Montana Attorney General Austin Knudsen on Thursday issued a legal opinion asserting that aspects of the intellectual and academic framework known as critical race theory violate federal and state law, warning that schools that violate the law could be legally liable or risk losing government support.
Knudsen writes that his opinion is not to ban First Amendment-protected speech or the teaching of specific materials, but rather to prohibit specific programming or training that he says inflames racial divisions and violates civil rights law.
“In many instances” — though none specific to Montana — “the use of ‘Critical Race Theory’ and ‘antiracism’ programming discriminates on the basis of race, color, or national origin in violation,” Knudsen wrote.
The AG’s opinion comes two weeks after Montana Superintendent of Public Instruction Elise Arntzen wrote to Knudsen’s office asking him to provide an opinion on “the legality of teaching so-called ‘antiracism'” in Montana in light of a proposed Biden Administration rule for a federal civics education grant program that would prioritize projects “that incorporate racially, ethnically, culturally and linguistically diverse perspectives into teaching and learning.”
The grant program, as reported by EducationWeek, only accounts for a little more than $5 million in federal funds, and is not itself a policy directive — by law, the federal government cannot dictate a curriculum in that way.
“OPI has serious concerns about the effect of this proposal on the education of students in Montana,” Arntzen wrote in her letter to the Attorney General.
“The question that was presented was loaded to begin with — and the answer was immediately loaded,” said Lance Melton, the CEO of the Montana School Boards Association, adding that it “presupposes that there’s a teaching of some kind of racist doctrine.”
The central contention from both Knudsen and Arntzen is that components of critical race theory that encourage white people to confront the privilege afforded by race, for example, could themselves be discriminatory. To support his claim, Knudsen cities news reports of a handful of examples of the kind of anti-racist education he says crosses the line in the city of Seattle, a Skokie, Ill. school district and a district in North Carolina, among others. A spokesperson for the Department of Public Instruction told the Daily Montanan earlier in the month that it did not have “widespread” examples of the kind of academic behavior it’s seeking to root out.
“They’re raising this issue and labeling it and then acting like without the request for this protection and the issuance of this opinion that our public schools would be off in the weeds engaging in these activities, but it’s not true,” Melton said.
It’s an extension of a debate that flared up in the back half of the Trump Presidency following the publication of the 1619 Project, a New York Times Magazine series of historical essays and commentary centering slavery in the narrative of the United States’ establishment, a subsequent attempt at legislation banning the project from being taught in schools from U.S. Sen. Tom Cotton, a Republican from Arkansas; and the short-lived establishment of a “1776 Commission” to combat the supposed revisionism of the 1619 project.
Knudsen wrote in his opinion that he’s not looking to ban the 1619 Project, though he called it a “fraudulent curriculum” in a statement.
Rather he laid out that activities constituting “racial segregation, race stereotyping and race scapegoating” are illegal, including, he said, having students do different assignments based on race, exercises that ascribe “specific characteristics or qualities to all members of a racial group and forcing an individual to admit privilege.”
The opinion concludes that the AG’s office “stands ready to assist OPI, as well as parents, students, employees, and other individuals with complaints of unlawful race-based discrimination.”
Melton said he did not expect the opinion to change classroom curricula. Montana has a system of widespread education around indigenous history called Indian Education for All that “necessarily involves delving into issues of racism,” he said.
The opinion also does not have any binding force over the U.S. Department of Education Office of Civil Rights, the agency that interprets and enforces Title VI of the Civil Rights Act, which prohibits racial discrimination in any publicly activities, said Anthony Johnstone, a professor of constitutional law at the University of Montana.
Johnstone said the opinion is binding over the Office of Public Instruction, but whether it would hold force over for example the Board of Regents or a local school board — which have much greater control over curriculum than OPI — is a separate question that still awaits a clear answer.
The request and ultimate opinion were “unusually broad,” Johnstone said — often, requests for the attorney general to lend his legal expertise to an issue hinge on highly specific examples.
That means the order is unlikely to establish a precedent. In other words, the recourse for Title VI or related violations already exists.
“Because we don’t have specific instances in Montana that this opinion is targeting, largely this is going to boil down to the same sort of case-by-case determination that the courts will already make,” Johnstone said.
Arren Kimbel-Sannit is a reporter with the Daily Montanan. He can be reached by email at [email protected], by text or call at 602-510-6276 and on Twitter @akimbelsannit