Virginia Gov. Glenn Youngkin’s first executive order sought to ban what his administration terms “inherently divisive concepts, like Critical Race Theory and its progeny” from Virginia schools. In doing so, he is fulfilling a campaign promise to be an advocate for parent voices in education after frustration over school reopenings and racial equity policies helped push him to victory.

Critics of the order say the language — “inherently divisive concepts” — is overly broad and vague, and may open the directive to legal threats. And they’re concerned that it may chill classroom discussion and debate over systemic racism and racial inequality, both in the past and in the present.

Some believe a new move from the governor may do similar harm. On Monday, he told conservative radio host John Fredericks that his administration plans to set up an email address where parents will be able to report teachers or schools for “any instances where they feel that their fundamental rights are being violated, where their children are not being respected, where there are inherently divisive practices in their schools.”

As an example, Youngkin pointed to an exercise called “privilege bingo,” which he said had been used in a Fairfax high school to identify students who were more or less privileged based on their race, religion, and military service, among other characteristics. Youngkin said his executive order — and parents’ reports to the email inbox — would help the administration’s superintendent of public instruction “review and make sure that these kinds of practices aren’t being used in the classroom.”

Legal questions

It’s not entirely clear just what those “inherently divisive concepts” targeted by the Youngkin administration might include. Likewise, it’s not clear what the order means by “critical race theory,” which was originally recognized as a legal philosophy but now is often used to describe a larger grouping of racial equity policies or curricula that are frequent targets of conservative anger.

“The order certainly doesn’t define what critical race theory is beyond saying that it is a set of ideas that foregrounds racial discrimination as a significant issue in American history and culture,” says Rich Schragger, a law professor at the University of Virginia. “So it’s just unclear what the order is intended to address.”

Schragger believes the order’s lack of specificity could open it up to legal challenges. And he sees further problems even in the clearest definition the order gives for “inherently divisive concepts.” The administration cites ideas that run counter to the Civil Rights Act of 1964, such as the idea that some people are superior to others based on their race, religion, or other characteristics, or that people’s moral character is defined by those identity traits. Those concerned about “critical race theory,” including Youngkin, say it divides children based on their race or other traits, and it teaches white children to feel shame or responsibility for past racial wrongs.

Schragger calls that definition “incoherent.”

“The Civil Rights Act of 1964 does not bar ‘ideas’ or ‘beliefs’ but actions, namely discrimination in public accommodations, education, and voting rights,” he points out. Nor does the law take a stance on “conscious or unconscious racism, or collective responsibility for past wrongs.”

“It is also somewhat ironic to invoke the Civil Rights Act to bar a particular form of anti-racist education, one that is highly specific to racism against Black people,” Schragger notes.

There are also constitutional questions around the executive order and any disciplinary action the state might take against schools or teachers in response to parent reports to the new email tip line, Schragger says.

The Virginia constitution vests most authority for making decisions related to the state’s standards of learning and individual school curriculum choices with the state Board of Education and with local school boards. This structure was created in response to the state government’s role in preventing schools from desegregating during what became known as Massive Resistance. The governor, meanwhile, has the authority to appoint state Board of Education members, with the confirmation of the General Assembly. The administration retains control over the Virginia Department of Education, which provides resources, support, and guidance to schools.

The executive order directs the superintendent of public instruction — Youngkin has nominated Jillian Balow, who previously held the same job in Wyoming — to review and remove “inherently divisive concepts” from those state resources and state curriculum (it’s not clear which curriculum the order refers to; individual schools typically choose their own curriculum in response to the state’s standards of learning). But in comments on Fredericks’ show about the tip line and in the executive order, Youngkin suggests the administration will work to “root out” objectionable content from schools directly.

But he may not have the constitutional authority to do that, Schragger believes — and if the administration tries to do so anyway, the matter could end up in court. A similar challenge to the governor’s constitutional authority to rescind schools’ masking requirements is already making its way through the courts.

The order and the tip line could be subject to First Amendment challenges too.

“This order directly tries to regulate speech. And so depending on who’s doing it, if it’s students, parents or the educators, there might be some free speech issues implicated,” Schragger says.

‘Pitting families against teachers’

In the executive order and in comments to Fredericks, Youngkin emphasized that he wanted schools “to continue to teach all history, the good and the bad,” including significant threads like slavery, segregation, indigenous genocide, and the Civil Rights Movement.

But teachers and one union say the move will only create chaos and division in local school communities — and could even be counterproductive to the executive order’s stated desire to give Virginia students “the opportunity to gain important facts, core knowledge, formulate their own opinions, and to think for themselves.”

In a statement, the Virginia Educators Association, a teacher’s union, criticized Youngkin for the “blatantly political tactic,” pushing back on the order and the “poorly conceived ‘hotline’ designed to intimidate educators simply trying to do their jobs.”

Alie, a high school social studies teacher in Northern Virginia, worries the Youngkin administration’s push against vague “inherently divisive concepts” will sow distrust in school communities and could even contribute to the state’s teacher shortage by driving people away from the profession. DCist/WAMU is only using Alie’s first name because she was concerned speaking up might impact her work and family.

“If you’re pitting families against teachers or against school systems, that is the antithesis of what that partnership is supposed to look like,” she says.

Alie’s approach to American history is to maintain an open dialogue with her students about their interpretation of the events they learn about, and their outstanding questions about the material. She doesn’t want any of them to feel guilty about the content they’re learning — but she does want them to constantly interrogate what viewpoints are missing from the historical narrative.

“If you ask any of my students, ‘What’s the question I ask all the time?’, their answer is going to be ‘Who is missing? Whose voice isn’t part of this narrative?’ and not because I’m trying to rock any boats,” she says. “But it’s to say that if the voice isn’t there, it doesn’t mean it doesn’t matter.”

Youngkin’s order suggests some teachers are pushing “political indoctrination,” but Alie, who says she was the “token Republican” at some stages of her own schooling, doesn’t share her political beliefs with her students. Above all, she worries the executive order and the tip line could harm the freedom she and her students feel to ask questions and learn together.

“My classroom is a place of learning. It’s a place where students should feel safe to ask questions and not fear retaliation or fear that their question is somehow wrong,” she says.

But with the order and the tip line now in place, she says she’s going to watch herself.

“I’m going to keep teaching what I want my students to explore, and I will expose them to varying perspectives because I think that that’s how you learn,” she says. “I would be lying if I said that I wasn’t at least thinking in the back of my mind, ‘Is this is this going to be interpreted the way I intend, or is it going to be taken out of context?’”