When Ethnic Studies Education Violates the Law: California’s Guardrails

This is not an article about censorship.

It is an article about critical thinking—framed within legislated guardrails.

Boundaries are important in elementary and secondary education, more so than in higher education. We immediately think of age-appropriate materials, but there is also the more difficult issue of how we ought to frame education. At some point, morality may intrude; ideology may intrude; discriminatory bias may intrude. Education can become indoctrination.

These considerations have been at the center of many debates about California’s K-12 ethnic studies curriculum. This curriculum is now a high school graduation requirement. On the way to passing enabling legislation, the California legislature inserted several guardrails—boundaries—designed to forestall inadvertent or intentional bias against individuals or groups.

The California Education Code § 51225.3 now includes these guardrails for ethnic studies courses:

(I) Be appropriate for use with pupils of all races, religions, nationalities, genders, sexual orientations, and diverse ethnic and cultural backgrounds, pupils with disabilities, and English learners.

(II) Not reflect or promote, directly or indirectly, any bias, bigotry, or discrimination against any person or group of persons on the basis of any category protected by Section 220.

(III) Not teach or promote religious doctrine.

K-12 pedagogy and materials are overseen by the California Department of Education, the State Board of Education, and the Instructional Quality Commission. These administrative divisions carefully sift through the what and the how of California’s curricula. The state’s nearly 1,000 school districts then implement the administration’s requirements.

Even with rigorous planning, things can go wrong—and they have, especially when teachers choose supplemental materials that deviate from district policy.

Going Wrong

The first draft of California’s Ethnic Studies Model Curriculum (ESMC) included antisemitic materials. The Education Code now includes a guardrail that forbids the use of that first draft by school districts: “[I]t is the intent of the Legislature that local educational agencies not use the portions of the draft model curriculum that were not adopted by the Instructional Quality Commission due to concerns related to bias, bigotry, and discrimination.” The problem of bias, bigotry, and discrimination was recognized, but it appears not to have been totally avoided.

Later drafts still included Aztec and Yoruba prayers. These texts have since been ordered removed from California curricula as a result of a settlement between the Californians for Equal Rights Foundation and the California Department of Education and State Board of Education. The settlement agreement acknowledges a constitutional prohibition against prayer in public schools. An alternative basis for this settlement could have been the guardrail included in Ed. Code §51225.3 “not to teach or promote religious doctrine.”

Ethnic studies teachers stated that these Aztec (and other indigenous groups’) texts were mere ‘affirmations,’ while critics pointed out that the materials were drawn from cultures that practiced human sacrifice, cut out human hearts, flayed victims, and wore their skin while honoring their deities. At some point, the boundaries between these two perspectives are not mere viewpoint differences but legal ones. In this case, a settlement was reached on constitutional grounds after a lawsuit was filed. These texts will no longer be part of K-12 education in California.

Are Guardrails Necessary?

This example of an Aztec prayer is a relatively easy one.

The more difficult problems are embedded in the jargon of “critical consciousness.” Inspired by Paulo Freire’s Pedagogy of the Oppressed, this semantic cluster includes “hegemony,” “oppressed and oppressor,” “liberation,” “intersectionality,” “race consciousness,” and “antiracism.” These ideas are often subsumed under diversity, equity, and inclusion (DEI) training, education, and hiring.

K-12 curricula is more regulated than higher education. Even so, the teachers themselves are taught in universities and conferences—thus, the regulation of curricula is spun through the gestalt of graduate teacher training programs. These programs often imbibe critical consciousness, and so teachers may be expected to bring the lens of critical consciousness to the K-12 classroom.

Even if K-12 teachers teach with a critical thinking lens—one without the added layer of ideology flowing from the Pedagogy of the Oppressed, they may find themselves with a straight-jacketed curriculum that requires a critical consciousness lens.

Such a curriculum may not violate California Education Code §51225.3. Then again, it may.

Understanding how it might violate §51225.3 requires a deep dive into what the curriculum says and what it does not say, as well as what is found in the supplemental materials. Concepts that claim empathy and sensitivity to stereotyping may actually mislead students.

