Gagged?

https://pen.org/report/educational-gag-orders/?fbclid=IwAR2xgM48NlcDbzC6nu7PpUrgnroAW6UyuZ2CG7XNhgrFp1uCU6X5TKRe_0k

 

Introduction

Between January and September 2021, 24 legislatures across the United States introduced 54 separate bills intended to restrict teaching and training in K-12 schools, higher education, and state agencies and institutions. The majority of these bills target discussions of race, racism, gender, and American history, banning a series of “prohibited” or “divisive” concepts for teachers and trainers operating in K-12 schools, public universities, and workplace settings. These bills appear designed to chill academic and educational discussions and impose government dictates on teaching and learning. In short: They are educational gag orders.

Collectively, these bills are illiberal in their attempt to legislate that certain ideas and concepts be out of bounds, even, in many cases, in college classrooms among adults. Their adoption demonstrates a disregard for academic freedom, liberal education, and the values of free speech and open inquiry that are enshrined in the First Amendment and that anchor a democratic society. Legislators who support these bills appear determined to use state power to exert ideological control over public educational institutions. Further, in seeking to silence race- or gender-based critiques of U.S. society and history that those behind them deem to be “divisive,” these bills are likely to disproportionately affect the free speech rights of students, educators, and trainers who are women, people of color, and LGBTQ+. The bills’ vague and sweeping language means that they will be applied broadly and arbitrarily, threatening to effectively ban a wide swath of literature, curriculum, historical materials, and other media, and casting a chilling effect over how educators and educational institutions discharge their primary obligations. It must also be recognized that the movement behind these bills has brought a single-minded focus to bear on suppressing content and narratives by and about people of color specifically–something which cannot be separated from the role that race and racism still plays in our society and politics. As such, these bills not only pose a risk to the U.S. education system but also threaten to silence vital societal discourse on racism and sexism.

In this report, we have focused our examination on state-level legislation, as state governments have primary authority over public education. However, the language in many of these bills has also appeared elsewhere: in bills and proposals introduced at the federal level, within other state organs, and in local school boards. Arriving alongside similar waves of legislation to restrict voting and protest rights, these censorious bills reflect a larger and worrying anti-democratic trend in U.S. politics, in which lawmakers use the machinery of government in attempts to limit Americans’ ability to express themselves—and particularly in order to block the expression of ideas or sentiments the lawmakers oppose.

It is not a coincidence that this legislative onslaught followed the mass protests that swept the United States in 2020 in the wake of the murder of George Floyd. As many Americans and U.S. institutions have attempted a true reckoning with the role that race and racism play in American history and society, those opposed to these cultural changes surrounding race, gender, and diversity have pushed back ferociously, feeding into a culture war. Certain Republican legislators and conservative activists have capitalized on this backlash, borrowing the name of an academic framework — critical race theory (CRT) — and inaccurately applying it to a range of ideas, practices, and materials related to advancing diversity, equity, or inclusion. The individual behind the Trump Administration executive order (EO) that inspired many of these bills—Manhattan Institute senior fellow Christopher Rufo–acknowledges that he intentionally uses the label to rally political support, saying that CRT is “the perfect villain” and a useful “brand category” to build opposition to progressives’ perceived dominance of American educational institutions.1 This “Critical Race Theory” framing device has been applied with a broad brush, with targets as varied as The New York Times’ 1619 Project, efforts to address bullying and cultural awareness in schools,2 and even the mere use of words like “equity, diversity, and inclusion,” “identity,” “multiculturalism,” and “prejudice.”3

To justify their censorious proposals, the bills’ proponents have also seized on a series of episodes related to diversity and teaching about racism in schools to stoke fears over “critical race theory” run amok, and adopted spurious and inflammatory characterizations of theories and programs as “Marxist,” “un-American,” and existentially threatening to American values and institutions. As author and literary critic Jeet Heer has written, these attacks follow “an old script, one where the name of the bogeyman changes but the basic storyline is always the same: sinister, alien forces are trying to corrupt children. We’ve seen this before in the battles over teaching evolution, over prayer in the schoolroom, over LGBTQ teachers, over sex ed, over trans students, over bathrooms, among others.”4

