May 25, 2021

Mrs. Maribel Saimre

Director, Office of Student Services

101 N. 14th Street

Richmond, VA 23219

(804) 225-2818

maribel.saimre@doe.virginia.gov

cc: James F. Lane

Superintendent of Public Instruction

101 N. 14th Street

Richmond, VA 23219

(804) 225-2057

Dear Mrs. Saimre,

I am a Senior Attorney at the Liberty Justice Center, a national public-interest law firm. Among other issues, we litigate education-law and free-speech cases across the country.

I write to express my deep concern about Virginia’s draft Social and Emotional Learning Standards (SEL), which create serious legal and constitutional issues by wholesale incorporating critical theory into our schools. The draft explained that “Virginia’s vision for SEL is intended to center equity in this work.” SEL Draft at 7. It reiterates this with a statement from Superintendent Lane, who explains that through these new standards “Virginia is redesigning our vision for the education of its students by providing equity…”

This new ‘equity’ framework may seem benign at first glance. But when equity is perverted into an agenda that relies on and advances a critical theory framework, it becomes a stalking horse for much more dangerous notions.

Equity, when leveraged this way, becomes a cover for curricular and educational practices that eviscerate guarantees of equal treatment and equal protection under Federal and Commonwealth law.

• “Equality of outcomes” is antithetical to the American notion of opportunity for all. As a federal court has observed concerning nondiscrimination, “equality of opportunity--not equality of outcomes--is the linchpin of what the Constitution requires . . .” Werme v. Merrill, 84 F.3d 479, 485 (1st Cir. 1996). By promising “equality of outcomes” for students, Virginia schools expose themselves to litigation by students whose learning opportunities are limited downward to achieve a false equality from low expectations.

• This guarantee of equal protection also prevents schools from extending special privileges to students based on race, or limiting leadership opportunities or access to extracurricular activities based on race. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Fisher v. Univ. of Tex., 136 S. Ct. 2198 (2016).

• The U.S. Constitution guarantees not only the equal protection of the laws, but also the freedom of speech. For students, that includes a fundamental right not to be compelled to say or affirm any statement which they do not believe to be true or appropriate. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).  Public schools must be wary of the silent compulsion of even supposedly voluntary activities for young students. Lee v. Weisman, 505 U.S. 577, 592 (1992). Thus, equity-based curriculum or exercises that require students to speak certain messages about their background, feelings, or identity can violate the compelled speech doctrine. See, e.g., Clark et al v. State Public Charter School Authority et al, 2:20-cv-02324 (D.Nev. 2021), Dkt. 106 (first amended complaint).

• The Protection of Pupil Rights Amendment, codified at 20 U.S. Code 1232h(b)(1), protects students from any survey that reveals deeply personal beliefs and feelings of the student and their family without parental consent. Making students complete surveys that ask them to respond to race-related statements may delve into their personal and familial beliefs in ways that violate the PPRA.

• Virginia schools may not adopt professional training programs for its teachers that create a hostile work environment by calling them racists or oppressors or using other language that is offensive to a reasonable person. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017).

• Virginia schools must respect the reasonable academic freedom of their teachers to teach their subjects according to their expertise, and not compel their speech beyond what the First Amendment allows. See Lee v. York County Sch. Div., 484 F.3d 687 (4th Cir. 2007).

• Finally, these rights under federal law are complemented by additional rights under Virginia law, including the constitutional requirement that the Commonwealth provide its children a quality education. Va. Const. Art. VIII, § 1. Adopting a critical-theory-based educational model may violate this clause by falling below the standards of quality or by denying a quality education to students whose opportunities are limited by the need to create an artificial “equality of outcomes.” Overbearing standards likewise call into question the local control of schools, which is also constitutionally protected in Virginia. Fairfax Cty. Sch. Bd. v. S.C., 297 Va. 363, 374-75 (2019).

In short, adopting critical theory into our local public schools poses a variety of legal problems which all underline one central truth: both the substance and practice of critical theory presuppose a vision of society fundamentally at odds with long-standing American values and principles. Thus, not only because of the potential for litigation exposure, but more importantly because of its negative impact on our students, the Department should withdraw its statement and adopt a better, more inclusive and respectful approach to education grounded in the values of this nation. Otherwise Liberty Justice Center stands ready to represent any teacher, taxpayer, or student who is compelled to violate their beliefs or endure racial discrimination.

A better path is to remember this truth: “In the eyes of government, we are just one race here. It is American.” Adarand Constructors v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).

Very truly yours,

Daniel R. Suhr

Senior Attorney

Liberty Justice Center