Exclusion Is Unconstitutional

In states across the nation, school librarians are being forced to remove books like Toni Morrison’s Pulitzer Prize-winning Beloved and George M. Johnson’s critically acclaimed All Boys Aren’t Blue from their bookshelves. Teachers are facing discipline and the loss of their jobs and licenses if they provide students with instruction on certain prohibited concepts like “structural racism” or “gender identity.” School districts are forcing schools to cancel events that aim to provide resources—and hope—to LGBTQ+ students.

Most of these acts of censorship and silencing are being committed under the disingenuous banner of “parents’ rights.” The politicians who are proposing and passing these laws argue that these measures, which prohibit teachers from providing students with an education that is responsive to the experiences and needs of racial and sexual minorities, reflect parental desires for their children’s education. Indeed, the official title of Florida Gov. Ron DeSantis’ “Don’t Say Gay” law, which forbids instruction on sexual orientation and gender identity in K-12 schools, is the Parental Rights in Education Act (emphasis added). DeSantis and like-minded supporters of these laws argue that the rights of parents to direct their children’s educations and to raise their children as they see fit are being violated by curricula that present racism and racial disadvantage as historical and ongoing features of American life and that propose that the humanity of LGBTQ+ persons ought to be respected. They claim that bans on humanizing instruction about the LGBTQ+ community and “critical race theory”—an academic framework that analyzes the relationship between law and racial inequality—vindicate parents’ rights.

But what about the rights of other parents? There are parents who want their children to learn the honest history of our nation and to have an educational experience grounded in research-based practices that benefit all children. There are parents who want their children to have an education that fosters democratic principles and responsible citizenship. Is education in a democracy to be determined by the demands of small groups claiming “parents’ rights” above the rights and well-being of all children and families?

Curricular Censorship Is Undemocratic

Supporters of censorship targeting topics of race and sexuality would likely argue that the rights of parents who want their children to receive an education informed by racial equity and LGBTQ+ inclusion do not count, as those parents might not comprise the majority in these jurisdictions. These supporters would contend that what the majority in a state or school district says, goes—and, in this case, that means the voices and experiences of people who have been historically marginalized must be silenced. Moreover, the argument goes, democracy requires the desires of the numerical minority to be subordinated to the numerical majority.

There are two things to keep in mind when defenders of recent curricular bans argue that they act in the service of democracy. First, even if democracy requires majority rule, we should be skeptical that these instructional bans represent the will of the political majority in a state or school district. Second, and perhaps more importantly, the U.S. Constitution protects against the infringement of certain rights regardless of the will of the majority. This type of educational censorship is a violation of those rights.

To the first point, there are compelling reasons to believe that the will of the majority is not, in fact, being accurately represented in many jurisdictions. In Florida, for example, we might be incredulous that the state’s “Don’t Say Gay” law and its ban on what conservative political actors and pundits have misrepresented as critical race theory indicate the true desires of the political majority.

In 2018, Florida voters amended the state constitution to restore the voting rights of persons who had been convicted of felonies. Because those who are swept into the nation’s jails and prisons are disproportionately nonwhite and are overwhelmingly poor, the restoration of voting rights to those with felony convictions worked to ensure that people of color and those experiencing poverty would have a say in the laws that govern them. The constitutional amendment meant that Florida law would be more representative of all people in the state.

However, shortly after the state constitution was amended, the Republican-dominated state Legislature passed Senate Bill 7066, a law requiring persons with felony convictions to pay off all fines, fees and restitution related to their convictions before they could vote. Because these costs oftentimes amount to a large sum of money, and because most people with felony convictions have low incomes, Senate Bill 7066 disenfranchised many of the very voters who the constitutional amendment had just re-enfranchised. Thus, it is reasonable to doubt that recently passed laws in Florida censoring the curricula taught in K-12 schools represent the desires of a majority of parents in the state. We know that people experiencing poverty who have felony convictions—who are disproportionately people of color—were prohibited from participating in the marginally democratic processes that produced these laws. So, do these laws really represent the will of the political majority in Florida?

Importantly, Florida is not unique. Since the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, which gutted the Voting Rights Act of 1965, Republican-dominated state legislatures have been passing—and the Supreme Court largely has been upholding—laws that endeavor to make it as hard as possible for people of color and others who would support Democratic candidates to vote. These efforts include unnecessarily restrictive voter identification laws, voter roll purges, the narrowing of the window during which new voters can register prior to an election, the closure of polling places in the communities that people of color call home, and constraints on early voting and absentee voting, among others.

In a state that has sought to disenfranchise large portions of its voters, we should not assume that its laws represent the will of the majority of voters. Instead, the elected legislators who pass the laws in these states represent only the will of the majority of people who were able to cast a vote in an election—a population that is much narrower than, and skews much whiter and richer than, the state’s overall political majority. Therefore, we should be critical of the argument that bans on curricula that include the experiences of historically marginalized groups represent the desires of a majority of parents in a state or school district.

