Banning critical race theory in public schools DOES NOT infringe on free speech
Public school teachers DO NOT have free speech protections when they are teaching.
States left and right are introducing and passing bills to ban the teaching of critical race theory in public schools. When they do, the woke activists suddenly find a glorious love of free speech and the first amendment that somehow eludes when they’re canceling people for expressing an opinion they disagree with.
Using free speech as an argument against the idea of banning the teaching of critical race theory as fact might seem to be an easy one - it even suckered in my RINO Republican governor Chris Sununu.
But there’s a catch: Public school teachers do not have first amendment protections when they are acting in their capacity as teachers. No state employees do.
Let’s walk through the simple arguments at play in this question.
Who the constitution protects
“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular and what no just government should refuse or rest on interferences.” - Thomas Jefferson
Jefferson is very clear - the Bill of Rights offers citizens protections from the government. It does not protect the government from the citizens.
Therefore, the first amendment does not protect government speech. It protects the speech of individuals.
Teachers are government employees
Public schools are facilitated through and funded by local, state, and federal governments. Every time a public school teacher collects a paycheck, they are literally collecting it from our tax dollars.
That means that public school teachers are government employees.
Government employees do not have free speech protections
In Garcetti v. Ceballos (2006), the Supreme Court ruled that public employees do not retain first amendment protections for speech as a part of their official job duties:
“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment protections, and the Constitution does not insulate their communications from employer discipline”
Because public school teachers are government employees, they are not protected by the first amendment when they are acting in their official capacity.
If a public school teacher wants to promote critical race theory on their own time, when they are not acting in their capacity as a government employee, they are welcome to. If they want to pay $2,500 or more to attend an anti-racist dinner where they are told they are racist for being born while being serviced five-star cuisine (yes, those actually exist), they can.
However, when they are teaching in public schools, they do not have the same free speech protections they do as private citizens because they are acting as employees of the state. Therefore, telling them what they can and cannot say is completely within the purview of government.
Banning critical race theory limits the power of government.
Critical race theory teaches that if you disagree with critical race theory, that is simply proof that you are a racist. It does not allow for any means of dissent.
Imagine a judge saying “if you disagree with the prosecutor’s case, that is proof of your guilt.”
That’s literally what’s happening with critical race theory when it is introduced in state agencies, contractors, and public schools.
It might seem that banning critical race theory from being taught in schools gives the government power to control speech, but the opposite is true.
These bills are using the legislative process to limit the power of government. They ban the government employees from teaching a fringe ideology as objective fact, thus ensuring the constitutional rights of the students are protected. It reduces the power of government employees to indoctrinate students to their ideology while protecting the rights of students to dissent.
When you limit the power of government employees, you limit the power of government, not expand it. Banning this ideology from being funded with taxpayer dollars protects the people and their ability to think for themselves. They can engage with it, or not, on their own time but will not be forced into it by the state.