by Galia Pino*

The Supreme Court has long maintained that students have a First Amendment right to speech and, relatedly, the freedom to receive information in K-12 public school classrooms. Despite public officials’ attempts to ban critical race education in classrooms, these fundamental rights cannot be infringed upon absent a legitimate pedagogical concern. Even though Critical Race Theory (CRT) originates in the legal academy, state legislation purporting to ban CRT actually censors K-12 education on racial injustice, historical oppression, the American slavery system, and more. While communities have mounted challenges to these laws on a variety of grounds, including vagueness, incorrect identification of CRT, and speech rights of educators, this Contribution argues that the bans infringe on students’ First Amendment rights. It first outlines the framework of First Amendment rights in public school classrooms and assesses how state actors may reasonably restrict speech there. It focuses on the pedagogical concerns courts have deemed legitimate enough to constitutionally limit First Amendment rights, highlighting how political ideology or partisanship are not appropriate justifications. It then applies that framework to selected state laws banning CRT and demonstrates that neither the topics those bans purport to cover, nor the actual curricula they target, can be properly limited based on a theory of legitimate pedagogical concern. Therefore, this Contribution argues that bans on CRT—even as it is defined by recent state laws—censor students’ right to speech and violate their right to receive information.  

A total of forty-four states have introduced bills, passed legislation, issued guidelines, or taken other measures to restrict discussions of racism and sexism in public school curricula—otherwise known as Critical Race Theory (“CRT”) bans.1 These state actions are being challenged by parents, students, educators, and civil rights groups who recognize that the effort to prevent so-called “divisive concepts” from entering the classroom is purposefully and unconstitutionally manipulating the information students receive in order to censor teachings on how systemic racism persists in the United States.2 Even though CRT is actually a legal framework, and is rarely addressed in K-12 curricula, CRT bans are expansive in their suppression of race discrimination education. While these laws and policies are being challenged on a myriad of legal grounds,3 this Contribution focuses on how CRT bans violate students’ First Amendment rights to free speech and to receive information. These fundamental rights include the opportunity for students to receive critical race education without government encroachment that is motivated by political benefit rather than a legitimate pedagogical concern. Not only are state legislatures disregarding constitutional constraints and longstanding Supreme Court holdings, but they are censoring the learning of this country’s racial injustice under the guise of promoting students’ interests.

*****

The summer of 2020 was defined by the resurgence of the Black Lives Matter movement, as protests erupted following George Floyd’s murder at the hands of former police officer Derek Chauvin.4 It was also the same year Nikole Hannah-Jones accepted the Pulitzer Prize for her contributions to the 1619 Project,5 and a period of national racial reckoning that forced Americans to unpack contemporary manifestations of systemic racism in the United States. In Ta-Nehisi Coates’ latest novel, The Message, he depicts this series of events as the catalyst for President Trump’s issuance of Executive Order (“EO”) 13950 in September 2020—the EO which serves as the blueprint for the majority of CRT bans today.6

The EO, titled “Combatting Race and Sex Stereotyping,” sought to prohibit diversity, equity, and inclusion (“DEI”) trainings and ban so-called “divisive concepts” concerning race and sex.7 Those “divisive concepts” were primarily DEI initiatives that people began advocating for in their workplaces and academic settings as the 2020 racial reckoning gained social popularity. Critical race education was also among the topics that EO 13950 targeted: President Trump labelled CRT “the crusade against American history,” called it propaganda, and blamed it for increasing political polarization.8

EO 13950 provided a foundation to target race-consciousness in education at the state level.9 It prohibited trainings that discussed how:

(1) one race or sex is inherently superior to another race or sex;

(2) the United States is fundamentally racist or sexist;

(3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

(5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

(6) an individual’s moral character is necessarily determined by his or her race or sex;

