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3 Pennsylvania School Districts Take State to Court Over Guidelines to Help Teachers Become More Culturally Sensitive

The suit is being litigated by The Thomas More Society, a conservative Christian law firm which has worked cases challenging both abortion and birth control, LGBTQ rights, and virtually all pandemic mitigation strategies.
Photo courtesy of Shutterstock.

In April of 2022, the Pennsylvania Department of Education adopted guideline standards for Culturally Relevant and Sustaining Education for inclusion in teacher training. Now, three Pennsylvania school districts, joined by a handful of parents and teachers, are suing the state to have the standards tossed out. 

Why were these standards adopted in the first place?

Back in 2020, the state board of education adopted a statement in support of Culturally Relevant and Sustaining Education (CR-SE), saying that it requires a “genuine commitment to equity for all students.” 

At the core of CR-SE is an anti-racist undertaking that aims to eliminate the systemic and institutional barriers that inhibit the success of all Pennsylvania’s students— particularly those who have been historically marginalized. A Culturally Relevant and Sustaining Education encompasses skills for educators, including, but not limited to, approaches to mental wellness, trauma-informed approaches to instruction, technological and virtual engagement, and any factors that inhibit equitable access for all Pennsylvania’s students.

– The Pennsylvania Culturally Relevant and Sustaining Education Competencies

Pennsylvania faces unique challenges when it comes to diversity in schools. The nonpartisan group Research for Action found back in 2020 that Pennsylvania has the fourth largest gap between students of color (SOC) and teachers of color (TOC). Nationally, the share of SOC was 2.5 times the share of TOC. But in Pennsylvania, the percentage of SOC was 6 times the percentage of TOC. 

Of Pennsylvania’s 500 school districts, Research for Action found that 184 employed zero teachers of color. Only around 25 districts in the state have staffs that are more than 5 percent TOC. By building it’s even more stunning; RFA found that of the 3,200 schools in Pennsylvania, 1,500 had all-white teaching staffs. A dozen schools in the state were 80 percent students of color and zero percent teachers of color.

For about a decade, U.S. white students have been a minority majority in schools—the largest sub group, but under 50 percent of the total enrollment. Meanwhile, teacher diversity has not kept up

So why not create standards to help teachers be more culturally sensitive? It has long been a teacher ideal to meet students where they are; why not acquire some more tools to better meet students who are somewhere that you have never been?

The standards were developed by the Pennsylvania Educator Diversity Consortium’s CR-SE Toolkit Workgroup, working with educators and with New America, a left-leaning think tank. The workgroup’s product was released in April 2021, and based on New America’s 2019 framework for eight competencies for culturally responsive teaching, as explained in Culturally Responsive Teaching: A Reflection Guide, by New America’s Jenny Muniz.

A year later, a somewhat boiled down version became the final form amendments to Chapter 49, guidelines for both induction and continuing professional education of teachers in the Commonwealth.

What do the standards say?

I’ve previously covered the standards here at the Beacon in more detail. There are nine competencies that include looking for biases in the system and oneself, being conscious of language use, viewing differences as assets rather than deficiencies, and just generally teaching with an awareness of and appreciation for cultural differences with an eye toward doing better. And while it’s easy to read the standards as directed toward teachers’ handling of students of color, they’re broad enough to apply where Amish students are mixed into public schools, as well as in districts that serve rural poor (and mostly white) students. As Sharif El-Mekki, founder of the Center for Black Educator Development and part of Pennsylvania Educator Diversity Consortium, has pointed out, “We are talking about any marginalized students.”

The standards, it must be noted, are for teacher training and professional development; they are not meant for, say, school curriculum development, nor part of direct student instruction. They’re aimed at raising teacher awareness so that they can do the work with sensitivity to cultural differences in their classrooms. 

Who doesn’t like these?

It is possible to be a teacher or taxpayer who supports the goals of CR-SE guidelines but who still has concerns about the source. New America is funded by many of the folks who have long financed initiatives that are destructive of public schools. The Gates Foundation, the Walton Foundation, the Joyce Foundation, Emerson Collective, Bloomberg Philanthropies, and the New Venture Fund are just some of the corporate reform names on the list of funders.

The standards also run the risk of being One More Thing that teachers must somehow squeeze into their day, one more professional development session to sit through. It’s important and valuable stuff, but as every teacher knows, nobody ever announces, “We have an important new initiative for you teachers to implement, and we’re going to take this other thing off your plate to make room.” 

The guidelines depend on difficult-to-assess language like “know,” “recognize,” “value,” and “believe”—the very sort of language that teachers are taught to avoid in their own lesson planning. 

So it’s possible that educators who believe in the importance of cultural sensitivity in the classroom could still look doubtfully at Pennsylvania’s new standards.

But that doesn’t appear to be the source of the suit.

Who is pushing the lawsuit?

