Does teaching critical race theory or antiracism in Arkansas public schools and universities violate Title VI or the Equal Protection Clause?

Plain-English summary

Representative Mark Lowery asked Attorney General Leslie Rutledge whether teaching practices grounded in critical race theory (CRT) or "antiracism" in Arkansas public schools and universities run afoul of federal and state nondiscrimination law. The AG answered yes, with caveats.

The opinion's core conclusion: Title VI of the Civil Rights Act, the Fourteenth Amendment's Equal Protection Clause, and Article II of the Arkansas Constitution forbid schools from using race to deny benefits, segregate students, or treat them differently. They also forbid creating a "racially hostile environment" through curricula or instruction. According to the AG, instituting practices that classify students by race, assign moral worth or guilt by race, or stereotype students based on race can cross those legal lines.

The AG was careful to draw a boundary. The law does not prohibit teaching the history of slavery, Jim Crow, the eugenics movement, the Ku Klux Klan, the Civil War, the Emancipation Proclamation, the Civil War Amendments, or the civil rights movement. What it can prohibit is teaching that treats individuals differently based on race, or that creates a hostile environment by communicating that students of certain races are inherently oppressive, oppressed, privileged, victimized, or accountable for the actions of others of their race.

What this means for you

School administrators and school boards

Audit your curriculum, training programs, and disciplinary policies for race-based classifications. The opinion identifies a list of ideas that, if communicated through school programs, could create a racially hostile environment under Title VI: that an individual deserves praise or criticism based on race, that certain traits or beliefs are proper to some races but not others, that an individual is inherently oppressive or victimized by virtue of race, that an individual should feel guilt or distress because of their race, or that an individual is personally accountable for past actions of others of the same race.

Teacher training that asks staff to acknowledge "white privilege" as a personal trait, or that frames specific groups as inherently oppressors or victims, is the kind of programming the AG flagged. Whether any particular program crosses the line is fact-specific and turns on the totality of the circumstances. Consult with district counsel before adopting curricula or trainings sourced from materials cited in the opinion (Kendi's antiracism framework, Smithsonian "Talking About Race" materials, the 1619 Project as standalone curriculum).

Teachers

Teaching the history of racial injustice in America is explicitly permitted and described as "indispensable" by the AG. What the opinion identifies as legally risky is pedagogy that requires students to adopt particular views about themselves or their classmates based on race. Asking students to identify their racial group's relative privilege or oppression, or grading students differently based on whether they accept those frameworks, is the territory the opinion warns about.

If you teach in a public university, the opinion notes academic freedom is "of transcendent value," but also that Title VI and the Equal Protection Clause still apply to the institution. The First Amendment does not immunize a teacher or school from Title VI liability for race-based practices.

Parents and students

If you believe a school program is treating your student differently based on race, or creating an environment hostile to your student's race, the opinion describes the standards a court would apply. Title VI complaints can be filed with the U.S. Department of Education's Office for Civil Rights. State-law claims can be brought under the Arkansas Civil Rights Act, which recognizes the civil right to "be free from discrimination because of race."

Higher education

The AG conceded that "there may be some legitimate pedagogical uses of these ideas in the university setting," for example contrasting CRT with classical liberal frameworks. The university context affords more room for academic study of contested ideas than the K-12 context, so long as the institution is not using race itself as the basis for benefits or different treatment.

Common questions

Did this opinion ban critical race theory in Arkansas schools?

No. An AG opinion is not binding law. It is a legal analysis that argues certain CRT-based practices can violate existing federal and state nondiscrimination law. Arkansas later passed legislation addressing this area; that legislation, not this opinion, controls what is enforceable.

Can teachers still teach about slavery and the civil rights movement?

Yes. The opinion explicitly says teaching "the history of slavery, Jim Crow laws, the eugenics movement, and the Ku Klux Klan" is not prohibited, nor is teaching "the Constitution and the abolition of the slave trade, the abolitionist movement, the Civil War, Abraham Lincoln and the Emancipation Proclamation, the Civil War Amendments, and the civil-rights movement."

