The Race to Ban Race: Legal and Critical Arguments Against State Legislation to Ban Critical Race Theory in Higher Education

46 Pages Posted: 26 Sep 2022

See all articles by Vanessa Miller

Vanessa Miller

University of Florida Levin College of Law

Frank Fernandez

affiliation not provided to SSRN

Neal H. Hutchins

affiliation not provided to SSRN

Date Written: September 23, 2022

Abstract

Anti-critical race theory (“CRT”) bills have garnered national attention in the K-12 context. However, many CRT bans also impact institutions of higher education. The bills seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Those opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. However, scholars and educators have criticized anti-CRT bills for their mischaracterization of the use and tenets of CRT and related theories of scholarship. This article argues that state anti-CRT laws and policies in higher education run afoul of legal and normative principles. First, the bans conflict with basic First Amendment legal standards. Second, the bans are poor policy choices because they run contrary to the pursuit of equity and inclusion in educational environments, as well as the traditional norms of higher education. Part I of the article provides an overview of recent efforts to ban CRT and their relation to higher education. Part II presents a First Amendment legal analysis of why the bans are legally impermissible as written. Part III contends that anti-CRT legislation, in serving to perpetuate existing racial inequities in education and elsewhere, demonstrates the ongoing importance of CRT and other critical lines of scholarship in higher education.

Keywords: race, higher education, CRT, critical race theory, First Amendment

Suggested Citation

Miller, Vanessa and Fernandez, Frank and Hutchens, Neal, The Race to Ban Race: Legal and Critical Arguments Against State Legislation to Ban Critical Race Theory in Higher Education (September 23, 2022). Missouri Law Review, Forthcoming, University of Florida Levin College of Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4227952 or http://dx.doi.org/10.2139/ssrn.4227952

Vanessa Miller (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

HOME PAGE: http://https://www.law.ufl.edu/areas-of-study/centers/race-and-crime-center-for-justice

Frank Fernandez

affiliation not provided to SSRN

Neal Hutchens

affiliation not provided to SSRN

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