Harvard Civil Rights-Civil Liberties Law Review
civil rights, civil liberties, First Amendment, constitutional law
Civil Rights and Discrimination | Constitutional Law | First Amendment | Law
Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.
Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to overturn anti-critical race theory laws, but often will protect students’ right to receive the information these laws chill. The deeper insight of these conclusions is that they rest on the same, sound constitutional reasoning: that the First Amendment works to protect equal political participation in democratic self-governance, as part of the Constitution’s larger foundational goal of securing equal popular sovereignty.
The First Amendment implications of these speech-chilling laws thus illustrate that, in service of democratic governance, the free speech right (1) leaves substantial room for government regulation of speech to protect safe and effective public services, including public school education; (2) rejects paternalism in favor of fostering individual enlightenment and growth in service of effective democratic self-governance; and (3) is primarily designed to protect the free flow of information so that citizens make good choices in their social, political, and economic lives. This analysis emphasizes that the First Amendment protects citizens’ right to receive information critical to fulfilling and benefitting from their role as citizens. Anti-CRT laws do not run afoul of this principle—and in some ways they actually advance it—when it comes to regulating teachers’ and parents’ speech. The laws do, however, hinder democratic governance as applied to students’ rights to receive information critical to their ability to engage as full citizens. Finally, this conclusion illustrates how seemingly disparate areas of free speech law all rest on a common anti-orthodoxy principle that serves to tie First Amendment law together and advance full and equal democratic participation.
Francesca I. Procaccini,
(E)racing Speech in School, 58 Harvard Civil Rights-Civil Liberties Law Review. 457
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1355