Addressing controversy and ensuring accuracy under SB 3

This article appeared in the Winter 2021-22 issue of The Classroom Teacher.

'Critical race theory' law has teachers concerned about classroom discussions

Six months after Texas lawmakers passed one of the nation’s first bills targeting “critical race theory” in public education, teachers across the state are grappling with how to comply with the new law without sacrificing historical accuracy.

“What I’m hearing is fear,” said Dr. Lawrence Scott, an assistant professor of education leadership at Texas A&M University–San Antonio. “Teachers are afraid to explore very critical, crucial conversations that surround race, disparities, inequities, institutionalized racism or systemic racism, even though that’s a part of the natural flow and continuity of conversation within the curriculum.”

While nothing in the law precludes the discussion of those topics, the fear is understandable given the law’s vague language, the lack of direction from the state and the volatile nature of public discourse these days.

But avoiding the controversial topics isn’t the solution, Scott said, especially since students will likely look for answers online to fill the void.

“Our kids have to have these critical, crucial conversations about race in a safe place — a safe place like a classroom — with the right people and accurate data,” Scott said.

What’s in the Law?

Critical race theory is a decades-old academic framework that examines how racism is ingrained in public policy and legal systems. The theory is primarily taught in graduate-level courses, but critics maintain it has seeped into public education as well.

The Texas Legislature passed two bills in 2021 that took aim at the teaching of what bill proponents say is critical race theory. House Bill 3979, which passed during the regular legislative session, was in effect for only a few months when it was superseded by Senate Bill 3 in December.

Approved during the second special legislative session, SB 3 cleaned up some of the vague and problematic language from HB 3979. The new law, for example, modified a controversial provision in HB 3979 that directed teachers to explore currently controversial topics “from diverse and contending perspectives without giving deference to any one perspective.” One school district initially told teachers that meant they had to provide students opposing perspectives on the Holocaust, only to back away from that interpretation amid a public outcry. Now, a teacher who chooses to discuss a controversial issue of public policy or social affairs “shall explore the topic objectively and free from political bias.”

SB 3 also extended the reach of the law to all classroom subjects — not just social studies — and made clear that nothing in the law limits the teaching of or instruction in the Texas Essential Knowledge and Skills, which eliminates the potential for conflicts between the TEKS and the new law.

In addition, SB 3 included some important protections for teachers. It established that the law does not create a private cause of action (basis for a lawsuit) against an educator and set a high bar for a teacher to run afoul of the law (see below).

Other key provisions of SB 3 include:

• Requires development of a civics training program for teachers and principals or instructional leaders;
• Requires that districts make online learning portals available to parents;
• Directs the State Board of Education to revise social studies TEKS, effective starting in the 2022-23 school year, and include “informed American patriotism” in instructional materials; and
• Prohibits course requirement or credit for lobbying, advocacy, or internships to influence public policy, but permits a teacher to direct a classroom activity involving students communicating with an elected official so long as the school or teacher does not influence the content of the communication.

Nothing in state law, however, has changed regarding books in the classroom and school library. SB 3 is silent about books, but one lawmaker has referenced language in HB 3979 as part of his recent effort to target hundreds of school library books about race, gender, sexuality, and other issues. That language — prohibiting classroom discussions that could make a student “feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex” — was nixed by SB 3.

That said, even if the law hasn’t changed, the political landscape certainly has, so teachers need to make sure they follow all local policies for inclusion of books in classroom libraries and keep documentation showing they have approval where it is needed.

In the Classroom

Shalon Bond, director of social studies for Dallas ISD and the incoming president of the Texas Council for the Social Studies, said teachers shouldn’t fear addressing the topics targeted by the law. The key is to engage students in their own learning and let them lead the discussion.
Teachers should start with the standard, choose sources carefully and teach the content while keeping their opinion out of it.

“Kids never have to know where you stand,” Bond said.

Good teaching has always included teaching subjects objectively and free from personal bias. But the politics surrounding the issue have underscored the need for teachers to be prepared to defend their presentations and classroom discussions. Teachers can take notes during discussions that might be construed as controversial or related to the prohibited topics attributed to critical race theory. They could also include references to different perspectives in lesson plans.

Scott agreed that teachers should serve as “facilitators of the conversation as opposed to dispensers of information.”

“The teacher poses the question and students engage and lead the discussions based on their independent research or collaborative research with each other,” Scott said.

Opening the lines of communication with parents will also be essential, Scott said. Some teachers, for example, have sent the curriculum home for parents to review and sign. And involving the parents and community members who serve on the site-based decision-making committees as part of the curriculum discussion will ensure outside voices are heard.

In Dallas ISD, Bond said they’re working to include transparency to maintain trust with the parents and the community that kids are being educated in line with state standards. The district has also produced short videos explaining SB 3 and opened a hotline where people can get their questions answered.

“Parents can definitely be part of the conversation,” Bond said.

Complying with SB 3

Senate Bill 3 states that a teacher, administrator or other employee of a school may not require or make part of a course inculcation in the concept that:

• one race or sex is inherently superior to another race or sex;
• an individual, by virtue of their race or sex, is inherently racist, sexist, or oppressive consciously or unconsciously;
• an individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;
• an individual’s moral character, standing or worth is necessarily determined by the individual’s race or sex;
• an individual, by virtue of the individual’s race or sex, bears responsibility, blame or guilt for actions committed by other members of the same race or sex;
• meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race;
• the advent of slavery in the territory that is now the United States constituted its true founding; or
• with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failure to live up to the authentic founding principles of the U.S., which include liberty and equality.

The inclusion of a key word — inculcation — should protect a teacher if they simply make content available or make a passing comment. The presence of a book in the library or classroom library is not inculcation, which involves teaching something persistently and repeatedly to implant as an idea or theory.

Ultimately, the school district’s board of trustees or charter school governing body will determine if a teacher has violated the law. Decisions of school districts can be appealed to the commissioner of education, but the commissioner may not overturn a decision of a school board that is supported by substantial evidence. Unless the school board’s decision is clearly not supported by the evidence, the school board’s determination of whether the law has been violated is going to stand. Where there have been and will be problems is where the school board is making determinations based on political pressure.

The law specifically provides that it does not create a private cause of action (basis for a lawsuit) against an educator, but that a school district or open-enrollment charter may take appropriate action involving the employment of any educator based on their compliance with laws and district policy. This does not really change existing employment law. The biggest danger is that failure to comply with the law could be the basis for a reprimand or potential contract nonrenewal.