ¶ 13.
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534 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

ally responsive education is desirable in order to recognize the state’s censor-

ship as unconstitutionally motivated.340
Most of the case law establishing students’ right to information pertains
to high school, but we asserted this right on behalf of higher education stu-
dents in Florida and Oklahoma because the harms of educational gag orders
were so pronounced. A higher education student plaintiff in Florida was con-
cerned that the content of her (1) Race & Minority Relations and (2) Relig-
ion, Race, & Ethnicity courses would be circumscribed as a result of the
Stop W.O.K.E. Act.341 She “fear[ed] that [her] professor[s] will not be
able to provide all of the information they have in past versions of the course
and might water down the views they express about race.”342 The plaintiff
worried that the professor would be unable to advance central concepts and
to fulfill its course objective to analyze how society was structured to benefit
or disadvantage people of a certain race or ethnicity.343 Similarly, a member
of the Black Emergency Response Team at the University of Oklahoma
(OU), an organizational plaintiff, considered transferring to out-of-state uni-
versities due to concerns about the value of social science degrees if she
could not engage meaningfully with critical race theory.344 Student plaintiffs
in Florida and Oklahoma explained that the educational gag orders would
negatively impact campus culture by reducing cultural competence, invali-
dating diverse narratives, and prompting the departure of valuable educators
who are unwilling to limit their instruction.345
The State of Florida argued students had no right to receive information
because “public university curriculum. . . is pure government speech that
does not implicate the First Amendment.”346
The Pernell court agreed that the Stop W.O.K.E. Act violated students’
right to information. It held that students had a right to receive the informa-
tion that educators had a First Amendment right to share.347 “[T]he right to
receive information comes from both the sender’s right to provide it and the
receiver’s rights under the First Amendment.”348 According to the court, the
student’s right flows from the educators’ right to provide information, it was

340
See Pico, 457 U.S. at 871.
341
Declaration of Johana Dauphin in Support of Plaintiffs’ Motion for a Preliminary In-
junction at ¶¶ 18-21, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. Aug. 24,
2022) [hereinafter Dauphin].
342
Id. at ¶ 21.
343
Id. at ¶¶ 18-21, 24.
344
Declaration of the Black Emergency Response Team at ¶¶ 16-17, Black Emergency
Response Team v. O’Connor, No. 5:21-cv-01022 (W.D. Okla. Oct. 29, 2021).
345
Id. at ¶¶ 15-18; Dauphin, supra note 341, at ¶¶ 25-26.
346
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 19-20, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
347
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 31,
Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022). The preliminary injunction issued by the
court did not include the right to information claim in Pernell because our student plaintiff’s
professors did not represent an intention to censor instruction.
348
Id.
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2023] The Anti-“Critical Race Theory” Campaign 535

not an independent right and could not exceed the educators’ right.349 Nota-
bly, the court required evidence that the educator teaching the course “will
have their speech chilled or will be forced to self-censor” instruction to es-
tablish standing.350
3. Infringement upon academic freedom

Courts recognize that colleges and universities need broad discretion

over their instruction because censorship would “cast a pall of orthodoxy
over the classroom.”351 Academic freedom, a “special concern of the First
Amendment,”352 protects the ability of a university “to make academic judg-
ments as to how to best allocate scarce resources or ‘to determine for itself
on academic grounds, who may teach, what may be taught, and who may be
admitted to study’” in higher education.353 It covers the dissemination of
ideas, even when offensive.354 Academic freedom has been widely recog-
nized but it has never proclaimed to be a stand-alone right.355
Courts consistently and passionately emphasize the importance of aca-
demic freedom in higher education.356 In Keyishian, the Supreme Court
stressed, “The Nation’s future depends on leaders trained through wide ex-
posure to that robust exchange of ideas which discovers truth ‘out of a multi-
tude of tongues, [rather] than through any kind of authoritarian
selection.’” 357 Similarly, in Sweezy v. New Hampshire, the Supreme Court
held,
The essentiality of freedom in the community of American univer-
sities is almost self-evident. No one should underestimate the vital
role in a democracy that is played by those who guide and train
our youth. To impose any strait jacket upon the intellectual leaders
in our colleges and universities would imperil the future of our
Nation. No field of education is so thoroughly comprehended by
man that new discoveries cannot yet be made.358

349
Id. at 31-32.
350
Id.
351
Keyishian v. Bd. of Regents of Univ. of New York, 385 U.S. 589, 603 (1967); see also
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978).
352
Keyishian, 385 U.S. at 603.
353
Widmar v. Vincent, 454 U.S. 263, 276 (1981) (quoting Sweezy v. New Hampshire,
354 U.S. 234, 263 (1957)).
354
See Papish v. Bd. of Curators of Univ. of Missouri, 410 U.S. 667, 670 (1973); Adler v.
Bd. of Educ. of New York, 342 U.S. 485, 508 (1952) (Douglas, J., dissenting); Wieman v.
Updegraff, 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring).
355
See Order Granting in Part and Denying in Part Motions for Preliminary Injunction at
15, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
356
See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 835
(1995).
357
Keyishian, 385 U.S. at 589, 603 (1967) (quoting United States v. Associated Press, 52
F.Supp. 362, 372 (S.D.NY. 1943)).
358
Sweezy, 354 U.S. at 250; see also Grutter v. Bollinger, 539 U.S. 306, 329 (2003).
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536 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

