Anti-CRT bill passed out of Senate committee likely unconstitutional, opponents say

by Molly Minta, Mississippi Today
January 20, 2022

The Senate Education Committee passed legislation Thursday banning the teaching of critical race theory in K-12 public schools and in the state's public universities and community colleges. If made into law, opponents say the bill is likely unconstitutional. 

SB 2113 is among a litany of bills filed during the 2022 session that seek to ban the controversial subject. Both House Speaker Philip Gunn and Gov. Tate Reeves have spoken forcefully against critical race theory. They have vowed to ban the theory, which they say seeks to divide people by race, from being taught in schools. Supporters of critical race theory say that it is a misunderstanding of the academic framework, which examines the role racism plays in systems like health care, education, housing. 

The bill states no public school or public college or university “shall make a distinction or classification of students based on account of race” and cites specifically that critical race theory is something the legislation would “prohibit.”

At the K-12 level, the Mississippi state Department of Education has maintained for months that critical race theory is not taught. Rather, it's a concept primarily discussed at the university-level — and that is where legal experts say the bill potentially violates the state and U.S. constitutions. 

It is unusual for the Legislature to specify the curriculum of public schools, especially public universities. Section 213 of the state Constitution mandates that the public universities “shall be under the management and control” of the Board of Trustees for the State Institutions of Higher Learning.

The bill likely infringes on the contractual right that faculty, especially those with tenure, have to academic freedom, said Matthew Steffey, who teaches constitutional law at Mississippi College.  

“Universities are set up with promises of academic freedom as part of their accreditation process,” Steffey said. “It's extremely problematic for state law to try to infringe on the existing contractual rights and commitment at the individual professor level and at the university level. 

“Imagine a statute that says a biology teacher can't teach evolution in a university biology class,” Steffey added. “That would severely constrain a university professor's academic freedom.” 

Jarvis Dortch, the executive director of the ACLU of Mississippi, said K-12 teachers may not be able to challenge the bill if it becomes law, but that it will depend on the rules and regulations to enforce it put in place by MDE. Compared to university faculty, K-12 teachers have a more limited right to free speech in the classroom because they teach curriculum that is set by the state. 

“I think we expect much more debate and dialogue in a college setting than we do in K-12,” Dortch said. 

READ MORE: Is Mississippi really removing civil rights history from its teaching standards?

As written, Dortch said the bill is so vague it's hard to tell how it might impact students and faculty at the university-level beyond placing limits on speech. He pointed to a line in the bill that would prevent public schools and universities from making “a distinction or classification of students based on account of race.” 

“I'm not sure what that means but I know it can touch on a lot of things from the law school at Ole Miss recognizing the Black Law Students Association or having a diversity program, any type of affirmative action program,” he said. 

The IHL board did not respond to a request for comment from Mississippi Today by press time. 

During Thursday's committee hearing, Sen. Michael McLendon, R-Hernando, told members of the Senate Education Committee Thursday he had heard from many constituents concerned about the issue in the DeSoto County public schools.

“I have had so many of my constituents ask me if this is going on in our schools? Is there ever a chance of it going on?” said McLendon, who is the primary author of the bill. 

Senate Education Chair Dennis DeBar, R-Leakesville, asked McLendon if “basically this is a simple bill to ensure everything being taught in our classrooms is color blind, no preference of anything.”

“Absolutely,” McLendon responded.

Sen. David Blount, D-Jackson, said, “There is a lot that needs to be said about this retrograde bill, about racism, about race and power in Mississippi.” But Blount said he would withhold those comments since the full Senate was about to convene, cutting short the Education Committee.

Sen. David Jordan, D-Greenwood, a veteran of the state's civil rights struggles, did ask why the legislation is needed.

“This to me is not necessary. It creates more problems than it solves,” Jordan said. “Teach the subject matter…As a retired teacher I think it does more harm than it does good.”

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.