As the 2020-21 school year drew to a close, public and private schools across the state began receiving an influx of inquiries from parents, community members, and the media regarding the issue of “critical race theory” and curriculum.  Public school districts have received various public records requests from citizens and organizations regarding any such curriculum being considered or implemented by the district, and this topic has also been raised during the public comment section of School Board meetings, sometimes leading to heated exchanges (both pro and con) amongst the citizens in attendance.  

Many of the inquiries regarding critical race theory curriculum were likely prompted by a Notice of Proposed Rulemaking issued by the Department of Education’s Office of Elementary and Secondary Education (“the Department”) on April 18, 2021, as well as the recently published public comments on the proposed rule.  The proposed rule “proposes two priorities to support the development of culturally responsive teaching and learning and the promotion of information literacy skills in grants under the American History and Civics Education programs.”

 In discussing the incorporation of diverse perspectives into teaching and learning, the proposed rule states, “It is critical that the teaching of American history and civics creates learning experiences that validate and reflect the diversity, identities, histories, contributions, and experiences of all students.”  Grant applicants would be required to “describe how the proposed project incorporates teaching and learning practices that: 

(a) Take into account systemic marginalization, biases, inequities, and discriminatory policy and practice in American history;

(b) Incorporate racially, ethnically, culturally, and linguistically diverse perspectives and perspectives on the experience of individuals with disabilities;

(c) Encourage students to critically analyze the diverse perspectives of historical and contemporary media and its impacts;

(d) Support the creation of learning environments that validate and reflect the diversity, identities, and experiences of all students; and

(e) Contribute to inclusive, supportive, and identity-safe learning environments.” 

Interestingly, the phrase “critical race theory” is not explicitly mentioned in the proposed rule, although the resources cited by the Department, such as the 1619 Project and How to Be an Antiracist by Ibram X. Kendi, generally would be considered critical race theory.  Additionally, the proposed rule does not require schools to incorporate the above teaching and learning practices outside of this grant program.  

The public comment period closed on May 19, 2021, and the public comments have since been published.  Some public comments raised questions or concerns with the proposed program, including concerns about the references cited in the document.  For example, the comment submitted by the Wisconsin Institute of Law and Liberty (WILL) expresses a concern that the grant program would “entrench something called ‘Critical Race Theory’ in every public school in America.”   The comment goes on to raise legal arguments against teaching critical race theory in public schools and hints at a possible lawsuit, asserting, “Public Schools who violate these basic guarantees open themselves up to lawsuits, discovery, and potential liability.”   

The array of public comments reflect the divide that is present in many school communities around the state.  As schools strive to maintain civil discourse regarding these issues, we recommend reviewing policies and guidelines relating to public comment at school board meetings, social media use, discrimination and harassment, curriculum development and review, and controversial topics in the classroom.  

If you have any questions about this Legal Update, please contact Attorneys Alana Leffler at aleffler@buelowvetter.com or 262-364-0267 or Sheila Thobani at sthobani@buelowvetter.com or 262-364-0262, or your Buelow Vetter attorney.