Arizona Legislature Continues to Push Anti-Critical Race Theory Legislation

By Chloe Plaisance.

Earlier this year, members of the Arizona legislature introduced House Bill 2112, a bill regulating classroom instruction that prohibits educators from teaching Critical Race Theory (“CRT”). This comes just months after a CRT ban was stricken from the annual state K–12 budget bill. CRT is a field of study that has caused quite a bit of national controversy along political party lines.

Although CRT is only gaining attention as of recently, it is an academic concept that has been around for over 40 years. CRT teaches that race is a social construct, and that racism is structurally embedded in our society through legal systems and policies. Some themes of CRT that have been brought to light in the last few years are white privilege and systemic racism. CRT also focuses on racial inequality in education, work, and housing. The goals of CRT are to educate people about the societal systems which perpetuate inequalities, and to encourage them to use the voices they have for positive change. However, these teachings have been sparking political controversy across America.

The CRT Divide

While supporters of CRT believe the teachings are essential to learning about our country, both historically and at present, others find it to be an attack on white people. Critics of the theory think white students are being taught that they are inherently racist and oppressive and bear responsibility for the racist acts of other white people. Among these critics is Arizona Governor, Doug Ducey, who has stated that he will not “waste public dollars on lessons that imply the superiority of any race and hinder free speech.” Other Republican Representatives in Arizona support Doug Ducey, stating that CRT is a divisive and regressive curriculum. Arizona is one of many states to implement anti-CRT legislation.

On the other hand, there are many people united in opposition to anti-CRT bills. Judy Schwiebert, a Democratic Representative and former educator stated: “If history is the story of how we got here, that story must include both our successes and our failures, the causes and the effects, because history isn’t only behind us. It is in us. It has shaped and formed us.” Another Democratic Representative, Sarah Liguori, said “[t]o love America is to learn all about their history both good and bad.” Supporters of CRT believe that these new bills are censoring our history and ignoring the challenges of today, which will prevent us from ever truly reaching equality for all.

Anti-CRT Legislation in Arizona

Members of the Arizona legislature began creating anti-CRT bills in Summer of 2021. First, the legislature attempted to ban CRT via the state’s 2021–22 budget bills. More specifically, the legislature included an anti-CRT provision in House Bill 2898, the K–12 budget for the 2022 fiscal year. House Bill 2898 prohibited K–12 educators from teaching “that academic achievement, meritocracy, or traits such as hard work ethic are racist or sexist” or any curriculum “that presents any sort of blame and judgment on the basis of race, ethnicity, or sex.” The bill also authorized the School Board and County Attorney to discipline and bring a civil action against teachers who violated it.

After the bill was passed, it was almost immediately challenged by the Arizona School Board Association (“ASBA”). ASBA filed a lawsuit claiming that the State of Arizona violated the single subject rule of the Arizona Constitution by including non-budget related provisions (like the CRT ban) in a budget-specific bill. The trial court agreed with ASBA and found the bill unconstitutional. The Arizona Supreme Court affirmed the decision on November 2, 2021, striking the CRT ban and other substantive provisions from the budget. The Arizona legislature is now seeking to re-introduce the same anti-CRT legislation by including the ban in House Bill 2112, a bill specifically about classroom instruction.

The House of Representatives approved House Bill 2112 in February on a party line vote. All 31 Republican Representatives voted in favor of the bill, and the Democratic Representatives were united in opposition. The bill will now go to the Senate for approval. Because Republicans hold a majority of the Senate by two votes, it is likely that they will also vote to approve the bill.

House Bill 2112’s Impact on Education

If House Bill 2112 becomes law in Arizona, it will seriously limit education about American history and present culture. Teachers will no longer be able to have open and honest discussions about the history of our country and the systems still at play today. The language of the bills makes it such that any sort of uncomfortable conversations in the classroom having to do with race may be viewed as illegal. For example, some question how something like the history of slavery in America can be taught without making judgment or assigning blame.

Additionally,  educators that violate the law will be subject to formal discipline by the School Board, including suspension or revocation of teaching licenses. Schools can be fined up to $5,000 for each violation, and State Attorneys will have the power to file lawsuits for violations.

Potential Legal Claims

Supporters of CRT have already begun theorizing about the ways CRT bans may violate the U.S. Constitution, for example, by hindering free speech or violating due process. Some critics of these bans believe that the wording of these bans is unclear about what is prohibited and what is allowed, so much so that they violate the First Amendment by unlawfully overregulating speech.

It may also be argued that these bans violate the due process clause of the Fourteenth Amendment. In Meyer v. Nebraska, nearly 100 years ago, the Supreme Court invalidated a law which banned schools from teaching foreign languages. The Court held that prohibiting these non-harmful lessons infringed on parents’ protected liberty to provide education for their children. Of course, proponents of the anti-CRT bills are steadfast in the belief that the curriculum is harmful, but that may be a question to be decided by the courts.

Conclusion

Arizona, like many other states, is on a path to banning Critical Race Theory and other conversations about race and history in schools. This controversial theory is central to learning about American history as well as many social justice movements today. If anti-CRT bills are signed into law, education will be heavily impacted and the State may be opening itself up to civil lawsuits.

"New Classroom at BES" by BES Photos is marked with CC BY-NC-SA 2.0.

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By Chloe Plaisance

J.D. Candidate, Class of 2023

Chloe is a 2L at ASU’s Sandra Day O’Connor College of Law and a Staff Writer for ASLJ. She is from Denver, Colorado, and earned her BA from the University of Colorado at Boulder. Chloe’s legal interests include commercial litigation, real estate, and land use. Outside of law school, she enjoys painting, watching movies, spending time with her dog, and soaking up the Arizona sun.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.