The Court emphasized the importance of academic freedom for the social
sciences, where it observed, “few, if any principles are accepted as abso-
lutes. . . . Teachers and students must always remain free to inquire, to study,
and to evaluate, to gain new maturity and understanding; otherwise our civi-
lization will stagnate and die.”359
Courts agree that academic freedom is essential but have been less clear
about the scope of academic freedom. While academic freedom undoubtedly
covers institutions of higher education,360 there has been less discussion of
whether individual educators can assert violations of academic freedom. In
Sweezy, the court recognized an “unquestionabl[e]” invasion of a profes-
sor’s academic freedom when he was held in contempt for refusal to answer
questions about his beliefs in Communism and a lecture he delivered to stu-
dents.361 The court also included language that suggested the academic free-
dom belonged to institutions: “[t]he essentiality of freedom in the
community of American universities is almost self-evident.”362 Justice
Frankfurter’s concurrence focused on the institutional nature of academic
freedom without expressly addressing its application to individuals.363
Academic freedom has traditionally been recognized in higher educa-
tion, not K-12 classrooms.364 States and local school boards exercise consid-
erable discretion when operating public schools by establishing curricula,
setting instructional standards, and administering exams to ensure consis-
tency of instruction. Nevertheless, schools must comply with the require-
ments of the First Amendment.365 Courts do not intervene into the daily
operation of school systems unless constitutional values are directly and
sharply implicated.366

359
Sweezy, 354 U.S. at 250.
360
The cases asserting academic freedom on behalf of colleges and universities involved
challenges to state action and did not directly address the applicability of the doctrine to indi-
vidual educators; see Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (character-
izing academic freedom as “[t]he freedom of a university to make its own judgments as to
education. . .”); Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (describing the Court’s
“reluctance to trench on the prerogatives of state and local educational institutions and [its]
responsibility to safeguard their academic freedom. . .”); Regents of Univ. of Wisconsin Sys.
v. Southworth, 529 U.S. 217, 237 (2000) (Souter, J., concurring).
361
Sweezy, 354 U.S. at 243-44, 250.
362
Id. at 250.
363
Id. at 262-67; Wieman v. Updegraff, 344 U.S. 183, 196-97 (1952) (Frankfurter, J.,
concurring).
364
Some courts have recognized academic freedom in the K-12 context as well. See Cary
v. Bd. of Ed. of Adams-Arapahoe Sch. Dist. 28-J, Aurora, Colo., 427 F. Supp. 945, 955 (D.
Colo. 1977), aff’d, 598 F.2d 535 (10th Cir. 1979); see also Keefe v. Geanakos, 418 F.2d 359
(1st Cir. 1969) (discussing the academic freedom of a K-12 teacher to assign a reading with a
controversial word); Parducci v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970) (finding infringe-
ment of K-12 teacher’s right to academic freedom).
365
Edwards v. Aguillard, 482 U.S. 578, 583 (1987) (quoting Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 507 (1969)); see Meyer v. Nebraska, 262 U.S. 390, 399-400
(1923); Epperson v. State of Ark., 393 U.S. 97, 104 (1968).
366
Epperson, 393 U.S. at 104.
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2023] The Anti-“Critical Race Theory” Campaign 537

In Oklahoma and Florida, we argued that restricted instruction in higher

education was an unconstitutional infringement on academic freedom. The
OU chapter of the American Association of University Professors, one of
our organizational plaintiffs, described that the law chilled its members from
introducing the discussions, topics, and materials that are necessary for the
full scope of their courses.367 It discouraged them from researching sexism
and racism.368 At least one educator was instructed not to test on critical race
theory and several educators changed their teaching and/or curriculum on
racism, whiteness, gender, sexuality, oppression, and colonialism to comply
with the law.369 Various educators excluded topics and texts pertaining to
these topics from the curriculum altogether.370 The intrusion of educational
gag orders into higher education classrooms unconstitutionally limited edu-
cators’ ability to fulfill their ethical obligation to teach to the standard of
their disciplines.
Despite this evidence, the State of Oklahoma argued that House Bill
1775 did not affect classroom instruction or academic study.371 Additionally,
the State maintained that academic freedom only belonged to the institution,
asserting that the university has discretion to decide “what classes it should
offer and what academic requirements it should implement.”372
Like House Bill 1775 in Oklahoma, the Stop W.O.K.E. Act compro-
mised established academic freedom principles. Professor Plaintiffs were
concerned that they could no longer teach texts or lead classroom instruction
establishing the effect of systemic racism and sexism, white supremacy, pat-
terns of discriminatory laws and practices, and the ways racism is embedded
in the criminal legal system without violating the Stop W.O.K.E. Act.373 Va-
rious professors explained that, in accordance with the foundational princi-
ples of their disciplines, they ordinarily teach concepts that directly
contravene the viewpoints in the Stop W.O.K.E. Act, including that concepts
like meritocracy, colorblindness, neutrality, and objectivity have racist or
sexist origins.374
The State of Florida proclaimed the important role of academic freedom
but attempted to undermine the impact of this principle.375 The State argued
that academic freedom is held by universities, not individuals, and that aca-