Let us turn to an ethnic studies course and an ethnic literature course in one California school district. Do they violate §51225.3?

[Related: “Ethnic Studies Requirements Erase the Past”]

Peeling Back the Layers of Curriculum Bias

The Poway Unified School District’s ethnic studies course reflects the view of the California Department of Education: “The course will be rooted in the four foundational disciplines of ethnic studies: African American Studies, Asian American Studies, Chicano Latino Studies, and Native American and Indigenous Studies​. It will also examine other racialized peoples in the United States.”

Its ethnic literature outline follows the same perspective, but adds “the course will examine the intersectionality of gender and sexual orientation.”

The educational goal of both courses is to broaden the history and understanding of these four ethnic groups.

On the surface, this description will likely get considerable buy-in from students, parents, the community, and the educational establishment.

However, as one explores these frameworks and considers the actual materials, we may end up with a violation of §51225.3. In legal terms, the issue turns on an applied challenge rather than a facial challenge.

There are also subtexts that accompany the “four foundational disciplines of ethnic studies”—one is cultural, another historical, and another political.

It is worth noting that the curriculum examined here is embedded in the district’s policy of racial equity; however, the district does not recognize the additional materials found at its website as part of the curriculum.

Culture

Relying on cultural stereotypes, one can collapse all European Americans into a single color: ‘white.’ But do Slavs, Latvians, Greeks, Roma, Basque, and the like all resemble each other—even as a color? Lumping them into a homogeneous racial group overrides significant cultural variation. Compare this to Latinos: these individuals are represented in nearly two dozen nations that have distinct cultural configurations. The same goes for Asian Americans. Moreover, when the Irish left Europe during the 19th-century potato famine, seeking refuge in the United States, they were shunned by the Anglo-Saxon Protestants. The Irish were seen as “Negroes turned inside out,” while African-Americans were often viewed as  “smoked Irish.”

The ethnic studies course’s workaround for including these European Americans can be found in the following sentence: “It will also examine other racialized peoples in the United States.” Thus, any other ethnic group can be studied in this class if they are ‘racialized.’

At best, we can understand ‘racialized’ as an inelegant way of saying, ‘any ethnic group can  qualify’ for study. At worst, there is a question of whether the entire framework of ‘ethnic studies’ and ‘ethnic literature’ is better understood as ‘race studies’ or ‘racial literature.’ Even if we understand the course outlines to mean a ‘race’ as a social construct, the path cedes our understanding to raw stereotypes and collective identities, losing sight of individuality, continued and substantial immigration for opportunity and freedom, and the growing trend of interracial marriage. It is important to recall that the legislation mandating this graduation requirement specifically contains the term ‘Ethnic Studies,’ not ‘Race Studies.’

Take another instance of conflating a continent into a stereotypical ‘race.’ Would European Jews (Ashkenazy) qualify as a ‘racialized’ people in order to be included in an ethnic studies or ethnic literature course? The history of the Holocaust would militate against being seen as a race as opposed to a multi-layered diasporic people, sometimes accepted, many times not, with significant variation of religious, linguistic, and cultural features, as well as color.

The cultural justification for how an ethnic group outside the ‘four foundational’ groups can be included in ethnic studies relies on unwieldy and imprecise stereotypes. This approach seems inimical to teaching students an appreciation for cultural diversity in any equitable way.

The course outlines may violate §51225.3. A defense of this framework would argue that this separation of racialized groups only exists because of their marginalization in the United States. Evaluating this possible violation and defense requires a further look at how course materials are taught.

History

Constructing the past is also subject to unwieldy and imprecise stereotypes. Where is the variation within group ‘X’; where is the variation within the ‘history of X?’ As well as that of ‘Y’ and ‘Z’?

A historian with an anti-capitalist perspective might shun a landowner’s view; a historian with a capitalist perspective might discount the seizure of private property; a historian with a populist perspective might emphasize how large corporate interests stall litigation and corrupt government at the expense of social justice.

So it is with the history of colonial America and of the United States. History is necessarily biased. But does that bias let the chips fall where they may? It is not that we are unable to tell the many stories that create the multi-colored fabric of the United States, but rather that we must include cautionary notes where facts and interpretations pull in different directions.

