Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

Another Brief from the UCLA Amicus Brief Clinic Filed

The second amicus brief I worked on with the UCLA amicus brief clinic has just been filed in the Ninth Circuit.  The case is Oyama v. University of Hawaii and the brief was filed on behalf of the Foundation for Individual Rights in Education (FIRE) and the Student Press Law Center (SPLC).  Eugene Volokh posts about the filing here, and a pdf version of the brief is available here.  Volokh also directs readers to FIRE's post on the brief here, and the SPLC's post here.  Here is the summary of argument from the brief:

The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education” and other entities. Oyama v. Univ. of Hawaii, 2013 WL 1767710, *13 (D. Haw. April 23, 2013). Oyama was never accused or even suspected of any sort of sexual misconduct or disability discrimination. He never stated he would engage in any such misconduct or discrimination. Yet he was dismissed from a public university program partly because of his “views,” and his “unwillingness to change his views.” Id. 

If the district court’s decision is affirmed, universities will be similarly empowered to dismiss students from a wide range of programs for holding views that the administration dislikes or otherwise sees as “not in alignment with standards set by” the government or the administrators. All that administrators would have to do is frame their speech restrictions under the guise of upholding “standards” for the student’s prospective profession or course of study. 

University speech codes, though struck down by many court decisions in recent decades, could thus be revived, and, indeed, made much broader. After all, the rationale below is not limited to, for instance, speech that is “so severe, pervasive, and objectively offensive” that it “rises to the level of actionable ‘harassment’” (“harassment” being a common test in recent campus speech codes). [Footnote: Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 651-52 (1999).] Rather, as this case shows, the rationale could easily apply to normal, reasoned, substantive discussion of contested policy issues. Students who value their prospective future degrees will know to simply shut up when it comes to views that the administration, faculty, or professional licensing bodies consider unsuitable. 

This would be the very sort of viewpoint discrimination that the Supreme Court has roundly condemned, and it would cast the “pall of orthodoxy” that the Court has said the First Amendment precludes. The decision below should therefore be reversed, and Oyama’s termination should be reevaluated without regard to his “views,” his views’ lack of “alignment” with orthodox views, or his unwillingness to change his views.