Volume 96, No. 3, Summer 2024
By Chelsea Sissom

“Who knows who might be the target of the well-read man?” It appears conservative legislators fear it will be them. In May 2021, the first of a wave of politicians passed laws restricting discussions of race and racism in classrooms across the country. These laws and policies began as a political response to the 2020 racial reckoning in the United States. Conservative activists turned their attention to critical race theory (CRT), “a practice of interrogating the role of race and racism in society,” and attempted to “turn it toxic” by ascribing to it definitions of “Black-supremacist racism” and “wokeness.” Public schools, from kindergarten to universities, became the center of this culture war, and restrictions on “wokeness” spread like wildfire through 138 school districts by September of 2022, requiring schools to remove books and curb diversity of thought in classrooms.

These prohibitions focus on books and curricula representing diverse experiences—for example, of the 1,648 books that were banned between July 2021 and June 2022, 674 have either prominent LGBTQ+ characters or LGBTQ+ themes, 659 have prominent characters of color, and 338 explicitly address race and racism. Discussions of race and racism, gender identity, and diversity have been chilled from elementary schools to universities.

At the same time, school populations are becoming more diverse. As of May 2021, white students made up forty-five percent of the student population in public kindergarten to twelfth grade (“K to 12”) schools, while Black and Hispanic students made up forty-three percent. Despite this increase in diversity, conservative legislators would mandate the teaching of a whitewashed curriculum that limits discussions of “racism, sexism, and issues of systemic inequality” and that is not designed to facilitate the success of diverse members of the student body. Despite the increasing diversity of student populations in public schools, one study found that one in four teachers have been told by district or school leaders to limit classroom discussions on political and social issues—specifically race, racism, and bias. Many teachers have been effectively silenced when it comes to these “controversial” topics, unable to teach for fear of retaliation, firing, and even civil or criminal liability.

When enjoining enforcement of Florida’s Stop W.O.K.E. Act in the university setting, one federal judge described this politicization of speech in schools as something out of a dystopian novel: “‘It was a bright cold day in April, and the clocks were striking thirteen,’ and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of ‘freedom.’” The chilling effect of these laws is antithetical to First Amendment principles of academic freedom and free speech.

Specifically, the chilling effect on culturally responsive instruction—a pedagogy that focuses on embracing students’ diverse cultural experiences—harms minority student academic outcomes and minority students’ development, particularly because the removal of their experiences “has the sanction of the law.” In contrast, teaching a rich multicultural curriculum benefits all students intellectually and psychologically.

This Comment begins by explaining the development and effects of anti-CRT laws in Part II.A. Part II.B discusses the importance of culturally responsive teaching for minority students—students of different ethnic and racial backgrounds than the majority European American student and teacher population in the United States. Part II.C discusses the legal significance of sociological studies, as relied upon in Brown v. Board of Education. Part II.D outlines the existing First Amendment doctrines that govern speech in public schools , including academic freedom, government employee speech, student speech standards, and students’ right to know, in Parts II.D.1, II.D.2, II.D.3, and II.D.4, respectively. The Overview concludes in Part II.E with one example of the early challenges to anti-CRT laws in the Northern District of Florida.

Section III critiques current First Amendment protections for teachers’ in-classroom speech and proposes a new framework to protect teacher speech. It begins in Part III.A with an argument that Brown v. Board of Education provides support for the incorporation of sociological studies, like those showing the necessity of culturally responsive instruction, in legal analysis. Part III.B.1 addresses the shortcomings of the public employee speech doctrine as applied to teachers. Part III.B.2 argues that student speech standards are inappropriately applied to teachers. Finally, Part III.B.3 proposes that teacher speech should be constitutionally protected when it is tied to legitimate pedagogical concerns, specifically the need for culturally responsive instruction. Ultimately, this Comment argues that protections for teacher speech aimed at fostering the success of all students must outweigh states’ attempts to impose their own “orthodoxy of viewpoints” to the detriment of the nation’s youth.