Commentary: Arkansas attorney general issues opinion on critical race theory that gives insufficient weight to academic freedom, First Amendment

Foundation for Individual Rights in Education

Excerpt: Last week, Arkansas Attorney General Leslie Rutledge issued a disappointing opinion on “the legality of introducing critical race theory and professed ‘antiracism’” in Arkansas’ educational institutions, including its public universities. Unfortunately, the opinion neglects the free speech rights of faculty members by asserting that their academic freedom is not protected by the First Amendment. It also unhelpfully suggests that the mere “communication” of ideas “based on critical race theory” may violate state and federal anti-discrimination laws, without providing any real guidance as to when or how such communications might cross the line.

First, the opinion asserts that “statements that public employees make pursuant to their official duties are not protected by the First Amendment.” Second, the opinion asserts that a “racially hostile environment could also be created through curricula, instruction, or other programs or activities that communicate the following ideas,” which it then goes on to list. Both arguments hardly stand to legal scrutiny.