North Dakota ban on critical race theory for K-12 concerns higher ed professors

Legislators say law likely won't open the door to ban theory for universities and colleges

Snow falls over the North Dakota State University campus on Thursday, Dec. 2, 2021. David Samson / The Forum
David Samson / The Forum
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FARGO — Some professors fear North Dakota legislation that bans critical race theory in public K-12 schools could open the door to a similar bill for higher education, but legislators and one dean said that’s not likely to happen.

House Bill 1508, which Gov. Doug Burgum signed into law last month, has raised concerns at North Dakota State University. NDSU English professor Anastassiya Andrianova inquired during a Faculty Senate meeting about the possibility of the new law being expanded to higher education in the future. If so, it could “adversely affect academic freedom,” she said.

“It seems to me that the kind of legislation that is being proposed and actually signed into law, like the recent anti-CRT bill and also Senate Bill 2030 that just passed in the recent biennium, it's inching toward the sort of imposition of outside views upon what can and cannot be researched and what can and cannot be taught,” she said.

University educators voiced concerns about limiting academic freedom this year when legislators passed Senate Bill 2030 with an amendment that prevents schools that partner with groups who support abortion rights from receiving state Challenge Grant funds. There still is confusion about how that law, or Senate Bill 2030, should be applied by educators, Andrianova said.

NDSU Faculty Senate President Florin Salajan previously said he had questions over whether that legislation could open the door to banning other topics legislators don’t like.


Tammy Oltz, assistant dean for law library and information services at the University of North Dakota Law School, said she sees why faculty would be concerned, particularly those who care about racial equity, but she is not concerned about critical race theory being banned at colleges and universities. Doing so would likely be unconstitutional since it would inhibit academic freedom, the UND law professor said.

“I think that there's always a slippery slope concern that people have when it comes to any kind of potential restrictions on speech, but the fact is that there is just, for better or for worse, far more protection at the higher education level than at the K-12 level,” Oltz said.

Rep. Jim Kasper, a Republican from Fargo who sponsored the bill, said there was no intent for HB 1508 to impact higher education. He said he has no desire to interfere with universities and colleges, and other lawmakers haven’t said anything about doing that, either.

"I don't see it moving forward," Kasper said. "If it moves forward, it won't be because of me.”

Andrianova said Kasper's words don't lessen her fears. SB 2030 set a dangerous precedent, she added.

The critical race theory law can have a chilling effect on higher education instructors, NDSU English professor Holly Hassel said. Nontenured professors may not touch the topic after seeing K-12 be targeted, she said.

"You're already kind of influencing what people feel safe to talk about in their classrooms, and that's a side effect of this kind of legislation," Hassel said.

What is critical race theory?

Critical race theory explores the role of race and racism in systems and institutions, according to the American Bar Association. It recognizes race isn't biological but is socially constructed.


The North Dakota law defines critical race theory as "the theory that racism is not merely the product of individual bias or prejudice, but that racism is systemically embedded in American society and the American legal system to facilitate racial inequality."

The way the theory is being discussed is “completely erroneous," teacher education professor Larry Napoleon said. It is a legal framework primarily taught in law school, he said.

There is no evidence critical race theory is taught in North Dakota’s public K-12 schools. Legislators said the law was meant to prevent the theory from coming into those schools.

No public universities or colleges in the state have degree programs for critical race theory, North Dakota University System spokeswoman Billie Jo Lorius said. A search of public university and college course catalogs in North Dakota did not turn up classes dedicated to or mentioning critical race theory, though some classes do mention the role of race and how it pertains to various subjects.

The anti-racism theories targeted by HB 1508 undergird courses and disciplines that are taught at the collegiate level, such as multicultural writing, Indigenous history and African American literature, Andrianova said. The disciplines are meant to give perspective about communities that have traditionally been marginalized, and that sometimes means “uncomfortable truths are revealed,” she said.

English and education professor Kelly Sassi said she educates future English teachers, and part of her curriculum includes teaching about systemic racism.

"We expect our students to be able to go out into the profession of teaching and understand the backgrounds of a diversity of students and be able to differentiate their instruction for that great variety of students," she said. "To do that, one really needs to understand social justice issues, and that includes inequities in our society."

Writings from critical race theory authors have been useful in educating NDSU students who take women and gender studies courses, Hassel said.


"Critical race theory is a sort of tool to understand how history and policy have worked to give some people privileges and advantages that others don't have," said Hassel, who teaches women and gender studies.

Systemic racism is about using power to embed bias or prejudice into society, Sassi said. This legislation perpetuates "the silencing of certain members of the population," she added.

"Passing a bill like this is an example of systemic racism," she said.

Hassel, who also teaches potential teachers, said the National Council of Teachers of English is calling on education programs to prepare future instructors to be culturally competent so they can work with diverse students. The North Dakota legislation works in contrast to that initiative, she said.

"I worry that those teachers are then put in a position where they're feeling like they're torn," Hassel said.

Academic freedom

Theories are grounded in factual history, Andrianova said. Race-based theories can help explain systemic problems in society or government policies, she added.

Academic freedom is put in place to protect the ability to discuss and challenge ideas, Hassel said. Any effort by the Legislature to limit that is concerning, she said.

“If we do not have the freedom to do that (discuss and challenge ideas), we are effectively living in a police state,” Andrianova said.

Some of her colleagues said they feared they wouldn't be able to teach Indigenous history since the courses recognize the racist treatment of Native Americans by the U.S. government and other groups.

Kasper said he understands there are “warts” in history. He said he isn’t against teaching “history in historical form.” He said he believes there is a problem with children being taught that “whites have caused all the problems in this county.”

“We need to be talking about how we help each other, how our state rose with cooperation, not trying to brainwash our kids,” Kasper said.

Sen. Janna Myrdal, a Republican from Edinburg who backed the amendment for SB 2030, also cosigned HB 1508. Higher education students can walk out of a classroom at any time, while K-12 students are part of a captive audience, she noted.

Critical race theory is not meant to make a specific group of people feel bad about themselves, Napoleon said. The theory has been misunderstood at best and misrepresented at worst.

He said he would like to believe academic freedom will be respected at the higher education level, but banning the exploration of content is a slippery slope.

Academic freedom is not just about protecting the freedom to think, teach and learn in higher education, said Oltz, from the UND law school. Education expands into the general public, she said.

“Without the ability to discuss and ask questions without fear of retribution, you're not going to have education,” she said. “And without education, you don't have real democracy.”

Being an educated citizen includes knowing about issues in society, Sassi said. Systemic racism is a fact, and students who don't learn about it won't be prepared when they go to college or begin their careers, she said.

Learning about systemic racism shouldn't make students feel bad, but it should help them to be educated, gain empathy for people with different backgrounds and be empowered to help change society, she said.

"We can't let white guilt get in the way of making change in our society so that it is a more equitable and free society for everyone in the U.S.," Sassi said.

April Baumgarten joined The Forum in February 2019 as an investigative reporter. She grew up on a ranch 10 miles southeast of Belfield, N.D., where her family raises Hereford cattle. She double majored in communications and history/political science at the University of Jamestown, N.D.
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