Fundamental Rights and Responsibilities

Perhaps more importantly, the curricular bans that have proliferated across the nation of late are anti-democratic even if a majority of parents support them. The Constitution—the foundational document of American democracy—institutes limits on the will of the political majority. The Bill of Rights—the Constitution’s first 10 amendments—identifies certain fundamental rights that should not be infringed except in the most compelling of circumstances. These rights include the right to practice one’s religion, the freedom to speak, and the right to be free from unreasonable searches and seizures, to name just a few. The Supreme Court has interpreted the Constitution as protecting other fundamental rights not explicitly named in the first 10 amendments, like the right to the care, custody, and control of one’s children, the right to access contraception, the freedom to have consensual sex with an adult of the same sex, and the right to marry someone of the same sex. The theory behind fundamental rights is that there are aspects of life that are too important to an individual—too central to human dignity—to make the individual’s ability to enjoy them contingent on the outcome of an election.

Consider the First Amendment right to practice one’s religion. The Constitution’s protection of the freedom of religion as a fundamental right is due to the framers’ conviction that because the right to practice one’s religion is so essential to individuals, no one should be required to convince a majority of voters in their jurisdiction to let them worship according to the tenets of their religion. Even if a political majority does not want a religious minority to practice its faith, the will of that majority does not matter. American democracy protects religious minorities by removing from democratic processes the question of whether they will be able to worship in accordance with their religion.

Crucially, the Constitution also protects people from discrimination under the equal protection clause, which prohibits the subordination of a protected minority—even if a majority desires it.

One can see the argument for why bans on curricula that reflect the experiences of historically marginalized groups are undemocratic even if they reflect the values of a majority of parents in a jurisdiction. The 14th Amendment, which contains the equal protection clause, was added to the Constitution in 1868, after the end of the Civil War. The architects and ratifiers of the 14th Amendment expressly intended to bring into the body politic as equals formerly enslaved Black people, who had been considered less than human for the entirety of the nation’s history. The 14th Amendment endeavored to make Black people equal citizens. In this way, the 14th Amendment should be interpreted as prohibiting political majorities from expunging the experiences of Black people (and, by extension, other classes of historically marginalized and disadvantaged people) from the curricula taught in public schools. American democracy protects people of color by removing from democratic processes the question of whether their experiences—with chattel slavery and Jim Crow, with the civil rights movement and the subsequent backlash to the gains achieved, with structural racism and racial privilege—will be taught in K-12 schools.

The same can be said of LGBTQ+ persons. For most of the nation’s history, LGBTQ+ people were subject to criminalization, suppression and erasure. However, in the 1996 case Romer v. Evans, the Supreme Court began interpreting the Constitution to protect LGBTQ+ people from certain forms of blatant discrimination. In 2003, the Court decided Lawrence v. Texas, in which it continued the trajectory that it began in Romer and struck down laws that criminalized same-sex sexual contact. Further, in 2015, the Supreme Court decided Obergefell v. Hodges, holding that the Constitution protects the right to same-sex marriage and that states must allow LGBTQ+ persons to marry the people who they love. Importantly, the decision in Obergefell was as much about the injustice involved in treating LGBTQ+ people as second-class citizens as it was about the importance of marriage to individuals. The Supreme Court explained that “[f]or much of the 20th century … homosexuality was treated as an illness.” However, more recently, “psychiatrists and others [have] recognized that sexual orientation is … a normal expression of human sexuality.” The Supreme Court stated that an interpretation of the Constitution as recognizing a right to same-sex marriage follows from a recognition of LGBTQ+ persons as enjoying “equal dignity in the eyes of the law.”

If LGBTQ+ people enjoy “equal dignity in the eyes of the law,” there is a strong argument that it is unconstitutional to ban curricula that teach that the humanity of LGBTQ+ persons ought to be respected—curricula that recognize that our country and world are made better when LGBTQ+ people can live their lives free from criminalization, ostracism, stigma and shame. In other words, American democracy protects the LGBTQ+ community by removing from democratic processes the question of whether its experiences will be reflected in the curricula taught in K-12 schools.

Civics Education in a Democracy

While a civics education should provide instruction on how government works, a civics education in a democracy—one that values difference and heterogeneity—must extend beyond this. People must learn that in a democracy, it is wrong to expect that educational institutions will reflect only certain experiences, values and beliefs. People must learn that when groups and communities have been made equal citizens under the law, educational institutions must teach their students in a way that is consistent with that equality.

Further, we should clearly understand that the curricular censorship that we are now witnessing is a backlash to the expansion of democracy. Nevertheless, the expansion of our democracy was necessary. Without it, our country would not deserve to be called a democracy. By definition, a country is undemocratic if large swaths of its citizens are unable to participate in society. Instructing children and young adults on the experiences of historically marginalized people may be the only way to ensure the continued citizenship of those who have been only recently included in the phrase “We the People.”