New North Dakota Law Would be Illegal to Discuss Under Terms of That Law

On November 8, North Dakota legislators introduced a bill banning Critical Race Theory (CRT) in K-12 schools. Less than a week later, North Dakota Governor Doug Burgum (R) signed the legislation into law. The impact of the new law could be significant. And that's not because anyone is teaching CRT to K-12 students in North Dakota. 

While the new law purports to ban instruction on CRT, it actually prohibits teaching a wide range of topics. That's because it defines CRT very broadly. Here is the key portion of the law's text:

A school district or public school may not include instruction relating to critical race theory in any portion of the district's required curriculum...or any other curriculum offered by the district or school. For purposes of this section, "critical race theory" means the theory that racism is not merely the product of learned individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality.

So the new law prohibits any instruction "related" to the idea that "racism is systemically embedded in American society" or the American "legal system." That means the bill bans any instruction or written materials referencing these ideas, whether or not they are endorsed by the teacher. 

Faced with these constraints, how can a teacher discuss slavery, the civil rights era, or the history of redlining? All of these topics are inextricably related to systemic racism in American society and its legal system.

The law will "deeply undermine the ability of teachers to teach and the right of students to learn," the North Dakota ACLU wrote in a letter of opposition. Students will be denied "a safe learning environment in which they can engage in open and honest dialogue about America’s history" including "the history and culture of marginalized communities."

On its face, any discussion of the new law itself would be banned in North Dakota's K-12 schools. The bill prohibits any instruction "related" to the theory that "racism is systemically embedded in American society." That would certainly include instruction about this law that bans curriculum related to systematic racism. Any classroom discussion about the new law would have to include an explanation of systematic racism, which is not permitted.