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Arizona School Boards Are Being Forced to Fund Critical Race Theory at Taxpayer Expense

October 19, 2021

Matt Beienburg

Director of the Van Sittert Center for Constitutional Advocacy and Director of Education Policy

The Goldwater Institute

 

Introduction and Executive Summary

Can you copyright the Constitution? Or trademark the Tenth Amendment? Can you legally own a law? Could one state sue another for “stealing” a piece of legislation that’s making its way around the country?

These hypotheticals may sound absurd, but unfortunately a private organization in Arizona is now asserting just this argument in its bid to extract funding from—and promote ideological activism within—the very public bodies responsible for governing our children’s schools.

Indeed, the Arizona School Boards Association, an affiliate of the National School Boards Association (NSBA), insists that it recognizes the importance of “local control” in America’s K-12 system.[i] Yet as explored in this report, the association’s own tactics are stripping parents and school boards of their autonomy and coercing member districts into continued financial submission even when they wish to cease supporting an increasingly radicalized political agenda. Strong-armed in this way, our school system looks less like a model of local control than one placed under control.

Key findings in this report include the following:

  • Like its national affiliate, the Arizona School Boards Association (ASBA) is using taxpayer-funded dues from virtually every district in the state to promote programming aligned with Critical Race Theory (CRT), even as its state and national leadership deny the existence of CRT in K-12. Like other proponents of this politically charged and racially divisive content, ASBA has struggled to reconcile its avowed impartiality with the organization’s own actions and statements.
  • ASBA has coerced governing board members who have sought to terminate their district’s affiliation with the association due to its political activism: In testimony before the district governing board of Western Maricopa Education Center (West-MEC) in 2021, ASBA declared that it legally owns the district’s publicly adopted board policies, rendering the district essentially captive to the association in perpetuity.
  • ASBA asserted that member school districts would be guilty of copyright infringement for using the districts’ own previously adopted policies (or replicating those of other public bodies) if they ceased paying membership fees to ASBA.
  • School boards should actively consider forming new cooperative agreements to share legal and policy-related services that are not bundled with unwanted political activism.

Smokescreens and Changing Narratives: Critical Race Theory

Proponents of CRT can’t seem to make up their minds about whether they’re teaching it or not, or even about what CRT is. They offer an almost dizzying assortment of contradictory denials and doublespeak to concerned parents and public officials who ask where and whether it is being taught.

MSNBC’s Joy Reid, for instance, assured viewers in June 2021 that CRT was nowhere to be found in America’s schools, proclaiming that “[Law school is] really the only place it’s taught. We—NBC, has looked into everywhere, and it’s not taught in elementary school.”[ii] Randi Weingarten, the president of one of America’s largest teacher unions, likewise vowed, “Let’s be clear: Critical Race Theory is not taught in elementary schools or high schools.”[iii]

Yet just weeks after such pronouncements, the National Education Association (NEA) emphatically declared at its 2021 national assembly that “It is reasonable and appropriate for curriculum to be informed by academic frameworks … including Critical Race Theory” and pledged tens of thousands of dollars to support opposition research against organizations critical of its CRT-aligned work.[iv]

While even the NEA seemed to recognize that its admission directly undercut its allies’ carefully calibrated talking points—and thus the union scrubbed all evidence of its resolutions shortly from its website after adopting them[v]—it is merely one of several major education institutions modulating its level of support for CRT-aligned narratives based on circumstance and audience.