(7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

(9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.10

The majority of CRT laws adopt identical language or even expand on which topics are banned.11 For example, Florida’s CRT ban, titled “Individual Freedom” but most commonly recognized as the “Stop WOKE Act,” declares it to be discrimination if a student or employee is subject to any instruction that promotes feelings of “discomfort, guilt, anguish, or any other form of psychological distress” due to race, color, national origin or sex.12 The bill also outlaws any instruction that “advances” the idea of a particular identity being “morally superior,” “consciously or unconsciously” prejudiced, or that they should receive adverse treatment because of “past” actions committed by members of the same identity group.13 Similarly, the Texas CRT ban prohibits the inclusion of concepts identified in EO 13950 subsections (1), (3), (4), and (6)–(9) from all courses.14 However, Texas further dismantles critical race education by omitting from its public social studies curricula information on “the history of Native Americans,” “writings from Frederick Douglass,” “the Fugitive Slave Acts of 1793 and 1850,” “William Still’s Underground Railroad Records,” “women’s suffrage,” “the Chicano Movement,” “the history of white supremacy . . . [including] the Ku Klux Klan,” “Martin Luther King Jr.’s Letter from Birmingham Jail and ‘I Have a Dream’ speech,” the “Civil Rights Act of 1964,” and much more.15

By now it should be apparent that what states are attempting to ban is not actually CRT. At its foundation, CRT is a legal framework.16 It was created for the purpose of evaluating how racial injustice is institutionalized within the legal system.17 Despite the fact that CRT’s academic framework is overwhelmingly used only at the college level or higher, proponents of CRT bans claim that it is being taught in K-12 public schools.18 As demonstrated by the Texas and Florida bills, what K-12 schools are actually teaching is the racial institution of American slavery, the racial injustice behind the American Civil War, and the failure of the Reconstruction Amendments because of white supremacist organizations. It is the teaching of this history that these bills threaten, and in doing so, they violate students’ First Amendment speech rights.

Students in K-12 public schools have rights under the First Amendment.19 While youth education is a responsibility typically entrusted to “parents, teachers and state and local school officials . . . not federal judges,” when the censorship of a vehicle of student expression does not have a valid educational purpose, the First Amendment is “so directly and sharply implicated as to require judicial intervention” to protect the students’ First Amendment rights.20

Courts balance a number of competing interests when confronting issues that impact K-12 students’ First Amendment rights. By virtue of its nature, the educational setting has “special characteristics” that grant each state’s Board of Education and local school boards discretionary authority.21 This discretionary decision-making authority stems from courts’ acknowledgment that public education is a fundamental value of the American democratic society.22 Admittedly, K-12 educators and students receive less First Amendment protections than their university counterparts.23 This is because the state has more discretion over K-12 public school curricula than university education.24 Those public schools, in turn, have broad authority over school-sponsored activities and other projects that may be reasonably associated with the school.25 Essentially, this power structure can permit a state, a school district, or an individual school itself to reasonably restrict speech or expressions of students that it believes interfere with or do not align with its educational mission.26

However, school boards must still perform their duties within the limits of the Bill of Rights.27 Thus, despite their discretion, state and local authorities cannot act unreasonably in light of students’ First Amendment rights. This means they cannot exercise their authority over student speech in a partisan or political way.28 Students’ constitutional rights are implicated when school boards limit their expression of political beliefs, the information they receive in the classroom, and the materials they have access to, such as books in the school library.29 When school officials attempt to prohibit or censor student expression, they must show that the restriction is justified by more than mere avoidance of “discomfort and unpleasantness.”30 In other words, the forbidden conduct must “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”31 Essentially, courts will interfere with schools’ discretionary authority when the First Amendment is “directly and sharply implicated,” which happens when schools forbid or censor expression that is not “materially and substantially” interfering with school affairs.32

Simply because student speech concerns controversial political actions or expresses differing views does not mean that it automatically interferes with school affairs. In Tinker v. Des Moines Independent Community School District, a public school attempted to ban students from wearing black armbands in protest of the Vietnam War.33 The Supreme Court upheld the students’ freedom of expression and declared the ban unconstitutional.34 They stated that “undifferentiated fear” or an “apprehension of disturbance” was not enough to overcome the students’ constitutionally protected rights.35 The Court noted that other forms of student expression, such as wearing clothing in support of political candidates or symbols commonly associated with Nazism, were permitted by the school as an aspect of freedom of political speech.36 The Court in fact emphasized that educational institutions should allow differing beliefs to be expressed in schools even if they cause potential disruptions because “our Constitution says we must take this risk.”37 Therefore, when student expression on school grounds prompts discussion, without interfering with school activities or school affairs, it is constitutionally protected.

