What's Allowed

Concerned about Critical Race Theory?

If you haven't heard about the opinion the Montana attorney general issued on anti-racism and Critical Race Theory, feel free to skip this post. As long as you aren't treating students differently on the basis of race, creating a hostile environment, or engaging in racial scapegoating or stereotyping (and I can't imagine you are), then keep doing what you are doing. For those of you who have concerns, read on. 

After reading the headlines about this opinion early in the summer, my colleagues and I also had concerns, so we did what historians do: we went to the source. 

I encourage everyone to read the twenty-five page Montana Attorney General’s Opinion 1, Vol. 58, Op. 1 May 27, 2021 and particularly the section Analysis and Conclusions of Law (pp. 18-22), because that's the heart of the ruling. For easy reference, my colleagues and I also put together a one-page FAQ sheet: "A Teacher's Guide to the Montana Attorney General's Opinion on Critical Race Theory and Indian Education for All,"  which I'm sharing below.  

Is it legal to teach curriculum that explores racism, discrimination, and colonialism?

Yes. Montana’s state social studies standards require that students be able to accomplish the following, all of which will entail studying and understanding the history of racism, discrimination, and colonialism:

• “Analyze perspectives of American Indians in US history” (SS.H.9-12.10);
• “Identify ways in which people and groups exercise agency in difficult historical, contemporary, and tribal contexts” (SS.H.9-12.3);
• “Evaluate citizens’ and institutions’ effectiveness in ensuring civil rights at the local, state, tribal, national, and international levels” (SS.CG.9-12.12); and
• “Analyze how, since European contact, historical events and policies have mutually impacted American Indian and European societies.” (SS.H.6-8.3)

Can educators continue to teach the Seven Essential Understandings Regarding Montana Indians using curriculum from OPI, the Montana Historical Society, or other state agencies?

Yes.  The Seven Essential Understandings Regarding Montana Indians are integrated throughout the Montana Accreditation and Content Standards that guide instruction for all schools. Educators have a constitutional and legal obligation to implement Indian Education for All in a culturally responsive manner. 

Is it legal to teach Critical Race Theory?

Yes, although Critical Race Theory—the study of how views on race have shaped public policy and the legal system—is generally only taught in college level classes. The Attorney General’s opinion states that “There are legitimate pedagogical uses for elements of the CRT/antiracism curricula that do not violate state or federal laws…. This opinion, therefore, should not be construed to limit a school or government entity’s ability to use, present, or discuss these materials, where appropriate.” (Knudsen, p. 19) 

Is it legal to teach the 1619 Project or any other curriculum relating to the history of slavery?

Yes. While calling the 1619 curriculum “inadvisable,” the Attorney General specifically states that it is “protected by the First Amendment and it is reserved for policymakers to decide if it belongs in classrooms.” (Knudsen, p. 22) 

Are academic freedom and student political speech still protected?

Yes. “Nothing in this opinion shall be construed to restrict any expressive activities protected under the U.S. Constitution, including academic freedom or student political speech.” (Knudsen, pp. 22-23). Student political speech should take place in accordance with any relevant district or school policies. 

What practices or activities are prohibited under the Attorney General’s opinion? 

The opinion lists discriminatory practices that are illegal under the Civil Rights Act of 1964 and the Montana Human Rights Act. Schools and educators may not

• “classify students or other Montanans by race,”
• “treat individuals differently on the basis of race,”
• “create a hostile environment,” or
• “engage in racial stereotyping” or “racial scapegoating.”   

“The law will not tolerate schools, other government entities, or employers implementing … programming in a way that treats individuals differently on the basis of race or that creates a hostile environment.” (Knudsen, pp. 18-19) 

In general, it is O.K. to teach about racism, discrimination, and other topics so long as no adverse or discriminatory actions are taken against any students as a part of the lesson, curricula, or learning activity. 

(All quotations are from Montana Attorney General’s Opinion 1, Vol. 58, Op. 1 May 27, 2021. This information should not be construed as legal advice.) 

The Bottom Line

Continue to teach history and IEFA. Continue to encourage respectful exchanges of ideas. Continue to treat all students fairly and with respect. If you want to talk further, I'm happy to do so.