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In a proposed rule April 19, the Biden administration’s Education Department laid out plans to strongly encourage, if not require, federally funded “American History and Civics Education” programs to focus on “the consequences of slavery” and “the ongoing national reckoning with systemic racism.” The program would “incorporate anti-racist practices into teaching and learning.”

There could be legal problems, however. The use of highly charged and stylized code words like “equity,” “systemic racism,” and “anti-racism” make clear that this is far more than a plan to teach American history, flaws and all. On the contrary, the administration seeks to entrench a comprehensive – almost ontological – historical view, often referred to as critical race theory.

According to the department’s rulemaking notice, grant-funded teachers must emphasize racial “identities” and create an “identity-safe learning environment.” Teachers also must teach the tenets of critical race theory: “systemic racism, biases, inequities, and discriminatory policy and practice in American history.” One critical race theory proponent even called Martin Luther King Jr.’s dream of a colorblind society “racist.”

Teachers will also be required to emphasize “equity” as the solution.

Here is where the legal problems begin. By incorporating these ideas into a federally funded grant program, the administration sends a clear message: America is not a country that has struggled to overcome racism but one that itself remains deeply racist – and this premise should form the foundation of “American History and Civics.”

This concerns parents like Scarlett Johnson, a Hispanic-American whose children are taught critical race theory in Wisconsin’s Mequon-Thiensville district. She worries that her children “are being exposed to a curriculum that claims the U.S. is an oppressive country, which denies them the ability to learn about history and have hope for their own success, regardless of the color of their skin.”

As Johnson correctly fears, the term “equity,” as used in critical race theory, is very different than the “equality” America was founded on and has admittedly struggled to achieve. For decades, schoolchildren have studied the Declaration of Independence, the Gettysburg Address, and King’s “I Have A Dream” speech. These foundational texts teach students that no matter where they come from or who their parents were, every person is created equal and should never be judged by the color of his skin.

To be sure, a variety of different theories and views of America can be taught in the public schools. But federal and state laws protect individuals against racial discrimination – meaning that students cannot be treated differently because of their race. If a student has been made to feel inferior and unequal based on the color of her skin, she has probably been exposed to a racially hostile environment that violates these guarantees of equal treatment.

Moreover, the Constitution, along with federal and state statutes, protects “freedom of conscience,” meaning that public schools cannot force students to affirm certain points of view – such as critical race theory’s ideas of white supremacy, white privilege, or systemic racism. The Constitution also prohibits “compelled speech,” meaning that teachers cannot force a student to speak a certain message, such as a confession that “I am a racist.”

Public school teachers who violate these basic guarantees open themselves up to lawsuits, discovery, and potential liability. The Education Department is not helping teachers by presenting them with this discriminatory curriculum.

Critical race theory literally teaches children racism. They are placed in groups, labeled oppressors and victims, and taught that America’s system is rigged against persons of color. These are destructive lies that have no place in American schools.

Our schools are places of reason, facts, discovery, and the scientific method. Critical race theory is a Marxist experiment to remake society based on class struggle. It is not an educational tool and certainly should not be funded with taxpayer dollars. The Education Department should abandon this abominable social experiment and remove any reference to critical race theory from these grant programs. America must reject the false promises of “equity” and rededicate itself to equality for all.

— Originally appeared in RealClearEducation.

Rick Esenberg is president and general counsel and Daniel Lennington is deputy counsel at the Wisconsin Institute for Law & Liberty.

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