Schools have typically been able to interfere with student speech rights when the speech concerns illicit or inappropriate activity, like drug use or sexual innuendo. For instance, when students displayed a banner advocating for drug use at a school-sponsored event, the Supreme Court found that the expression of the students was not constitutionally protected because drug use is an activity schools have a compelling interest in deterring.38 Yet the Court still narrowly tailored its decision in that case: it affirmed that a First Amendment right to speech does exist in public schools, but when the speech or expression can “reasonably be regarded as encouraging illegal drug use,” then schools may take steps to limit that encouragement without violating students’ rights.39 Beyond drug use, student speech or expression that promotes other illegal activities like alcohol use, irresponsible sex, or “conduct otherwise inconsistent with the shared values of a civilized social order” can be legally limited in K-12 public schools.40

Discussion of CRT or other topics that fall under race-conscious education is drastically different than the above limitations on students’ First Amendment rights. The topics that public officials incorrectly classify as CRT do not parallel illicit drug use or sexual innuendos. Learning about the legacies of American slavery, the Civil Rights Movement, or the racial injustice that continues today does not encourage illegal activity. Rather, it provides additional viewpoints and educational value.

Anti-CRT proponents argue, however, that race-conscious education can nevertheless be regulated because it (1) violates “the shared values of a civilized order,” which they equate with the fundamental ideas of the U.S. Constitution, and (2) that CRT is a politically controversial subject that a school has a right to disassociate itself from by banning it in classrooms.41 However, the question of whether the First Amendment requires schools to tolerate student speech is distinct from whether schools must “associate” themselves with certain speech by allowing it to be communicated through school-sponsored mechanisms. While in practice, these situations can often overlap, anti-CRT advocates focus on the latter, arguing that schools do not need to affirm or promote ideas of critical race education because they are not consistent with politically neutral community values.42

However, these arguments fail because banning discussion of the history of racial injustice in public school curricula transcends the prior category of topics that schools can constitutionally limit and encroaches on students’ right to freedom of expression. Both exceptions to students’ free speech are outlined by the Court in Hazelwood School District v. Kuhlmeier. There, the vehicle of student expression was a school-sponsored newspaper where the author did not obtain consent from, or protect the identities of, students who spoke about their experiences with divorced parents and teen pregnancy.43 The Court held that it was constitutional for the school to remove the student-author’s publication because the school is permitted to maintain neutrality on political controversies when “lend[ing] its name and resources” to disseminate information.44 When specifying under what circumstances schools may decline to promote or tolerate student expression, the Court wrote that “a school must . . . retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order.’”45 However, they still affirmed students’ constitutional rights, and emphasized that a school’s educational mission consists of awakening a child to “cultural values . . . [and] preparing [them] for later professional training, and . . . adjust[ing] normally to [their] environment.”46

Allowing students to discuss the full history of racial injustice is more likely to achieve these goals than banning such education. The suppression of diversity in education across professions is costly: it both psychologically impacts individuals by creating a sense of fear and also imposes economic costs as a result.47 Furthermore, because courts have only consistently limited speech on unprotected or underage sexual conduct and substance abuse, those things which maintain “civil order” have been explicitly limited to conduct that could otherwise be illegal, harm one’s health, or significantly increase school dropout rates.48 In other words, silencing diverse opinions, beliefs, or viewpoints is not an inherently shared value and their expression does not significantly disrupt educational purposes—rather, it contributes to it.

In addition to providing insight regarding shared values, courts have supported expression of differing views regardless of the disturbance or political controversy they may cause. While parents or the one hundred and sixty-five organizations that are in favor of CRT bans49 may claim that CRT is too politically controversial, this is simply not enough to limit students’ First Amendment rights in the classroom. In Hazelwood, the “political controversy” amounted to more than differing viewpoints—it turned on how the identity of students was being associated with underage, unprotected sexual conduct.50 CRT bans like the ones from Florida and Texas include broad language regarding students feeling discomfort because legislators want to target teaching of the history of racial discrimination, and portray it as anti-American.51 But Tinker made clear that type of “apprehension of disturbance” is not a substantial enough concern for banning discussion of race in the classroom.52