Such is the case when comparing the popular 1619 Project with Red, White, and Black. The former was criticized by its own fact-checker for overstating its view of the American Revolution as a means to protect the institution of slavery. The latter provides additional corrections to the 1619 Project’s understanding of the economies of the North and the South, the former relying on industrialization and the latter on slave-driven agriculture.

These differences are not merely factual—they are also moral, and help decide which facts, what moments in time, and which leaders drive historical events.

The 1619 Project’s vision of America is one in which the “peculiar institution” of slavery is framed by the moral failures of the nation’s founders, their principles, and slaveowners. Red, White, and Black focuses instead on the moral aspirations found in those principles and on the slaves and their descendants, whose belief in freedom added to our understanding of ourselves.

It may be that our understanding of racism and marginalization is weighed down by ethnocentrism. Asking new immigrants why they choose to emigrate to the United States is a way to test this understanding.

For example, the slave trade from Africa to the United States brought with it an estimated 450,000 people. The treatment of these people in chattel slavery marks a low point in our history. However, contemporary African migration to the United States went from about 80,000 immigrants in 1970 to over 2 million by 2015. Black immigrant household income is less than that of all immigrant households, but it’s higher than U.S.-born Hispanics—and notably higher than U.S.-born blacks.

A historian fifty years from now would take note of the growing diversity in our ethnic communities. See, for example, this summary:

Its members have varied histories in the nation – many are descendants of enslaved people, while others are recently arrived immigrants. The Black population also has nuanced ethnic and racial identities reflecting intermarriage and international migration. As a result, there are key distinctions in demographic and economic characteristics between different parts of the national Black population, highlighting its diverse multitude of backgrounds.

But we don’t need to wait those fifty years. We have that data today. We should expect ethnic studies and ethnic literature courses to use that data when discussing ethnic groups in the United States. This is especially true for California, where more than one-quarter of the population is foreign-born, double than the rest of the country.

If these courses reflect such historical variation within these ethnic groups, violation of §51225.3 would be avoided; if not, a claim of violation would be strengthened.

Political Power

An accurate portrayal of ethnic groups is important for both ethnic studies and ethnic literature courses. These courses intend to operationalize the image of these groups into social action. It is in this political sphere where bad data is most dangerous and where a violation of §51225.3  is most likely to occur.

The data can be relatively easy to correct. However, intentional bias and discrimination become ingrained and create inertia on all fronts: it is nearly impossible to correct data when alternative views are avoided, and teaching critical thinking fails in the face of a presupposed ideology.

These excerpts from the ethnic studies course framework illustrate how oppression is operationalized for the student’s understanding. Critically and criticality, as used here, relate to the idea of “decolonizing as a set of ongoing theories, practices, imaginaries, and methods in the service of abolishing global oppression.”

Unit 2: Immigration, Migration and Movement

Criticality: Students will analyze the treatment of different groups of people who have come to the US. Students will begin thinking of the role of power, oppression, and resistance when connected to the immigrant experience.

 

Unit 3: Power and Oppression

Students will learn about how their experiences are shaped by the 4 I’s of oppression. [Ideological, Institutional, Interpersonal, Internalized]

Excerpt from 4 I’s  [Interpersonal]

A simple definition of racism, as a system, is: RACISM = PREJUDICE + POWER.

Therefore, with this definition of the systemic nature of racism, people of color cannot be racist. (From: The Four “I’s” of Oppression)

 

Learning Objectives:

Identity: Examine the creation of privileged and marginalized groups in American society.

Skill: Examine and begin to recognize the interpersonal aspects of oppression in American society, past and present.

Identity: Examine the 4 I’s of oppression: Ideological, Institutional, Interpersonal, Internalized.

Skill:     Examine and begin to recognize the internalized aspects of oppression in American society, past and present.

Skill: Examine and evaluate efforts to address oppression, specifically focusing on addressing each “I” of oppression.

 

Unit 4:  Social Movements and Advocacy

Essential Questions: What are some actions that I can take to address historical oppression and make society safer for people of all identities?

