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Memo 09.20.2021 5 minutes

Winning the CRT Wars in the Courtroom

Wooden Pawns In Front Of Gavel And Mallet

Pernicious indoctrination of our children can be defeated, but you have to proceed strategically.

The American culture war is real. This is not news, as battles rage in nearly every corner of our nation. But how do we engage the enemy in a non-fruitless manner and win?

The most important battleground in the fight to save our American republic is the public schools. K-12 schools across our nation have replaced color-blind education with race-based programming in the name of “equity.” What seems like a relatively benign cause is actually code for a much bigger and more dangerous agenda: to condition children to see each other’s skin color first and foremost, categorize everyone according to a hierarchy of racial privilege, then pit different racial groups against each other.

That is the bad news. The good news is that parents have had enough. They recognize that administrators and teachers putting this divisive and hateful ideology into practice are using our public schools to create a generation of “social justice warriors.” They are correct to recoil from “equity” and “anti-racism” when they see how fast it has taken hold in their children’s school. These are deeply destructive and controversial ideas, the very opposite of equality.

In their outrage over what their children are being taught, many are considering lawsuits. The law can be a powerful weapon, offering hope for a lasting victory. But as with any fight, you must first lay out a strategy. Poorly thought-out legal challenges make things worse by setting bad precedent.

At the Southeastern Legal Foundation, we’ve been at the cutting edge of legal challenges to CRT indoctrination. We know what works and what won’t. Here are some suggested avenues.

Free Speech. For decades, colorblindness was the rallying cry for the Civil Rights Movement. Now, we have districts like Springfield, Missouri proclaiming that colorblindness is actually a form of white supremacy. Huge numbers of Americans disagree with that premise. If a school district forces someone to agree with these statements, or shuts down disagreement, we step right into First Amendment territory.

It’s true that no one has a First Amendment right to protect them from hearing ideas, even offensive ones. In other words, the First Amendment is not, on its own, going to stop districts from teaching an objectionable curriculum.

But when it comes to actually speaking, your kids have broad First Amendment protection both in and out of a classroom.  If a school is going to force a student to say something they do not wish to say, or endorse a belief that they do not endorse, then that is compelled speech. It is unconstitutional. The law here is well settled. Since 1943, schools were forbidden from making students take an oath in the form of the pledge of allegiance. “[N]o official … can prescribe what shall be orthodox.” Equity curriculum is all about orthodoxy and oaths, just in service to a different ideal than loyalty to one’s country. Schools can’t make students affirm a belief. Period.

Equal Protection. Courts have had a great deal to say about equal protection in the schools. Everyone knows that in Brown v. Board of Education, the Supreme Court ruled that public schools can’t treat children differently because of the color of their skin. This is what we call equality, and it is enshrined in the Fourteenth Amendment to our Constitution. Shockingly, public schools are rewinding the clock some 70-odd years and segregation is happening again.

Schools are separating students based on skin color into racially exclusive “affinity groups,” and then labeling them as oppressors or oppressed. And as we related in one of our lawsuits, a Chicago-area school conducted several privilege walks where students stepped forward and backward based on prompts about their race—with lighter-skinned students moving farther away from darker-skinned students in an oversimplified display of “privilege.” As with affinity groups, this results in literal segregation based on race. It is unconstitutional.

Public schools are arms of the government. The Constitution prohibits them from treating individuals differently because of race. However, it is not an equal protection violation to teach about systemic racism or promote a woke version of American history. It is a losing battle to try to use equal protection precedent to fight against a curricular point of view alone, absent other factors.

Civil Rights Act. Title VI applies to schools because they receive federal funding and it, like the Equal Protection Clause, prohibits schools from treating individuals differently because of their race. This both prevents adverse actions and ensures that our schools do not become hostile learning environments.

The key to a successful Title VI claim is proving that the adverse action occurred “because of” the person’s race. The teacher or parent must show that the act was intentional, and that is a demanding standard. Racism isn’t the sort of thing that people put in writing or say out loud. So how to prove intent?

In our Chicago case, we show that the district maintained a hostile environment with its relentless and overriding focus on skin color. The facts are glaring. The district literally says it “is committed to focusing on race as one of the first visible indicators of identity,” and it exposes young children to books depicting a white devil, with activity pages asking them to sign away their “whiteness.” A Title VI “hostile environment” case can be lethally effective because it directly attacks policies and procedures, including curriculum. But a Title VI case must involve an outrageous pattern of facts in order to be effective.

Transparency laws. Don’t underestimate the potency of public records laws. Just knowing what is taught or, more importantly, how school districts make their decisions about what should be taught, might not stop the districts from teaching it. But transparency is a precursor to political change.

Citizens have, depending on the state, an absolute right to inspect government documents, emails, and even texts. Bureaucrats hate transparency. They don’t want you to see what they are up to. That is why public records laws are so powerful.

Almost any citizen can submit a records request. It doesn’t matter if you live in the district. It also doesn’t matter why you want it. Districts have no right to ask you to show a good reason. Just spend some time learning your rights as laid out in your state’s law.

By now, you may have noticed that there’s no silver bullet. There isn’t one. The law offers solutions for sure, but we shouldn’t place undue confidence in the ability of lawsuits to rid ourselves of CRT in schools. The legal solutions outlined above are only adequate to address curriculum in extreme cases under current law.

That’s not to say we are helpless to address this divisive and discriminatory indoctrination. It is just to say that in this battle for our kids and their future, it is imperative to strategize and use every arrow in your quiver. Sometimes the only option is political. Go take back your school board.

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