Do Anti-CRT Laws Violate the First Amendment? – Vanderbilt Law
Over the past three years, state legislatures have introduced and passed hundreds of laws restricting speech on race and racism in public schools. Broadly classified as Anti-CRT laws, these bills aim to ban lessons derived from the tenets of critical race theory, which posits that race is a social construct embedded in legal systems and policies, creating systemic inequalities that should be evaluated to correct past and present racial injustices. The laws impose broad and often vague prohibitions on speech, mostly without reference to critical race theory.
In her paper (E)racing Speech in School, Francesca Procaccini, Assistant Professor of Law at Vanderbilt Law School, offers a First Amendment analysis of Anti-CRT laws. She finds that while the First Amendment may not protect teachers or parents opposed to such laws, it will often protect students rights to receive the information that Anti-CRT laws seek to chill.
The deeper and more provocative insight of these conclusions is that they rest on the same sound constitutional reasoning: that the First Amendment works to protect democratic governance and good citizenship, Procaccini writes.
Limits on Free Speech for Teachers
To protect democratic governance, the First Amendment permits reasonable regulations on speech of public-school teachers when speaking in their capacity as government employees. Without the authority to dictate what teachers teach, the task of public education would be inconsistent, arbitrary, and idiosyncratic, not to mention void of meaningful democratic oversight and accountability, she writes.
In the two-pronged test used to govern the free speech rights of teachers, courts must weigh whether the teacher is speaking as a citizen on a matter of public concern, and if so, is there no reasonable justification for treating that teachers speech rights differently from other citizens. In the case of teaching critical race theory (or not) as part of a schools designated curriculum, it is clear teachers dont satisfy either prong, she writes.
Limits on Free Speech for Parents
Generally, parents do not have a right under the free speech clause of the First Amendment to determine what their children hear or learn, writes Procaccini.
This lack of protection serves two purposes: 1) it ensures that no single parents has the power to veto school assessments or curricula, and 2) it enhances a childs protection to develop beyond the confines of their parents views and teachings, which is integral to the First Amendments protection of individual enlightenment, the paper explains. While the Supreme Court has not explicitly defined childrens speech rights as such, Procaccini points out that it has relied on children as future citizens to reject parental speech rights.
Students First Amendment Rights
The right to receive information is inherent in the First Amendments protection of political participation and democratic self-government, the paper argues. It is at its most salient when the government attempts to withhold or manipulate the free flow of information between citizens and where there is informational dependence between the speaker and listener.
In situations where a power asymmetry exists between the speaker and listener, the right to receive information is extremely important for democratic decision-making. This holds true in the teacher-student relationship. When the information at hand involves an education that is sensitive to issues of structural racism in our society, the paper states, it can factor into how children make informed choices. The Supreme Court has explicitly made this connection in Ambach v. Norwick.
Procaccini argues that this right to receive information in public school educations means the state may not prohibit the teaching and classroom discussion of information that is integral to learning to participate as an informed citizen in a pluralistic democracy, with exceptions for legitimate pedagogical concerns like age, demography, and resources. She uses this argument to craft the anti-orthodoxy rule, which holds that laws that prohibit all classroom instruction of age-appropriate critical race theory topics in public schools violate students First Amendment right to receive information.
Ensuring against the imposition of a state-sponsored political orthodoxy is integral to protecting the ability of citizens to meaningfully participate in democratic self-governance, the paper concludes. it is integral to their having the baseline knowledge, information, and communicative avenues to make informed political, economic, and social choices that shape our communities.
(E)Racing Speech in School is published in the Harvard Civil Rights-Civil Liberties Law Review.
View original post here:
Do Anti-CRT Laws Violate the First Amendment? - Vanderbilt Law
- Most Americans can name only one right protected by the First Amendment, Annenberg survey finds - The Daily Pennsylvanian - September 19th, 2024 [September 19th, 2024]
- A Majority of Americans Cant Recall Most First Amendment Rights - The Annenberg Public Policy Center of the University of Pennsylvania - September 19th, 2024 [September 19th, 2024]
- Can you list all the First Amendment rights? Only 7% of Americans can, poll finds - Miami Herald - September 19th, 2024 [September 19th, 2024]
