State Limitations on Secular School Curriculum: How the Lemon Test Models Scrutiny Over State Discretion

As of July 2021, at least twenty-six states have legislated restrictions on the teaching of critical theory concepts in K-12 public schools. Of these states, seven have passed bills set to go into effect this year. Texas, Idaho, Oklahoma, Arizona, New Hampshire, Iowa, and Tennessee have enacted curriculum restrictions, district fines, and course credit stipulations in an attempt to regulate the discussion of race, gender, and sexuality in classrooms. [1] The fundamental legal question regarding these laws is whether states are entitled to such discretion in school curricula. Pressure is mounting for the U.S. Supreme Court to review these bans due to conflicting analyses in the lower courts. [2] 

Although no test designed to address state legislators’ discretion in school curriculum exists, the Hazelwood and Lemon tests are relevant precedents. Because the former’s reasonableness standard obstructs investigation into political and racial motivations masked by the presented interest of the state, the Supreme Court should not rely on the Hazelwood test to analyze state legislators’ authority. Instead, a new analysis modeled on the “purpose” and “primary effect” inquiries of the Lemon test would better balance the reserved powers of states with students’ First Amendment rights to receive information and to freedom of speech. Furthermore, such analysis would check legislative intrusion on the Fourteenth Amendment right to equal protection of the law.

The Supreme Court developed the Hazelwood test in the 1988 case Hazelwood School District v. Kuhlmeier, upholding a principal’s discretion to block publication of student articles on teen pregnancy and divorce from the school newspaper. [3] The Court addressed this censorship with the Hazelwood test, holding that regulating student speech does not violate the First Amendment if educators’ “actions are reasonably related to legitimate pedagogical concerns.” [4] Since the newspaper was created in a journalism class, it was considered part of the school curriculum. Thus, lower courts have extended the Hazelwood “reasonableness” standard beyond educators to consider lawmakers’ authority to regulate curriculum.

The 1971 Lemon test is a more nuanced standard of scrutiny established by the Supreme Court to analyze state restrictions on religious curriculum. Courts employ the Lemon test to balance freedom of religion with state interests when interpreting the Establishment Clause. Consisting of a strict neutrality requirement, the Lemon test stipulates that a statute must possess a "secular legislative purpose;" its "principal or primary effect" must not "advance nor inhibit religion;" and it must not create "government entanglement with religion." [5] Even though the Lemon test applies to cases involving religion, its direct inquiry into the “purpose” and “primary effect” of statutes has checked legislative overreach in ways the Hazelwood test has failed. This makes these pillars of the Lemon test an effective model for a new Supreme Court test, one mandating more scrutiny than the Hazelwood test. 

In 2013, the U.S. District Court for the District of Arizona implemented the Hazelwood test in Acosta v. Huppenthal. The Court assessed A.R.S. § 15-112, an Arizona law that targeted “ethnic studies” programs and contained language parallel to the 2021 state laws limiting critical theory in schools. [6] In its decision, the District Court upheld censorship of course concepts promoting “the overthrow” of the U.S. government, resentment of a “race or class of people,” and “ethnic solidarity” over student individuality, deeming them “reasonably related to [the state’s] legitimate pedagogical interest” of preventing racism in schools. [7] Although the Court struck one provision of the law, the majority of A.R.S. § 15-112 survived the reasonableness standard outlined in Hazelwood without any direct inquiry into the purpose or primary effect of the legislation. While the courts typically defer to the intent of a legislature on its face, the following examples under the Lemon test and the complete judicial history of A.R.S. § 15-112 reveal the urgency of direct inquiry.

