(E)racing Speech in School

30 Pages Posted: 21 Feb 2023 Last revised: 3 Oct 2023

See all articles by Francesca Procaccini

Francesca Procaccini

Vanderbilt University - Vanderbilt Law School; Harvard Law School; Yale Law School

Date Written: February 16, 2023

Abstract

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of "anti-critical race theory" laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to overturn anti-critical race theory laws, but often will protect students’ right to receive the information these laws chill. The deeper insight of these conclusions is that they rest on the same, sound constitutional reasoning: that the First Amendment works to protect equal political participation in democratic self-governance, as part of the Constitution’s larger foundational goal of securing equal popular sovereignty.

The First Amendment implications of these speech-chilling laws thus illustrate that, in service of democratic governance, the free speech right (1) leaves substantial room for government regulation of speech to protect safe and effective public services, including public school education; (2) rejects paternalism in favor of fostering individual enlightenment and growth in service of effective democratic self-governance; and (3) is primarily designed to protect the free flow of information so that citizens make good choices in their social, political, and economic lives. In short, the analysis emphasizes that the First Amendment protects citizens’ right to receive information critical to fulfilling and benefitting from their role as citizens. Anti-CRT laws do not run afoul of this principle — and in some ways they actually advance it — when it comes to regulating teachers’ and parents’ speech. The laws do, however, hinder democratic governance as applied to students’ rights to receive information critical to their ability to engage as full citizens.

Keywords: Free Speech, First Amendment, Critical Race Theory, Anti-CRT Laws

Suggested Citation

Procaccini, Francesca, (E)racing Speech in School (February 16, 2023). Francesca Procaccini, (E)racing Speech in School, 58 Harv. C.R.-C.L. L. Rev. 457 (2023), Available at SSRN: https://ssrn.com/abstract=4361397 or http://dx.doi.org/10.2139/ssrn.4361397

Francesca Procaccini (Contact Author)

Vanderbilt University - Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
140
Abstract Views
585
Rank
425,065
PlumX Metrics