In August 2021—well over a month after the NEA formally admitted and endorsed the teaching of CRT-based content in K-12—National School Boards Association (NSBA) Interim Executive Director and Chief Executive Officer Chip Slaven assured listeners:

There are a lot of critical issues facing public schools right now, but one of them that’s actually not critical is whether or not they are teaching Critical Race Theory. Critical Race Theory is not a public school curriculum. It is not being taught in public schools. Critical Race Theory is a law school theory debated by upper-level law students and law professors. … It’s not something being taught in public schools, and so whenever I hear these concerns over banning Critical Race Theory, or we’re not going to let it be taught in public schools—it isn’t being taught in public schools, as far as I know, anywhere. … I think it’s something that should be left to legal scholars to debate and not for us to try and debate in a local school board meeting, when it’s not something that local schools are doing.[vi]

Setting aside the NEA’s own stated support for CRT in K-12 as well as the findings of scholars such as the Goldwater Institute’s Jonathan Butcher—who have documented CRT-aligned teachings in states and subjects of all varieties[vii]—the NSBA chief proclaimed in essence that CRT’s influence is so completely absent from K-12 that parents and school board members ought not even bother asking whether this ideology has penetrated their local classrooms.

Yet parents can be forgiven for questioning such assurances when one of the central tenets of CRT—namely that American institutions are systemically racist and must be dismantled[viii]—lends itself directly to the very name chosen for the NSBA’s own self-proclaimed “Dismantling Institutional Racism in Education” equity initiative.[ix]

It is true that such “equity” efforts are frequently cast by their promoters as wholly distinct from and unrelated to CRT. Yet the actual words of association leaders directly refute such thinly veiled hairsplitting.

The NSBA’s Council of Urban Boards of Education Steering Committee Chair Jacinto Ramos Jr., for instance, inadvertently revealed in his keynote remarks for the NSBA in 2020 that so-called “diversity” efforts are little more than a front for CRT. Indeed, Ramos admitted in his own words that Critical Race Theory itself underpins the “diversity trainings” being conducted across the nation, and he cast opponents of these trainings as standing on the wrong side of history:

Recently, the president of the United States prohibited diversity training in federal agencies focusing on white privilege, Critical Race Theory, and the origins of race. This is more evidence that key people with power in our country want to hide the counternarratives of our real history and design of the country.[x]

Mr. Ramos’ own local school board resolution was then also featured in the NSBA’s “Dismantling Institutional Racism in a large Urban School District” presentation, in which it condemned the “perpetual White supremacy, systemic racism, and … anti-Blackness” that characterize their community, as well as the need to “eliminate systems, policies and practices which perpetuate racism in our schools and community.”[xi]

 

 

CRT Doublespeak in Arizona

While proponents of CRT—including those in the upper echelons of the nation’s school boards associations—have thus struggled to get their story straight, there is little doubt that an entire wing of media, education, and union elites now view the promotion of critical race theory-aligned principles as a moral mandate, even if they prefer to avoid using the exact phrase “Critical Race Theory” in publicly visible materials.

Unfortunately, this appears also to describe the approach of those in Arizona, whereas in other states, the local school board association has settled on messaging around the more benign sounding word “equity.”

The ASBA, which actively opposed state legislators’ efforts to rein in the teaching of CRT in public schools,[xii] has gone to great lengths to argue that its “equity” efforts are separate from CRT.[xiii] But retreating to the less revolutionary sounding term “equity” reflects a distinction without a difference. Regardless of the word choice, the underlying impulse remains the same: replacing the principle of legal equality with practices and government mandates forcing people to treat their fellow Americans differently based on race—inflicting racist policies on people today in order to balance out the racism of centuries past.

In the spring of 2021, for instance, a virtual ASBA webinar, The Equity Event, generated controversy when it featured a keynote address by Calvin Terrell, founder and director of the Social Centric Institute.[xiv] Among his other remarks, Mr. Terrell called on educators to “interrupt” the system of “white dominance,” declaring that “achievement is arbitrary,” and that “our presidents, Washington, Jefferson, and Jackson were rapist, racist men” who happened to have “some good ideas, but they were hypocrites.”[xv]

While those like the ASBA’s keynote speaker seek to deflect criticism by claiming they are merely calling for an unvarnished look at history—including the sins of America’s Founders—the ASBA’s other communications suggest the organization supports the wholesale replacement of the American historical record with CRT-based materials teaching that America is fundamentally, philosophically corrupt.