While the First Amendment clearly protects students’ ability to discuss race themselves, anti-CRT bans could still operate to prevent teachers from introducing such topics in the classroom. Ignoring this issue would be a disservice to students, as distorting American history prevents them from thinking critically about the world around them and expressing those opinions. Therefore, this Contribution also argues that anti-CRT laws violate students’ right to receive information, which in turn is essential to their right to expression. Because the First Amendment is essential to fostering public access to discussion and the dissemination of information, state actors may not “contract the spectrum of available knowledge.”53 Therefore, encompassed within the First Amendment is “the right to receive information and ideas.”54 The right to receive ideas is equally as important as the right to express those ideas because “the dissemination of ideas [accomplishes nothing] if otherwise willing addressees are not free to receive and consider them.”55 Including race-conscious education in public school curricula is necessary for students’ own meaningful exercise of their right to expression. Even though state actors have discretion to craft public school curricula, cultural values, and community ideals, in Tinker the Court recognized that “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate . . . . [S]chool officials cannot suppress ‘expressions of feeling with which they do not wish to contend.’”56

Similar to a student’s right to express themselves, their right to receive information can be limited, but any restriction must be reasonably related to a legitimate pedagogical concern.57 Courts have looked to a variety of factors to decide what constitutes a legitimate pedagogical concern, including students’ ages and learning capabilities.58 Limitations on students’ right to receive information is closely linked with limitations on expression; for instance, in Hazelwood, the Court considered that because younger students would also be recipients of the information regarding underage, unprotected sexual conduct, greater limitation on speech was warranted.59 In Arce v. Douglas, the Ninth Circuit recognized that a fact-specific analysis is necessary when evaluating the balance between “students’ First Amendment rights and a state’s authority on educational matters.”60 However, even when calling for the fact-specific inquiry, the Ninth Circuit still recognized that students’ constitutional rights exist in this context, and must be given due weight when balanced against the state’s discretion.61

Ideological differences, even in regard to political controversies, are not enough to repress a student’s receipt of information in school.62 In 2010, Arizona lawmakers attempted to ban a Mexican-American history class called “Ethnic Studies” in Arizona classrooms.63 The statute included vague language prohibiting school instruction that may “[p]romote the overthrow of the United States government” and “[p]romote resentment toward a race or class of people.”64 Students challenged the ban, arguing that they had a clear right to receive the information in the course.65 The defendants also did not dispute that the statute was enacted to target the Mexican-American history curriculum.66 Seven years later, in González v. Douglas, the district court ruled that the ban on the Ethnic Studies course was unconstitutional because the state lacked a legitimate educational basis, or pedagogical concern, to justify banning the course.67 It found that the alleged legitimate pedagogical concern was pretextual; both the enactment and enforcement of the statute was motivated by racial animus and therefore violated students’ right to receive information on Mexican-American history.68

Together, Arce, González, Hazelwood, and Tinker demonstrate that ideological concerns, even about controversial topics, do not warrant repressing a student’s receipt of information in school. The legislation at issue in Arce and González closely parallels the anti-CRT laws proposed in forty-four states, all of which chill speech in classrooms, prohibit students from receiving information regarding racial justice or historical facts, and include almost the same language as EO 13950.

Court rulings on book bans further demonstrate that political ideology cannot be a proper basis for restricting students’ access to information. The Supreme Court has barred schools from removing materials from public school libraries solely because a school district disagreed with the ideologies expressed in the books.69 Indeed, schools must have a valid educational reason to remove literature, such as a lack of literary, artistic, political, or scientific value, or a reasonable belief that it contains “patently offensive” material.70

Circuit courts have likewise found that states can limit the information students receive if legitimate pedagogical concerns constitute illegal or inappropriate activities, but not only because the information is disruptive or offensive. For example, in Virgil v. School Board of Columbia County, the Eleventh Circuit found that removing books with sexually explicit materials amounted to a legitimate pedagogical concern and outweighed a student’s right to receive that information.71 In its decision, the Eleventh Circuit considered a variety of factors, including the emotional maturity and age of the audience, and the need to maintain student safety.72 The Eighth Circuit has held that scenes of graphic violence in a film are inappropriate for high school youth, but specified that while a school district has the authority to determine whether information is too violent, it may not ban content merely because it is offensive to recipients.73

The inclusion of race-conscious education in K-12 public school curricula does not meet any of the criteria courts use to determine if books, films or other materials should be removed. As evidenced by Texas’ exclusion of the Civil Rights Act in social studies curricula and banning of The 1619 Project,74 as well as Florida’s exclusion of books like Celia Cruz’s and Roberto Clemente’s biographies,75 these materials do not meet the same criteria as sexually explicit or other illicit material. These standards, which align with the same narrow justifications used when limiting students’ freedom of speech, further show that courts must value students’ First Amendment rights.

