The swirl of media attention around the implementation of Texas’ new “critical race theory” legislation has created more questions than answers for teachers around the state. The confusion stems, in part, from the vague language of the law as well as the misreading of the law by some school districts.
At this early stage, a lot is unknown about how this law will play out in classrooms and school board meetings across Texas. TCTA will be monitoring developments closely. In the meantime, we’ve put together a Q&A with TCTA General Counsel Lonnie Hollingsworth to help teachers better understand the law and their own responsibilities.
BACKGROUND: In 2021, the Legislature passed two separate bills related to this issue: HB 3979, which is currently in effect; and SB 3, which was crafted to address some of the issues with HB 3979 and goes into effect Dec. 2, 2021. SB 3 effectively overrides HB 3979 and applies the instructional requirements and prohibitions to all courses — not just social studies.
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Do these bills require a teacher to give equal weight to opposing perspectives on historical events?
The bills focus on the discussion of a “current event” or “currently controversial issue of public policy or social affairs” and do not apply to historical events. Those terms, however, are not defined so whether an event is current or historical could be up for interpretation. In addition, it’s important to remember that this legislation stems, in part, from a current controversy over historical events.
Under HB 3979, a teacher who chooses to discuss “a widely debated and currently controversial issue of public policy or social affairs” must “to the best of the teacher's ability, strive to explore the topic from diverse and contending perspectives without giving deference to any one perspective.” SB 3 clarified that language and directs that the teacher shall explore that topic “objectively and in a manner free from political bias.”
Is there something that teachers can do proactively to demonstrate/document that they’ve covered a topic objectively?
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. The bottom line is that good teaching has always included teaching subjects objectively and free from political bias, though the politics surrounding the issue have underscored the need for teachers to be prepared to defend their presentations and classroom discussions.
What do I do if my administration gives me a directive that I believe conflicts with SB 3 or misapplies SB 3?
TCTA members should call the TCTA Legal Department at 888-879-8282 to discuss the matter with a staff attorney.
Does any of the language in SB 3 potentially prohibit me from teaching what’s in the TEKS?
No. SB 3 states that “nothing in this section may be construed as limiting the teaching of or instruction in the essential knowledge and skills adopted under this subchapter.”
If a student offers a perspective on a controversial issue of public policy or social affairs, does the teacher have an obligation to provide an opposing perspective for balance?
SB 3 contains a provision that a school may not implement, interpret, or enforce any rule in a manner that would punish a student for reasonably discussing the concepts below in school or at a school sponsored activity. Teachers may not have an obligation to provide an opposing perspective, but they may have an obligation to allow other students to provide opposing perspectives.
The language in SB 3 regarding student speech is different from the language in HB 3979. Since SB 3 will apply to all subjects and replaces SB 3, this answer is based on SB 3, effective Dec. 2, 2021. The bill does not address student speech with regard to “widely debated and currently controversial issues(s).” It does address student speech regarding the following, which appear to be an expression of the Texas Legislature’s concept of critical race theory:
- 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 is, by virtue of their race or sex, 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 by 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 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 U.S. constituted its true founding
- 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
- require or make part of a course inculcation in the concept that
The legislature may have opened a can of worms by essentially creating a limited public forum for students to discuss concepts related to critical race theory, as it would violate students’ rights to free speech to allow the discussion of concepts opposed to the concepts of critical race theory while prohibiting students from supporting critical race theory.
May a teacher have students write letters to their elected officials?
Teachers can still assign students to communicate with elected officials as long as they do not influence the content of the communication.
If someone claims that a teacher has violated the statutory provisions of HB 3979 or SB 3, who has the authority to determine if the claim has merit?
The facts of any school law issue are determined by school board trustees or the governing body of a charter school. 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 best defense in the long term may be for educators to vote for and support school board candidates who can make decisions “objectively and in a manner free from political bias” just as the law requires teachers to present currently controversial topics.
What could happen to a teacher if it’s determined that a claim does have merit?
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 contract nonrenewal. For mid-year terminations, teachers in school districts get a hearing before an administrative law judge, so the analysis of whether the teacher has violated the law should be fair and free from political bias.
Certified educators are also subject to certification sanction from the State Board for Educator Certification, but hopefully SBEC will continue to focus its investigations and sanctions on teachers who pose potential harm to students rather than those who find it difficult to chart a course through the teaching of anti-racist concepts.
How can TCTA help me navigate these issues?
TCTA will continue to monitor the issue and provide guidance in our publications. The most important resource TCTA members have is our staff attorneys. Our attorneys are available to members through a simple phone call. Members should not hesitate to call 888-879-8282 if they have any question about how to address a situation that could become problematic.
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