Social Justice Standards:

Criticality: Students will actively address local oppression, paying attention to the 4 I’s, via a collaborative social action.

The ethnic literature course parallels the oppression framework of the ethnic studies course. It links intersectionality and oppression and asks student to create “counter stories” as a form of liberatory resistance.

Here’s a sample student assignment that shows the link between intersectionality and oppression: “Working in collaborative groups, students will produce a short, informative video examining a group’s intersectionality, as well as evidence of the group’s resistance to oppression and their excellence.”

Another assignment asks students to create counter stories to show the resistance and liberation of various groups: “[S]students will practice a liberatory tool in the form of a counternarrative project. Students will pick a facet of their identity that may be oppressed by the dominant master narrative and come up with a creative way to demonstrate their own form of resistance. For example, students could perform their own original poetry to highlight the myth of the model minority as a student who only excels at math and science.”

Both classes emphasize the oppression of others and of oneself. Those who are not oppressed—the model minority—are presumed to be a myth. The importance of variation within groups and their histories, as described above, is missing. Variation is conflated into oppression.

[Related: “Ethnic Studies and DEI—A Convenient Marriage Anchored in Critical Race Theory”]

Missing Layers

Whether or not California’s ethnic studies and ethnic literature courses are comprehensive is irrelevant in determining a violation §51225.3. A violation occurs when elements, singly or as a complex, show bias, bigotry, or discrimination toward an individual or a group of persons.

The oppression framework overwhelms significant parts of ethnic groups and their literature. It is worth identifying the areas that are missed. A more robust and fair-minded course would include: a broad spectrum of voices within an ethnic group and its literature; the role of achievement; the aspiration toward merit, freedom, and responsibility; a global understanding of humanity (not an ethnocentric one); conflict paradigms that include Us versus Them in all its manifestations (not just racism); and how the attribution of blame can be assigned to processes and institutions of socialization as well as oppression. The framing of ethnic studies and ethnic literature courses can cause confusion through under- and over-inclusiveness, as well as vagueness, which, when pressed into social activism, distorts how society changes and ought to change. The absence or minimal presence of these elements would simply give greater salience to that violation.

The Arbitrator’s Decision

I have been trained as a mediator. I have also been an arbitrator.

Arbitrators often split the baby, as it were, giving each side something with which to be happy. Arbitrators can also find that one side prevails; there are also those who seek a creative solution.

Let us puzzle through the following question to find an optimal answer.

Question: Do the ethnic studies and ethnic literature outlines, and their related curricula, violate §51225.3 . . . to (II) Not reflect or promote, directly or indirectly, any bias, bigotry, or discrimination against any person or group of persons?

Summary: California passed AB101, requiring high school students to take an ethnic studies course in order to graduate. School districts can craft a course to their own liking, but they may not use the first draft of the Ethnic Studies Model Curriculum. Further, school districts must not violate the guardrails against bias, bigotry, or discrimination.

Analysis: At issue is a curriculum that emphasizes the oppression of marginalized groups. This curriculum significantly ignores social change that overcomes that oppression; it minimizes individual achievement for the collective grievance of the four foundational and other racialized groups; it ignores the motivation of immigrants who are  drawn to this country for its opportunity, freedom, better living conditions, and family reunification; its framework fails to reflect bias becoming, over time, more distributed among all ethnic groups. Social disparities often play a central role in the argument over legacy effects versus contemporary reforms; these disparities have a variety of explanations—some racial, some not. This curriculum misses this variety of explanations when considering social disparities.

The decision, here, is for school districts to educate with a broad understanding of ethnic groups and ethnic literature, without which §51225.3’s protections against bias, bigotry, or discrimination are a foreseeable result of the current curriculum discussed herein.

School districts are obligated to find both a method and content that will give voice to competing explanations and that will reach an objective evaluation based on robust empirical data, contextualizing subjective narratives within the complex fabric of American society.

The burden is on those districts which allow ideology to override critical thinking. This truncates the kaleidoscope of ethnic groups into stereotypes, muting significant social change. Even the concept of ethnic group membership is subject to considerable variation with the decades-long experience of interracial marriage and blended families. It is unimportant whether this narrow framework is labeled ‘critical consciousness,’ ‘critical ethnic studies,’ ‘culturally responsive learning,’ ‘social justice pedagogy,’ et cetera.