367
Declaration of the University of Oklahoma Chapter of American Association of Uni-
versity Professors at ¶¶ 9, 12-14, 16, 18, 21-22, Black Emergency Response Team v.
O’Connor, No. 5:21-cv-01022 (W.D. Okla. Oct. 29, 2021).
368
Id. at ¶ 8.
369
Id. at ¶¶ 13-14, 21.
370
Id. at ¶ 14.
371
Defendants’ Response and Objection to Plaintiffs’ Motion for Preliminary Injunction at
6, Black Emergency Response Team, No. 5:21-cv-01022 (W.D. Okla. Dec. 16, 2021).
372
Id. at 2.
373
Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 11-
14, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304, (N.D. Fla. Aug. 24, 2022).
374
Id. at 15, 25, 32-33.
375
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 14-15, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
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538 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

demic freedom only protects the autonomy of institutions of higher learning

from the judiciary, not the State.376 Under Bishop, according to the State,
educators “have no independent right of academic freedom to control curric-
ulum.”377 The State’s effort to conflate the powers of the university with
those of the State continued here. The State argued that Bishop’s case-spe-
cific pronouncement that educators always lose in disputes with the univer-
sity about the content of curriculum or courses means educators cannot win
a disagreement against the State.378
The Pernell court rejected the State of Florida’s attempts to minimize
academic freedom. Noting the irony of the State’s position, the court de-
clared “under this Act, professors enjoy ‘academic freedom’ so long as they
express only those viewpoints of which the State approves.”379 The court
considered the interest in academic freedom to be “of the highest degree”
because educators sought to avoid orthodoxy of viewpoints imposed by the
State, unlike the professor’s interest in Bishop.380 The court clarified that,
while a weighty consideration in the Bishop balancing, academic freedom is
not an independent First Amendment right in the Eleventh Circuit.381
4. Overbreadth

An educational gag order may be invalidated as overbroad under the

First Amendment “if a substantial number of its applications are unconstitu-
tional, judged in relation to [its] plainly legitimate sweep.”382 As an initial
matter, courts consider whether the statute covers constitutionally protected
speech and/or conduct.383 Next, courts carefully consider the substantiality of
the overbreadth, especially when conduct, not just speech, was implicated.384
They also weigh the risk of “selective enforcement against unpopular
causes.”385 As a general matter, one impermissible application is not suffi-
cient to invalidate a law for overbreadth.386 Additionally, the overbreadth
inquiry is not limited to improperly proscribed conduct.387

376
Id. at 17-18.
377
Id. at 16.
378
Transcript of Merged Preliminary Injunction Proceedings at 44:04-12, Pernell, No.
4:22-cv-304, and Novoa v. Diaz, Case No. 4:22-cv-324 (N.D. Fla. Oct. 13, 2022).
379
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 2,
Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
380
Id. at 105.
381
Id.
382
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange
v. Washington State Republican Party, 522 U.S. 442, 449 (2008)).
383
Id. at 474 (quoting United States v. Williams, 553 U.S. 285, 293 (2008)).
384
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
385
NAACP v. Button, 371 U.S. 415, 435 (1963).
386
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 800 (1984).
387
City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 756 (1988) (quoting Freed-
man v. Maryland, 380 U.S. 51, 56 (1965)).
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2023] The Anti-“Critical Race Theory” Campaign 539

Courts are concerned by the chilling effect of overbroad statutes.

“[T]he very existence of some broadly written statutes may have such a
deterrent effect on free expression that they should be subject to challenge
even by a party whose conduct may be unprotected.”388 Inherent in this fact-
specific inquiry is a determination of whether the danger of infringement on
First Amendment protections is realistic and not just conceivable.389 Courts
are especially concerned where the statute’s overbreadth limited conduct and
speech.390 Due to the chilling effect of overbroad statutes, facial challenges
may proceed.391
Educational gag orders are susceptible to overbreadth challenges.
Oklahoma House Bill 1775 instructed schools not to require or make re-
stricted concepts part of a course.392 The law had a chilling effect on all
discussions of race or sex in classrooms. For example, Oklahoma House Bill
1775 prohibited educators from “making the concept that ‘one race or sex is
inherently superior to another race or sex’” part of a course.393 This provision
excluded all discussions of racism and sexism in instruction, making it im-
possible to contextualize history, such as slavery or the Jim Crow era. It also
prevented discussion about the lived experiences of marginalized people
who continue to experience these effects. Beyond classroom discussions,
this law prohibits the introduction of curricula or instructional materials too.
The potential for selective enforcement is undeniable, given the expressed
goal of legislators to exclude discussions that promoted anti-racism, racial
justice, or DEI.394

ii. Fourteenth Amendment Claims

Our classroom censorship litigation team challenged educational gag

orders as unconstitutionally vague and intentional discrimination, in viola-
tion of the Fourteenth Amendment. Unlike the First Amendment rights, the
scope of these claims does not vary in the primary, secondary, or higher
education context.
1. Vagueness

An educational gag order violates the Fourteenth Amendment’s due

process protections when (1) its prohibitions are not clear to people of ordi-
nary intelligence or (2) it permits or encourages arbitrary and discriminatory

388
Members of City Council of City of Los Angeles, 466 U.S. at 798.
389
Id. at 801.
390
New York v. Ferber, 458 U.S. 747, 770 (1982).
391
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)
392
H.B. 1775, 2021 Leg. Sess. (Okla. 2021).
393
Id.
394
Press Release, Rob Standridge, Sen. Standridge Issues Statement Thanking Fellow
Members for Supporting HB 1775 (Apr. 22, 2021), https://oksenate.gov/press-releases/sen-
standridge-issues-statement-thanking-fellow-members-supporting-hb-1775 [https://perma.cc/
JM3U-QHZD].
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540 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

