Lawsuit challenges state restrictions on critical race theory in schools

For four years, the South Carolina Department of Education has used budget restrictions to limit K-12 lessons that promote critical race theory. A lawsuit filed last week challenges the state’s regulation, claiming these restrictions suppress free speech and infringe on students’ right to learn.

First Amendment experts say the free speech claims are unlikely to succeed and that the NAACP likely filed the lawsuit to highlight a questionably vague state policy.

South Carolina first adopted the budget restrictions for public schools in 2021 after the death of George Floyd, a black man in Minneapolis, sparked protests and riots in the summer of 2020. The Department of Education continued to pass similar restrictions annually in the state’s budget proviso requirements.

The latest proviso states that school funds will not be used to train, instruct, or teach critical race theory in classrooms. This includes concepts such as that one race is inherently superior to another or that individuals are inherently racist because of their own race and sex. It also includes the idea that someone of a specific race or sex deserves fault, blame, or prejudice because of their race or sex.

The regulation clarifies that this does not limit professional development training that teaches “literary or historical concepts” or issues regarding “past discriminatory policies.”

The complaint contends the regulation censors teaching about racial inequalities and black history and culture. Along with the NAACP, author Ibram X. Kendi and several South Carolina school staff members and students filed the suit in a federal district court in Columbia, S.C.

“The budget proviso is a racially and politically motivated censorship law,” the complaint states. “[It’s] the latest example of South Carolina’s well-documented history of suppressing accurate teaching in public school classrooms about racism and discrimination against Black people in the United States.”

The suit says the regulation harms students’ ability to “think independently and engage meaningfully in constructive debate.” It claims the law violated the rights to receive information and disseminate ideas.

Plaintiff Mary Wood, an AP English language and composition teacher at Chapin High School, said the state’s proviso directly affected her lesson plans. She said her school’s administration forced her to stop using lesson plans that involved assigning the memoir Between the World and Me by Ta-Nehisi Coates and discussing its messages about systemic racism.

She then had to revise her lesson plans, but the school’s administration provided her little guidance on how to do so in a way that complied with the proviso, according to the complaint.

“As a public school teacher, I have committed myself to do what I can to fight injustice and honor humanity,” Wood said in a statement. “And this is exactly what proponents of South Carolina’s budget proviso seek to prevent.”

Two student plaintiffs also expressed frustration that they could not take the Advanced Placement African American Studies course, which they said the state removed from its curriculum because of the budget law.

In response to the lawsuit, the South Carolina Department of Education reemphasized that it teaches with integrity about African American history.

“South Carolina’s commitment to teach both the tragedies and triumphs of America’s journey remains unchanged, as outlined in our long-standing instructional standards,” Jason Raven, a spokesperson for the state Department of Education, said in an emailed statement. “This meritless lawsuit does not diminish our dedication, nor does it identify any shortcomings or legal defects.”

While South Carolina’s regulation may be “too negative on African American history,” that doesn’t make it unconstitutional, said Brad Jacob, a constitutional law expert at Regent University School of Law. He thinks the NAACP’s First Amendment arguments are unlikely to hold up in court.

Jacob said state education departments have the right to determine school curriculum, just as a library gets to decide what books to put on a shelf. Parents, teachers, and students don’t have the right to say a lack of a particular lesson violates their speech, he said.

Jacob said the NAACP likely filed the case to call attention to South Carolina’s policy.

“[This case] is just a great argument for school choice,” Jacob said. “If you don’t like what your kids are being taught, the remedy is either try to influence the politics, whether that’s the local school board or the state board of education… or pull your kids out and put them in private school or home school.”

Ernie Walton, faculty director of Regent Law’s Center for Global Justice, echoed Jacob’s remarks. But he said the case’s best argument is that the law is vague and that the state is unclear about how broadly its restrictions apply.

While schools don’t have the right to suppress student speech or indoctrinate them with particular beliefs, he noted, South Carolina’s regulation doesn’t do that.

“We are talking here about the alleged right to be taught something from a particular viewpoint that’s fundamentally different,” Walton said. “No one is forcing students to speak things or to believe certain things that they don’t agree with.”