The intent and spirit of AB101, as incorporated into the California Education Code §51225.3, is to employ an educational framework that begins without biases other than open-mindedness, systematic empirical investigation, and an understanding of social change and cultural differences among the peoples of California.

Education requires an engagement of different ideas; if not, the students will be subject to indoctrination. Following a critical thinking framework avoids bias, bigotry, or discrimination. So, I ask: When are such guardrails against bias, bigotry, or discrimination violated? Or, are such guardrails empty protections?


Image: Joshua Olsen, Public Domain

Joe Nalven

Joe Nalven is a Lecturer of Anthropology and Research Associate at the University of San Diego.

4 thoughts on “When Ethnic Studies Education Violates the Law: California’s Guardrails

  1. As to academic freedom, it should not exist in K-12 because attendance is compelled by the truancy laws.

    While attendance at college is voluntary, K-12 attendance is NOT! Furthermore school choice really does not exist — parents must send their children to a specific school and pay for it through taxes.

    Tenure in K-12 is different — in most states, teachers are offered annual contracts, with the decision to offer a third one mandating offering one each following year. No tenure review, no scholarship, simply showing up for the third year gets one tenure.

    And forget terminal degrees in the subject being taught — in most states, a teacher doesn’t even have to have an undergrad major in the subject being taught.

    Or, more accurately, the subject the teacher is certified in, as many are teaching outside their subject.

    Hence I don’t think that college-style academic freedom has and place in the K-12 classroom.

  2. I find this exposition comprehensive and anthropologically informed. It explicates the issues of culture, history and politics in operational and useful terms .

    There are several key lessons to be gained in this piece. I want to disclose up front that I have spent my career in college teaching so I have not had to deal with standard syllabi. At the same time, however, I have taught half of my courses to first year students who are of course just one summer beyond high school seniors.

    I offer the following observations

    1) Legislating curriculum is futile because the learning process is far too complex to standardize. This is especially true for concepts laden with cultural meaning and historical legacy like race, and ethnicity.

    2) I could be wrong but I find the notion that teachers would be either capitalist or anti capitalist in their teaching highly unlikely.

    Using the words from the article, I have not witnessed:
    “A historian with an anti-capitalist perspective might shun a landowner’s view; a historian with a capitalist perspective might discount the seizure of private property; a historian with a populist perspective might emphasize how large corporate interests stall litigation and corrupt government at the expense of social justice.”

    3) My solution with regard to standardized teaching, curricula and syllabi is that they do more harm than good. Of course certain general topics need to be covered and within them concepts, principles etc need to be covered. But these need to be taught within the range of the various theories, models and viewpoints that are supported given the current state of knowledge. Viewpoint diversity strengthens inquiry.

    In closing, my broadest recommendation goes to the education of K-12 teachers themselves. Education schools need to professional teachers by requiring a post graduate degree (e.g. MA, MAT) for certification. This is especially demonstrated during these days of rapid cultural and change the diversification of the American student.

    If we are going to legislate anything, it should be professional licensure.

    1. K-12 teachers have been licensed for over a century. It started with Horace Mann and the Normal Schools.

      Yes there is a MAT but usually it is a MEd with an EdD being the terminal degree, although many places are switching to calling it a PhD for marketing purposes. The CAGS or CAS is ABD and exists because of the payroll scale — it’s years of service and degree that determines pay.

      The problem is academic rigor.

  3. CA K-12 is an outlier — not just a textbook adoption state but by far the most regulated by statute.

    Hence this is really only relevant to CA. In most states the local district picks the textbooks and the teachers largely teach whatever they want to. Curriculum Guidance comes not from elected legislators but tenured bureaucrats in the state’s Dept of Education — with the public largely unaware of what is being taught.

    (For a dated but good example, Google “Fistgate.”)

    Hence CA is the only state where a state-wide lawsuit over the Aztec prayer would be even possible. The only state where a review such as this would even be possible.

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