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Did Kay Ivey ban “Critical Race Theory” from Alabama schools in October 2021?

Briefly, she said she did, but she didn’t, at least not in any meaningful sense. She did play a role in passing some new state Board of Education rules, but those rules actually do something much less specific and much more anodyne.

This came up in a recent discussion with some friends, so I went looking for some details about what actually happened. It turned out to be a rabbit-hole, and (in my view) down at the bottom in Wonderland it turns out to be a case in which a heated political conflict was carried on on all sides in a free-floating rhetorical environment that had almost nothing to do with the text of the measure actually being debated. There’s some more details on that below, but part of the rabbit-hole turned out to be the difficulty of just finding the text of the measures being debated; so if you want to skip ahead and just read what was actually passed earlier this month by the Alabama State Board of Education, here is that, right away:

The text of the resolution that was adopted is not yet especially easy to find online. News stories don’t provide links to the text of the amendment; some quote it, others just report on the arguments at the Board of Education meeting; it’s not obvious where you’d go to find the actual text of the regulation or resolution that was being debated. There’s no deep, dark reason for this, as far as I know, just situation normal problems with the slow grinding of bureaucratic gears and the usual dumbth of political reporting.[1] It should all be easier to sift through sometime later this month as materials are published in their updated forms.

In any case, I was able to do a bit more digging, and I think to get all the relevant details by the end. So here’s the story, as best I understand it.


1. Here’s the Twitter stuff. (Sorry.)

A number of news stories were circulated a couple weeks ago, which referred to Kay Ivey (who professes to be Governor over the State of Alabama) announcing that she (or we, according to her) had banned Critical Race Theory in Alabama schools. And then a bunch of people took to fighting over whether this is a good thing or a bad thing. Some of the news stories on this topic seem to be responses to a recent post on the Twitter page for Kay Ivey’s re-election campaign.[2] Other news stories have been responses to the public State Board of Education meeting that the Twitter post seemed to be referring back to. What the campaign posted on October 20 was:

Kay Ivey / @kayiveyforgov / Oct 20

We have permanently BANNED Critical Race Theory in Alabama. We’re focused on teaching our children how to read and write, not HATE.

This Twitter post appears to be referring to a regulation that Kay Ivey took a role in enacting through the State Board of Education the week before they posted that. (I don’t know of any legislation, or any other regulations, passed recently which the post might be referring to.) If so, it bears almost no relationship whatever to the actual text of what was passed at the meeting, which is limited in scope to Alabama public school, and which has nothing to say about Critical Race Theory (as such) anywhere in the regulation. The regulation was prepared by people who have a lot of (apparently hostile) thoughts and feelings about Critical Race Theory, or at least something they call Critical Race Theory, and the political debate has proceeded from that more or less without reference to anything the regulation says; but, so it goes.


2. Here’s the Meeting.

The political reporting and the Twitter post are based on a regulation that the Alabama State Board of Education heard public comments on, and then voted to approve for permanent status, a week earlier at their monthly meeting on Thursday, October 14. In her putative role as Governor, Kay Ivey is a member of the State Board of Education, and serves as president of the Board at their meetings. The 8 other members of the State Board of Education are elected officials, who are chosen in partisan elections to represent different geographical districts across the state.

As of to-day (November 1, 2021), the minutes from this meeting have not yet been published; but you can see the agenda from the meeting online. The Board vote in question is Action Item 2(u) on p. 2 of the agenda, Adopt Amended Alabama Administrative Code Rule 290-040-040-.02, Pertaining to Certain Teaching Techniques, as a permanent rule. According to news reports, the measure passed with a vote of 7-2. Kay Ivey voted in favor of it, and so did 6 of the elected members. The two (2) Board members who voted against it were Dr. Tonya Chestnut (D-District 05) and Dr. Yvette Richardson (D-District 04), who represent districts covering most of Alabama’s Black Belt counties. Dr. Chestnut and Dr. Richardson are the only two African-Americans currently on the State Board of Education, and also the only two elected Democrats.