Where exactly is the line between permitted history and prohibited curriculum?

The AG's test is whether the curriculum or program creates a "racially hostile environment" by communicating one of the seven ideas listed in the opinion (race-based praise/blame, race-tied character traits, inherent oppression/oppressor status by race, race-based emotional duties, race-based moral standing, race-based collective accountability, or race-based discrimination). Whether a given lesson falls on the wrong side of that line is "a question of fact" that depends on the totality of the circumstances.

Does the First Amendment protect teachers who include CRT in their classes?

The opinion answers no, in the K-12 context. It cites Garcetti v. Ceballos for the rule that statements public employees make "pursuant to their official duties" are not protected by the First Amendment. The opinion treats academic freedom in higher education with more deference but still concludes that the First Amendment does not immunize a school from Title VI or Equal Protection violations.

Is this opinion enforceable?

An AG opinion is persuasive authority, not binding precedent. It signals how the AG's office views the law and how it might litigate the issue. Courts decide actual cases. To know whether a specific program is unlawful, the question would have to be adjudicated under Title VI or the relevant constitutional provision.

Background and statutory framework

Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) prohibits discrimination on the basis of race, color, or national origin in any program receiving federal financial assistance. Public schools and universities in Arkansas receive federal funds and are therefore subject to Title VI. The implementing regulations (34 C.F.R. § 100.3(b)) prohibit schools from using race to deny a benefit, provide a different benefit, segregate or treat students separately, restrict enjoyment of a benefit, or deny opportunity to participate.

Since 1994, the U.S. Department of Education has interpreted Title VI as also prohibiting schools from subjecting students to a "racially hostile environment." The harassment must be sufficiently severe, pervasive, or persistent to interfere with a student's participation. It need not be targeted at any particular person and need not result in tangible injury.

The Equal Protection Clause of the Fourteenth Amendment forbids state actors (including public schools) from purposefully discriminating between individuals on the basis of race. Race-based classifications are "presumptively invalid" and survive only if they are narrowly tailored to a compelling government interest. The Supreme Court has recognized only two such interests: remedying past intentional discrimination and creating student body diversity in higher education.

Article II of the Arkansas Constitution provides that "the equality of all persons before the law is recognized, and shall ever remain inviolate." Arkansas courts traditionally interpret state equal protection consistently with federal Equal Protection jurisprudence.

Citations

• Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
• Title VI implementing regulations, 34 C.F.R. § 100.1 et seq.
• Ark. Const. art. 2, § 3 (equality before law)
• Ark. Const. art. 14, § 1 (suitable means for education)
• Ark. Code Ann. § 16-123-107(a) (Arkansas Civil Rights Act)
• Brown v. Board of Education
• Gratz v. Bollinger, 539 U.S. 244 (2003)
• Plessy v. Ferguson, 163 U.S. 537 (Harlan, J., dissenting)
• Shaw v. Reno, 509 U.S. 630 (1993)
• Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007)
• Fisher v. Univ. of Texas, 570 U.S. 297 (2013)
• Grutter v. Bollinger, 539 U.S. 306 (2003)
• City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
• Lake View Sch. Dist. No. 25 of Phillips Cty. v. Huckabee, 351 Ark. 31 (2004)
• Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)
• Garcetti v. Ceballos, 547 U.S. 410 (2006)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-042
August 16, 2021
The Honorable Mark Lowery
State Representative
229 Summit Valley Circle
Maumelle, AR 72113-5934

Dear Representative Lowery:

This letter is in response to your request for an opinion regarding the legality of introducing critical race theory and professed "antiracism" in Arkansas public schools and universities. In this regard, you have asked the following question:

Does the introduction of practices based on "antiracism" and critical race theory in Arkansas public schools and universities violate Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Article II of the Arkansas Constitution, or other applicable nondiscrimination laws?