- Todays TikTok Appeal Pressure Tests The First Amendment - Forrester - September 19th, 2024 [September 19th, 2024]
- Heres what to know about free speech protections outlined by the First Amendment - Fort Worth Star-Telegram - September 19th, 2024 [September 19th, 2024]
- DC Circuit skeptical of TikToks First Amendment effort to stave off looming ban - Courthouse News Service - September 19th, 2024 [September 19th, 2024]
- Can candidates lie & get away with it? See if First Amendment rules vary for GA elections - Columbus Ledger-Enquirer - September 19th, 2024 [September 19th, 2024]
- McConnell On The Judicial Bureaucracy And The First Amendment - Remark | Remarks | THE NEWSROOM | Republican Leader - September 19th, 2024 [September 19th, 2024]
- Mistreatment of Indian journalist in Texas may have violated First Amendment rights: NPC - Daily Excelsior - September 19th, 2024 [September 19th, 2024]
- University of Wisconsin-Milwaukee Says Pro-Hamas Groups Threats Are Protected by First Amendment - Algemeiner - September 8th, 2024 [September 8th, 2024]
- State of the First Amendment Address to focus on free speech, free exercise and the establishment clause - UK College of Communication and Information - September 8th, 2024 [September 8th, 2024]
- Letter to the Editor: Defending our First Amendment rights - Daily Bulldog - September 8th, 2024 [September 8th, 2024]
- Opinion | Only the First Amendment Can Protect Students, Campuses and Speech - The New York Times - September 6th, 2024 [September 6th, 2024]
- The Growing Threat of State Domestic Terrorism Laws to the First Amendment - Just Security - September 6th, 2024 [September 6th, 2024]
- First Amendment or foreign interference? Jury to decide in federal trial of Uhuru members - WTSP.com - September 6th, 2024 [September 6th, 2024]
- State of the First Amendment Address to focus on free speech, free exercise and the establishment clause - UKNow - September 6th, 2024 [September 6th, 2024]
- Interpreting the First Amendment through an equality lens - University of Miami: News@theU - September 6th, 2024 [September 6th, 2024]
- Andrew Walker: The importance of the First Amendment - WORLD News Group - September 6th, 2024 [September 6th, 2024]
- Daily Herald opinion: Free speech and election politics: Chilling-sounding 'First Amendment Zones' pose a legitimate, not insurmountable, challenge... - September 6th, 2024 [September 6th, 2024]
- Phil Donahue: The man who brought robust talk to TV an interview with Ken Paulson about the man and his legacy First Amendment News 438 - Foundation... - September 6th, 2024 [September 6th, 2024]
- Private Universities That Reject First Amendment Principles Put Themselves At Legal Risk (Updated) - Reason - September 6th, 2024 [September 6th, 2024]
- Federal Judge Who Ruled Ald. Gardiner Violated First Amendment Admonishes Him for Approaching Her - WTTW News - September 2nd, 2024 [September 2nd, 2024]
- Law professors: Northwestern University must embrace the First Amendment standard of speech - Chicago Tribune - September 2nd, 2024 [September 2nd, 2024]
- Trump Says We Gotta Restrict the First Amendment - Rolling Stone - September 2nd, 2024 [September 2nd, 2024]
- Constitution Day speaker to discuss the First Amendment, 2024 Election - Fredonia.edu - September 2nd, 2024 [September 2nd, 2024]
- Does the First Amendment Protect A.I.? The Supreme Court May Soon Have Its Say. - Slate - September 2nd, 2024 [September 2nd, 2024]
- The First Amendment and practical implications of SEA 202 - Indiana Lawyer - September 2nd, 2024 [September 2nd, 2024]
- Arizona Woman Arrested for Exercising First Amendment Rights, Criticizing Public Official - Turning Point USA - September 2nd, 2024 [September 2nd, 2024]
- First Amendment / Second Amendment Lawyer Jobs in California - Reason - August 25th, 2024 [August 25th, 2024]
- Nashville mayor introduces legislation aimed at safety and protecting First Amendment rights - WSMV 4 - August 25th, 2024 [August 25th, 2024]
- A few reflections on the Benjamin Gitlow story as that landmark case nears its centennial anniversary First Amendment News 436 - Foundation for... - August 25th, 2024 [August 25th, 2024]
- 72 People Have Been Arrested Related to First Amendment Activities During the DNC, Including 3 Journalists - WTTW News - August 25th, 2024 [August 25th, 2024]
- 72 People Have Been Arrested Related to First Amendment Activities During the DNC, Including 3 Journalists WTTW (Chicago) - Wirepoints - August 25th, 2024 [August 25th, 2024]
- Europes outrageous attack on the First Amendment - Washington Examiner - August 20th, 2024 [August 20th, 2024]
- Who's for the First Amendment and who's against - Martinsburg Journal - August 20th, 2024 [August 20th, 2024]
- Catholic Charities asks Supreme Court to protect First Amendment rights in battle against the state - AOL - August 20th, 2024 [August 20th, 2024]
- Five ways the First Amendment protects your speech and three ways it does not - ACLU of DC - August 20th, 2024 [August 20th, 2024]
- Video Democrats can handle protests and protecting the First Amendment: Brandon Johnson - ABC News - August 20th, 2024 [August 20th, 2024]
- University I-Team launched, tasked with supporting First Amendment rights - Daily Illini - August 20th, 2024 [August 20th, 2024]
