Abstract

Excerpted From: John Beaty, Critical Race Theory in the Classroom: Iowa's Critical Race Theory Ban and the Limits of the First Amendment, 27 Journal of Gender, Race and Justice 137 (Winter, 2024) (303 Footnotes) (Full Document)

Once relegated to the backwaters of legal academia, Critical Race Theory (CRT) has become a major talking point in national politics. CRT is an academic theory that reframes racism as a systemic, rather than personal, issue. In the wake of the murder of George Floyd, many schools, colleges, and workplaces began having conversations about racism. Popular books like How to Be an Anti-Racist borrowed concepts from CRT to aid in these conversations and became the basis for diversity and inclusion trainings at these institutions. In conservative circles, there has been a backlash against this way of talking about race. Commentators claimed that CRT was inconsistent with values of colorblindness and warned that CRT was overtaking the workplace and schools through mandatory diversity and equity trainings. In response to this backlash, state legislatures created the CRT ban: legislation regulating the use of CRT concepts in the classroom and in diversity trainings.

The Iowa CRT ban (HF-802) makes it illegal to “teach, advocate, ... [or] promote” certain concepts in mandatory trainings in schools, government subdivisions, and public universities. In addition, K-12 schools cannot include those concepts in their curriculum. The concepts targeted by the law include race and sex stereotyping (ascribing traits to a person on account of the person's race or sex), race and sex scapegoating (stating that someone is racist or sexist on account of their race or sex or responsible for the historical actions of their race and sex), and a grab bag of other specific concepts. This Article looks at the way that Iowa's CRT ban regulates CRT in the context of classroom discussion at the university and K-12 level. HF-802 regulates classroom discussion at the K-12 level directly and one university, Iowa State University, has applied it to classroom discussion. Instructors in K-12 classrooms and university lecture halls are finding themselves increasingly worried that they are running afoul of the statute. As a result, at both levels speech in the classroom is being regulated because the state legislature disagrees with its political content.

This Article argues that at both the K-12 and university levels, laws that ban classroom discussion based solely on its ideological content present serious First Amendment violations. One of the primary goals of the First Amendment is to prevent the legislature from regulating speech because of its disagreement with the speaker's content. In any other context, these laws would be easily struck down as viewpoint discrimination. However, challengers to these laws face doctrinal barriers that put CRT bans in First Amendment blind spots. At the university level, there is a loose doctrine of academic freedom that protects the teaching and research of college professors from laws seeking to impose a political orthodoxy on the university classroom. However, the doctrine is poorly defined and recent court decisions have not settled whether principles of academic freedom trump the increasingly narrow band of protected public employee speech. At the K-12 level, most teachers and students affected by CRT bans face major obstacles to a viable First Amendment claim. One way to fill in this First Amendment gap is by expanding the student right to learn, which protects students from being denied access to information based on a district or legislature's desire to impose orthodoxy on the classroom. This Article argues that these doctrines can and should be applied to HF-802 and other CRT bans.

Part II of this Article will explain what exactly CRT is, how it came to be a political flashpoint, and how other states have regulated CRT. Next, it will focus on Iowa's CRT ban and discuss how it works. Finally, it will discuss the primary First Amendment doctrines implicated by the law: public employee speech and student right to learn.

Part III will analyze how Iowa's CRT ban is applied to the university classroom and argue for some steps courts can take to apply the doctrine of academic freedom to Iowa's CRT ban. First, it will examine how Iowa State University's policy bans CRT in the lecture hall and how it affects the speech rights of instructors. Second, it will explain why professors' speech is so important to the First Amendment, and how recent employee speech jurisprudence has put that form of speech in danger. Third, it will propose a simple doctrinal change the Eighth Circuit can make to fill that gap: holding that the professors' speech claims are not barred just because they are public employees. Finally, it will apply these proposed principles of law to HF-802.

Part IV will analyze how Iowa's CRT ban applies to the K-12 classroom and argue that doctrinal change is needed to address its First Amendment harms. First, it will analyze how HF-802 applies to classroom speech in K-12 schools. Second, it will argue that it chills speech about race in the classroom. Third, it will make the practical and normative case for expanding the right to learn for K-12 students to fill the gaps left by existing doctrine. Finally, it will explain how the right to learn applies to the case of Iowa's CRT ban.

[. . .]

CRT has become a national flashpoint, with strong feelings on both sides. However, in response to this partisan fervor, the Iowa legislature inserted itself into the classroom and tried to impose an ideological orthodoxy on professors and students. The classroom is an important space in Constitutional law, where discoveries about the world are made and citizens are formed. However, because of the target of regulation--students and public employees--the speech barred by Iowa's CRT ban exists in a First Amendment blind spot. The courts can fill one blind spot by allowing professors to make their academic freedom claims in court by rejecting the application of Garcetti and allowing students to challenge the law under a substantive right to learn. These two methods would fill in First Amendment gaps and give the courts the tools to deal with this blatantly unconstitutional law.

J.D., The University of Iowa College of Law, 2023; B.A., Carleton College, 2019.