By Claire Newfeld.
Coined by renowned lawyer and civil rights advocate Kimberlé Crenshaw, critical race theory is a body of scholarship and an academic movement anchored in the premise that the social construction of race, along with racial bias, permeate American institutions, laws, and policies. Though critical race theory has existed for over thirty years—and its foundational ideas for centuries—it recently made headlines due to efforts to introduce critical race theory into public instruction and conservatives’ subsequent attempts to shut down those efforts. Arizona is one of eight states that have passed legislation banning instruction on critical race theory in schools. In early November, the Arizona Supreme Court unanimously affirmed a Maricopa County Superior Court ruling that held the law unconstitutional.
Arizona’s Ban on Critical Race Theory
Section 21 of House Bill 2898, signed into law on June 30, 2021, prohibits teachers and administrators in public and charter schools from teaching that “[o]ne race, ethnic group or sex is inherently morally or intellectually superior to another race, ethnic group or sex,” that “[a]n individual, by virtue of the individual’s race, ethnicity or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,” and other related concepts. It gives the Attorney General authority to sue alleged violators, who may be assessed a civil penalty of up to $5,000.
Governor Ducey and the bill’s sponsors defended its provisions by appealing to unity: “Arizona stands with Martin Luther King Jr.’s proclamation that people should be judged by the content of their character, not the color of their skin, and I’m grateful for the support of Governor Ducey and my colleagues in passing this important legislation,” said Representative Jake Hoffman. Another sponsor, Representative Michelle Udall, commented, “Critical race theory will do nothing but increase divisiveness in our communities, which I think we can all agree we should try to prevent.”
HB 2898 and the statements of its defenders reflect a fundamental misunderstanding of critical race theory. While opponents of critical race theory claim to advocate for a balanced and “patriotic” education, these bans are actually an attempt to silence discussions on systemic racism, deny the truth about our nation’s history and its widespread effects on modern society, and silence those who seek to counter the “whitewashed” version of American history that is often taught in public schools.
Maricopa County Superior Court Judge Katherine Cooper Rules on HB 2898
On August 12, 2021, the Arizona School Boards Association filed a complaint against the State for declaratory and injunctive relief, followed by a motion for preliminary injunction on August 18, 2021. On September 22, 2021, Maricopa Superior Court Judge Katherine Cooper issued the declaratory judgment, holding that Section 21 of HB 2898 was unconstitutionally passed into law.
HB 2898 was passed as a budget reconciliation bill (BRB). BRBs are used to implement appropriations in the State’s budget. Article IV, pt. 2, § 20 of the Arizona Constitution prohibits including substantive legislation in the general appropriations bill, requiring any substantive legal changes necessary to implement the appropriations be made via BRBs. Article IV, pt. 2, § 13 (hereinafter Section 13) has two requirements: (1) the act’s contents must be limited to a single subject, and (2) the title must clearly notify the reader of the act’s subject.
HB 2898’s title is “AN ACT AMENDING [approximately 100 statutes identified by their numerical code] APPROPRIATING MONIES; RELATING TO KINDERGARTEN THROUGH GRADE TWELVE; BUDGET RECONCILIATION.” HB 2898’s “one subject” was budget reconciliation, which is expressed in the title of the bill, and most of its provisions connect to appropriations within a specific area of the budget (K-12 education). However, the court found that Section 21 did not relate to budget reconciliation at all. Thus, because the title of the bill does not meet the Section 13 notice requirement, it is unenforceable. Essentially, the court held that the critical race theory ban was deceptively tucked into a wholly unrelated bill whose title did not provide sufficient notice of its contents.
Arizona Attorney General Mark Brnovich promised to appeal the ruling in a statement: “There is an orchestrated attempt by outside left-wing groups to undermine Arizona’s lawfully enacted statutes in order to push their radical ideas. I will continue to defend laws passed by our state legislature and uphold the will of Arizona families.” On September 28, 2021, the Arizona Supreme Court denied the State’s petition to stay the effect of the superior court judgment, and on October 1, it accepted jurisdiction to review the case.
The Arizona Supreme Court Unanimously Upholds Cooper’s Ruling
On November 2, seven Arizona Supreme Court justices unanimously, including four justices appointed by Governor Ducey, upheld the trial court ruling. They will issue a full opinion at a later date.
The debate at oral argument centered around separation of powers, with Arizona Solicitor General Beau Roysden arguing that whether a BRB’s title fulfills the notice requirement is a question for the legislature, not the judiciary. Roopali Desai, who represented the plaintiffs, countered that placing the constitutional determination in the hands of the legislature would effectively nullify the single-subject rule.
While HB 2898 was struck down due to the way it was passed into law, the future of critical race theory instruction in Arizona is uncertain. Several of the struck-down provisions were included in the BRBs to win support of legislators who said they wouldn’t vote for the budget without said provisions. Many of these bills were originally introduced independently, but failed to win support. It’s unclear whether banning critical race theory instruction has enough political backing to pass the legislature on its own, as its inclusion in the BRB is generating far less buzz than the ban on mask mandates—also struck down in the same ruling.
If the ban is passed as a standalone law, it may be challenged on substantive grounds. Banning critical race theory is not the first time Arizona has attempted to ban instruction on racial issues. In 2010, former Governor Jan Brewer signed a law banning Tucson Unified School District’s Mexican American studies curriculum, which taught Mexican American contributions to American history and culture. Support for the bill sounded eerily similar to defenses of the critical race theory ban. For example, Russell Pearce, a Republican representative at the time, said in 2008, “Organizations that spew anti-American or race-based rhetoric have no place. We ought to be celebrating unity as Americans and not allowing, with taxpayer dollars, these organizations.” After seven years of litigation, United States District Judge A. Wallace Tashima issued a final judgment that permanently blocked the ethnic studies ban, finding that the law was racially motivated.
Arizona is predicted to become a minority-majority state by 2030, fifteen years before the rest of the Union. The nation will watch as the state navigates its changing demographics. Rejecting the ban on critical race theory instruction is a positive step for a state that was shaped by its Native American and Latino roots. Arizona must recognize and seek to correct the history of race relations in America and its systemic impact that permeates our state today.