Montana AG finds some critical race theory programs illegal

Knudsen, a Republican, issued a 25-page attorney general’s opinion in response to a request from fellow Republican Superintendent of Public Instruction Elsie Arntzen. The opinion, which carries the weight of Montana law, found that certain teachings dealing with critical race theory, or CRT, and antiracism violate the state and U.S. constitutions and statutes.

Critical race theory is an area of academics and legal analysis based on the idea that racism has been and continues to be systemic in areas such as the criminal justice system, housing and education, causing barriers to overcoming inequality. Antiracism often refers to proactive actions or exercises to recognize and acknowledge inequality and to change personal biases.

While critical race theory is decades old in academia, it has become a growing part of the national conversation recently through racial and social justice advocacy.

Critics have accused certain antiracism exercises as being acts of discrimination themselves. Idaho, Oklahoma and Tennessee have passed laws banning its teaching.

Both Arntzen in requesting the attorney general’s opinion and Knudsen in releasing it noted similar criticism.

“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,” Knudsen said in a statement. “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.”

Prohibited school lessons or jobs trainings are those that include “racial segregation, race stereotyping and race scapegoating.” The opinion finds illegal exercises that require students or employees to admit or support concepts such as white privilege; segregating students or employees based on race; assigning fault or bias based on race; or using race in assigning classwork or grading.

“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,” the opinion states.

Knudsen stopped short of declaring that all lessons dealing with critical race theory or antiracism are illegal, writing “there are legitimate pedagogical uses for elements of the CRT/antiracism curricula that do not violate state or federal law.” Other activities may be expressly protected by the First Amendment.

“First Amendment case law takes into account a school’s legitimate pedagogical interest in explaining and effectively and lawfully addressing racism,” the opinion states.

Thursday’s opinion saw criticism from several organizations.

"Our Attorney General and Superintendent seek to censor individuals, educators, and young people and impose an alternate version of American history — one that erases the legacy of discrimination and lived experiences of Black and Brown people. Our country needs to acknowledge its history of systemic racism and reckon with the present-day impacts of racial discrimination — this includes being able to teach and talk about these concepts in our schools," Caitlin Borgmann, ACLU-MT executive director, said in a statement.

The Montana Federation of Public Employees, which represents many government workers in the state, including school teachers and faculty at public universities, slammed the opinion, the Associated Press reported.

The union's president, Amanda Curtis, accused Knudsen and Arntzen of “working together to politicize school curriculum," according to AP.

Arntzen requested the opinion on the legality of teaching critical race theory and antiracism in response to language in federal grants for American history and civics. The request included examples of lessons or trainings from other states she found questionable, but has not identified specific concerns from Montana.

The superintendent applauded Knudsen's opinion Thursday, saying it put reasonable guardrails that protect from discrimination. She supports students learning multiple viewpoints of history and encouraged teachers to tackle complex and difficult times in the state’s and nation’s history. But she does not believe critical race theory promotes critical thinking.

“It distorts our shared history and too often is used to demean and belittle students based on the color of their skin through segregation, stereotyping, and scapegoating,” she said. “Discrimination cannot happen in Montana classrooms; not on my watch.”

The Montana Department of Justice did not respond to follow up questions in time for this story.