Scrutiny over some classroom lessons, books adds new element of uncertainty for educators

Heightened scrutiny of certain classroom lessons and books has added a new element of uncertainty for teachers trying to navigate vague new laws and a treacherous political landscape.

Controversial classroom discussions

The Texas Legislature passed two bills in 2021 that took aim at the teaching of what bill proponents refer to as “critical race theory,” which is a decades-old academic framework that examines how racism is ingrained in public policy and legal systems. House Bill 3979, enacted during the regular legislative session, was in effect for only a few months when it was superseded by legislation that passed during the second special session, Senate Bill 3.

SB 3 applies to all classroom subjects and states that 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.”

The new law also says 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.

SB 3 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 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.

Be aware: Nearly 900 Texas districts now operate as Districts of Innovation. The vast majority have chosen to exempt themselves from the school start date law. Hundreds have also waived class size limitations, teacher certification requirements and other important laws. Recent reforms have further eroded state law by allowing — or even encouraging — districts to partner with charters and similar entities, thereby deregulating the affected campuses. (Read more here.)

Book Bans

Nothing in state law has changed regarding books in the classroom and school library, but the political landscape certainly has.

School districts around the state have experienced coordinated efforts to ban certain books that address race, sex, LGBTQ issues and more. Gov. Greg Abbott directed the Texas Education Agency to investigate “any criminal activity in public schools involving the availability of pornographic material that serves no educational purpose” while at least one local law enforcement agency has launched its own investigation.

Courts have established that students have free speech protections and school libraries are considered places of free inquiry. In addition, the definition of “pornographic” turns on both community standards as well as whether the material in question has educational value.

While the state’s school library standards have not changed, TEA recently released a model library policy that was updated at the behest of Gov. Abbott to include more parental input and a robust review process.

TCTA members should follow all local policies. If you have questions or concerns, call the TCTA Legal Department at 888-879-8282 to discuss the matter with a staff attorney.