The reason that the State Board of Education voted on this in October is that they had previously instituted the same regulation as an Emergency Rule at a previous meeting back in August, and the time period during which it could remain effective without permanent approval was running out.[3] On which, see more below.

Sources:

  1. Meeting. Agenda, Alabama State Board of Education meeting, October 14, 2021, 10 A.M.
  2. Public Comments and Vote in October. Josh Boutwell, State school board bans critical race theory [sic], The Southeast Sun, October 20, 2021. The headline has quote marks around Critical Race Theory, but there is no indication of what they are quoting; it’s not in the text of the resolution that was passed.
  3. Public Comments and Vote in August. Kyra Miles, Alabama Bans Critical Race Theory in Schools [sic], wbhm News, August 12, 2021. (accessed 1 November 2021)
  4. Structure and Composition of the State Board of Education. Ballotpedia: Alabama State Board of Education (accessed 1 November 2021).

3. Here’s the Actual Text of What Was Passed.

The entire public debate over this regulation was essentially a do-over of the same debate that happened when this rule was first introduced back in August. Political rhetoric and journalists’ reports around the regulation constantly mention Critical Race Theory or CRT.[4] However, the language of the regulation that was adopted doesn’t mention the words Critical Race Theory, or any related terminology, anywhere in the text.

The State Board of Education voted on whether to approve permanent status for a rule that they previously instituted on a temporary basis (as an Emergency Rule) back at their August meeting. The rule change is posted online under Emergency Rules for Education, Department Of in August 2021, at alabamaadministrativecode.state.al.us. Here is the content of the changes that were made:

  • The rule added a new section (2) to the Alabama Administrative Code rule 290-040-040-.02.01, on Certain Teaching Techniques. The new section that they added reads:

    (2) The State Board of Education specifically prohibits each local board of education from offering K-12 instruction that indoctrinates students in social or political ideologies or theories that promote one race or sex above another. All K-12 instruction, Alabama Courses of Study standards, professional development, or other activities shall be in accordance with the most current State Board resolution regarding intellectual freedom and non-discrimination.

  • Weirdly, the same rule that they adopted also happens to wipe out an old Alabama education regulation (290-040-040-.02-.01, section (1)). Before August 2021, this section used to contain a ban on the teaching of yoga or meditation in public K-12 schools. The yoga ban dates back to a different phase of the Culture Wars back in the 1990s; but the Alabama state legislature removed this ban with Alabama H.B. 246 earlier this year.[5] The State Board of Education took the opportunity to take out the Administrative Code rule that was created to implement the old ban.[6] So the new regulation replaces the ban with a statement that now:

    Each local board of education may offer instruction to students in grades K-12, subject to the provisions of Chapter 40 of title 16, Code of Alabama 1975.

    Chapter 40 of title 16, Code of Alabama 1975 is the section of the state education laws that deals, among other things, with physical education classes.

So that’s what the State Board of Education rule says it does — (1) it prohibits public K-12 schools from instruction that indoctrinates students in social or political ideologies or theories that promote one race or sex above another, (2) it institutes requirements for instruction, curriculum standards and activities based on a related resolution (which I’ll get to in a second), and (3), while they’re there, they also include a thing about allowing yoga in PE classes.

Sources:


4. Here’s the text of the accompanying resolution from August.

You may have noted that the text of the regulation above refers back to the most current State Board resolution regarding intellectual freedom and non-discrimination. This is a reference to a resolution that they passed at the same Board meeting in August. The resolution is not a regulation, and it does not have direct legal force, but the regulation that the Board approved does require that materials be made “in accordance with” the principles resolved. This resolution was approved on a 7-2 vote, with Dr. Tonya Chestnut and Dr. Yvette Richardson opposed. The short Emergency Rule that I quoted above was passed immediately after this resolution.[7]

Here is the full text of that resolution:

ALABAMA STATE BOARD OF EDUCATION RESOLUTION DECLARING THE PRESERVATION OF INTELLECTUAL FREEDOM AND NON-DISCRIMINATION IN ALABAMA’S PUBLIC SCHOOLS

WHEREAS, the Alabama State Board of Education believes that all individuals are endowed with equal inalienable rights, without respect to race or sex, and

WHEREAS, concepts that impute fault, blame, a tendency to oppress others, or the need to feel guilt or anguish to persons solely because of their race or sex violate the premises of individual rights, equal opportunity, and individual merit, and therefore have no place in professional development for teachers, administrators, or other employees of the public educational system of the State of Alabama, and

WHEREAS, for the same reasons, such concepts should not be taught to students in the public educational system of the State of Alabama:

NOW, THEREFORE, BE IT RESOLVED, that the Alabama State Board of Education affirms that we will not support, or impart, any K-12 public education resources or standards intended to indoctrinate students in social or political ideologies that promote one race or sex above another; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education recognizes that slavery and racism are betrayals of the founding principles of the United States, including freedom, equality, justice, and humanity, and that individuals living today should not be punished or discriminated against because of past actions committed by members of the same race or sex, but that we should move forward to create a better future together; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education intends to adopt rules and regulations specifically prohibiting each local board of education from offering K-12 instruction intended to indoctrinate students in social or political ideologies that promote one race or sex above another. All K-12 instruction in Alabama Course of Study standards required for graduation, professional development, and other activities shall be in accordance with the Alabama Administrative Code and the most current Alabama State Board of Education resolution regarding intellectual freedom and non-discrimination; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education intends that no federal grant shall be applied for or accepted by the Department, if such grant requires or encourages the teaching of the concepts or implementation of the practices contrary to the sentiments expressed in this resolution; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education believes that no state education agency, local education agency, or school should train any administrator, teacher, staff member, or employee, or teach any student, to believe that one race or sex is inherently superior to another race or sex; that members of one race or sex cannot, or should not attempt to, treat others disrespectfully due to race or sex; or that fault, blame, or bias should be assigned to a race or sex, or to members of a race or sex solely or partly because of their race or sex; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education values and promotes honest and healthy research, debate, and dialogue as important and valuable to the educational experience and that such should not be infringed upon so long as it is responsible and respectful. Rather, students and educators should be encouraged to engage in the marketplace of ideas, subject to developmental appropriateness; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education acknowledges the right to express differing opinions, foster and defend intellectual honesty, engage in freedom of inquiry, and honor freedom of speech as required by the First Amendment of the U.S. Constitution in the public schools of Alabama; and

BE IT FURTHER RESOLVED, That the Alabama State Board of Education intends to adopt rules and regulations codifying the tenets of this resolution into the Alabama Administrative Code as provided by law.

Done this 12th day of August 2021

Sources:

I hope that this helps provide some details on what actually happened, which has been too hard to find from normal sources on Alabama politics.[8]

