New North Dakota law can't be discussed in North Dakota schools

On November 8, North Dakota legislators introduced a bill banning Critical Race Theory (CRT) in K-12 schools. Less than a week later, North Dakota Governor Doug Burgum (R) signed the legislation into law. The impact of the new law could be significant. And that's not because anyone is teaching CRT to K-12 students in North Dakota. 

While the new law purports to ban instruction on CRT, it actually prohibits teaching a wide range of topics. That's because it defines CRT very broadly. Here is the key portion of the law's text:

A school district or public school may not include instruction relating to critical race theory in any portion of the district's required curriculum...or any other curriculum offered by the district or school. For purposes of this section, "critical race theory" means the theory that racism is not merely the product of learned individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality.

So the new law prohibits any instruction "related" to the idea that "racism is systemically embedded in American society" or the American "legal system." That means the bill bans any instruction or written materials referencing these ideas, whether or not they are endorsed by the teacher. 

Faced with these constraints, how can a teacher discuss slavery, the civil rights era, or the history of redlining? All of these topics are inextricably related to systemic racism in American society and its legal system.

The law will "deeply undermine the ability of teachers to teach and the right of students to learn," the North Dakota ACLU wrote in a letter of opposition. Students will be denied "a safe learning environment in which they can engage in open and honest dialogue about America’s history" including "the history and culture of marginalized communities."

On its face, any discussion of the new law itself would be banned in North Dakota's K-12 schools. The bill prohibits any instruction "related" to the theory that "racism is systemically embedded in American society." That would certainly include instruction about this law that bans curriculum related to systematic racism. Any classroom discussion about the new law would have to include an explanation of systematic racism, which is not permitted. 

The restrictions on free speech in North Dakota schools could soon be coming to students across the nation. So far this year, "28 states have introduced bills or taken other steps that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism," according to Education Week. Eight states have already enacted legislation banning CRT and related topics. Five other states have taken state-level administrative action limiting instruction. Some legislation extends "beyond race" and bans "gender lectures and discussions."

The "evidence" of Critical Race Theory in North Dakota schools

North Dakota's bill banning CRT and any discussion of systemic racism was authored by Representative Jim Kasper (R). As part of the bill's brief consideration in the legislature, Kasper submitted written testimony, which appears to come from a constituent, which presented "evidence" that CRT had infiltrated. 

Here are some "examples" of CRT in Fargo public schools submitted into the official record by Kasper:

On the day of the George Floyd verdict, an announcement was made to the entire school actually using the name "George Floyd" with something about respecting everyone's opinions on the day of the verdict.

Last spring my 6th grader came home and said, "The school is filled with gay pride flags and shirts." Black Lives Matter flags and shirts also abound at the school.

I am not sure when this changed, but kids who have to do detention, now have a choice of when they want to do it (basically whenever it is convenient or desirable for them to do it) so long as it is done by the end of the semester or the end of the school year.

The same parent, in testimony submitted by Kasper, also objects to her 9th-grade daughter being assigned to read the young adult novel Dear Martin. Because that novel, which is about a teen who writes letters to Martin Luther King Jr., explores themes of "racial injustice and police brutality" it may no longer be permitted to be part of North Dakota's K-12 curriculum. 

Another parent independently submitted written testimony and presented the following "evidence" of CRT:

We recently completed a Boy Scout Trip to the Black Hills. During the course of our hike when we climbed Black Elk Peak, my son was explaining to other scouts what he learned at school. We white people had apparently stolen the Black Hills from the native tribes… This kind of polarizing teaching is unnecessary and untrue and is at the core of CRT.

The Fort Laramie Treaty of 1868 between the United States, the Sioux, and the Arapaho designated the Black Hills as "'unceded Indian Territory' for the exclusive use of native peoples." In the 1980 case of United States v. Sioux Nation of Indians, the Supreme Court ruled "that the U.S. had illegally appropriated the Black Hills and awarded more than $100 million in reparations." The Sioux rejected the financial award, arguing that the land was never for sale. 

This parent apparently believes teaching this history is an example of CRT and should be prohibited. Under the new law, it may not be possible for North Dakota teachers to discuss the case or the illegal seizure of native lands by the United States government. 

The corporate money behind the bill sponsors

Kasper and the seven co-sponsors of the legislation banning CRT have received PAC contributions from major national corporations. Top contributors to the group since 2018 include Marathon Petroleum ($4,800), REALTOR® PAC of North Dakota ($2,500), BNSF ($2,250), Caterpillar ($2,000) and Bayer ($1,000). 

Other legislators admit CRT is not taught in North Dakota but still vote for ban

North Dakota Senator Nicole Poolman (R) has a unique insight into whether CRT has infiltrated North Dakota schools. She is a high school English teacher. Poolman admitted that CRT is not an issue in North Dakota's K-12 schools but decided to vote for the bill anyway because parents are being manipulated. 

"If we can do something to reassure parents that in public schools we are not having a political agenda, then I think that we should do that," Poolman said. "The fear and the outrage are very real, even if I may believe that fear and outrage was manufactured."

Senator Donald Schaible (R) described the legislation as a prophylactic measure. "The bill is more preemptive to try to make sure that it doesn't come to our schools," Schaible said.  

Meanwhile, Senator Erin Oban (D), who opposed the bill, said it was a mistake to pass legislation in response to what people watch on Tucker Carlson or read on Facebook.  "If that's the trend we're going to do is to start coming into this body and banning things that people tell us, all because of what maybe they're hearing on cable news or talk radio or social media, then we're going to be really busy," Oban warned

CORRECTION (11/15): This article initially incorrectly reported that the National Association of Realtors donated $2500 to the sponsors of the bill banning Critical Race Theory. Those donations were made by the REALTOR® PAC of North Dakota, which is run by the North Dakota Association of Realtors, a state affiliate of the National Association of Realtors.