William & Mary Bill of Rights Journal
Indoctrination by Elimination: Why Banning Critical Race Theory in Public Schools is Unconstitutional
This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest that CRT must be added to all public school curricula, given that CRT was not taught in K–12 public school students prior to this ban. Instead, this Note argues that an outright ban violates students’ constitutional rights under the First Amendment.
While it is true that schools are special environments within the context of the First Amendment where students have more limited First Amendment rights, the Supreme Court has made clear that students’ fundamental First Amendment rights remain, and that while courts will not generally intervene in schools’ issues, they will intervene when fundamental constitutional rights are infringed. This Note argues that CRT bans, like those of Texas and other states, are an example of such an infringement.
First, this Note will discuss what Critical Race Theory is, and why Texas and other states have tried to ban it. Second, this Note will discuss what First Amendment rights students have, and argue that this ban violates those rights. This Note specifically examines a student’s right to speak and a student’s right to receive information under the First Amendment. Finally, this Note will argue that rather than protecting the educational system and its students, as the proponents of this law argue, this ban actually counteracts the values and mission of the country’s public education system and constricts the ability of students to grow into members of society capable of participating in an increasingly diverse and complex world.
This abstract has been taken from the author's introduction.
Repository CitationEmma Postel, Indoctrination by Elimination: Why Banning Critical Race Theory in Public Schools is Unconstitutional, 31 Wm. & Mary Bill Rts. J. 581 (2022), https://scholarship.law.wm.edu/wmborj/vol31/iss2/9
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