• Paige Duggins-Clay, J.D. • IDRA Newsletter • February 2022 •
The adoption of the 14th Amendment in 1868 represented our nation’s first attempt to provide equal protection and representation to Black Americans, who had lived in bondage and violence for nearly 250 years at the time of its ratification. The Amendment’s last line (known as the Equal Protection Clause) promises “equal protection of the laws.” Dr. Martin Luther King, Jr., famously said in his 1963 I Have a Dream speech: “It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned.”
While there can be no doubt that we have made tremendous strides as a society since the 14th Amendment’s enactment, and even more since MLK spoke these time-honored words on the steps of the Lincoln Memorial, there can similarly be no question that now, as then, some of our state and national leaders have reneged on their “sacred obligation” to equal protection.
Disturbingly, as classroom censorship legislation has blazed its way through the country (and particularly across the U.S. South), some have attempted to justify these harmful bills as somehow flowing from or supported by the 14th Amendment and/or state and federal civil rights laws.
One Florida bill (HB 7) would go so far as to make it an illegal act of discrimination under the state’s civil rights law to “subject” an individual to any activity that “espouses, promotes, advances,” etc. “concepts,” such as implicit bias, systemic racism/bias, and affirmative action.
“No State shall… nor shall any State… deny to any person within its jurisdiction the equal protection of the laws.”
– Equal Protection Clause, 14th Amendment, U.S. Constitution
Let there be no mistake: Invoking the U.S. Constitution as the basis for promoting and implementing classroom censorship policies is antithetical to the principles of freedom of speech and equal protection guaranteed by the First and 14th Amendments. And anyone truly committed to advancing diversity, equity and inclusion in our schools and society should strongly oppose laws and policies that prohibit educators from teaching about the history and impacts of systemic racism in the United States. Silencing the discussion of any aspect of these histories in our classrooms goes against the professed values of freedom and equality offered to everyone under the U.S. Constitution.
Schools’ compliance with state and federal civil rights laws is a foundational requirement for equal and equitable education. Despite the performative antics of those who wish to silence students and educators from sharing their authentic perspectives, there is no credible evidence that teaching the truth about our history or encouraging civic engagement violates anti-discrimination laws.
To the contrary, there is ample evidence that students today are deeply impacted by racism, misogyny and other forms of discrimination in their schools – sometimes embedded in school district policies and often perpetrated by their fellow students, teachers or campus staff (see TEACH Coalition 2021 letter with stories from students about their experiences in school). This impact is particularly acute for Black, Brown, immigrant and LGBTQ+ students.
The U.S. Constitution protects opportunities for students and educators to engage in dialogue and draw their own conclusions about why racial and other inequalities persist despite individual equality under the law. Courts around the country have found that governmental efforts to censor discussions of difficult issues, including issues of race and injustice, are unlawful, particularly where such efforts have a disproportionate impact on people of color.
The U.S. Constitution protects opportunities for students and educators to engage in dialogue and draw their own conclusions about why racial and other inequalities persist despite individual equality under the law.
In Arce v. Douglas (2015), for example, a federal court was asked to consider whether state executive action to eliminate Arizona’s Mexican American Studies program was motivated by unlawful racial animus. The misguided Arizona law, which was struck down by the court, that targeted the Mexican American Studies program echoed many of the elements of censorship legislation proposed and/or adopted in Texas, Georgia, Florida, Virginia and several other states today. For example, the now-defunct law included a prohibition on instruction or classes that “promote resentment toward a race or class of people,” “are designed primarily for pupils of a particular ethnic group,” or “advocate ethnic solidarity instead of the treatment of pupils as individuals.”
Under well-settled law, courts may consider several factors to analyze whether racial discrimination is an element of a state official’s decision-making (Arlington Heights, 1977), including:
- the impact of the official action and whether it bears more heavily on one race than another;
- the historical background of the decision;
- the specific sequence of events leading to the challenged action;
- the official’s departures from normal procedures or substantive conclusions; and
- the relevant legislative or administrative history.
It is worth remembering that, under the 14th Amendment, a person need not prove that unlawful discrimination was the “sole” purpose of the challenged action, only that it was a “motivating factor.”
Applying those factors to the official actions in the Arizona ethnic studies case, the court easily concluded that facts stated by the plaintiffs could establish an equal protection violation, in addition to a First Amendment claim.
The district court’s decision, upheld by the Ninth Circuit Court of Appeals, serves as a clear reminder of the true nature and purpose of the Equal Protection Clause, as well as a stern admonishment to lawmakers that the constitution will not tolerate actions motivated in any way by discriminatory bias.
A commitment to equity requires rigorous and truthful examination of the root causes of unequal outcomes in order to create policies that promote equal opportunity for all. And central to the concept of individual freedom is the right to think and feel for oneself. State-sponsored efforts to hide the truth of our history and stop students from critically examining historical events that contribute to modern-day inequality must be called out for what they are: intentional efforts to erase the reality of the lived experiences of students of color, students with diverse gender identities, and immigrant students and part of a larger, coordinated strategy to roll back our nation’s foundational civil rights protections and interventions.
Resources
Arce v. Douglas. (2015). 793 F.3d 968, 978 (9th Cir.).
TEACH Coalition. (September 14, 2021). Request for Opinion No. RQ-0421-KP: Anti-Racism and Critical Race Theory Teachings.
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. (1977). 429 U.S. 252, 265-66.
Paige Duggins-Clay, J.D., is IDRA’s chief legal analyst. Comments and questions may be directed to her via email at paige.duggins-clay@idra.org.
[©2022, IDRA. This article originally appeared in the February 2022 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]
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