A federal appeals court has overturned a decision to block parts of Arkansas' ban on teaching so-called Critical Race Theory.
The Eighth Circuit U.S. Court of Appeals had opposite interpretations of First Amendment law than a lower court judge. The decision came down Wednesday, as part of an ongoing challenge to parts of the controversial Arkansas LEARNS Act.
Section 16 of the LEARNS Act bars teachers from offering curriculum that "indoctrinates" students, “encourages” discrimination or "compels" students to believe something. It also prevents teaching Critical Race Theory.
Critical Race Theory a law school level course on how racial prejudice is embedded in the legal system. The class is generally not taught in K-12 schools. Section 16 does not offer a definition of Critical Race Theory.
A group of teachers and students from Little Rock Central High School challenged Section 16, saying it was unconstitutional, possibly violating the First and Fourteenth Amendments, and being too vague to follow.
The challenge was initially heard before U.S. District Judge Lee P. Rudofsky at the federal courthouse in downtown Little Rock.
He offered a narrow ruling in favor of the educators who brought the suit. The ruling said teachers are allowed to teach topics that could be classified as Critical Race Theory. He enjoined part of the law in favor of the plaintiffs only.
Appeals Court Judge L. Steven Grasz said recent Supreme Court decisions classify curriculum as government speech. He wrote the ruling:
“Since the speech belongs to the government, it gets to control what it says.”
The three-judge appeals court panel was unanimous in their ruling Wednesday.
Longtime indoctrination debate
During passage of the LEARNS Act, Gov. Sarah Huckabee Sanders often repeated the slogan:
“Our goal is never going to be to teach kids what to think, but how to think.”
This came amid nationwide conservative outrage over Critical Race Theory allegedly being taught in K-12 schools.
About a year before LEARNS, Little Rock Central High School offered Advanced Placement African American Studies to a few dozen students. This was a pilot class, and it was highly sought after by students in the 2022-2023 school year. The curriculum was designed by experts at the College Board, an education nonprofit.
AP classes are competitive must-haves for students looking to attend elite universities or get college credit for high school work.
The Central High class was taught by history teacher Ruthie Walls. She has worked as a teacher for almost two decades and taught a similar African American history class to students before, though not for AP credit.
“My goal for students is that they leave my classroom with a clear and accurate understanding of history,” she said in the lawsuit. “I want them to think critically and move beyond rote thinking.”
Arkansas Education Secretary Jacob Oliva sat in on a class the first year it was offered. The students were learning about the Elaine Massacre, the deadliest racial confrontation in Arkansas' history. During his visit, Walls gave Oliva a copy of the curriculum.
At the beginning of the 2023 school year, Walls was told the class had been pulled from the state's curriculum. She was surprised.
“No one wants to get news like that,” she told Little Rock Public Radio. “I was taken off guard and I had to continue with the day.”
The Arkansas Department of Education made the decision in August of 2023, and offered several contrasting explanations in the following days. This included citing a supposed “error code” in the offering and saying the class was not correctly audited.
Meanwhile, on Fox News, Gov. Sarah Huckabee Sanders called the class "leftist."
When then-Democratic state Sen. Linda Chesterfield texted Education Secretary Jacob Oliva to ask:
“Why doesn't my history count?”
She says he responded with: “we're working on getting some information together on that.”
The class was later reinstated amid a court challenge to Section 16, and changes to the curriculum.
The lawsuit
The suit against Section 16 was brought by the Laux law firm. The firm is headed by Mike Laux, who specializes in civil rights litigation.
In arguments, Laux said Section 16 created “irreparable harm” against the teachers and students. The case focused on three complaints: violations to the First Amendment, Fourteenth Amendment and general vagueness claims.
In court filings, Walls, the history teacher, said:
“Despite reading the law several times and seeking guidance on its meaning, I still do not understand what it allows and what it prohibits.”
She was joined by several families, parents, students and other teachers as plaintiffs.
A hearing was held in spring of 2024. Judge Rudofsky pressed both sides with tough questions.
He agreed that Section 16 is possibly vague. He asked a lawyer for the state to define words in the law such as “adopt, affirm, or profess an idea.”
Rudofsky seemed more skeptical that the law had caused any actual documented harm to the plaintiffs. They had waited about 13 months after LEARNS passed to sue.
Plaintiffs said Section 16 creates a chilling effect. They conceded that AP African American Studies may be classifiable as Critical Race Theory under this law. The name of the AP class and the academic discipline were referenced interchangeably.
Walls had removed certain books from her class in fear of professional penalties. Among the books, Walls pulled Alice Walker’s novel "The Color Purple."
Attorneys for the state of Arkansas said Section 16 did not have any mechanisms to penalize teachers. Rudofsky said if a teacher was actually penalized under the law, they “would have a darn good case” to challenge the decision in court.
In his ruling, Rudofsky granted a partial preliminary injunction against Section 16, for the teachers, but not for the students.
“Section 16 does not prohibit teachers from teaching about, using or referring to critical race theory, or any other theory, ideology, or idea,” the ruling reads.
But he hoped teachers could also “take comfort” in his convection that the law did not allow government control of student curriculum.
Both sides celebrated the ruling as a win. The state said it proved no censorship was happening under LEARNS, and the plaintiffs got their requested injunction.
Reversal
That partial injunction was reversed by a higher court on Wednesday.
The Eighth Circuit U.S. Court of Appeals thought Rudofsky had the case all wrong. When teachers speak, they are representing the government — they don't have First Amendment protection the way his ruling said.
“Just as ordinary citizens cannot require the government to express a certain viewpoint or maintain a prior message, students cannot oblige the government to maintain a particular curriculum or offer certain materials in that curriculum based on the Free Speech Clause,” the ruling reads.
The ruling points to the Supreme Court opinion Board of Regents of the University of Wisconsin System v. Southworth. The case said it was not a First Amendment violation for public universities to charge students to join clubs.
Courts can now consider, “principles applicable to government speech” when the issue involves “speech by an instructor or a professor in the academic context,” the suit said.
Arkansas Attorney General Tim Griffin praised the ruling in a statement, reiterating that teachers' speech is government speech.
"If it were otherwise,” he said, “school curriculum would effectively be set by litigious actors and the courts.”