enforcement.395 The fact that an educator may be able to describe some dis-
cussions that fall within the provision’s scope does not make it constitu-
tional.396 The Supreme Court struck down an ordinance in Hynes v. Mayor
and Council of the Borough of Oradell for reasons that likely apply to edu-
cational gag orders.397 First, the ordinance was void for vagueness because
its application to certain circumstances or groups was unclear.398 Second, the
ordinance did not “sufficiently specify what those within its reach must do
in order to comply.”399 Finally, the ordinance failed to “provide explicit
standards for those who apply it.”400 In facial vagueness challenges, courts
consider whether a law or enactment impacts a “substantial amount of con-
stitutionally protected conduct.”401
Vagueness concerns are heightened where First Amendment concerns
are also at issue.402 Voluntary self-censorship of constitutionally protected
conduct, recognized as chill, is actionable under the vagueness doctrine.
“Uncertain meanings inevitably lead citizens to steer far wider of the unlaw-
ful zone than if the boundaries of the forbidden areas were clearly
marked.”403 Educators have consistently reported avoiding certain topics that
they would normally discuss with students because they were not sure of the
parameters of educational gag orders.
The potential for arbitrary and discriminatory enforcement leaves edu-
cational gag orders vulnerable to vagueness challenges. Plaintiffs challeng-
ing the higher education provisions of Oklahoma House Bill 1775 and the
Stop W.O.K.E. Act in Florida expressed concern that BIPOC and/or
LGBTQ+ professors would become targets for complaints under these laws
because they were perceived as less objective when they discussed race or
sex.404 High school educators challenging New Hampshire’s House Bill 2

395
Hill v. Colorado, 530 U.S. 703, 732 (2000); see Grayned v. City of Rockford, 408 U.S.
104, 108 (1972); F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253-54 (2012); Village
of Hoffman Estates v. Flipside, 455 U.S. 489, 499 (1982); City of Chicago v. Morales, 537
U.S. 41, 59-64 (1999).
396
See Johnson v. United States, 576 U.S. 591, 602 (2015); Memorandum and Order at
30-31, Local 8027 v. Edelblut, No. 1:21-cv-01077 (D.N.H. Jan. 12, 2023).
397
425 U.S. 610 (1976).
398
Id. at 621.
399
Id.
400
Id. at 622.
401
Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494-95 (1982).
402
Hynes, 425 U.S. at 620.
403
Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).
404
Declaration of the University of Oklahoma Chapter of American Association of Uni-
versity Professors at ¶ 7, Black Emergency Response Team v. O’Connor, No. 5:21-cv-01022
(W.D. Okla. Oct. 29, 2021); Declaration of Jennifer Sandoval in Support of Plaintiffs’ Motion
for a Preliminary Injunction at ¶ 20, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304 (N.D.
Fla. Aug. 24, 2022) (noting the risks “particularly for gender-nonconforming and darker-
skinned professors who are perceived differently when they talk about gender and race”);
Declaration of Shelley Park in Support of Plaintiffs’ Motion for a Preliminary Injunction at ¶
35, Pernell, No. 4:22-cv-304 (N.D. Fla. Aug. 24, 2022); Declaration of Dana Thompson Dor-
sey in Support of Plaintiffs’ Motion for a Preliminary Injunction at ¶ 58, Pernell, No. 4:22-cv-
304 (N.D. Fla. Aug. 24, 2022).
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2023] The Anti-“Critical Race Theory” Campaign 541

noted that the law lacked enforcement standards or procedures to substanti-

ate violations, various state entities had independent enforcement authority,
and the likelihood that the law was enforced in a discriminatory manner
based on statements from the Commissioner of Education.405
Courts found that the prohibited concepts of educational gag orders in
Florida and New Hampshire, as well as the restricted concepts of EO 13950,
were unconstitutionally vague. The district court, in Pernell, recognized the
higher education provision of the Stop W.O.K.E. Act are unconstitutionally
vague.406 The State argued that the prohibited concepts are not vague be-
cause they use plain language and words found in the dictionary.407 The court
determined the wording of some of the prohibited concepts was vague,
describing them as “mired in obscurity, bordering on unintelligible. . . [and]
resulting in a cacophony of confusion.”408 For example, concept four in-
cluded a triple negative: “educators cannot endorse the view that
‘[m]embers of one race, color, sex, or national origin cannot and should not
attempt to treat others without respect to race, color, sex, or national ori-
gin.’”409 Alternatively, the State used the Plaintiffs’ declarations to argue that
they understood the terms in the prohibited concepts.410 While this may be
true in the abstract, context matters. The court held that a generalized under-
standing of objectivity does not clarify the application of the law or imple-
menting regulation to future instruction or training.411
Relying on Eleventh Circuit precedent, the Pernell court required each
Plaintiff to “show that (1) he seriously wishes to speak; (2) such speech
would arguably be affected by the challenged prohibition, but the rules are at
least arguably vague as they apply to him; and (3) there is at least a minimal
probability that the rules will be enforced if they are violated.”412 The court
also found that the clause stating that the prohibited concepts may be dis-
cussed in courses objectively and without endorsement—a so-called savings
clause—was also vague because the meaning of this provision is “utterly
ambiguous.”413 The court “construe[d] ‘objective’ to mean ‘expressing or

