Do Bans on Critical Race Theory Violate Students’ First Amendment Rights?
Over the last year, conservatives’ crosshairs have turned to critical race theory, a scholarly legal-academic framework created in the 1970s by Harvard Law Professor Derrick A. Bell. Critical race theory posits that America’s history of slavery, segregation, and discrimination is embedded in our laws and that the effects of historical institutional racism continue to this day.
Take housing, for example. Researchers have produced abundant evidence documenting how the effects of racial discrimination in housing–redlining, racist restrictive covenants, and so on–have exacerbated the racial wealth gap by keeping Black families out of the housing market at disproportionate rates. Critical race theorists seek to analyze, and ultimately decouple, that bond between law and racial power.
Conservatives, on the other hand, argue that it is unduly divisive–even racist–to examine the intersection of race and institutional power. They assert that by examining power and privilege through a racial lens, critical race theory teaches Americans to hate their country and to associate whiteness with evil. Because of these fears, conservative legislatures and school boards have passed sweeping prohibitions on curricula featuring critical race theory. Legal analysis of these bans has tended to focus on vagueness, overbreadth, and the First Amendment rights of teachers in classrooms.
This article, however, posits that the recent bans on critical race theory in K-12 education violate students’ First Amendment right to receive information.
The Right to Receive Information
The First Amendment prohibits laws “abridging the freedom of speech.”[1] In Martin v. Struthers,[2] the Supreme Court held that the First Amendment confers the right not just to express information, but to receive it.[3] The right to receive information is a penumbral right, the theory went[4][5]
[1] U.S. Const. am. 1.
[2] 319 U.S. 141 (1943).
[3] Id. at 143.
[4] See Thomas v. Collins, 323 U.S. 515, 530 (1945).