For example, following the release of the New York Times’ 1619 Project—the historically discredited collection of essays falsely claiming that the American Revolution was fought to protect slavery and that slavery “is the country’s very origin”[xvi]—the newsletter AZEDNEWS, a service of the ASBA, celebrated the Project as “culturally relevant” and highlighted the efforts of two activists who “are on a mission to bring the 1619 Project to every public school in Arizona.”[xvii]

Unfortunately, these episodes are not isolated incidents but reflect the philosophy held by the very leadership of the association.

In response to the ASBA’s spring equity conference, for instance, one school board member of the Western Maricopa Education Center (West-MEC) school district’s governing board in metropolitan Phoenix objected to the conference speakers’ ideological slant, and pointedly questioned ASBA Associate Executive Director Tracey Benson:

School board member: “When was the last anti-CRT conference you had? I’ll answer for you, you’ve never had one.”

Benson: “That’s correct, sir, because education equity is one of our priorities.”[xviii]

Seeming to recognize the implication of this unintentionally revealing admission, the ASBA’s director reverted to a more succinct and disciplined denial of the obvious follow-up question her answer invited from the surprised board member.

Board member: “Well that’s not CRT. Are you saying that equity and CRT are the same thing?”

Benson: “No.”

Of course, this brief flash of clarity exposes the underlying problem: Education elites increasingly view the principles of CRT as foundational to their “equity” driven efforts—even as they object to criticism that their anodyne-sounding “equity” mantra is simply a sanitized derivative of CRT.

 

 

CRT’s Copyright Captives

Of course, the NSBA, its leaders, and its state affiliates are free to feature and promote whatever ideology they choose, styling themselves the democratic voice of their numerous varied members. But what happens when members find that the organization does not represent them? When school board members contemplate exercising their local control to stop belonging to—and perhaps more importantly, stop financially supporting the association?

They may discover, as one Arizona school district did, that “voluntary” membership is anything but.

In August of 2021, the West-MEC school district governing board convened to decide (among other issues) whether or not to renew its contract with the ASBA in light of its recent political controversies, inviting the ASBA’s executive team to respond to and discuss the issue in person.

As the ASBA explained to the district’s board members, the membership and “policy services” provided by the association include assistance formulating the district’s officially and publicly adopted policies based on the ASBA’s “model policies”—to ensure that districts comply with recent changes to state and federal legislation or that they reflect the best practices (or least, the common practices) of school districts at large. Severing ties with the association would obviously mean the loss of this benefit.

But when the board members asked whether they could obtain these services elsewhere—and perhaps for less than the roughly $13,000 in annual dues the ASBA charges—without subsidizing CRT-aligned ideologies, they discovered that the costs of freedom from the ASBA could be exponentially higher.

Why? Because according to the ASBA’s executives, the association—not the district—legally owns as much as 100% of the district’s publicly adopted board policies. In other words, the ASBA claims that the framework of rules, procedures, and protocols that the district, a government agency, has adopted, are actually the private property of the association. The association claims that any district that surrenders its membership in the ASBA could be sued for copyright violation unless that district replaces its publicly adopted suite of rules and policies with new ones.

Indeed, following up on comments made at a prior West-MEC board meeting when the issue of renewing ASBA membership had first been raised, board member Peter Pingerelli asked a series of questions to the executive leadership and legal counsel of the ASBA to clarify the association’s view on the matter:

“Is it your position that any policy or procedures adapted by West-MEC governing board are the intellectual property of the ASBA?”[xix]

ASBA’s then General Counsel and Associate Executive Director Chris Thomas answered:

The model policies are the intellectual property of ASBA. They’re copyrighted. So there may be additional things that you’ve added to it or slightly changed, and we would engage in that consultation … those parts that you’ve added to or you’ve changed are yours, but the models that they are based on is the material of ASBA. It’s a license. It’s no different than a Microsoft software license. You have a license on your computer to use Microsoft Word.[xx]

But rules and policies adopted by a government agency aren’t like Microsoft Word. They’re laws adopted and implemented by the people’s elected representatives. The idea that a private company can own rules that have been enacted by the government is more like saying that the company owns the English language, and that a school district must therefore switch to Chinese if it terminates its membership in the ASBA.