405
Plaintiff’s Joint Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
at 23-39 Local 8027 v. Edelblut, No. 1:21-cv-01077 (D.N.H. May 20, 2022).
406
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 125,
Pernell, No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022); Preliminary Injunction, Honeyfund.com,
Inc. v. DeSantis, No. 4:22-CV-227 (N.D. Fla. Aug. 18, 2022) (finding the workplace provi-
sions of the Stop W.O.K.E. Act to be unconstitutionally vague for many of the same reasons).
407
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 25-26, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
408
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 114,
Pernell v. Fla. Bd. of Governors. No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
409
Id. at 114; H.B. 7, 2022 Leg. Sess. (Fla. 2022).
410
Defendants’ Response in Opposition to Plaintiffs’ Motion for a Preliminary Injunction
at 27, Pernell, No. 4:22-cv-304 (N.D. Fla. Sept. 22, 2022).
411
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 116,
Pernell No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
412
Id. at 82-83; see Harrell v. Fla. Bar, 608 F.3d 1251, 1254 (11th Cir. 2010).
413
Order Granting in Part and Denying in Part Motions for Preliminary Injunction at 83,
119, Pernell No. 4:22-cv-304 (N.D. Fla. Nov. 17, 2022).
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542 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

dealing with facts or conditions as perceived without distortion of personal

feelings, prejudice, or interpretation.’”414 However, the State attempted to
redefine “objective” to only permit critique, not approval.415 The court em-
phasized that this definition did not comport with common sense. Because
this clause covered all of the prohibited concepts, the court held that the
entire law was impermissibly vague.416 Finally, the court mentioned the po-
tential for arbitrary enforcement. The lack of “explicit standards to circum-
scribe enforcement of ‘objectivity,’” particularly with controversial concepts
enumerated in the law, permits the State to weaponize the term to discredit
viewpoints it does not like.417
The Plaintiffs’ vagueness claim survived the motion to dismiss in our
New Hampshire challenge.418 The court emphasized the paramount “need
for clarity” because the law had “explicit viewpoint-based speech limita-
tions that [sic] arguably affect[ed] both the curricular and extracurricular
speech of public primary and secondary school teachers,” the law “author-
ize[d] severe consequences for a violator,” and the law “fail[ed] to incor-
porate a scienter requirement.”419 According to the court, House Bill 2 “does
not give teachers fair notice of what they can and cannot teach;” requires
them “to teach topics that potentially implicate several of the banned con-
cepts;” and sanctions harsh penalties, including termination and loss of
teaching credentials, “for speech that [teachers] do not intend to advocate a
banned concept . . . [or] for speech that is later deemed to violate the
amendments only by implication.”420 For example, educators are required to
teach the historical existence of racial discrimination but would face sanc-
tions if they mentioned remedies for past discrimination, such as repara-
tions.421 Particularly concerned that a teacher could unknowingly violate the
law, the court asked “If a high school teacher attempts to explain the diver-
sity argument to her class during a discussion of [the race-conscious admis-
sions case before the Supreme Court], will she face sanctions for teaching a
banned concept? We simply don’t know.”422 In allowing the claims to pro-
ceed, the court clarified that it did not require the Plaintiffs to establish that
all of the law’s applications were unconstitutional.423
When enjoining the enforcement of the EO 13950 nationwide, a Cali-
fornia court expressed many of the same concerns. It noted that a contractor

414
Id. at 119.
415
Id. at 116-18.
416
Id. at 125.
417
Id. at 124-25.
418
Memorandum and Order at 42, Local 8027 v. Edulbut, No. 21-CV-01077 (D.N.H. Jan.
12, 2023).
419
Id. at 32-33.
420
Id. at 37.
421
Id. at 38.
422
Id. at 35-36.
423
Id. at 30-31.
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2023] The Anti-“Critical Race Theory” Campaign 543

was prohibited from inculcating [restricted concepts] in its employees.”424

The court held that “[t]he line between teaching or implying (prohibited)
and informing (not prohibited) was ‘so murky, enforcement of the ordinance
poses a danger of arbitrary and discriminatory application.’” 425 Educational
gag orders that permitted discussion but not endorsement of restricted con-
cepts are subject to the same analysis.
2. Equal Protection: Racial Discriminatory Purpose

Violations of the Equal Protection Clause of the Fourteenth Amend-

ment require proof of (1) racially discriminatory intent or purpose by a legis-
lature or administrative body and (2) an actual discriminatory effect.426
Courts first determine if the legislation is neutral on its face or if it makes a
race-based classification, whether overt or covert, then evaluate the exis-
tence of invidious racial discrimination based on the adverse effects of the
law.427 Racial discrimination does not have to be the only, primary, or domi-
nant concern; judicial deference is not justified when it was a motivating
factor in a decision.428 Discriminatory purpose requires more than volition or
awareness of consequences; it means the decision maker took an action “at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”429 Courts conduct a fact specific inquiry into circumstan-
tial and direct evidence to ascertain discriminatory intent.430 In Arlington
Heights, the Supreme Court considered five non-exhaustive factors to iden-
tify “a clear pattern, unexplainable on grounds other than race . . . from the
effect of the state action even when the governing legislation appeared neu-
tral on its face:” (1) the impact of the challenged law, (2) historical back-
ground of the decision, (3) specific sequence of events leading up to the
challenged decision, (4) procedural and substantive departures, and (5) legis-
lative or administrative history, including contemporaneous statements by
members of the decision making body, minutes of meetings, or reports.431
Courts look for evidence of disparate impact, or when the adverse effect is
felt more heavily on one race than another, but this finding is insufficient on