A legitimate pedagogical concern also cannot be a shared community political value. State actors may not remove material simply because they desire to determine what is “orthodox in politics, nationalism, religion, or other matters of opinion.”76 The court in Arce v. Douglas, when evaluating statutes with identical language to most CRT bans, stated that the challenged statutes aimed to “impart viewpoint discrimination” and that their enforcement was motivated, at least in part, by an intent to discriminate.77 Identifying the intention behind limiting information students receive is crucial in determining whether a pedagogical concern is legitimate. Even though states have attempted to conceal their actual reasons for censoring or banning content under the guise of pedagogical concerns, courts often analyze the true intentions behind a ban and evaluate whether the pretextual concern is the actual concern.78 For example, in the Eighth Circuit case discussed above about a graphic film, the court determined the purported reason for the ban—discouraging violence—was disguising the fact that administrators merely believed the film’s themes to be “offensive.”79

Even in circuits where broader discretion is awarded to schools to limit students’ right to receive information, courts specify that the regulation cannot be politically motivated. The Fifth and Seventh Circuits found that restricting K-12 public school curricula could not be motivated by “narrowly partisan or political considerations” and that courts should not interfere with educational discretion until state actors censor information for “the mere exercise of their prerogative.”80

Thus, public officials—by politicizing education regarding racial justice and limiting freedom of speech solely because of political affiliation—are acting unconstitutionally. There is plenty of evidence that anti-CRT bans are politically motivated. Individuals like Tennessee’s Governor Bill Lee have become fixated on CRT, promoting the Tennessee CRT ban because they believe students should instead learn about the “exceptionalism of our nation,” not subjects that “divide people.”81 Providing such evidence of lawmakers’ statements on the intention behind CRT bans, which are often partisan talking points, can expose how they are hiding political motivations under the guise of nondiscrimination, and helps demonstrate that these bills unconstitutionally infringe on students’ rights.

The facially neutral language present in anti-CRT laws cannot hide their intended purpose: to censor classroom discussions regarding racial injustice. It is imperative that the First Amendment protections afforded to students challenge the constitutionality of these laws and expose their political agenda and indoctrination effort. In the shadows of these bans we see the familiar tradition of a government intent on silencing dissent, disciplining thought, burning books, and rewriting history. CRT bans are a deliberate and unconstitutional act of censorship, they are oppression masked as neutrality, and courts must not let these bans override the First Amendment rights of students.

* Galia Pino is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the extensive amount of anti-Critical Race Theory laws and book bans sweeping the nation, an act of censorship and attempt to conceal racial injustices that persist today. This Contribution was adapted from a paper for the course Current Issues in Civil Liberties and Civil Rights, taught by Steve Shapiro, former National Legal Director of the American Civil Liberties Union (1993-2016).

1. Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, Educ. Week (last updated Jan. 31, 2025), https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06 (tracking state bills challenging CRT from January 2021 to present).

2. See, e.g., Andrew Demillo, High School Teacher and Students Sue Over Arkansas’ Ban on Critical Race Theory, AP News (Mar. 25, 2024), https://apnews.com/article/critical-race-theory-arkansas-huckabee-sanders-lawsuit-65dc017adfd53114be703bc1e6fb5634 (summarizing arguments from students teachers, politicians, and schools on CRT bans); see also Jarrod Wardwell, Families Sue Ohio School Board Over Critical Race Theory Ban, CNN (Jul. 1, 2022), https://www.cnn.com/2022/07/01/us/ohio-critical-race-theory-ban/index.html (explaining a complaint filed by students and their parents challenging a school district’s ban on teaching CRT, anti-racism, and intersectionality).

