Texas Attorney General, Opinion Request No. 0421-KP (Sept. 3, 2021)(amicus brief filed)

On September 3, 2021, the AAUP submitted a brief to the Texas attorney general arguing against a request from a state legislator for an opinion on whether teaching certain ideas about race, including critical race theory (CRT), would violate “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, [or] Article 1, Section 3 and Section 8 of the Texas Constitution.” This request is part of a broader attack on teaching and training on the issues of racism and racial justice, manifested in proposed state laws limiting teaching on “divisive subjects” and in requests for state attorney general opinions forbidding such teaching. In advocating against the attempt to circumscribe teaching about racism, the brief focuses on Supreme Court First Amendment decisions and AAUP policy concerning the societal role of education, academic freedom, and teachers’ expertise in developing curriculum. Thus, the brief addressed the broader political themes that are behind many of these attacks on teaching and the AAUP policies applicable to these attempted infringements of academic freedom.

The request for the Texas attorney general’s opinion is part of a broader attack on the ability to teach about racism in this country. These efforts have taken varied shape but often involve legislation, and other legal challenges, seeking to prohibit or impede the teaching and education of students about racism, racial equity, and other so-called “divisive concepts.” These attacks often use mischaracterizations of CRT as the pretext for imposing broad limits on teaching about racism. The request here, submitted by James White of the Texas House of Representatives, asks whether the teaching of ideas about race, including critical race theory and “anti-racism,” “violate[s] Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, [or] Article 1, Section 3 and Section 8 of the Texas Constitution.” Representative White effectively seeks to have critical race theory and other discussions of racial inequality banned from the classroom, all under the guise of constitutional interpretation.

The AAUP brief explains how these political attempts to dictate the education provided by faculty undermine higher education, violate academic freedom, and result in censorship and indoctrination. The brief foregrounds the importance of a higher education system that is free and vibrant, and able to address controversial topics.

Education plays a vital role in cultivating and preserving a free, just, and prosperous society. America’s schools are “the nurseries of democracy.” Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021). In America’s colleges and universities, students further advance their preparation for participation in a democratic society and bring to full development the skills and attitudes they will use as active citizens. If colleges and universities are to fulfill their public purpose and retain the public’s confidence, they must remain places where ideas—even ones deemed controversial by politicians—are freely and robustly exchanged.

The brief goes on to explain the importance of academic freedom, and particularly the right of faculty to teach about subjects such as racism free from political interference.

Academic freedom is the chief cornerstone of higher education. Unless academic activity is protected from government intrusion, the integrity of the educational system as a whole is imperiled. In higher education, the principle of academic freedom is closely linked to the function of the university as an institution charged with the attainment of the common good through the discovery and transmission of knowledge. In the absence of academic freedom, colleges and universities are prone to becoming instruments for the advancement of narrow partisan interests, mouthpieces for the propagation of specific doctrines, and factories of indoctrination rather than places of legitimate education. A government ban on classroom discussions of ideas and analysis concerning historical context and current issues of race and racism in the United States would violate academic freedom and undermine the higher education system.

The deadline for the attorney general issuing an opinion is January 31, 2022, although it could be issued sooner.