  1. [1]On the state’s side, it’s just the usual slow grinding of bureaucratic gears (minutes need to be approved, monthly updates to the state administrative register need to be published, blah blah blah). On the press’s side, it’s just the usual carelessness of newspapers and political reporters about actually providing any direct access to primary sources or to the text of legal materials, even if these are accessible matters of public record. This is really an ongoing cognitive scandal of the literate world, and just a ludicrous position to be in in the year 2,021 of the Common Era, when almost every political reporter in the world and almost every newspaper are operating primarily or even exclusively in a digital hypertext medium — where you’ve been able to put in hyperlinks to anything you want in the text of a story or in side notes or pop-overs or…. It is an actually silly abdication of basic responsibility that anyone who expects people to read their reporting on this meeting wouldn’t do something as basic as including a reference to the full text of the thing being discussed at the meeting. There should be some basic standards here and newspapers ought to be expected to do better. Be that as it may, the case here is Situation Normal, all effed up as it may be.
  2. [2]This would be the @KayIveyForGov campaign profile, in particular. It is an authorized outlet for Kay Ivey statements, but it’s run by the re-election campaign, not by the Office of the Governor, which is at @GovernorKayIvey. The Office of the Governor account usually sticks to more anodyne ribbon-cutting, National Pimento Cheese Awareness Week sorts of posts; although it does also sometimes carry more politically volatile policy announcements.
  3. [3]In Alabama, the State Board of Education can approve rules on an Emergency basis with a simple majority vote; this puts the rule into effect immediately, without the normal 35-day period for public notice and public comment before adopting a new rule. However, when they enact a rule on this basis, it cannot be effective for more than 120 days before they have to propose and approve it for permanent status, according to normal rulemaking procedures. Source: Code of Alabama 1975, Section 41-22-5
  4. [4]This is true both for those in favor of the regulation, like Kay Ivey, and also for those against it.
  5. [5]More reporting: Brandon Moseley, Governor signs bill to end Alabama’s school yoga ban
  6. [6]Old language: The State Board of Education specifically prohibits the use of hypnosis and dissociative mental states. School personnel shall be prohibited from using any techniques that involve the induction of hypnotic states, guided imagery, meditation or yoga….; then followed several paragraphs of text defining and banning hypnotic and dissociative states, yoga, etc. etc. All that is now gone.
  7. [7]Weirdly, the Emergency Rule was apparently passed unanimously by the Board — Dr. Chestnut and Dr. Richardson voted against the resolution, but they didn’t vote against adopting the Emergency Rule in August. But then they did vote against making the Emergency Rule into a permanent regulation, when that came around again this month.
  8. [8]My own view is that the lack of any close reading of the text of the materials has made for a political debate which has been a series of massive and emotionally intense red herrings over something that has never existed. In the last year, there has been a whole lot of political debate around race, and a whole lot of laws passed by belligerent conservative factions on the premise that they are going to confront and to ban the use of the public education system to promulgate something that they refer to as Critical Race Theory. Perhaps what they are targeting is not really Critical Race Theory, but something else; often, I suspect, that what they are targeting is not really anything at all, just a haphazard bogey-man out of their own political fantasies. The politics around these laws have mostly been pretty gross and destructive. The text of some of these laws and regulations (for example, those that aim to ban the teaching of quote-unquote divisive concepts or that use similarly wildly broad and censorious formulations) impose really bad, and just really dumb, restraints on basic educational practice. On the other hand, some of the regulations that are passed are little more than do-nothing declarations that have been generalized so far as to be more or less completely anodyne in their content. I’d say it’s probably true that schools generally shouldn’t [indoctrinate] students in social or political ideologies or theories that promote one race or sex above another; it’s hard to disagree with the sentiment that no state education agency, local education agency, or school should train any administrator, teacher, staff member, or employee, or teach any student, to believe that one race or sex is inherently superior to another race or sex. Well, of course not. The promoters of this resolution have brought it forward with ridiculous exaggerations of what it actually says or does, I presume with the intent of throwing red meat to a hard-Right culturally conservative base that wants to see the power of the State mobilized to ban Critical Race Theory or Wokeness or Political Correctness or whatever confronted and run out of the state of Alabama; the political opposition to this measure has more or less entirely responded to the possible, probable, imagined or real cultural motives and factional allegiances of the conservative faction that is pushing it, with hardly any reference to the measure actually under debate or what it actually enacted when it was put into effect. Like a lot of political debate today, it has been an angry and agonized debate of postures, with hardly any policy to be seen in the discussion. But then, there’s not too much policy to be found in a vote whose most substantive policy outcome is likely to be recognition that K-12 public school teachers are now allowed to teach yoga in the PE class. In any case, it is my own considered view that there is no way to run public schools that is not necessarily controlled and corrupted by stupid political debates, oppressive state interests, and coercive political processes; government should not be in the business of running schools at all, and the people’s own associations for learning and teaching should be free to teach whatever theories they like, with or without the endorsement of a bunch of Republican decision-makers.

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