3. First Amendment challenges also include claims that the regulations are vague and overbroad because they fail to give educators appropriate notice of exactly what material is prohibited. See, e.g., Amend. Comp. at para. 158, Black Emergency Response Team v. O’Connor, No. 5:21-cv-01022-G (W.D. Ok. 2021). Separately, others have raised state law claims. Advocates in Ark. Dep’t of Educ. v. Jackson, for example, argued that the CRT ban in Arkansas violated state law. 2023 Ark. 105, 669 S.W.3d 1 (holding that the LEARNS Act vote procedure violated the Arkansas Constitution), rev’d Ark. Dep’t of Educ. v. Jackson, 2023 Ark. 140, 675 S.W.3d 416.

4. Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time Mag. (Jun. 4, 2020), https://time.com/5847967/george-floyd-protests-trump/.

5. Nikole Hannah-Jones, The Pulitzer Prizes (2020), https://www.pulitzer.org/winners/nikole-hannah-jones-new-york-times.

6. See generally, Ta-Nehisi Coates, The Message (2024).

7. See Off. of Mgmt. & Budget, Exec. Off. of the President, M-20-37, Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (Sept. 28, 2020).

8. Remarks by President Trump at the White House Conference on American History, Nat’l Archives Museum (Sept. 17, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-white-house-conference-american-history/.

9. Tess Bissell, Teaching in the Upside Down: What Anti-Critical Race Theory Laws Tell Us About the First Amendment, 75 Stan. L. Rev.205, 214 (2023).

10. Exec. Order No. 13950, 85 C.F.R. 60683 (2020).

11. See Bissell, supra note 9, at 215.

12. H.B. 7, Reg. Sess. 760.10 8(a)(7) (Florida 2022); Katheryn Russell-Brown, “The Stop WOKE Act”: HB 7, Race and Florida’s 21st Century Anti-literacy Campaign, 47 N.Y.U Rev. L. & Soc. Change 338, 340 (2023).

13. H.B. 7, Reg. Sess., 760.10 8(a)(2)–(3).

14. S.B. 3, 87th Leg. Reg. Sess. (Texas 2021-2022).

15. Id.

16. Emma Postel, Indoctrination by Elimination: Why Banning Critical Race Theory in Public Schools is Unconstitutional, 31 Wm. & Mary Bill Rts. J. 581, 582 (2022).

17. Id. at 583.

18. See, e.g., Stop Misleading Americans—Critical Race Theory is Being Taught in Schools, Committee on Education and Workforce (Dec. 29, 2021), https://edworkforce.house.gov/news/documentsingle.aspx?DocumentID=407991.

19. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (stating that it has been the “unmistakable holding of this Court for almost 50 years” that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”).

20. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (citations omitted).

21. Bd. of Educ. v. Pico, 457 U.S. 853, 868 (1982).

22. Ambach v. Norwick, 441 U.S. 68, 77 (1979) (citing Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).

23. Evans-Marshall v. Bd. of Educ. of Tipp City, 624 F.3d 332, 343–44 (6th Cir. 2010) (explaining that high school teachers do not have the same First Amendment, in-class curricular, speech rights university professors have).

24. See id. at 338 (explaining that “public officials enjoy ‘wide latitude’” to restrict public employee speech unless it involves “matters of public concern”).

25. Hazelwood, 484 U.S. at 271 (finding that schools have increased authority over school-sponsored publications, theatrical productions, and activities that other parents and students “might reasonably perceive to bear the imprimatur of the school”).

26. See, e.g., id. at 276 (holding that the school did not violate free speech rights by censoring students’ newspaper articles).

27. Pico, 457 U.S. at 864.

28. Id. at 870.

29. See generally id.

30. Tinker, 393 U.S. at 509.

31. Id. at 514 (citation omitted).

32. Id.; Hazelwood, 484 U.S. at 273 (citation omitted).

33. Tinker, 393 U.S. at 504.

34. Id. at 514.

35. Id. at 508.

36. Id. at 510.

37. Id. at 508.

38. See Morse v. Frederick, 551 U.S. 393, 407 (2007).

39. Id. at 397 (emphasis added).

40. Hazelwood, 484 U.S. at 272 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (holding that a public high school’s discipline of a student for giving a speech that included sexual innuendos at a school assembly was constitutional)).