Certainly, West-MEC or any other departing member school district could not continue using software without an up-to-date license. But under the association’s argument, if a school district’s policies were based at all upon the association’s model language, then even the policies already on the books are in fact not the board’s—or the public’s—but the ASBA’s.

Lest there be any confusion on the matter, West-MEC board member Pingerelli continued:

Pingerelli: “I’ve looked at all of your policies for West-MEC and I know, for example, that we have collaborated on certain policies … but there’s copyright symbols on all of those. So are you claiming ownership of all of those?”

Thomas: “If it has the copyright symbol, yes.”

Pingerelli: “So that would be 100%—so you’ve put 100% of our policies are under your ownership?”

Thomas: “That’s correct.”

A second West-MEC board member seemingly sought to mitigate the damage of the association’s statement, offering them an opportunity to retreat at least somewhat from the sweeping claim that had just been made, suggesting that the ASBA’s total control of district materials surely applied only to policies “other than what we’ve personally changed.”

Yet as Pingerelli observed, “But even those that we have personally changed still bear your [ASBA’s] copyright.”

To this, ASBA’s Thomas reaffirmed, “Because they’re substantially based on the models, which are our intellectual property.”

Setting aside the fact the association’s model policies often draw upon other source material—for example, state and federal statutes or regulations—such a bold ownership claim carries extraordinary implications, which the school board member spelled out:

Pingerelli: “So if we decide to be a nonmember district, or any district does, do you believe we would be in violation of copyright law if we adapt the same policies publicly adapted by other school districts if ASBA contributed to the drafting of those original policies?

Thomas: “If in those other districts it has the ASBA copyright, yeah it would be a violation of our copyright.”[xxi]

In other words, the ASBA’s legal counsel claimed that a school district that no longer or never did belong to the ASBA would not even be allowed to adopt language similar to that which peer districts use, if the association claims to own of the other districts’ policies.

Astounding as these assertions are, however, the ASBA’s claims to perpetual ownership teeter uneasily on the language even of the actual contract between the association and West-MEC for the years 2017 to 2021. That document itself declares:

“When policy model documents are adopted by the member district governing board and implemented by the member district governing board and implemented by the member District administration, such policies, regulations, and exhibits are those of the member district, not ASBA.”[xxii]

Yet this same document warns that:

ASBA Policy Services may remove the ASBA copyright from a document ASBA determines the document is not the intellectual property of ASBA policy services. …. The Member District agrees not to modify, adapt, translate, decompile, disassemble, or create derivative works based on the policy services policy manuals and digital files.

In other words, the association’s written agreement acknowledges the obvious reality that a publicly elected school board that adopts a set of policies owns those policies, while at the same time it suggests that the policies are merely on loan from the true owner, the ASBA.

 

 

Standard Operating Procedure?

While the West-MEC episode places the extraordinary claims of the school boards association on full display, this phenomenon is by no means limited to that district. A review of other school districts’ publicly adopted policy manuals reveals the same dynamic at play. Consider, for instance, the virtually identically titled “Student Violence, Bullying, Intimidation and Harassment” policies adopted by two other Arizona school districts: Scottsdale Unified School District (SUSD) and Tucson Unified School District (TUSD).

SUSD’s official policy, accessible via its website, bears an explicit “Copyright 2011 Arizona School Boards Association” marker at the top, even as it identifies itself as the policy of “Scottsdale Unified School District No. 48.”[xxiii] TUSD’s policy, meanwhile, shares most of the same text verbatim but bears no such ASBA stamp.[xxiv]

 

 

 

 

Whether the lack of an ASBA copyright notice on Tucson’s version reflects the ASBA’s belief that TUSD’s policy isn’t an infringement on its alleged copyright—or whether it could sue Tucson for adopting laws that the ASBA claims to own—the problem remains: The ASBA appears to believe that the freedom of publicly elected school boards to establish and maintain public policies for their own self-government is subject to the permission and pleasure of a private organization.

