The ACLU on Fighting Critical Race Theory Bans: ‘It’s About Our Country Reckoning with Racism’

If 2020 was a year of racial reckoning for the United States, 2021 is shaping up to be one of backlash.

A concerted campaign against efforts to address persistent racial inequality has consolidated under the watchword of “critical race theory” (CRT). Once a relatively obscure academic framework for examining the ways in which racism was embedded in US laws and institutions, CRT has been recast by rightwing activists as an omnipresent and omnipotent ideology, one that is anti-American, anti-capitalist, and anti-white.

The campaign has been astonishingly effective. Legislation seeking to limit the teaching of CRT or related concepts has been introduced in 22 states in 2021, according to an analysis by the African American Policy Forum, a thinktank led by one of the founders of critical race theory, Kimberlé Crenshaw. Arkansas, Idaho, Iowa, Oklahoma, Tennessee and Texas have all passed anti-CRT laws, and Florida, Georgia and Utah have passed resolutions. Legislators in Alabama and Kentucky have already pre-filed anti-critical race theory bills for the 2022 legislative sessions.

Heated political battles over education have flared up repeatedly throughout US history, according to Adam Laats, a professor of history and education at Binghamton University who said he was nevertheless “surprised by how many local and state laws are getting involved”.

Latts compared the anti-CRT movement to a “similar spate of confused outrage and legislative action” against the theory of evolution in the 1920s, when 21 states debated 53 bills seeking to ban the teaching of evolution. Five states – Oklahoma, Florida, Tennessee, Mississippi and Arkansas – ultimately passed laws or resolutions, paving the way for the 1925 Scopes trial, in which the American Civil Liberties Union (ACLU) defended a high school science teacher who had been charged with violating Tennessee’s anti-evolution law.

Now the ACLU is gearing up for a new iteration of that earlier fight. Emerson Sykes, an ACLU staff attorney who specializes in first amendment free speech issues, spoke to the Guardian about the plans to fight back against what the rights group has deemed “a nationwide attempt to censor discussions of race in the classroom”.

This interview has been edited for length and clarity.

Many people are confused about the extent to which these laws against CRT fit within the first aAmendment. Are these laws constitutional?

I would start by saying that this is much beyond a legal issue. It’s a social, cultural, political issue. It’s about our country reckoning with racism and other aspects of its past and present. There has been a concerted effort to try to censor speech about race and gender in public schools, and this is a bigger problem than just whether any particular bill is constitutional or not.

The other point is that these bills, as much as they are part of a unified effort, vary widely. Some of them cover government agencies, some of them cover contractors, some of them cover higher education. Almost all of them cover K-12 education. But there’s a huge number of proposals, and there have been different iterations. Now we’re seeing these types of debates happening in school boards across the country, and in many ways, I think that’s where we’re actually going to see the impact on children and in classrooms.

But to get to your question. We do think that some of the bills are vulnerable to litigation and the constitutional challenge.