Attorneys presented oral arguments Tuesday in a case over how race can be discussed in Arkansas schools.
A group of plaintiffs made up of students, parents and educators is suing to stop a law banning so-called “critical race theory" in Arkansas. They are being represented by the Laux Law Firm. The plaintiffs are asking for a preliminary injunction to stop the law immediately before a trial can be held to better examine the merits of the legislation.
The critical race theory ban is in Section 16 of the education law known as Arkansas LEARNS. The law defines critical race theory as material that “encourages” discrimination or any teaching that one race is better than another.
Plaintiffs say this language is vague and could create a chilling effect on teachers. They said Ruthie Walls, a teacher at Little Rock Central High School, had removed books from her class like "The Color Purple" out of fear of Section 16. In court, they argued the law was vague and constituted a First Amendment violation. An attorney for the state said that the law was not regulating speech.
U.S. District Judge Lee P. Rudofsky asked pointed questions of both groups during the hearing.
AP African American Studies
After Arkansas LEARNS was approved by lawmakers last year, the state Department of Education attempted to remove Advanced Placement African American Studies from state course offerings. The class was eventually reinstated for the upcoming school year.
Maya Brodziak, an attorney for the plaintiffs, said that school exists to expose children to “the marketplace of ideas.” She said Section 16 “strikes at the core of what education is supposed to do.” She called Arkansas Education Secretary Jacob Oliva's reasons for canceling the class an “ongoing saga” with “one excuse after another.”
Rudofsky agreed that Oliva had told different stories through the course of the class being pulled, but he questioned if it was entirely true that teachers are being regulated under the law. He pointed to a specific section of LEARNS.
“The Secretary of the Department of Education shall take established steps to ensure that the Department of Education, its employees, contractors, guest speakers, and lecturers are in compliance with Title IV 28 and Title VI of the Civil Rights Act of 1964."
The law then goes on to explain that the Department of Education has the right to review and regulate the curriculum teachers use. Rudofsky questioned if this, by definition, means that teachers should not be concerned with the law since that section doesn't use the word “teachers.” He said this could mean that Oliva may have been violating Section 16 and acting outside of it.
Throughout their arguments, attorneys for the plaintiffs mentioned the court case Pratt v. Indian River Central School District. In that case, a school had allowed students to watch an adaptation of Shirley Jackson's short story “The Lottery.” After objections from parents, the school board removed the film from the curriculum. A court ruled that the film was banned because of its “ideological content” which violated the first amendment.
Rudofsky called this court case a “problem” for the state.
Indoctrination
Arkansas LEARNS does not ban “indoctrination,” but does ban and allow the Department of Education to regulate “prohibited indoctrination” among public school employees.
The law defines “prohibited indoctrination” as communication that “compels a person to adopt, affirm, or profess an idea in violation of Title IV and Title VI of the Civil Rights Act of 1964.”
Many of the legal arguments in Tuesday's hearing hinged on this section's use of the word “compel.” Rudofsky said he interpreted the word as being synonymous with the word “force," meaning this section is saying teachers can't force ideas on students. This is a narrow interpretation that would make the law less vague.
Plaintiff Jennifer Reynolds, whose daughter took the AP African American Studies class, disagreed with the judge equating the word “compel” to the word “force.” As an example she said a person could watch a documentary and “feel compelled” to take a stance on a policy issue without actually being “forced” to make that decision.
Colton Gilbert, the debate coach at Little Rock Central High, recently joined the lawsuit as a plaintiff. Brodziak said, under this section of the law, Gilbert would not be allowed to have students debate or take on certain positions as part of a class assignment.
Rudofsky said this was a good point. He came back to it throughout the arguments, saying that scenario would constitute a “right to receive problem.”
Solicitor General Nicholas Bronni made arguments on behalf of Attorney General Tim Griffin. He said a debate teacher asking students to argue different ideas would not violate Section 16, because the teacher would be asking students to do “an intellectual exercise” and not asking students to believe in anything. Bronni argued that the statute only keeps people from being forced to believe certain things, but does not regulate speech itself.
“Section 16 in no way limits the access to information,” Bronni said.
Rudofsky asked Bronni why the law “singled out” critical race theory by name. Bronni argued critical race theory can be a form of indoctrination.
“I have never heard of an AP class that would compel someone to adopt an idea,” the judge said.
Rudosfky said what “scared him” about Section 16 was the section which said school employees can not “adopt, affirm, or profess an idea.” He asked Bronni what those words mean, to which he replied they are “common words.”
Rudosfky said he “didn't see a chilling effect” on teachers as of now but thought one could arise if their curriculum was brought before the Arkansas Ethics Commission. He said a teacher would have a “darn good case,” if the state decided to punish them over teaching certain topics.
The judge questioned both sides over whether the law was serious enough to trigger a preliminary injunction. Attorneys for the state disagreed, because the law had been in effect for over a year with no court challenge to it.
Rudofsky said he would not rule on the case during Tuesday's hearing.
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