424
Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, 508 F. Supp. 3d 521, 543 (N.D. Cal.
2020).
425
Id. at 544 (quoting Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011)).
426
See Davis v. Bandemer, 478 US. 109, 127 (1986) (noting that plaintiffs “were required
to prove both intentional discrimination against an identifiable political group and an actual
discriminatory effect on that group” to establish an equal protection claim); Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S.
229, 239 (1976) (“The central purpose of the Equal Protection Clause of the Fourteenth
Amendment is the prevention of official conduct discriminating on the basis of race.”); see
also Hunter v. Underwood, 471 U.S. 222, 233 (1985).
427
See Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 274 (1979).
428
Vill. of Arlington Heights, 429 U.S. at 265-66.
429
Pers. Adm’r of Massachusetts, 442 U.S. at 279.
430
Vill. of Arlington Heights, 429 U.S. at 266.
431
Id. at 266-68.
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544 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

its own to establish a violation under the Equal Protection Clause.432 Ulti-
mately, “the Fourteenth Amendment guarantees equal laws, not equal re-
sults.”433 Circuits have added and/or collapsed these factors.434 Laws
motivated by a racial purpose are subject to strict scrutiny, and the burden
shifts to the law’s defenders to demonstrate that the law would have been
enacted without this factor.435
The Ninth Circuit’s equal protection analysis in Arce v. Douglas is in-
structive for educational gag orders.436 In Arce, the Arizona legislature
passed House Bill 2281, which eliminated a Mexican American Studies
(MAS) program to provide culturally relevant curriculum in Tucson public
schools.437 Critics of MAS claimed the program promoted ethnocentrism and
racism against white people.438 The law prohibited any courses or classes
that would “[p]romote the overthrow of the United States government . . .
[p]romote resentment toward a race or class of people . . . [a]re designed
primarily for pupils of a particular ethnic group . . . or [a]dvocate for ethnic
solidarity instead of the treatment of pupils as individuals.”439
The court applied the Arlington Heights factors to evaluate if the statute
was racially discriminatory.440 In finding a disparate impact, the court noted
that people of Mexican or Latinx descent comprised 60 percent of students
in the district and 90 percent of students in the MAS program.441 The court
looked for evidence of “camouflaged” discriminatory intent based on con-
temporaneous statements from legislators and the Attorney General that the
program created “racial warfare” and taught that “the white man’s evil,” as
well as the administrative history, the court found that the law targeted the
MAS program.442 An audit of more than a third of high school MAS courses
found no evidence that the “courses promoted resentment towards a race or
class of people, nor that they were necessarily designed for pupils of a par-
ticular ethnic group, as all students were welcomed into the program.”443
However, the Superintendent of Public Instruction disregarded this finding
and commissioned another study of MAS course materials and the program
website and concluded that the MAS program violated H.B. 2281.444 The

432
Id. at 265-56; Davis v. Bandemer, 478 U.S. 109, 127 (1986) (“in order to succeed, the
Bandemer plaintiffs were required to prove both intentional discrimination against an identifi-
able political group and an actual discriminatory effect on that group.”).
433
Pers. Adm’r of Massachusetts, 442 U.S. at 273.
434
See, e.g., Greater Birmingham Ministries v. Secretary of State of Alabama, 992 F. 3d
1299 (11th Cir. 2021).
435
Hunt v. Cromartie, 526 U.S. 541, 546 (1999); Hunter v. Underwood, 471 U.S. 222,
228 (1985).
436
Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015).
437
Id. at 973.
438
Id. at 973-74.
439
Id. at 973 (quoting Ariz. Revised Statutes § 15-112 (A)(2011)).
440
Id. at 978-81.
441
Id. at 978.
442
Id. at 978-80; González v. Douglas, 269 F. Supp. 3d 948, 955 (D. Ariz. 2017).
443
Arce v. Douglas, 793 F.3d 968, 980 (9th Cir. 2015).
444
Id.
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2023] The Anti-“Critical Race Theory” Campaign 545

Arce court held that there was “at least a plausible inference that racial ani-
mus underlay the passage of the legislation.”445 It ultimately struck down
one provision of the law on First Amendment grounds because it
“threaten[ed] to chill the teaching of ethnic studies courses . . . without
furthering the legitimate pedagogical purpose of reducing racism.”446 It up-
held a different provision of the law that did “not restrict . . . class discus-
sions.”447 On remand, in González v. Douglas, the court found
discriminatory intent on behalf of the legislature.448 It was particularly
moved by contemporaneous statements from legislators that demonstrated
the racial animus motivating the decision to enact the bill, including that the
MAS “teaches ‘ethnic chauvinism,’” and that students were “dissed [sic]
for being white.449 The court also highlighted (1) the disproportionate impact
on Latinx students, who comprised the overwhelming majority of students
enrolled in MAS courses and, according to an expert, particularly benefited
from the program; (2) its historical background, including the history of ra-
cial segregation into the twentieth century and successful desegregation law-
suits; (3) that the bill targeted one program in a single school district and the
existence of statutes to address the purported wrongs with the MAS pro-
gram, which provided evidence towards the sequence of events and procedu-
ral and substantive departures; and (4) overtly discriminatory statements in
the legislative history.450 The court flagged the use of derogatory code words
to reference Mexican Americans, including “un-American,” “radical,” and
“communist.”451 The court additionally focused on discriminatory enforce-
ment of the law against the MAS program and concluded that the passage
and enforcement of the law were motivated by racial animus.452
Based on the factual circumstances, the litigation teams in Oklahoma
and Florida brought equal protection challenges to the educational gag or-
ders. Failure to provide race conscious instruction “can have a significant
effect on students whose stories or life experiences are not regular lessons or
educational materials.”453 Student plaintiffs in Florida and Oklahoma em-
phasized the erasure of BIPOC perspectives from courses and curriculum
due to the educational gag orders, and expressed concerns about increased
hostility towards Black students on campus, including an uptick in the use of
racial slurs towards them.454