 

 

Conclusion

The National School Boards Association and its state affiliates have long proclaimed the importance of local control, even as the NSBA recently called on Washington, D.C., to implement an unprecedented federal crackdown on parents that it claims are party to “a form of domestic terrorism.”[xxv] But as the ASBA-West-MEC episode reveals, the association’s support for local control appears to falter even within the realm of school board decision-making when members consider seeking independence from the association.

As the association—like the national teachers unions and other ideologically aligned establishment institutions—ratchets up its commitment to racialized programming, it should be no surprise that many of its member districts would increasingly find it inappropriate to commit thousands of taxpayer-funded dues to it each year. As the board members in these districts contemplate such decisions, however, it is essential they have access to alternatives that allow them to collaborate, pool resources, and share knowledge and model policies—without supporting ideologies antithetical to the founding principles of American democracy. At the same time, to have truly local control, these districts also must not be coerced, intimidated, or otherwise held hostage to the dubious claims that their own policies are somehow perpetually the property of the NSBA or ASBA.

The school boards association has declared to its members, “ASBA is here to serve you and will always be your association.”[xxvi] As a growing number of districts look to liberate themselves, however, perhaps these warm words constitute less an assurance than a warning.

End Notes

[i] “Becoming a Board Member,” Arizona School Boards Association, https://azsba.org/resources/becoming-a-board-member/. Accessed September 15, 2021.

[ii] Tyler Stone, “Joy Reid vs. Christopher Rufo on Critical Race Theory: ‘It’s My Show, So It’s How I Want To Do It,’” RealClear Politics, June 24, 2021, https://www.realclearpolitics.com/video/2021/06/24/joy_reid_vs_christopher_rufo_on_critical_race_theory_its_my_show_so_its_how_i_want_to_do_it.html.

[iii] Caitlin O’Kane, “Head of Teachers Union Says Critical Race Theory Isn’t Taught in Schools, Vows to Defend ‘Honest History,’” CBS News, July 8, 2021, https://www.cbsnews.com/news/critical-race-theory-teachers-union-honest-history/.

[iv] “New Business Item 39: 2021 Representative Assembly,” National Education Association,  2021, https://web.archive.org/web/20210705090534/https://ra.nea.org/business-item/2021-nbi-039/. “New Business Item 2: 2021 Representative Assembly,” National Education Association, 2021, https://web.archive.org/web/20210704220526/https://ra.nea.org/business-item/2021-nbi-002/.

[v] GQ Pan, “Largest Teachers’ Union Quietly Removes Pro-CRT Agenda Items From Website,” The Epoch Times, July 7, 2021, https://www.theepochtimes.com/largest-teachers-union-quietly-removes-pro-crt-agenda-items-from-website_3890683.html.

[vi] Liz McCormick, “New Head Of National School Boards Association Talks Masks, Critical Race Theory And Ways Forward Post-Pandemic,” West Virginia Public Broadcasting, August 12, 2021, https://www.wvpublic.org/section/education/2021-08-12/new-head-of-national-school-boards-association-talks-masks-critical-race-theory-and-ways-forward-post-pandemic.

[vii] Jonathan Butcher, “Rescuing Math and Science from Critical Race Theory’s Racial Discrimination,” The Heritage Foundation, July 13, 2021, https://www.heritage.org/education/report/rescuing-math-and-science-critical-race-theorys-racial-discrimination.

[viii] Jonathan Butcher and Mike Gonzalez, “Critical Race Theory, the New Intolerance, and Its Grip on America,” The Heritage Foundation, December 7, 2020, https://www.heritage.org/civil-rights/report/critical-race-theory-the-new-intolerance-and-its-grip-america.