Yet while these tactics may be old, they are also powerfully tied to the current political and social moment. As historian and writer Jelani Cobb starkly described on Twitter, “The attacks on critical race theory are clearly an attempt to discredit the literature millions of people sought out last year to understand how George Floyd wound up dead on a street corner. The goal is to leave the next dead black person inexplicable by history.”5

Eleven of these bills have already become law in nine states, while similar legislation is pending across the country. Beyond statehouses, national and local organizations are actively pressuring school boards, principals, university regents, and state educational agencies to ban the teaching of certain ideas and content. Political action committees (PACs) have formed to campaign against elected school board officials who do not support these bans. Parents who have been recruited to join the campaign have reportedly harassed local elected leaders and school administrators and disrupted public meetings.6 The tensions are so feverish that local officials have turned to the federal government for help, asking for heightened security at local school board meetings.7

“Teach the Truth” Rally in Milwaukee on June 12, 2021, as part of the National Day of Action organized by the Zinn Education Project and Black Lives Matter at School. Photo by the Milwaukee Teachers’ Education Association (MTEA)/Flickr

These bills will have—and are already having—tangible consequences for both American education and democracy, both distorting the lens through which the next generation will study American history and society and undermining the hallmarks of liberal education that have set the U.S. system apart from those of authoritarian countries. In a very short time, we have already seen the chilling effects of this kind of legislation, which has been used to justify suspending a sociology course on race and ethnicity in Oklahoma,8 providing professors at Iowa State University written guidance for how to avoid ‘drawing scrutiny’ for their teaching under their state’s Act,9 instructing teachers that they should balance having books on the Holocaust with those with “opposing views” in Texas,10 and challenging the teaching of civil rights activist Ruby Bridges’s autobiographical picture book about school desegregation in Tennessee.11

PEN America intends this report to sound the alarm and recognize these bills for what they are: attempts to legislate constraints on certain depictions or discussions of United States history and society in educational settings; to stigmatize and suppress specific intellectual frameworks, academic arguments, and opinions; and to impose a particular political diktat on numerous forms of public education. Taken together, these efforts amount to a sweeping crusade for content- and viewpoint-based state censorship.

For this reason, we refer to these bills not by incomplete or misleading terms like “anti–critical race theory,” or “divisive concepts”—as their proponents prefer—but rather by a more accurate description: educational gag orders. We use this term because we believe that it best captures the actual and intended effect of these bills: to stop educators from introducing specific subjects, ideas, or arguments in classroom or training sessions.

This report does not evaluate the pedagogical benefits or drawbacks of specific curricular materials, educational approaches, intellectual frameworks, or professional trainings. Our efforts stem from PEN America’s mission as a literary and human rights organization to stand for the free flow of ideas, an abiding commitment to the freedom to write and the freedom to read—and, when it comes to educational institutions, the freedom to learn. As such, we seek to demonstrate these bills’ censorious nature, and to call attention to their specific attempts to silence teaching and discussion regarding race and racism in U.S. history. The teaching of history, civics, and American identity has never been neutral or uncontested, and reasonable people can disagree over how and when educators should teach children about racism, sexism, and other facets of American history and society.12 But in a democracy, the response to these disagreements can never be to ban discussion of ideas or facts simply because they are contested or cause discomfort.13 As American society reckons with the persistence of racial discrimination and inequity, and the complexities of historical memory, attempts to use the power of the state to constrain discussion of these issues must be rejected.

Report Content and Structure

This report offers an in-depth analysis of these state legislative efforts from January to September, 2021. We document the origins and extensive spread of various proposals and describe the many legal, constitutional, and civic concerns they raise.

