Equity & Diversity

Bills Targeting Classroom Talk on Race and Gender Identity Ballooned This Year

By Eesha Pendharkar — August 18, 2022 8 min read
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During the 2022 legislative session, state lawmakers proposed 137 bills restricting classroom conversations and staff training about race, racism, gender identity, and sexual orientation in K-12 schools, marking a 250 percent increase since 2021.

That’s according to a report out this month from PEN America, a nonprofit that advocates free expression. Thirty-six states introduced this year’s crop of bills, which the organization calls “educational gag orders.” That tally compares against 22 states introducing 54 bills in 2021.

This year, the bills introduced are more punitive, directly target K-12 schools, and cover a wider array of restrictions beyond classroom speech, such as library content, teachers’ professional training, and even field trips and extracurricular activities, the report found. All but one of the bills were proposed by Republican lawmakers, and the trend is going to continue in 2023, PEN America predicts. Almost all the bills focus on public K-12 schools although some have now also started targeting higher education and private schools.
Seven bills out of the 137 were passed in 2022, the report found.

The first measures restricting classroom lessons about race and racism were introduced in early 2021. But since then, the push to restrict classroom lessons on topics about racism and gender identity has vastly expanded. Since January 2021, 42 states in all have introduced bills or taken other steps that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism, according to a separate analysis by Education Week. Seventeen states have imposed those bans and restrictions either through legislation or other avenues.

But the EdWeek data do not include the bills and laws specifically aiming to limit classroom lessons about gender identity and sexual orientation introduced in 2022, such as Florida’s “Don’t Say Gay” law, or any legislation restricting the rights of transgender students to participate in school sports, use restrooms aligned with their gender identity, or seek medical care or counseling about their sexual or gender identity at school.

PEN America’s report considers all these proposed bills and laws over the past year and a half to be educational gag orders, which Jeremy Young, the lead author of the report and senior manager for free expression and education for PEN America, defines as “explicit bans on speech among educators, either in a classroom or in a training from a viewpoint-based perspective.”

“The main reason there’s been such a dramatic increase is simply a bandwagon effect for political reasons,” he said. “There is some evidence that these bills fire up the conservative base and some, I would say, shakier evidence … that these bills can even appeal to swing voters. And because of that, where previously these bills were being promoted mostly by people who were very committed to the idea of censoring and restricting public education, now, there is a lot of pressure on particularly conservative lawmakers to support or sponsor or vote for these bills.”

The bills have most of the vague language from last year

Compared with last year, more of the bills contain specifics of the ideologies they ban, such as an Indiana bill that states “socialism, Marxism, communism, totalitarianism, or similar political systems are incompatible with and in conflict with the principles of freedom upon which the United States was founded,” and a bill in West Virginia that would have prohibited “the presentation or promotion of any political, economic, or political-economic system that is based on ideological concepts rooted in or inspired by Marxism, Marxist-Leninism, Maoism, socialism, communism, or so-called critical political theory or critical economic theory.”

However, most bills are still using eight “divisive concepts” commonly listed in these laws since 2021. A lot of these concepts were first mentioned in former President Donald Trump’s executive order on “Combating Race and Sex Stereotyping,” from 2020. Two years after the order—aimed at the federal workforce—was rescinded, the language is still being used.

For example, teachers can’t teach that anyone is inherently racist or sexist because of their race or sex or that anyone should be made to feel guilt or anguish because of past actions by members of their race or sex.

But the interpretations of this language vary, which sometimes creates a chilling effect so that teachers don’t want to approach lessons about race and racism that, although legal, could get them into trouble.

“The bills that tend to pass are the bills with the vaguer language,” Young said. “It’s harder to get legislators to vote for prohibiting specific practices or texts or curricula than it is to get them to pass vague prohibitions on general ideas that they can convince themselves no reputable teacher would actually teach.”

This year’s bills are more punitive

So far in 2022, 55 percent of bills have spelled out consequences for violating them, compared with 44 percent in 2021, according to the report. Similarly, 57 percent of the actual laws passed in 2022 include some form of punishment, compared with 42 percent in 2021.