41. Id. See also, e.g., Mike Gonzalez & Jonathan Butcher, State Education Officials Must Restore a Sense of National Character in Public Schools, Heritage Found. (Apr. 22, 2021), https://www.heritage.org/education/report/state-education-officials-must-restore-sense-national-character-public-schools.

42. E.g., Christopher F. Rufo, Critical Race Theory: What It Is and How to Fight It, Imprimis 50(3) (Mar. 2021), https://imprimis.hillsdale.edu/critical-race-theory-fight/.

43. Hazelwood, 484 U.S. at 264.

44. Id. at 272.

45. Id. (emphasis added).

46. Id. (citation omitted).

47. L. E. Gomez & Patrick Bernet, Diversity Improves Performance and Outcomes, 114 J. Nat’l Med. Ass’n 383, 391 (2019); see also Ishena Robinson, What Florida Stands to Lose From Its War on Books and Black History, NAACP Legal Def. Fund (Feb. 24, 2023), https://www.naacpldf.org/florida-war-on-black-history/.

48. See Postel, supra note 16, at 592, 603.

49. Terry Gross, Uncovering Who is Driving the Fight Against Critical Race Theory in Schools, NPR (Jun. 24, 2021), https://www.npr.org/2021/06/24/1009839021/uncovering-who-is-driving-the-fight-against-critical-race-theory-in-schools.

50. Hazelwood, 484 U.S. at 272.

51. H.B. 7, Sec. § 3(3)(f), Reg. Sess. (Florida 2022); S.B. 3, § 5(4)(A)(v), 87th Leg. 2nd Special Sess. (Texas 2021-2022); Keecee DeVenny, How Language is Weaponized to Oppress and Marginalize, NAACP Legal Def. Fund (Jul. 12, 2023), https://www.naacpldf.org/white-supremacy-what-it-means-to-be-american/.

52. Tinker, 393 U.S. at 508.

53. Pico, 457 U.S. at 866 (quoting Griswold v. Connecticut, 381 U.S. 479, 482 (1965)).

54. Id. at 867.

55. Id.; see also Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (observing that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding”).

56. Tinker, 393 U.S. at 511 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

57. Hazelwood, 484 U.S. at 273, 276.

58. Id. at 275.

59. Id.

60. See Arce v. Douglas, 793 F.3d 968, 982 (9th Cir. 2015).

61. See id.

62. See generally Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (holding the State’s prohibition on teaching Darwin’s evolution theory violated of the Establishment Clause, but separately reaffirming the necessity “to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry”).

63. Arce, 793 F.3d at 973.

64. Id.

65. Id. at 974–75.

66. Id. at 973.

67. González v. Douglas, 269 F. Supp. 3d 948, 974 (D. Ariz. 2017).

68. Id. at 970.

69. See Pico, 457 U.S. at 890.

70. Miller v. California, 413 U.S. 15, 36 (1973).

71. E.g., Virgil v. Sch. Bd. of Columbia Cnty., 862 F.2d 1517, 1523 (11th Cir. 1989).

72. Id. at 1523–25.

73. See Pratt v. Indep. Sch. Dist., 670 F.2d 771, 779 (8th Cir. 1982).

74. S.B. 3, § 5(4)(C), 87th Leg. 2nd Special Sess. (Texas 2021-2022).

75. Kiara Alfonesca, More Than 1 Million Books Subject to Review Based on State’s New Laws, ABC News (Feb. 13, 2023), https://abcnews.go.com/US/thousands-books-including-black-hispanic-historical-titles-review/story?id=97082518.

76. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

77. See Arce, 793 F.3d at 984.

78. E.g., González, 269 F. Supp. 3d at 973 (finding that defendants were pursuing discriminatory ends in order to make “political gains”).

79. Pratt, 670 F.2d at 779.

80. See Chrias v. Miller, 432 F.3d 606, 619 (5th Cir. 2005) (citation omitted); Zykan v. Warsaw Community Sch. Corp., 631 F.2d 1300, 1306 (7th Cir. 1980).

81. Kimberlee Kruesi, Tennessee Bans Teaching Critical Race Theory in Schools, AP News (May 25, 2021), https://apnews.com/article/tennessee-racial-injustice-race-and-ethnicity-religion-education-9366bceabf309557811eab645c8dad13.