In Section I, we discuss the origins of this year’s educational gag orders, tracing the transition from rhetoric used by former President Donald Trump into a widespread Republican policy push. In Section II, we summarize the 54 state-level bills introduced this year, tracing common patterns. In Section III, we discuss the worrying political context in which these bills have arisen and elaborate on the way many legislators have held out a false conception of critical race theory as a bogeyman and political wedge for the next election cycle. While there has been some opposition from Republican politicians and conservative commentators, to date their voices are too few and too quiet, as educational gag orders have become increasingly normalized as a Republican legislative priority across multiple levels of government in the past year.

In Section IV, we lay out PEN America’s grave concerns with the ways these bills threaten free speech, academic freedom, and open inquiry. We examine specific provisions and language in many of the bills and explain what makes them so problematic for education in a democracy. Within this analysis, we offer four main observations about these educational gag orders:

1. Each of these bills represents an effort to impose content- and viewpoint-based censorship.

2. Individually and collectively, these bills will have a foreseeable chilling effect on the speech of educators and trainers: Even when crafted in ways that nominally permit free expression, they send an unmistakable signal that specific ideas, arguments, theories, and opinions may not be tolerated by the government.

3. These bills are based on a misrepresentation of how intellectual frameworks are taught, and threaten to constrain educators’ ability to teach a wide range of subjects.

4. Many of these bills include language that purports to uphold free speech and academic inquiry. This language, intended to help safeguard these bills from legal and constitutional scrutiny, does little or nothing to change the essential nature of these bills as instruments of censorship.

In Section V, we examine the legal and constitutional concerns with the state-level bills as a whole, detailing the existing judicial precedents that are likely to shape any legal challenges. We explain why, even if all of the laws resulting from these bills are struck down, they are still likely to have a chilling effect on education in schools, colleges, universities, and state agencies and institutions. In our Conclusion we sum up our concerns and offer some recommendations for legislators and other actors.

Overview of bills

In writing this report, PEN America identified 54 bills, introduced or pre-filed in 24 states between January and September 2021, that we characterize as educational gag orders. As described in detail below and in the report’s index, each of these bills seeks to prohibit the teaching of specific ideas, concepts, or curricular materials in public schools, higher education, state agencies and institutions, or some combination thereof. There is, however, great variation among them. Some bills are explicit in their targets—forbidding the teaching of specific curricula or squarely banning certain concepts from the classroom. Others do not explicitly target the classroom but impose broad prohibitions on public institutions and employees, including public school teachers and college professors. Still others prohibit the introduction of specific concepts within trainings, rather than in-classroom education or curricula.

Although as of this writing few of these bills have become law, together they illustrate a disturbing willingness among Republican legislators to use the power of government to censor and restrict viewpoints, intellectual frameworks, and historical truths or narratives that they dislike:

    • With only one exception, the bills appear to have been influenced by U.S. Senator Tom Cotton’s Saving American History Act, former President Trump’s 2020 Executive Order on Combating Race and Sex Stereotyping, or conservative lawyer Stanley Kurtz’s Partisanship Out of Civics Act. Forty-two bills have a clear antecedent in Trump’s executive order (EO), with most of them including a list of prohibited “divisive concepts” related to “race and sex stereotyping” that mirror the EO’s language, though there is some variation among the bills’ listed concepts.
    • Forty-eight bills explicitly apply to teaching in some form in public schools, while 21 explicitly apply to public colleges and universities. Of the latter, 19 include restrictions on college-level teaching.

