Associate Professor Raquel Muñiz was awarded the 2024 Steven S. Goldberg Award in recognition of her research titled, “Exploring litigation of anti-CRT state action: Considering the issues, challenges & risks in a time of white backlash,” which appeared in “Syracuse Law Review.” The award, presented by the Education Law Association (ELA), recognizes an outstanding piece of scholarly legal writing in the field of education law.
Abstract
Excerpted From: Raquel Muñiz, Exploring Litigation of Anti-CRT State Action: Considering the Issues, Challenges & Risks in a Time of White Backlash, 74 Syracuse Law Review 1071 (2024) (124 Footnotes) (Full Document)
The United States continues in an era of racial retrenchment and regression, as white backlash intensifies nationwide. Within this context of contemporary white backlash, Critical Race Theory (CRT), a theory taught primarily in graduate and law schools, has become a focal point that has caught the significant attention of the general public. The increased attention is partly a result of the use of the media apparatus by radical, right-wing groups and individuals who have framed CRT as an all-encompassing umbrella that includes within its scope any issue they perceive as a threat to the pernicious unequal, racialized status quo. Through incessant messaging, including via social media and news outlets, these groups and individuals have shaped the public discourse. The narrative that has emerged paints a gloomy picture and full-blown crisis that requires immediate amelioration: K-12 educators nationwide are indoctrinating white children into shame, self-hate, and hating the United States, and states need to adopt laws and policies to fix this.
This emergent description caricatures the state of education. In actuality, educational institutions have increasingly adopted inclusive policies and practices responsive to decades of research that demonstrates the historical exclusion of racially marginalized students and the need to foster a sense of belonging in education. However, the death of George Floyd, a Black man who was murdered by a police officer, catapulted public discussion of a racial reckoning nationwide in 2020 and led students to demand change and educational institutions to revisit their efforts and adapt accordingly.
Nonetheless, the media frenzy led to moral panic and calls for state legislators and other state actors (e.g., governors) to adopt laws and policies that would address the manufactured crisis. By 2021, state legislators nationwide had begun to adopt laws to prevent “indoctrination” in K-12 schools and other state actors adopted regulations or policy guidance doing the same. These laws became colloquially known as “anti-CRT” bans. Similar measures were introduced at the federal and local levels, resulting in the introduction of more than 500 measures by federal, state, and local officials in forty-nine states by 2022. Over 200 measures were adopted across the federal, state, and local levels.
Researchers and scholars have begun to document trends across the bans, their magnitude, and the overall impact of the sociopolitical hostile climate and bans on schools. The widespread adoption of the bans and these findings raise questions about the legality of the bans. Thus, I contribute to the emerging literature by focusing my analysis on a less explored area: the legal challenges to the so-called anti-CRT state bans. I examine litigation trends regarding the anti-CRT state-level bans from 2020, when the manufactured crisis began, to 2023, the latest completed legislative session as of this writing. To provide a more in-depth analysis of the legal challenges, I focus on the actions taken by state legislatures and other state-level entities (e.g., governors, administrative agencies) (hereafter collectively “state action”). One question guides the analysis: What trends are present across litigation challenging so-called anti-CRT state action adopted 2020-2023? The analysis shows that advocates have only challenged anti-CRT restrictions in six states, countering a mere fraction of the bans adopted in seventeen states. These lawsuits have focused on state law violations, free speech, and due process claims. Only one lawsuit alleging state law violations has been successful thus far. The empirical findings raise practical and normative questions. Thus, I interrogate the lack of litigation, focusing on practical and normative issues that the findings raise.
I begin in Part I, situating the anti-CRT state action within the historical patterns of white backlash. Then, I turn to the current study in Parts II and III. After introducing the litigation trends from 2020-2023 in Part IV, I turn to a discussion of practical and normative considerations raised by the lack of litigation challenging anti-CRT state action in Part V. I conclude with reflections of potential pathways forward.
We stand in a critical juncture in history. White backlash has gained significant traction and forcefully pushed back against decades of racial equity advances. Since 2020, the regressive state actions prohibiting the accurate teaching of race and racism in schools have mushroomed. Yet, they have not been met with similar resistance through litigation, leaving them in place to govern the silencing of accurate teaching of race and racism in the classrooms in most states where these state actions have been adopted (See Table 1). These state laws and policies ultimately uphold an inequitable racialized status quo.
Challenging these state actions through litigation could lead to courts ruling that the state action is in violation of the law. However, it is not entirely clear what challenges or hurdles are contributing to the lack of legal challenges. As discussed in the preceding section, history, precedent, emerging research, and journalistic investigation show that there is likely a confluence of issues accounting for the lack of litigation. However, the lack of litigation deserves future consideration, given that courts play a significant role in shaping policies and practice in education.
While litigation may not be the “right” solution for the current social context and as evidenced by the current sparse litigation nationwide, there is a need for a multi-systemic approach at the moment. There are other areas that deserve attention in the coming years. One key area is the need to diversify the legal profession, including the judiciary. Research has found that racial representation in state entities carries profound, positive effects for those who are represented. The legal profession remains largely white and male. Recruiting future lawyers who are racially diverse is critical in the diversification of the profession. Efforts to do so can include outreach efforts to undergraduate students and pipeline programs that support students’ trajectories from undergraduate to law school. These efforts remain permitted even after the companion cases Students for Fair Admissions v. Harvard and University of North Carolina, the U.S. Supreme Court’s 2023 ruling prohibiting the explicit use of race in undergraduate admissions.
A second key area is the need for changes to legal education. For too long, law schools have favored the teaching of the law using the case method, which focuses on deconstructing legal cases, identifying legal doctrines, and applying them in-class and in evaluative assignments. After the death of George Floyd, a group of leading law school deans launched the Law Deans Antiracist Clearinghouse Project, an effort to rethink discussions of race in legal education. This project has yielded positive results and resources that can be instructive on the topic.
Aligned with these movements, I argue that there is a need for expanding the paradigm we employ in law schools to accommodate a more nuanced approach that educates students through an interdisciplinary lens. This would accommodate important critical perspectives that inform the role of lawyers, including history (e.g., how the law has historically marginalized certain groups) and research trends that impact different areas of law (e.g., educational research on the importance of belonging for racially marginalized students in schools). These interdisciplinary approaches can better prepare students for the current times where sociopolitical movements seek to regress racial progress through the law. Some of these students will go on to serve in the judiciary as well. We stand in a juncture where multi-systemic approaches are necessary.
Raquel Muñiz, J.D., Ph.D., Assistant Professor at the Lynch School of Education and Human Development and the School of Law (courtesy) at Boston College and faculty affiliate at the Boston College Center for Human Rights and International Justice.