[ix] “Dismantling Institutional Racism in Education,” National School Boards Association, https://nsba.org/Advocacy/Equity/DIRE. Accessed October 5, 2021.

[x] Jacinto Ramos, Jr., “What Stage Are You?” National School Boards Association, December 1, 2020, https://www.nsba.org/ASBJ/2020/December/what-stage-are-you.

[xi] “Dismantling Institutional Racism in a Large Urban School District,” Council of Urban Boards of Education 2020 Annual Virtual Conference, National School Boards Association, https://vimeo.com/486427272; “Resolution of the Board of Trustees of the Fort Worth Independent School District: ‘To Be Silent Is to Be Complicit,’” Fort Worth Independent School District, June 9, 2020, https://www.fwisd.org/cms/lib/TX01918778/Centricity/Domain/160/RESOLUTION%20racial%20equity%20committee.pdf.

[xii] “Arizona Bill Banning ‘Biased’ Topics in Schools Advances,” Associated Press, May 6, 2021, https://apnews.com/article/az-state-wire-arizona-bills-race-and-ethnicity-education-1e3b8785418c50c4104698b9d8676c38.

[xiii] “Educational Equity and Critical Race Theory,” Arizona School Boards Association, July 6, 2021, https://azsba.org/wp-content/uploads/2021/07/Educational-Equity-and-Critical-Race-Theory-What-You-Need-to-Know.pdf.

[xiv] Lori Hunnicutt, “Arizona School Board Members Sign-Up For The Equity Event,” Arizona Daily Independent, April 11, 2021, https://arizonadailyindependent.com/2021/04/11/arizona-school-board-members-sign-up-for-the-equity-event/.

[xv] “The Equity Event,” Arizona School Boards Association, April 22, 2021.

[xvi] Jake Silverstein, “Why We Published The 1619 Project,” The New York Times Magazine, December 20, 2019, https://www.nytimes.com/interactive/2019/12/20/magazine/1619-intro.html?; John Murawski, “Disputed NY Times ‘1619 Project’ Already Shaping Schoolkids’ Minds on Race,” RealClear Investigations, January 31, 2020, https://www.realclearinvestigations.com/articles/2020/01/31/disputed_ny_times_1619_project_is_already_shaping_kids_minds_on_race_bias_122192.html.

[xvii] Tom Evans, “Balsz Elementary School District Hosts Pilot for 1619 Project Educational Development Program,” AZEDNEWS, December 15, 2020, https://azednews.com/balsz-elementary-school-district-to-host-pilot-for-educational-development-program/.

[xviii] Western Maricopa Education Center Governing Board Meeting, August 11, 2021.

[xix] Ibid.

[xx] Ibid.

[xxi] Ibid.

[xxii] ASBA Policy Services Subscription Agreement between Arizona School Boards Association and Western Maricopa Education Center (West-MEC), 2017.

[xxiii] Student Violence / Harassment / Intimidation / Bullying Policy, Scottsdale Unified School District No.48, https://www.susd.org/site/handlers/filedownload.ashx?moduleinstanceid=772&dataid=675&FileName=scottsdlJ-3200.pdf. Accessed October 7, 2021.

[xxiv] Student Violence, Bullying, Intimidation and Harassment Governing Board Policy, Tucson Unified School District, http://govboard.tusd1.org/Portals/TUSD1/GovBoard/docs/sectJ/JICK.pdf. Accessed October 7, 2021.

[xxv] Lindsay Kornick, “AP’s Fact Check Falsely Claims NSBA Never Requested Protesting Parents to Be Labeled as ‘Domestic Terrorists,’ ”Fox News, October 6, 2021, https://www.foxnews.com/media/ap-factcheck-claims-nsba-never-labeled-parents-domestic-terrorists.

[xxvi] ASBA Messages, Arizona School Boards Association, https://azsba.org/two-important-asba-messages-faqs-on-open-meeting-law-parental-rights-school-mask-policies-and-condemning-racism/. Accessed October 7, 2021.

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