  • Eleven bills explicitly prohibit schools from using materials from The New York Times’ 1619 Project, a journalistic and historical examination of the modern impact of slavery in the United States. Six bills prohibit private funding for curricula in public schools, which—given the context in which they were developed and introduced—appears similarly aimed at blocking specific educational materials that deal with racial justice and sexism.
  • Nine of the bills explicitly target critical race theory (CRT), a term that has been invoked by conservative activists not on the basis of its actual meaning – namely, a specific intellectual framework developed by legal scholars – but as a catchall for any teaching on race or diversity of which they disapprove. Some bills mention CRT only in their introductory language, while others incorporate it in the actionable legislative text.
  • Ten bills use the formulation of prohibiting schools, teachers, or instructors from “compelling” a person to affirm a belief in a “divisive concept.” As this report explains, by identifying a specific set of beliefs that officials must guard against, such formulations function as viewpoint-based prohibitions while masquerading as a defense of intellectual freedom.
  • One bill introduced in Tennessee seeks to ban curricular materials that “promote, normalize, support, or address lesbian, gay, bisexual, or transgender (LGBT) issues or lifestyles.”14
  • Eight bills mandate the “balanced” teaching of “controversial” political or social topics or the equal presentation of “diverse and contending views”—requirements that appear to promote evenhandedness while actually inviting partisan politics into public educational institutions.

As of this writing, eleven educational gag order bills have become law. Some completed their legislative journey in days, and all eleven passed despite strong opposition from education and civil liberties advocates.15 Nine of these laws explicitly apply to public schools (one each in Arizona, Idaho, Iowa, New Hampshire, Oklahoma, South Carolina, and Tennessee, and two in Texas), three of them explicitly apply to colleges and universities (in Idaho, Iowa, and Oklahoma), and six of them explicitly apply to state agencies and institutions (one each in Arizona, Arkansas, Iowa, and New Hampshire, and two in Texas).16

Nineteen bills were introduced but did not pass, though only four of those were withdrawn. Twenty-four bills have already been introduced and could still move forward; of these, 18 remain pending from the 2021 legislative session, and six have been pre-filed for 2022.

Status of Educational Gag Orders as of October 1, 2021

TargetsIntroducedPassedFailedPending/Pre-filed
Public Schools4891722
Colleges and Universities213612
State Agencies, Institutions and/or Contractors19658
Total54111924

Note: Because many bills apply to more than one setting, the columns do not add up to the totals shown. This count represents a facial reading of these bills and does not account for interpretations that may widen the scope of certain provisions.

The potential chilling effect of these bills is obvious: Teachers, professors, and trainers who are afraid they might venture too close to prohibited topics will instead draw back, wary of being party to any discussion that could attract government censors or result in budgetary penalties, as some of the laws and bills provide. If educators who raise complex issues related to race, gender, or history face serious legal, financial, or reputational consequences—if discussions of, say, the Black Lives Matter and Me Too movements become too risky—class instruction will skirt difficult truths and fear will squelch free expression. Even when political leaders merely threaten to introduce these educational gag orders, or when they are introduced but do not become law, they can still send a potent message that educators are being watched and that ideological redlines exist.

The bills that become law will undoubtedly face court challenges. These bills are attempts at ideological exclusion based on hostility to certain content and viewpoints, and their prohibitions are both vague and overbroad, raising obvious First Amendment concerns. They are also likely to violate the Equal Protection Clause of the Fourteenth Amendment, in that these bills will foreseeably be enforced disproportionately against educators and trainers of color. Previous litigation surrounding a state law in Arizona—HB 2281, which made the teaching of ethnic studies courses illegal for public and charter schools—offers a preview of how at least some of these bills are likely to be struck down for violating constitutional guarantees of equal protection, free speech, or the right of students to receive information. Still, it is possible that certain laws will survive judicial review, or be narrowed but not invalidated upon review. The Supreme Court, for example, has given governments leeway to impose restrictions on which ideas they will fund when training public employees. Many of the bills include language that purports to keep them within the technical limits of constitutionality, giving friendly courts potential cover to uphold them.

Even if such laws are struck down, the process may take years, by which point substantial damage to our educational system will already have been done. Schools, educators, and even students will have received and internalized the legislators’ message that they could face disfavor and punishment from the government for espousing certain ideas in the classroom. As Emerson Sykes, senior staff attorney at the ACLU, warns: “The courts alone will not save us. This is really a social and political issue.”17

 

 

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