State Representative White asks Texas Attorney General Paxton whether teaching of “critical race theory” violates Equal Protection Clause, Civil Rights Act of 1964

State Representative James White, District 19, Republican of Hillister.

The Golden Hammer Staff Reports

Austin and Hillister, August 5 – State Representative James White (Republican of Hillister), in his capacity as Chairman of the Texas House of Representatives Committee on Homeland Security and Public Safety, has officially asked Texas Attorney General Ken Paxton to render an opinion whether the teaching of “critical race theory” (CRT) in Texas public schools, universities, and state agencies violates the U.S. Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Section 3 of the Texas Constitution, which is Texas’ version of the  Equal Protection Clause. White submitted the request to General Paxton on Tuesday, August 3, 2021.

White explained in his request for an opinion that “While proponents of these [critical race theory] views argue that their intent is to eradicate racism, its practical application in policy has proven to demonstrate just the opposite. Indeed, many antiracist and CRT based programs being implemented in the United States have likely violated the U.S. Constitution by separating participants into racial training groups, compelling apologies for “whiteness”, and conducting compulsory “privilege walks” under this programming.”

The Hillister Republican, who is running for Agriculture Commissioner in the March 1, 2022, Republican Primary Election, also noted in his letter to the Attorney General that, “Additionally, CRT asks white students to admit they are racist or privileged. However, the Texas Constitution also recognizes a Texan’s freedom of speech. This clause, similar to the U.S. Constitution’s First Amendment, also prohibits compelling or forcing speech. It is the people’s right to say or not say something. However, if a white student or employee does not want to say they are racist because they are white they may face backlash from their peers and be ostracized by CRT’s circular logic.”

White legally differentiated CRT from affirmative action programs in the 1970s and 1980s, as he explained in his letter requesting the opinion:

“Currently, the consideration of race-centered policies only survive strict scrutiny under two circumstances. First, when ‘remedying the effects of past intentional discrimination’ and, second, when addressing ‘diversity in higher education.’ Still, limitations for these two exceptions seem to limit their application.

“First, when an governmental entity evokes remedial measures to rectify a past discrimination it must ‘tailor remedial relief to those who truly have suffered the effects of prior discrimination,’ provide ‘a strong basis in evidence that remedial action is necessary,’ and may not use societal discrimination as a legitimate basis for race driven policies. Second, while student body diversity remains a compelling interest, schools still bear the burden of demonstrating that workable race-neutral alternatives do not suffice and that any policy citing ‘diversity in higher education remains highly focused on an individual rather than any particular racial group.'”

In conclusion, White has asked Paxton to answer four questions:

  • With the jurisprudence of the Fourteenth Amendment in mind, would the continued implementation of CRT and “anti-racist” teachings into public schools, universities, and agencies be determined unconstitutional and undermine its principles?
  • With the jurisprudence of the Civil Rights Act of 1964 in mind, would the continued implementation of CRT and “anti-racist” teachings into public schools, universities, and agencies be determined unconstitutional?
  • With the Texas Constitution in mind, would the continued implementation of CRT and “anti-racist” teachings into public schools, universities, and agencies be determined unconstitutional?
  • With State and Federal law in mind, at what point do programs or trainings that address racial inequities become unconstitutional?

If Paxton were to render an opinion that the teaching of CRT violates the United States Constitution, the Texas Constitution, or the Civil Rights Act of 1964, he would put Texas schools and agencies in the position that they would no longer be able to teach CRT for fear of civil rights lawsuits by the victims of their actions.

While the Texas Legislature passed House Bill 3979 in the 87th Legislature, which Governor Greg Abbott signed into law and which imposed a ban on the teaching of CRT in social studies courses in Texas public schools, the ban did not broadly ban CRT teaching within public school curricula altogether. If Attorney General Paxton were to answer White’s request for an opinion in the manner White clearly wants, the Attorney General’s Opinion would likely result in an effective ban nonetheless.

On Friday, July 16, the Texas Senate passed Senate Bill 3 on a straight party-line vote of 18 to 4. That legislation broadens the ban on the teaching of “critical race theory” but does not impose a full ban on that curriculum. The Texas House of Representatives, of course, did not act on the bill.




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