RESPONSE

The answer to your question is yes. With certain qualifications set forth below, instituting practices based on critical race theory, professed "antiracism," or associated ideas can violate Title VI, the Equal Protection Clause, and Article II of the Arkansas Constitution.

DISCUSSION

Question 1: Does the introduction of practices based on "antiracism" and critical race theory in Arkansas public schools and universities violate Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Article II of the Arkansas Constitution, or other applicable nondiscrimination laws?

a. Critical Race Theory, "Antiracism," and Associated Ideas

Critical race theory emerged at the end of the twentieth century as a radical approach to the study of law with a focus on racial inequalities and a conviction that racist oppression is inherent to American society. In a formative article, the intellectual father of critical race theory, Derrick A. Bell, Jr., contended that racism is so engrained in the institutions (social, political, and legal) of our Nation that even the civil-rights triumph of Brown v. Board of Education was a mere consequence of a temporary convergence of elite whites' material self-interest with the interests of blacks. According to contemporary advocates, "critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law." Thus, critical race theorists typically reject the civil-rights movement's ideal of a "colorblind" society, contending that "[o]nly aggressive, color-conscious efforts" can effectively address what they conceive as American society's endemic racist oppression.

In 1991, Kimberle Crenshaw introduced the idea of intersectionality, which theorizes that a full account must be taken of the converging categories (race, sex, class, etc.) to which one belongs in order to adequately understand how a person experiences privilege or oppression. In succeeding decades, others have advocated ideas that draw inspiration from Bell, Crenshaw, and other critical race theorists. This includes Ibram X. Kendi's professed "antiracism," which rejects the very possibility of race-neutral policies and expressly maintains that the only remedy to past and present racial discrimination is present and future racial discrimination.

b. Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 and its implementing regulations protect students who are enrolled in institutions receiving federal funding, including Arkansas public schools and universities, from discrimination based on race. Accordingly, these educational institutions may not use race as a basis to:

• deny a benefit;
• provide a different benefit, or provide a benefit in a different manner;
• subject one to segregation or separate treatment in relation to a benefit;
• restrict the enjoyment of a benefit;
• treat one differently in determining whether any requirement or condition for a benefit is met; or
• deny one an opportunity to participate, or afford one an opportunity to participate that is different.

Additionally, "discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI."

The Department of Education further recognizes that "[t]he type of environment that is tolerated or encouraged by or at school can ... send a particularly strong signal to, and serve as an influential lesson for, its students." Therefore, since 1994, it has interpreted Title VI as prohibiting educational institutions from subjecting students to a racially hostile environment. That includes any race-based harassment that is sufficiently severe, pervasive, or persistent as to interfere with one's participation in or benefit from services, activities, or privileges that an educational institution provides. Such harassment "need not be targeted" at any particular person and "need not result in tangible injury or detriment to the victims" to create a racially hostile environment.

c. Federal and State Equal Protection Provisions

The Arkansas Constitution provides that "[t]he equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden or duty, on account of race, color or previous condition." Further, it provides that "the State ... shall adopt all suitable means to secure to the people the advantages and opportunities of education." Applying constitutional provisions concerning equal treatment, the Arkansas Supreme Court has said that "[e]quality of educational opportunity must include ... substantially equal curricula ... for obtaining an adequate education." The Arkansas Supreme Court has traditionally interpreted Arkansas's constitutional provisions bearing on equal protection consistently with federal courts' interpretation of the federal Equal Protection Clause.

Associate Justice John Marshall Harlan famously dissented in Plessy v. Ferguson, declaring what the full Court would in time come to recognize: that the federal Constitution "is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." Indeed, section one of the Fourteenth Amendment provides in part that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." The "central purpose" of that provision "is to prevent the States from purposefully discriminating between individuals on the basis of race." "Classifications of citizens solely on the basis of race ... threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility." Therefore, any State action that distinguishes based on race is "presumptively invalid," and "the Equal Protection Clause demands that [it] ... be subjected to the 'most rigid scrutiny.'"

