Dive Brief:

• Arkansas Attorney General Leslie Rutledge last week issued an opinion that stated in many cases, instruction of critical race theory at public colleges could violate state and federal law.
• Rutledge, a Republican running for governor of the state, wrote that teaching such concepts could infringe on Title VI of the Civil Rights Act of 1964, the 14th Amendment, and the Arkansas constitution.
• But one prominent civil liberties watchdog in higher education condemned Rutledge's interpretation, saying it diminishes academic freedoms and First Amendment rights.

Dive Insight:

For months, conservatives across the U.S. have deemed critical race theory a national scourge. The four-decade-old academic theory in part teaches that racism is a systemic problem ingrained in many institutions.

It came under new national scrutiny last year after former President Donald Trump signed an executive order barring federal grantees from teaching certain concepts, such as that the country is inherently racist or sexist.

State policymakers have since taken up Trump's mantle and attempted to excise critical race theory from classrooms. One such effort by one member of the University of Nebraska's Board of Regents, who is also a Republican candidate for that state's governorship, recently failed.

In Arkansas, one Republican state representative, Mark Lowery, introduced multiple bills attempting to limit the teaching of racism and related topics. None passed the state legislature so far, but Senate legislation that became law in May prohibits many state entities — but not public K-12 schools and colleges — from teaching "divisive concepts."

In June, Lowery requested that the attorney general weigh in on the legality of teaching anti-racist concepts and critical race theory at public schools and colleges.

Rutledge came back last week and said that an "effort to take account of race in a way that differently accords benefits or opportunities or creates a hostile environment" would likely violate civil rights laws, Title VI and the Equal Protection Clause of the 14th Amendment. Such an effort would include overt racial segregation, racial stereotyping and scapegoating. Her opinion does not ban instruction of critical race theory, but it will likely give lawmakers political fodder to attempt to do so.

In her opinion, Rutledge wrote that curricula or programs that further certain ideas — including that an individual, by virtue of their race, is oppressed, or oppressive, or should feel discomfort or resentment — could foster a "racially hostile environment."

But the law does not preclude teaching about historical events and themes, and critical race theory may have "some legitimate pedagogical uses" in a college setting, she wrote.

"Further, because a theory need not be accepted as an integrated whole, it is possible that critical race theory could generate discrete insights that may be useful for certain limited purposes," Rutledge wrote.

Her language was much harsher in a news release describing the opinion, denouncing critical race theory as "a neo-Marxist ideology that distorts and rewrites history." And in that statement, Rutledge was absolute that it violated the law.

One prominent civil liberties organization is not as sure. The Foundation for Individual Rights in Education said in a recent online essay that Rutledge misconstrued legal rulings that affirmed broad free speech rights for faculty members related to scholarship and teaching.

FIRE said an instructor could cross from protected speech into harassment, but "that is a high bar to meet," and Rutledge's opinion did not establish it. 

"If the bar for harassment is set so low that the mere discussion of offensive ideas is sufficient to establish an unlawfully hostile environment, the risks to open discussion in class become obvious," FIRE said.