Attorney General Knudsen Issues Binding Opinion on Critical Race Theory
- Schools, other governmental entities, and employers may not treat individuals differently on the basis of race
- Many CRT activities violate U.S. and State Constitutions, federal civil rights laws, and/or Montana Human Rights Act
- Attorney General’s Opinions carry the weight of law in Montana
HELENA – Montana Attorney General Austin Knudsen today issued an Attorney General’s Opinion (AGO), holding the use of “Critical Race Theory” (CRT) and so-called “antiracism” programming in many instances is discriminatory and violates federal and state law. The AGO, which carries the weight of law in Montana, was issued after a May 12 request from Superintendent of Public Instruction Elsie Arntzen.
The AGO determined that many of the activities undertaken in the name of CRT across the country in public education – such as “privilege walks” and disciplining or grading students differently based on race – and in the work place – such as telling employees to be “less white” – are violations of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; Title VI of the Civil Rights Act of 1964; Article II, Section 4 of the Montana Constitution; and the Montana Human Rights Act. Schools or entities that violate state or federal civil rights laws jeopardize their funding and may be liable for damages.
“Committing racial discrimination in the name of ending racial discrimination is both illogical and illegal. It goes against the exceptional principles on which our nation was founded and has no place in our state,” Attorney General Knudsen said. “Montana law does not tolerate schools, other government entities, or employers implementing CRT and antiracist programming in a way that treats individuals differently on the basis of race or that creates a racially hostile environment.”
The AGO outlines three prohibited categories to assist schools, other governmental entities, and employers with compliance: racial segregation, race stereotyping, and race scapegoating. These concepts violate civil rights laws because they constitute racial harassment and/or require authority figures to engage in activities that result in different treatment on the basis of race.
Activities that fall under these categories that are discriminatory, equally insidious when applied to any race, and illegal under federal and Montana laws include, but are not limited to, the following:
- Segregating students in any capacity based on race. This extends to every aspect of a school’s program or activity including classes, seminars, lectures, trainings, athletics, clubs, orientations, award ceremonies, graduations, or other meetings. This includes segregation that occurs in an online or virtual format;
- Government entities and employers segregating employees along racial lines or treating them differently based on their race;
- Using race when administering academic programs, including grading students differently or having students complete assignments on the basis of race;
- All exercises that ascribe specific characteristics or qualities to all members of a racial group particularly when participation is compulsory or acceptance of certain stereotypes is required as part of the grading criteria;
- Using materials that assert one race is inherently superior or inferior to another
- Forcing an individual to admit privilege or punishing them for refusing to do so, forcing individuals to “reflect,” “deconstruct,” or “confront” their racial identities – including instructing them to be “less white”
- Asking students or employees to engage, or not engage, with the class in a specific manner based on race;
- Engaging in “race scapegoating,” which means assigning fault, blame, or bias to a race or members of a race on the basis of their race. This includes claims that by virtue of race, a person is inherently racist or inclined to oppress others; and
- Trainings, exercises, or assignments forcing students or employees to admit, accept, affirm, or support controversial concepts such as racial privilege, culpability, identity, or status as this constitutes compelled speech.
Nothing in this Attorney General’s Opinion will restrict expressive activities protected under the First Amendment, including academic freedom or political student speech. There are many bad ideas, such as the Communist Manifesto, and fraudulent curriculums, like the 1619 Project, that do not violate civil rights laws when taught in Montana schools. However, much of the training and programming done in the name of ‘antiracism’ perpetuates and glorifies racial stereotypes and division in a way that violates the law.
What to do if you or your student are a victim of illegal discrimination:
The Montana Office of the Attorney General and Montana Department of Justice stand ready to assist OPI and parents, students, employees or other individuals with complaints of unlawful race-based discrimination. There are a variety of legal avenues available:
- For violations of the Individual Dignity Clause and the MHRA, individuals should file complaints with the Montana Human Rights Bureau.
- For violations of Title VI and the Equal Protection Clause, students and parents may either file a lawsuit directly against their school or file a complaint with the U.S. Department of Education.
- For violations of Title VII, employees should file a complaint with the U.S. Equal Employment Opportunity Commission.