"[R]acial 'classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.'" The Supreme Court has recognized only two compelling interests that could justify racial distinctions in the school context. These include "remedying the effects of past intentional discrimination" and creating "student body diversity" in higher education. Any State that undertook race-based remedial measures would bear the burden to both 1) show "a strong basis in evidence for its conclusion that remedial action was necessary," and 2) "tailor remedial relief to those who truly have suffered the effects of prior discrimination." "Societal discrimination alone" cannot justify race-based remedial efforts.

d. Analysis

Any effort to take account of race in a way that differently accords benefits or opportunities or creates a hostile environment in an educational institution is almost certainly unlawful under the Equal Protection Clause and Title VI. This includes overt racial segregation or other discrimination, however well intended, as well as any form of racial stereotyping or scapegoating. A racially hostile environment could also be created through curricula, instruction, or other programs or activities that communicate the following ideas:

• that an individual, by virtue of race, deserves praise or criticism for taking or failing to take some action or stand, or for supporting, opposing, or failing to support or oppose some cause;
• that certain character traits or beliefs are proper to individuals of some races but not others;
• that an individual, simply by virtue of race, is oppressive or oppressed, privileged or victimized, whether consciously or unconsciously;
• that an individual, simply by virtue of race, should feel discomfort, resentment, guilt, or distress;
• that an individual's moral character, standing, status, or worth depends on one's race;
• that an individual is personally accountable for actions committed in the past by other individuals of the same race; or
• that an individual, simply by virtue of race, should be discriminated against or adversely treated.

The existence of a racially hostile environment "must be determined from the totality of the circumstances." In many instances, instituting pedagogical practices based on critical race theory, "antiracism," or associated ideas will violate the law. But it is important to note that the unlawfulness of such practices does not preclude teaching the history of racial injustice or our Nation's longstanding and continuing efforts to realize what Dr. Martin Luther King, Jr. recognized as the dream expressed in our founding creed: We hold these truths to be self-evident, that all men are created equal. Thus, the law does not prohibit teaching about the history of slavery, Jim Crow laws, the eugenics movement, and the Ku Klux Klan. Nor does it prohibit teaching about the Constitution and the abolition of the slave trade, the abolitionist movement, the Civil War, Abraham Lincoln and the Emancipation Proclamation, the Civil War Amendments, and the civil-rights movement. These are indispensable topics for history and civics education.

Critical race theory and "antiracism," as recent developments, have very little to do with this history. That said, there may be some legitimate pedagogical uses of these ideas in the university setting. At a high level, for example, greater clarity might be gained by contrasting the civil-rights movement's grounding in the Founders' classically liberal vision of individual natural rights with critical race theory's grounding in a broadly socialist vision of conflict based on group interest and identity. Further, because a theory need not be accepted as an integrated whole, it is possible that critical race theory could generate discrete insights that may be useful for certain limited purposes.

The Supreme Court has recognized that "the classroom is peculiarly the 'marketplace of ideas,'" and "wide exposure to that robust exchange of ideas" is ideal. Therefore, "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." At the same time, statements that public employees make pursuant to their official duties are not protected by the First Amendment. And although the First Amendment protects the right "to receive information and ideas," that right is restricted in the case of children.

Consequently, although the First Amendment protects individual expression, it does not immunize a person or educational institution from violating others' rights under Title VI, the Equal Protection Clause, or the Arkansas Constitution by engaging in prohibited race-based practices. For these reasons, and with the qualifications set forth above, instituting practices based on critical race theory, professed "antiracism," or associated ideas can violate Title VI, the Equal Protection Clause, and Article II of the Arkansas Constitution.

Sincerely,

LESLIE RUTLEDGE
Attorney General