Blog

By: Kyle Reinhard

The first two months of 2023 have brought a surge of new anti-CRT activity. Recently-released data from the CRT Forward Tracking Project reveals several new national, state, local, and content-specific trends. These trends include the following: that (1) the last six months have seen an increase of more than 110 new anti-CRT measures introduced, with nearly half of those measures being introduced in January and February of this year; (2) the amount of total enacted measures has risen by 23% during this six-month period, from 205 up to 252; (3) the 54 measures introduced in 2023, brought by state and local officials across 20 states, have been targeted almost exclusively at K–12 schools, institutions of higher education, or both; and (4) Florida’s new and existing anti-CRT measures have recently garnered significant media attention and influenced proposed and enacted policies in multiple other states, a trend CRT Forward researchers project will continue in the months to come.

(1) Over the last six months, the total number of introduced anti-CRT measures has grown by more than 110. Nearly half, or 54, of those measures were introduced in the past two months alone.

Tracking Project data indicates that as of February 22, 2023, 619 total anti-CRT measures have been introduced by 203 different local, state, and federal government entities nationwide since September 2020.  During the most recent six-month period, from August 2022 through February 2023, the amount of introduced anti-CRT measures has risen from 508 to 619, with 54 of these new activities being introduced in the last two months.

These 54 measures have been introduced by government officials in 20 states: Alabama, Arkansas, Arizona, Connecticut, Florida, Indiana, Michigan, Missouri, Mississippi, Montana, North Dakota, Nebraska, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Wisconsin, West Virginia, and Wyoming. The vast majority of new anti-CRT measures originate in state legislatures, who are responsible for 83%, or 45 of the 54 newly-introduced anti-CRT measures, with state executive bodies (including governors, departments of education, and other affiliated officials) accounting for 13%, or 7 out of the 54 newly-identified anti-CRT measures. Local activity was less numerous during the last two months, with just under 4%, or 2 out of 54.

Of new measures introduced in state legislatures, 24%, or 11 out of 45, were introduced in Mississippi, with Florida and West Virginia tied for the next highest amount of total introduced activity within the state, both introducing five new measures, or just over 9% of the total each.

(2)The percentage of total enacted measures has risen by 23% since August 22, 2022, from 205 up to 252, with 12 new measures enacted or adopted since December 31, 2022.

The number of measures which have been enacted or adopted continues to rise steadily. At present, at least 252 measures nationwide have been enacted, up 12 from 240 enacted as of December 31, 2022, which represents a 5% increase. All told, 47 new measures have been adopted in the last six months, amounting to an increase of 23% in that timeframe.

(3) Almost all newly-introduced measures target K–12 schools, institutions of higher education, or both.

Nearly all, approximately 93%, or 50 out of 54 newly identified anti-CRT measures aim to regulate instruction in K–12 classrooms, institutions of higher education, or both. Of measures which are designed to regulate instruction in K–12 schools that have been introduced so far in 2023, 65%, or 30 out of 45, borrow language from the so-called “divisive concepts” ban originating in the Trump Administration’s September 2020 Executive Order 13950. Additionally, just over 22%, or 10 out of 45, of new introduced K–12 measures single out “Critical Race Theory” by name.

Of new measures aimed at K–12 schools, just under 45%, or 20 out of 45, specify some enforcement mechanism or consequence to be imposed if school districts or officials are found to have violated the measure’s provisions. Of these, 75%, or 15 out of 20, create a private cause of action whereby individuals may personally sue school officials they believe have violated the measure; 40%, or 8 out of 20, would mandate that an institution have its funding withheld or otherwise be financially penalized. The tendency of creating private causes of action for noncompliance with anti-CRT laws applicable to K–12 schools appears to be on the rise. Throughout 2022, only 23 (of 266) measures proposed installing private causes of action as enforcement mechanisms; in 2021, just 18 (of 247) did so.

As of now, however, since September 2020, only two bills nationwide which create a private cause of action have been enacted (Florida’s H.B. 1557, widely publicized as the “Don’t Say Gay” act, and Arizona’s H.B. 2161).

(4) Anti-CRT activity in Florida has evolved and served as a template for other states.

Some government officials have already begun crafting the next wave of anti-CRT measures pursuant to the authority of the first generation of measures already codified in law. At Governor Ron DeSantis’s order, for instance, the Florida Department of Education (FDOE) in January 2023 announced that the proposed curriculum for the College Board’s new Advanced Placement course in African American Studies conflicted with the state’s existing S.B. 7 (publicized by DeSantis as the “Stop W.O.K.E.” act) and would therefore be banned in Florida high schools.¹

Even though a federal judge in the Northern District of Florida had just months prior called Stop W.O.K.E. “positively dystopian” and prevented it from being applied to Florida colleges and universities, the Florida wielded the law to urge a private business to cater to the state and influence the education of A.P. students nationwide.

On February 3, 2023, Texas followed Florida’s lead, and state lawmakers introduced H.B. 1822, a bill “Relating to Review and Approval of Advanced Placement Courses by the State Board of Education.” If passed, the bill would reserve, for Texas Board of Education officials, the same authority exercised by FDOE to only approve A.P. courses which comply with existing state law, including existing enacted bans.

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[1] See, e.g., Patricia Mazzei; Anemona Harocollis, Florida Rejects A.P. African American Studies Class, N.Y. Times (Jan. 19, 2023), [https://perma.cc/RU4H-H26R]. This article states that FDOE’s initial letter “did not cite which law the course violated or what in the curriculum was objectionable.” Id. However, in a correspondence with the College Board dated February 7, 2023, FDOE states that at multiple times in the previous year, including as late as December 7, 2022, “FDOE staff again, reminded College Board that House Bill 7 was important to review and reminded them that the State Board of Education rule for Required Instruction must also be adhered to.”