There are three school districts signed on to the lawsuit. Penncrest School District’s board decided to join the suit in mid-April. Mars Area School District’s board was making their decision in mid-March, while Laurel School District’s board made their decision to join in early March (egged on by Superintendent Leonard Rich, who has gone on the serve as one of the public faces of the suit). This suggests that the suit originated somewhere other than with the districts. 

The suit is being litigated by The Thomas More Society, a “not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, religious liberty, and election integrity.” The firm has worked cases challenging both abortion and birth control, LGBTQ rights, and virtually all pandemic mitigation strategies (not just anti-vax, but also anti-masking, anti capacity limits, and anti social distancing). They helped mount legal challenges to the results of the 2020 Presidential election; they also employed Senior Trump advisor Jenna Ellis as a special counsel. And they mounted the successful challenge to Pennsylvania’s mask mandate

For boots on the ground, the Chicago-based firm is using the Western Pennsylvania law firm of Dillon McCandless King Coulter & Graham. Thomas W. King III of DMKC&G is listed as a special counsel on a page dated October 23, 2020, and Thomas Breth, the other DMKC&G lawyer working the case, has a special counsel page dated from August 17, 2022.

DMKC&G also provides school board solicitor services to numerous districts—including both Mars and Penncrest. King was given time at a Penncrest board meeting to make his pitch to them for joining the suit. At that meeting, King emphasized that joining the suit would involve no cost to the district at all; King explained that The Thomas More Society would be covering all expenses.

Also named as petitioners in the lawsuit are two Laurel School District teachers, nine parents in several districts, a board member from the Knoch School District, and Superintendent Rich.

What is the beef?

Coverage of the lawsuit has been a bit confused about what is at stake, perhaps because those backing the suit have deliberately blurred the lines. 

Jennifer Borrasso (KDKA) reported the claim that the state never consulted “schools, parents, teachers, or students.” Breth told her “the department of education is trying to tell parents and students what to believe.” And Superintendent Rich argues that CR-SE “tells students what to think.” Other critics complain that the state is trying to tell schools what to use as curriculum.

The implication is that the guidelines are directly related to classroom instruction, that they instruct districts to deliver CR-SE content directly to students. That is incorrect. The CR-SE guidelines are part of Chapter 49, which “sets forth requirements for educator preparation, certification, induction and ongoing professional education.”

The new standards are standards for teacher education and professional development, not standards for student education.

On the Thomas More website, Breth is much more precise and careful in his language. He notes that the suit was prompted by CR-SE guidelines that “required educators to disrupt harmful practices, policies, and norms…” He also notes:

“Unlike the curriculum developed and implemented by local school boards and superintendents, this guidance is not tied back to the educational standards in Pennsylvania,” shared Breth, “which are focused on developing skills in communication, thinking and learning, along with academic literacy, language arts, mathematics, science, technology, social studies, health, physical education, and the arts.”

There appears to be a carefully created subtext of, “Watch out! The state is going to force your children to learn Culturally Relevant stuff!”

Press has also focused on certain bits of language in the guidelines. The attorneys have focused on the guidelines about microaggressions (just for the record, I called this one last year) and have also focused on the guideline that calls for teachers to “disrupt harmful institutional practices” (Borrasso reported this as “disrupt schools” in alarmed tones). 

And other whistles have been blown. King has pointed out repeatedly that the guidelines were written by a small panel of “university professors,” as if we all know the kinds of things Those People concoct. In his pitch to the Penncrest board, King added this point:

It’s difficult to understand what the point of it is other than I’d say precursor to people putting in policies that they suggest comply with these guidelines.

So on top of everything else, the slippery slope.

There is no question that the guidelines call for teachers to be given training in college and offered professional development sessions to be more culturally sensitive and responsive, and to actively work to promote better treatment for marginalized students. But that’s a far cry from suggesting that students will be taught how to think.

But let’s look at what the lawsuit actually says.

There are eight counts to the lawsuit.

I: Respondents’ CRSE Guidelines constitute a regulation promulgated in violation of the Regulatory Review Act

The argument is that the guidelines are really regulations, but have the force of law, and since they didn’t go through the required regulatory process, they are violating the rules. 

II: The guidelines violate teacher first amendment rights.

The CR-SE guidelines would force teachers to “discard their sincerely held protected beliefs in order to compel compliance with Respondents’ ideological tenets.” The suit does not specify which part of the guidelines might violate someone’s deeply held beliefs, or what would qualify as “compelled speech.” “Communicate in Linguistically and Culturally Responsive Ways that Demonstrate Respect for Learners, Educators, Educational Leaders, and Families”? Identify bias in the system? 

This is a line being tested all over the country, and it’s not always a win for conservatives. Most recently the Seventh Circuit Court of Appeals ruled that a district could fire a teacher who refused to use student preferred pronouns. 