445
Id. at 979.
446
Id. at 986.
447
Id. at 985.
448
González, 269 F. Supp. 3d at 955, 969 (D. Ariz. 2017).
449
Id. at 965, 967.
450
Id. at 965-67.
451
Id. at 967.
452
Id. at 968-69, 72.
453
National Education Association & the Law Firm Alliance, supra note 41, at 17.
454
Dauphin, supra note 340, at 25, Pernell v. Fla. Bd. of Governors, No. 4:22-cv-304
(N.D. Fla. Aug. 24, 2022); Decl. of Black Emergency Response Team at ¶¶ 16-18, Black
Emergency Response Team v. O’Connor, No. 5:21-cv-01022 (N.D. Okla. Oct. 29, 2021).
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546 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

In Florida, our litigation team argued that the Stop W.O.K.E. Act inten-
tionally discriminated against Black educators and students. Black educators
were more likely to be hired for untenured positions and to teach courses
related to race. For example, Black educators comprised the majority of
faculty in African American Studies departments at three Florida universi-
ties.455 Black students would be denied access to race-related instruction.456
“Florida’s history of systemic racism, anti-Black violence, and the suppres-
sion of Black participation in civil and social arenas” provided context for
the passage of the Stop W.O.K.E. Act.457 The litigation team pointed to the
issuance of anti-racism statements by departments in colleges and universi-
ties across the state and racial justice protests led by Black students, educa-
tors, and activists as important events in the sequence preceding the Stop
W.O.K.E. Act.458
The team also noted that the Florida legislature passed two other laws
to thwart progress towards racial justice before the Stop W.O.K.E. Act:
House Bill 1, which “increased criminal penalties for various protest activi-
ties,” and Senate Bill 90, a voting law that targeted “the very voting meth-
ods used by most Black Floridians.”459 In accordance with the law’s name,
an attack on “woke” speech, various state officials described their “intent to
curtail speech about white privilege, [c]ritical [r]ace [t]heory, and systemic
racism.”460 The procedural and substantive irregularities included adoption
of prohibited concepts from EO 13950 more than a year after they were
enjoined by a federal court, lack of evidence of indoctrination of students,
failure to consult with educators on the bill, and the rushed inclusion of
enforcement language authorizing the withholding of funds to universities in
a budget appropriation bill.461 Taken together, we argued that these factors
established that the Stop W.O.K.E. Act in Florida was passed to target Black
educators and students, with a racially discriminatory purpose and effect.
In Oklahoma, the litigation team highlighted H.B. 1775’s intentional
discrimination against students of color. The team introduced Oklahoma’s
history of racial and gender discrimination, as well as the recent racist inci-
dents on OU’s campus that prompted the university to require students to
attend a mandatory diversity course that was no longer required after H.B.
1775.462 Racial justice protests across the state led students, educators, and
parents to demand an increase in culturally responsive education, which is

455
Plaintiffs’ Opposition to Defendants’ Motion to Dismiss at 19, Pernell, No. 4:22-cv-304
(N.D. Fla. Oct. 4, 2022).
456
Id.
457
Id. at 22.
458
Id.
459
Complaint at ¶ 95, Pernell, No. 4:22-cv-304 (N.D. Fla. Aug. 18, 2022).
460
Plaintiffs’ Opposition to Defendants’ Motion to Dismiss at 25, Pernell, No. 4:22-cv-304
(N.D. Fla. Oct. 4, 2022).
461
Id. at 26.
462
Amended Complaint at ¶¶ 13, 186, Black Emergency Response Team v. O’Connor at ¶¶
13, 186, No. 5:21-cv-01022 (W.D. Okla. Nov. 9, 2021).
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2023] The Anti-“Critical Race Theory” Campaign 547

important in the historical context for the educational gag order’s exclusion
of this instruction.463 The exclusion of speech “to enhance the educational,
social and civic experiences of students of color” will “disparately harm
students of color, with compounded harms for students of color who also
identify as women, girls, and LGBTQ+.”464 Oklahoma legislators departed
from procedural norms in order to pass the classroom censorship bill before
the close of the session. They missed the filing deadline for new legislation
so they picked an unrelated bill about plans for medical emergencies at
schools’ athletic events and completely replaced the content to instead ex-
clude discussions of race and sex discrimination from classrooms and school
trainings.465 Legislators in Oklahoma encouraged others to support educa-
tional gag orders in order to keep references to “Black Lives Matter,”
“white supremacy,” “intersectionality” or “wokeness” out of schools.466
The statements often revealed racial and partisan motivations. The examples
also demonstrated the targeted nature of the speech; legislators did not men-
tion the racist rhetoric espoused by white people as inappropriate for
classrooms.
At the time of writing, neither court has ruled on the equal protection
claims.

VI. CONCLUSION

Rufo reportedly “described ‘the fight against critical theory’ as ‘the

most successful counterattack against B[lack] L[ives] M[atter] as a politi-
cal movement.467 While the anti-“critical race theory” movement has spread
quickly and continues to evolve, I remain encouraged that this fight is not
over. Classroom censorship is not a foregone conclusion. Parents and advo-
cates organized across the country to defeat proposed classroom censorship
litigation during the 2022 legislative cycle, even in conservative states like
Indiana and South Carolina. The resistance movement also drew upon the
voices and skillsets of students, policy advocates, lawyers, educators, re-
searchers, communications specialists, and politicians. Their success often
resulted from collaboration between historically marginalized groups and is
a direct testament to the power of organizing.
Additionally, litigation appears to be a promising avenue to challenge
educational gag orders. We won early victories in our classroom censorship
litigation, including the issuance of a preliminary injunction blocking en-
forcement of the higher education provisions of Florida’s Stop W.O.K.E. Act