- TikTok fights the DOJ on the First Amendment, compares itself to these American news outlets - Fast Company - August 20th, 2024 [August 20th, 2024]
- Whose Bible (and First Amendment) is it, anyway? | Opinion - NJ.com - August 20th, 2024 [August 20th, 2024]
- Anti-abortion organizations claim N.Y. attorney general is violating First Amendment over info on treatment - Spectrum News - August 20th, 2024 [August 20th, 2024]
- In Response to City-Promoted Religious Walk: First Amendment Activist Proposes 'Chicken Wings, Piatas, and a Satanic Rave' - Tamarac Talk - August 20th, 2024 [August 20th, 2024]
- A First Amendment fight for the future of the internet - The Boston Globe - July 14th, 2024 [July 14th, 2024]
- Pushing back against the state - WORLD News Group - July 14th, 2024 [July 14th, 2024]
- So to Speak Podcast Transcript: The First Amendment at the Supreme Court - Foundation for Individual Rights and Expression - July 14th, 2024 [July 14th, 2024]
- Ruling boosts social media free speech protections, some say - Roll Call - July 14th, 2024 [July 14th, 2024]
- Can the First Amendment Protect Americans From Government Censorship? - The New York Sun - July 14th, 2024 [July 14th, 2024]
- The aftermath of the Supreme Courts NetChoice ruling - The Verge - July 14th, 2024 [July 14th, 2024]
- Oklahoma Supreme Court ruling 'inconsistent' with First Amendment - ADF Media - June 25th, 2024 [June 25th, 2024]
- Gag orders and First Amendment rights - Foundation for Individual Rights and Expression - June 25th, 2024 [June 25th, 2024]
- Car shows, the First Amendment, and $30 - The Citizen.com - June 25th, 2024 [June 25th, 2024]
- ACLU lawsuit claims Rose Bud ordinance restricts First Amendment rights - KARK - June 25th, 2024 [June 25th, 2024]
- DOJ report on Phoenix PD contains guidance on First Amendment rights at protests - Reporters Committee for Freedom of the Press - June 25th, 2024 [June 25th, 2024]
- Chicago Police Department Revises Plan to Handle Protests Around DNC After Reform Groups Object - WTTW News - June 25th, 2024 [June 25th, 2024]
- Is Promotion of Free Services "Commercial Speech" for First Amendment Purposes? - Reason - June 20th, 2024 [June 20th, 2024]
- Opinion | Alito comments threaten the First Amendment - The Washington Post - The Washington Post - June 20th, 2024 [June 20th, 2024]
- Six West Virginia Schools Notified of First Amendment Violations in Student Handbooks - WV News - June 20th, 2024 [June 20th, 2024]
- Missouri AG joins 23 states to defend Trump's First Amendment rights - kttn - June 20th, 2024 [June 20th, 2024]
- Voting assistance covered by First Amendment, say plaintiffs in absentee ballot case Alabama Reflector - Alabama Reflector - June 20th, 2024 [June 20th, 2024]
- ACLU Urges Six WV Schools to Review Student Policies Violating First Amendment - The 74 - June 20th, 2024 [June 20th, 2024]
- Book Review: The Indispensable Right, by Jonathan Turley - The New York Times - June 20th, 2024 [June 20th, 2024]
- Perspectives: Tale of two Cohens: promissory and profane - Minnesota Lawyer - June 20th, 2024 [June 20th, 2024]
- SPJ urges Mississippi Supreme Court to overturn lower court order that threatens journalists' First Amendment rights - Society of Professional... - June 20th, 2024 [June 20th, 2024]
- Anti-Semitism and the First Amendment | | khq.com - KHQ Right Now - June 20th, 2024 [June 20th, 2024]
- Personal Reflections: First Amendment and Religious Freedom | Opinion and Editorials | Lewiston Tribune | lmtribune ... - Lewiston Morning Tribune - June 20th, 2024 [June 20th, 2024]
- Fort Worth City Reinforces First Amendment Rights with True Texas Project Event Reinstatement at Botanic Garden - Hoodline - June 20th, 2024 [June 20th, 2024]
- Supreme Court Clears Way for N.R.A. to Pursue First Amendment Challenge - The New York Times - May 31st, 2024 [May 31st, 2024]
- SCOTUS unanimously backs NRA on First Amendment ruling - JURIST - May 31st, 2024 [May 31st, 2024]
- Unanimous First Amendment Victory for the NRA (Represented by the ACLU) - Reason - May 31st, 2024 [May 31st, 2024]
- Supreme Court Says Government Bullying Can Violate the First Amendment - Goldwater Institute - May 31st, 2024 [May 31st, 2024]
- SCOTUS Unanimously Sides With NRA in First Amendment Case - The Reload - May 31st, 2024 [May 31st, 2024]
- Supreme Court unanimously sides with NRA in First Amendment dispute with New York official - Washington Times - May 31st, 2024 [May 31st, 2024]
- Why Justice Sotomayor just handed the NRA a big Supreme Court victory - Vox.com - May 31st, 2024 [May 31st, 2024]
- John Stockton Loses Case Over Regulation of COVID Speech - Sportico - May 31st, 2024 [May 31st, 2024]
- More on the New York Trump Case and the First Amendment - Reason - May 5th, 2024 [May 5th, 2024]
- Campus encampment bans rarely violate the First Amendment. Here's why. - Foundation for Individual Rights and Expression - May 5th, 2024 [May 5th, 2024]
- Trump's Trial and the First Amendment - Reason - May 5th, 2024 [May 5th, 2024]
- Are gag orders constitutional? SCOTUS says it depends - VERIFYThis.com - May 5th, 2024 [May 5th, 2024]
- Donald Trump Has a First Amendment Right to Pay Hush Money to Support his Electoral Ambitions - Reason - May 5th, 2024 [May 5th, 2024]