Hypothetical court challenge could spell ‘dismantling’ of race teachings law, says UI law professor

Watch Shaakirrah Sanders’ full remarks in the African American Chamber of Commerce of Idaho’s panel discussion on critical race theory above. 

A new law targeting critical race theory in Idaho public schools might be unconstitutional, University of Idaho law school professor Shaakirrah Sanders said at a panel hosted by the African American Chamber of Commerce of Idaho Monday night.

“I think that … if challenged in court, we will begin to see the dismantling of this critical race theory bill,” said Sanders, who objects to Idaho politicians’ continued targeting of alleged leftist teachings.

The law, passed by the Legislature this year, prohibits schools from forcing students to “affirm, adopt or adhere to” the belief that a person is responsible for their ancestors’ actions because of their race or sex, or the belief that one race or sex is superior. It attributes those teachings to critical race theory — incorrectly, according to academics in the field.

Sanders outlined a string of arguments questioning the law’s constitutionality, primarily based on First Amendment concerns about students’ and teachers’ freedom of speech and expression:

  • There are “issues of vagueness and overbreadth” that make it unclear what the law does.
  • A lack of guidance for handling violations, which could prove problematic.
  • “It is unclear to me whether we have heard a sufficient enough rationale for banning race studies, including critical race theory,” based on the justifications used by the Legislature and Lt. Gov. Janice McGeachin’s school indoctrination task force. Lack of an evidence-backed need for restrictions could raise due process issues.

As of Monday, no lawsuits challenging the law have been reported.

Unlike some states’ recently passed restrictions, Idaho’s doesn’t outright ban teaching critical race theory, as some lawmakers who support the law have pointed out. But critics — including Monday’s panelists — warn the law is chilling discussions of race in education.

“Especially now that teachers know that there’s a task force … supposedly looking for these types of conversations, teachers and administration both are much more hesitant to address these issues happening in schools that are so negatively impacting our students of color,” said Maddie, a K-12 teacher on the panel who didn’t provide her last name.

At least 26 states have introduced bills or taken other steps to restrict teaching critical race theory or limit how teachers can discuss racism and sexism, according to an Education Week analysis.

Sanders’ presentation of legal concerns took under a dozen minutes of the two-hour virtual panel discussion, which answered questions about critical race theory and frequently rebuked Republican politicians’ targeting of perceived leftist “indoctrination” that has spiked in recent months, state and countrywide.

The seven-member panel included Sanders, Mike Satz of the anti-extremism group The Idaho 97, chamber president and founder Kathryn Jones, a charter school board trustee, former Boise High School principal Amy Kohlmeier, and a current and former K-12 teacher.

The panel focused on breaking down the term critical race theory, which has at times served as catchall for concerns about leftist teachings in public schools. The panel was dubbed a “CRT Information Panel,” in which the chamber sought “not to change minds and hearts” but “to have a discussion.”

As he did on a recent Kevin Richert Podcast, Satz said critical race theory is predominately used in law school and limited graduate school classrooms.

“It’s an academic movement that looks to critically examine the law and how it deals with issues of race,” said Satz, a former University of Idaho law professor.

The chamber, founded last summer to support Black businesspeople statewide, held the event to “correct misinformation” about discussions of race in Idaho, said Jones, a Nampa businesswoman.

Blake Jones

Blake Jones

Reporter Blake Jones covers the politics and policy of Idaho's K-12 public school system. He's a lifelong Idahoan, and holds degrees in Creative Writing and Political Economy from the College of Idaho. Follow Blake on Twitter @jonesblakej. He can be reached by email at [email protected].

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