463
Id. ¶¶ 13, 78.
464
Id. ¶ 184.
465
H.B. 1775, 2021 Leg. Sess. (Okla. 2021).
466
Amended Complaint (W.D. Okla. Nov. 9, 2021); Press release, supra note 387.
467
Daniel Golden, It’s Making Us More Ignorant, THE ATLANTIC (Jan. 3, 2023), https://
www.theatlantic.com/ideas/archive/2023/01/ron-desantis-florida-critical-race-theory-profes
sors/672507/ [https://perma.cc/K98A-7B72].
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548 Harvard Civil Rights-Civil Liberties Law Review [Vol. 58

and the survival of our claims against motions to dismiss in Florida and New
Hampshire. I hope courts will continue to recognize how educational gag
orders violate the constitutional rights of students and educators.
While litigation is an important tool in this fight, it has limitations. As
an initial matter, litigation takes time. Attorneys need to listen to people
impacted by educational gag orders, identify legal claims based on a close
review of the legislation, obtain evidence to support the claims, draft and file
legal documents, and adhere to the scheduling order set by the court. None
of these things can happen overnight. Furthermore, litigation cannot keep
pace with the breakneck speed of conservatives seeking to remove race con-
scious instruction in schools. In less than five months in Florida, Gov. De-
Santis required institutions in the State University System to report all
activities involving DEI or critical race theory;468 appointed new Board of
Trustees members, including Rufo, in a hostile takeover of New College, a
liberal arts college to conduct a “top-down restructuring” of the institu-
tion;469 and rejected the College Board’s Advanced Placement African-
American History course, stating that it “significantly lacks educational
value.”470 Governor DeSantis also introduced a legislative proposal that be-
came Senate Bill 266, which he signed into law, to broaden the attack on
higher education.471 Whereas the Stop W.O.K.E. Act prohibited training or
instruction on certain topics, S.B. 266 expands those prohibitions to curricu-
lum on these concepts “or that is based on theories that systemic racism,
sexism, oppression, and privilege are inherent in the institutions of the
United States and were created to maintain social, political, and economic
inequities.”472 Notably, it forbids the use of state of federal funds for pro-
grams or campus activities that advocate for DEI or “promote or engage in
political or social activism.”473 Consistent with the New College takeover,
S.B. 266 vests power in the state university president to fire the provost,
deans, and all full-time faculty.474 Finally, the law prohibits universities from
issuing statements, foreclosing their ability to affirm their support for stu-

468
Caroline Downey, DeSantis Admin Orders State Universities to Report DEI, CRT
Spending, NATIONAL REVIEW (Jan. 4, 2023), https://www.nationalreview.com/news/desantis-
admin-orders-state-universities-to-report-dei-crt-spending/ [https://perma.cc/VW4G-M27N].
469
Benjamin Wallace-Wells, What Is Ron DeSantis Doing to Florida’s Public Liberal Arts
College?, THE NEW YORKER (Feb. 22, 2023), https://www.newyorker.com/news/the-political-
scene/what-is-ron-desantis-doing-to-floridas-public-liberal-arts-college [https://perma.cc/
7ES6-UVAC].
470
Aaron Navarro, DeSantis defends rejecting African American studies course, says it’s
“indoctrination,” CBS NEWS (Jan. 23, 2023), https://www.cbsnews.com/news/ron-desantis-ap-
african-american-history-florida-press-conference-today-2023-01-23/ [https://perma.cc/8W93-
N3F5].
471
Press Release, Governor Ron DeSantis, Governor DeSantis Elevates Civil Discourse
and Intellectual Freedom in Higher Education (Jan. 31, 2023), https://www.flgov.com/2023/
01/31/governor-desantis-elevates-civil-discourse-and-intellectual-freedom-in-higher-educa-
tion/ [https://perma.cc/6XSB-KHQ6].
472
S.B. 266, 2023 Fla. Leg. Session (Fla. 2023).
473
Id.
474
Id.
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2023] The Anti-“Critical Race Theory” Campaign 549

dents of color or to vocalize the importance of DEI as they did during the
racial reckoning of 2020, and requires post-tenure review of higher educa-
tion faculty in a campaign to use intimidation to force compliance.475 A par-
allel attack on gender identity ensued: the Florida legislature expanded the
Don’t Say Gay law’s blanket proscriptions on instruction about sexual orien-
tation or gender identity to eighth grade instead of early education and only
permits instruction in high school if it is deemed age appropriate.476 It also
banned the use of personal titles and pronouns in K-12 education while man-
dating instruction that sex is “binary, stable, and unchangeable.”477 Litiga-
tion cannot be the only tool to resist these efforts. Beyond the time
considerations, litigation offers a limited scope of relief. As a former
teacher, I believe all students deserve race conscious instruction. However,
no court has recognized this belief as a constitutional right. At best, our legal
claims prevent the most censorious actions by states. Litigation is an insuffi-
cient tool to craft an affirmative position on what race conscious instruction
belongs in schools.
Though imperfect, litigation is one of many methods we must utilize to
fight for racial justice and race conscious instruction in schools. While
daunting, I believe that we will ultimately succeed.

475
Id.
476
Florida Board of Education approves ‘Don’t Say Gay’ expansion, NBC NEWS (Apr.
19, 2023), https://www.nbcnews.com/nbc-out/out-politics-and-policy/dont-say-gay-expansion-
requested-desantis-approved-rcna80467 [https://perma.cc/668N-75PT].
477
H.B. 7, 2022 Leg. Sess. (Fla. 2022).
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