The Supreme Court’s application of the Lemon test in the 1986 case Edwards v. Aguillard demonstrates the ability of legislatures to conceal their intent in curriculum regulations. [8] At issue was the Louisiana Creationism Act (LCA), which required balanced treatment of creationist and evolutionary concepts in school curricula in the name of the state’s desire to foster “academic freedom.” [9] The majority opinion cautioned, “[w]hile the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” [10] Ultimately, the purported purpose of the LCA was insincere because it actually frustrated the possibility of a “more comprehensive science curriculum.” [11] While Acosta only investigated whether curriculum regulations were reasonably related to reducing racism in school, Edwards examined whether the LCA’s design furthered a secular purpose under the much stricter Lemon test. Through such direct inquiry into the purpose of the LCA, the Court exposed the deceptive goal of the Louisiana legislature to advance religion in schools.

Such an investigation into the state’s purpose was not undertaken in Acosta, and in 2017, the decision was appealed to the U.S. Court of Appeals for the Ninth Circuit in Arce v. Douglas. [12] The case made clear how racially motivated regulations on critical theory curriculum may violate the Equal Protection Clause of the Fourteenth Amendment. Using a standard previously established by the Supreme Court, the Arce Court exposed discriminatory intent based on lawmakers’ testimony and comments during legislative hearings. [13] This inspired a permanent injunction against A.R.S § 15-112 on remand. [14] Arce thus foreshadows potential discriminatory intent in contemporary state curriculum regulations that the Hazelwood test would not address because of its lack of direct inquiry.

Moreover, since curriculum regulations under the Hazelwood test must only be “reasonably related” to the “legitimate pedagogical concern” of reducing racism in school, the primary effect of a law may still offend the Fourteenth Amendment even in cases of unintentional discrimination. [15] Research demonstrates that critical theory and ethnic studies programs impact student retention rates, graduation rates, and grade point averages. [16] Given these findings, eliminating such curricula may disproportionately harm students of particular racial, gender, and ethnic identities along these metrics, even when bans do not explicitly intend to be discriminatory. Although documentation that the law adversely burdens one group of students does not violate the Equal Protection Clause on its face, its disparate outcomes for certain students can still evidence a prejudicial purpose. [17]

The Arce decision also demonstrates the importance of routinely questioning the political intent of legislatures in cases challenging lawmakers’ discretion in curriculum limitations. The case revealed evidence that the legislature created A.R.S.§ 15-112 to target the Tucson Unified School District’s Mexican American Studies program (TUSD MAS). Multiple officials had taken credit for the passage of A.R.S.§ 15-112 on campaign websites, made campaign promises regarding the demise of the TUSD MAS Program, and ignored findings from investigations and audits. [18] While not binding precedent, the Arce decision exemplifies the Court’s suspicion of laws with underlying political purposes.

Warnings of the intent to place political agendas before comprehensive education have already arisen this year. For instance, Texas’s education code explicitly prohibits requiring curriculum from The New York Times 1619 Project just as A.R.S. §15-112 targeted the TUSD MAS Program. [19] No other 2021 laws contain this explicit language, yet their “primary effect” can advance the same political agenda: restricting critical theory in schools. Consider how Iowa has proscribed the following concepts from school curricula: systemic racism, critique of meritocracy, and identity visibility. [20] Such prescriptions might be “reasonably related to legitimate pedagogical concerns” under the Hazelwood test. But, given that these laws may politicize curriculum, even without an explicit, politically motivated purpose, courts should assess the “primary effect” of this language to curb legislative overreach.  

Some may argue that since the creation and administration of schools are reserved to state governments, political intent behind curriculum regulation is wholly constitutional. However, Supreme Court precedents imply the existence of students’ First Amendment right to receive information. The 1943 case West Virginia State Board of Education v. Barnette expressed, “[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.” [21] In 1982, the plurality opinion in Board of Education v. Pico concluded that school boards’ “discretion may not be exercised in a narrowly partisan or political manner.” [22] These remarks are persuasive precedent, and their sentiments imply that the ideologies pushed by state legislatures do not supersede the critical thinking skills necessary for a comprehensive education. Otherwise, lawmakers risk chilling legitimate classroom speech and thus provoking self-censorship among students who fear the consequences for their district and teachers. Since the Supreme Court, in 1969, held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” in Tinker v. Des Moines, states cannot compel such censorship. [23]

