Education Secretary Withdraws Unlawful Critical Race Theory Proposal

Education Secretary Withdraws Unlawful Critical Race Theory Proposal

Aug 19, 2021 Peggy Little

U.S. Secretary of Education Miguel Cardona quietly blogged on July 16, 2021, that the U.S. Department of Education has apparently rescinded its  “Proposed Priorities—American History and Civics,” which was published for public comment in the Federal Register in April. 

That controversial proposal prioritized teaching of The New York Times’ landmark “ 1619 Project,” “antiracist ideas” promoted by Ibram X. Kendi, a proponent of Critical Race Theory (CRT), and “identity-safe learning environment[s]” in public schools. The recent about face says the Department of Education “has not, does not and will not dictate or recommend specific curriculum be introduced or taught in classrooms. Those decisions are—and will continue to be—made at the local level.” This, ahem, course-correction is cause for celebration—but also vigilance. 

The April “Proposed Priorities” drew nearly 34,000 comments, many of them heatedly negative, from parents, teachers, educators and public-interest groups. The overwhelming response and accompanying public debate apparently convinced Cardona and/or his advisors that this issue alone could drive election results in forthcoming midterm and presidential elections.

But what the public debate has largely missed is that any federal control over curricula violates federal law, including the very statute under which the Department of Education was founded in 1979. Even before there was a federal department, federal law explicitly provided there shall be no federal control over public school curricula1. The Department of Education’s organic statute states in two separate sections that it “shall not increase the authority of the federal government over education or diminish the responsibility for education reserved to the states” and local authorities2. If that were not enough, a 1989 statute prohibits tying receipt of federal funds to teaching of any curricula. 

Cardona’s brazen defiance of the law with the April “Proposed Priorities” is just as noteworthy as the content of his promoted materials. Just as federally mandating curricular coverage of the 1619 Project is verboten, so too would be a mandate to teach the last administration’s 1776 Commission

Why is this important? Cardona’s pioneering use of a blog post, the ostensible purpose of which was to invite proposals, signals the department’s hasty retreat and includes what the Left might call a “dog whistle.” He substitutes a significantly more modest, facially anodyne proposal not even published in the Federal Register for public comment to “incorporate racially, ethnically, culturally and linguistically diverse perspectives into teaching and learning … that reflect the rich diversity … of all students.” Appealing to parental judgment, Cardona says “(A)s every parent knows, when students can make personal connections to their learning experiences … greater opportunities … (allow students) to stay engaged in their education and see pathways for their own futures.”

His blog post also prioritizes “improv(ing) students’ information literacy skills,” ominously noting that we live “(a)t a time when our democratic institutions are threatened by misinformation and disinformation.” He closes by saying “(L)ike invitational priorities in any grant competition, applicants are not required to address these priorities and earn no additional points and gain no competitive advantage in the grant competition for addressing these priorities.” When he has just said there were no specified priorities for curricula, mind you, as he must by law.

This clever “nothing to see here” retraction includes carefully crafted language about diversity and curricular connections with students’ lives that few people would find objectionable. Indeed, by noting the importance of pathways to the future, it proposes to remove one of the most glaring objections to real-life experiments with the now-withdrawn curriculum.  

The prior proposal included highly controversial teaching methods such as “identity-safe” (read: segregated) teaching and referenced materials that racially assign roles of oppressor and oppressed.  Such segregation and state-sponsored racial classifications are not only unconstitutional, they are toxins that would surely impair pathways to a better future for all. Hence the public outcry and the huge number of filed comments objecting to the Department of Education’s proposal. 

As for the dispensation of grants supposedly awarding no brownie points for addressing “these priorities,” public, press and parental vigilance should not diminish. The programs financed by the Department of Education and put into place by state and local schools, administrators and teachers must be carefully examined to ensure that this swift 180 is not mere posturing to cover for promoting the April “Proposed Priorities” behind the scenes—that is, woke with a wink.

Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance. NCLA submitted comments on the Proposed Priorities that focused on their clear illegality.


1See 20 U.S.C. § 1232a.

2See 20 U.S.C. § 3403(a) and (b) (“No provision of a program … of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum … personnel … selection or content of library resources, textbooks or other instructional materials…”).