Montana AG Issues Legal Opinion Ruling Critical Race Theory Violates Equal Protection

Students' desk adhere to social distancing requirements in a classroom during a news conference at New Bridges Elementary School, ahead of schools reopening, in the Brooklyn borough of New York City, on Aug. 19, 2020. Jeenah Moon/Reuters

Montana Attorney General Austin Knudsen on Thursday issued a legal opinion that found that using critical race theory in training and education programs violates the U.S. Constitution as well as federal and state laws.

Knudsen issued his determination following a request from Superintendent of Public Instruction, Elsie Arntzen, who wanted the state’s top legal official to opine on the legality of teaching so-called “anti-racism” programs and critical race theory in Montana public schools.

In his opinion, Knudsen said that activities undertaken in the name of critical race theory are discriminatory and done in violation 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.

“Eradicating race discrimination is a legitimate and worthy goal,” the opinion states (pdf). “All Montana governmental entities can and must work to prevent discrimination prohibited by the Equal Protection Clause, Title VI, the Montana Constitution, the MHRA, and (where applicable) Title VII. These laws protect everyone from unlawful discrimination and symbolize our nation’s serious commitment to its ideals. It should be no surprise, therefore, that these legal safeguards cannot allow race-based discrimination, even when it comes disguised as antiracist remedial measures.”

His determination effectively bans critical race theory from being taught in schools, as violations of state or federal civil rights laws could jeopardize a public school’s funding.

“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.”

The opinion comes as a mounting number of Republican-led states are passing laws prohibiting the use of the quasi-Marxist theory in public schools or training in government institutions. Tennessee, Idaho, Arkansas, and Oklahoma have enacted laws to that effect, while bills in states such as Texas, Arizona, and Iowa are awaiting their governor’s signature.

Meanwhile, some school districts have voted to bar the teaching of the divisive theory in their classrooms.

Critical race theory has been heavily promulgated throughout academia, entertainment, government, schools, and the workplace in recent years. It promotes a reductionist perspective that claims America’s history should be defined through a sole focus on the struggle and suffering caused by “oppressors” (white people) against the “oppressed” (everybody else), without room to discuss other factors that shape societies.

The movement to push back on the spread of CRT in schools and workplace training has fueled a heated debate over how cultural and racial sensitivity education should be conducted. Conservatives have warned that the CRT movement isn’t about eliminating racism and is simply pushing divisive concepts. On the other side of the issue, many progressives and Democrats argue that the CRT approach would advance equity for all.

Knudsen argued in his opinion that using racial discrimination to eliminate racial discrimination is “illogical and illegal.” He pointed out certain “anti-racist” activities that he concluded violated federal and state law. They include segregating students or government employees in any capacity based on race, using race when administering academic programs, using materials that assert one race is inherently superior or inferior to another, and engaging in “race scapegoating,” which means assigning fault, blame, or bias to a race.

“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 stated.

He encouraged parents, students, employees, or other individuals to make complaints about any violations, adding that there was a set of legal avenues available to remedy any potential violations.

Petr Svab contributed to this report.