III: Respondents’ CRSE Guidelines are unconstitutionally vague.

This boils down to the not-incorrect notion that many of these guidelines cannot be easily assessed or measured. This may make them difficult to deal with, but unconstitutional? It would be fun to see that argument applied to Pennsylvania educational standards such as state ELA standard CC.1.2.9–10.L Read and comprehend literary nonfiction and informational text on grade level, reading independently and proficiently, which is also vague and hard to assess.

IV: The guidelines usurp the authority of the local district.

Specifically, the authority to determine their own curriculum. The local district has to figure out how to meet the state academic standards, and the lawsuit argues that the guidelines might lead teachers to work to get that curriculum altered if they think it includes bias or (here comes that least favorite guideline again) “disrupt harmful institutional practices.” So the argument is that if a district wants to implement harmful, biased, or racist practices, teachers shouldn’t try to fix it.

V: The guidelines call for “improper civil disobedience” and “require educators to ‘disrupt’ lawfully enacted policies and practices.”

What, exactly, is proper civil disobedience. Compliant disobedience? The lawyers try to flip things around by saying that challenging a district practice would itself be a microaggression. This kind of argument suggests that lawyers understand neither civil disobedience nor micro-aggressions.

This is the argument of racists in the 60s—maybe Black people have a point, but they’re going about the whole protest thing improperly, and, by the way, Rosa Parks broke a real law. Critical Race Theory doesn’t turn up in this lawsuit by name, but this count, as much as anything in this lawsuit, would make a fine example of why the study of using institutional power and rules to enforce and embed racism is important and relevant.

VI: The guidelines violate teacher Constitutional rights.

First Amendment argument again, with particular attention to microaggressions, arguing that the guidelines seek “to restrict, prohibit, and eliminate any speech that is subjectively perceived as not in conformity with the ideological tenets of Respondents.” The guidelines actually say very little about how teachers should behave, focusing on verbs like “believe” and “understand.” 

VII: The Guidelines violate the code of conduct for educators.

This point is brief. The Code of Conduct, which has a lot to say about keeping harm from students, is actually pretty in tune with these guidelines. But the lawsuit chooses to interpret “disrupt harmful institutional practices” to mean that they call on teachers to interfere with the teacher next door, thereby erasing any distinction between individual and institutional practices.

VIII: Respondents’ CRSE Guidelines violate Non-Delegation Doctrine.

The legislature didn’t explicitly delegate to the department of education the power to come up with these guidelines.

So what do we have here?

There is a huge concern in this lawsuit that the guidelines will force teachers and districts to engage only in “speech in conformity with the ideological tenets of Respondents.” It conflates an increased cultural sensitivity with some sort of heavily enforced compliance with state-imposed groupthink, rather than viewing CR-SE as a means of increasing teacher sensitivity to concerns and needs of marginalized students.

 It is not clear exactly how such force would be brought to bear. The suit notes that districts might lose state money, but that would be for failing to provide appropriate professional development in line with the guidelines, much as districts are expected to provide professional development on a variety of topics (How deeply PD sessions change the actual behavior of teachers is a highly debatable topic). Nothing in the guidelines suggests that a district will be fined for employing a teacher who is somehow “convicted” of being culturally insensitive. 

Even if districts should somehow choose to turn these guidelines into hard and fast rules, what exactly is it that teachers and districts wish to express that would be forbidden? The guidelines are broadly aimed at promoting more tolerance and sensitivity for marginalized groups? Are there teachers and administrators that worry that their right to be biased jerks might be infringed by guidelines that basically say “try to be better” without any substantial “or else”?

One must also ask if the Thomas More Society is so deeply concerned about limitations on teacher speech, why have they not popped up in Florida and other states that have passed laws (broad, vague laws) that prohibit discussion of racism in history, gender identity, and various “divisive concepts”? These are laws that are far more explicit and direct about restricting teacher speech. Where are the Thomas More lawsuits in those states?

Are the guidelines great? No. Guidelines that address what teachers must “believe” or “value” are unenforceable, and the source of these guidelines is not an encouraging one. They are not the best possible answer to be crafted to a difficult challenge faced in Pennsylvania schools.

But at the same time, I’m not inclined to trust a law group that rushes to defend free speech only when it happens to suit their own ideological tenets. We have long since agreed that educators should be trained about stopping sexual harassment and bullying; adding culturally relevant education to the mix hardly seems like a radical step – unless you believe that not all cultures deserve to be respected in U.S. classrooms. 

What’s next?

The guidelines are the product of the Wolf administration. The Shapiro administration will now have to decide how they would like to respond to the suit, which will in turn determine how big a fight this will turn out to be. Stay tuned. 

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Peter Greene

Peter Greene

Peter Greene is a recently retired classroom secondary English teacher of 39 years. He lives and works in a small town in Northwest Pennsylvania, and blogs at Curmudgucation.

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