The urgency of settling state discretion in school curricula is clear from the proliferation of regulations since A.R.S.§ 15-112 in 2010. Direct inquiry into the purpose of such laws is necessary to prevent legislatures from imposing racially or politically motivated curriculum limitations. Furthermore, evaluating whether the primary effect of the law impedes students’ right to receive information and freedom of speech or denies equal opportunity among students ensures legislative respect for the First and Fourteenth Amendments. None of these considerations will be properly evaluated if the Supreme Court adopts Hazelwood’s application to lawmakers’ discretion in school curricula. Because its reasonableness standard denies students equal respect in both religious curriculum cases and secular, critical theory cases, a new standard should be modeled after the Lemon test. This would protect students from invasively discriminatory and politically motivated laws at least as rigidly as they are protected from the imposition of religiously motivated laws.

Edited by Emma Barbarette

Sources:

[1] An Act Relating to the Social Studies Curriculum in Public Schools, 2 T.E.C. ch. 28 §§ .002 (2021); An Act Relating To Dignity And Nondiscrimination In Public Education, 33 I.C. ch. 1 §§ 33-138 (2021); An Act Relating to Education, 70 O.K. Stat §§ 24-157 (2021); K-12 Education; Budget Reconciliation; 2021-2022, 15 A.R.S ch. 7 art. 1. §§ 15-717.02 (2021); An Act Relative to State Fees, Funds, Revenues, and Expenditures, 31 N.H. Stat ch. 354-A §§ 29-34 (2021); An Act Providing For Requirements Related To Racism Or Sexism Trainings At, And Diversity And Inclusion Efforts By, Governmental Agencies And Entities, School Districts, And Public Postsecondary Educational Institutions, 7 Iowa Code ch. 279 §§ 74  (2021); An Act Relative to Education, 49 T.N. Code ch. 6 §§10__ (2021).

[2] Acosta v. Huppenthal, 2013 U.S. Dist. LEXIS 37408, 22, 23  (D. Ariz. 2013).

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 

[4] Id at 273.

[5] Lemon v. Kurtzman, 403 U.S. 602, 612, 613 (1971).

[6] 15 A.R.S. ch. 1 art 1. General Provisions §§ 15-112 (2010).

[7] Acosta v. Huppenthal, 2013 U.S. Dist. LEXIS 37408, 33 (D. Ariz. 2013).

[8] Edwards v. Aguillard, 482 U.S. 578 (1987). 

[9] Id at 581. 

[10] Id at 586, 587. 

[11] Id at 586. 

[12] Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015).

[13] Id at 977, 979. 

[14] Gonzalez v. Douglas, 2017 U.S. Dist. LEXIS 213874 (D. Ariz. 2017). 

[15] Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988). 

[16] Christine E. Sleeter and Miguel Zavala, "What The Research Says About Ethnic Studies: Chapter 3 from Transformative Ethnic Studies in Schools: Curriculum, Pedagogy, and Research," Resource Library, National Education Association, October 15, 2020, online at https://www.nea.org/sites/default/files/2020-10/What%20the%20Research%20Says%20About%20Ethnic%20Studies.pdf (visited August 7, 2021).

[17] “Testing Facially Neutral Classifications Which Impact on Minorities,” Legal Information Institute, Cornell Law School, online at https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/testing-facially-neutral-classifications-which-impact-on-minorities#fn1524amd14 (visited August 7, 2021).

[18] Arce v. Douglas, 793 F.3d 968, 979, 980 (9th Cir. 2015). 

[19] 2 T.E.C. ch. 28 §§ .002.  

[20] 7 Iowa Code ch. 279 §§ 74.   

[21] West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943). 

[22] Board of Education v. Pico, 457 U.S. 853, 855 (1982).

[23] Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).