Most bills and laws describe one of three consequences of violation: a civil suit, monetary penalty or loss of state funding, and professional discipline. Less commonly, bills also spell out loss of accreditation for districts or even criminal charges against teachers.

“These lawmakers want to make consequences more real for teachers and districts that are violating these laws or that could be read as violating these laws,” Young said. “And they also want to dramatically increase the chilling effect that these laws have on what is taught in the classroom.”

Districts that violated laws passed in 2021 have already started seeing consequences: Two school districts in Oklahoma had their accreditation docked by the state board in accordance with that state’s law.

This year’s bills are also more likely to allow the general public—as opposed to teachers, students, and parents—to file complaints or civil lawsuits against a district or teacher.

“On the one hand, this is very vaguely written legislation,” Young said. “And on the other hand, there are these very Draconian punishments where a single violation of some of these results in fines, or a loss of state funding, or the teacher losing their license, or the district or school being de-accredited by the state.”

Bills that aim to restrict freedoms of LGBTQ+ students have increased drastically

Last year, only five bills targeted classroom instruction related to LGBTQ+ issues and identities. This year, that number increased to 23, the report found.

Mostly fueled by the attention Florida’s “Don’t Say Gay” bill attracted, a few other states filed copycat bills, although none has passed.

Florida’s law bans instruction on sexual orientation or gender identity for students in K-3. Lessons for older students older have to be “age-appropriate or developmentally appropriate for students in accordance with state standards.” The state education department will decide what age-appropriate or developmentally appropriate entails.

Some of the other bills are a little more explicit in what they aim to outlaw:

  • A bill in South Carolina, for example, would have forbidden public K–12 teachers from “subject[ing]” students to “controversial and age-inappropriate topics” such as “gender identity or lifestyles.”
  • An Indiana bill would have prohibited educators from discussing “sexual orientation,” “transgenderism,” or “gender identity” without parental consent.
  • And as originally introduced, a bill in Kansas would have redefined the state’s obscenity law to make it a class B misdemeanor for a teacher to present any depiction of homosexuality in the classroom, the report says.

But the report says the newer “Don’t Say Gay” bills are only one aspect of a much larger effort to restrict the freedoms and access of trans, gay, lesbian, and nonbinary students to books that represent LGBTQ+ characters and themes, block trans students from participating on high school athletics teams aligned with their gender identity, and even impinge on the medical and mental health resources they can use at school.

The 23 bills that focus on LGBTQ+ issues in the PEN America report focus on classroom instruction. Overall, the report says, there are hundreds of bills targeting LGBTQ+ students and their identities.

One reason for the drastic increase is the convergence of two kinds of advocates: the social conservatives who have always opposed such lessons but have had minimal luck in pushing their cause, and people in the anti-critical race theory movement, who have been promoting bills restricting lessons on race and racism for the past year and now see LGBTQ+ issues as new territory for motivating voters and getting something passed, Young said.

“Those two groups coming into coordination with one another are leading to just a dramatic increase in these bills attacking LGBTQ identities,” Young said.

These bills affect students and teachers by stifling their rights

A lot of these bills have scared teachers into avoiding topics that they think might get them into trouble—and with good reason. Across the country, teachers have lost their jobs, have had complaints filed against them, and have even filed lawsuits challenging these laws.

Because of the punishments spelled out in the bills and laws and the local opposition some school districts have seen for teaching about race, racism, and LGBTQ+ issues, teachers are effectively silenced, Young said.

“This leads to a massive amount of self-censorship on the part of teachers who are afraid to run afoul of however these laws are going to be interpreted because of the heavy punishments and the vague legislation,” he said. “And also administrative censorship by school districts and administrators who are trying to protect their schools and their districts from the enforcement of these laws.”

Twenty-seven percent of all principals and 14 percent of teachers surveyed by the RAND Corp. experienced harassment about lessons about race, racism, or bias, according to a new report released this week.

“The people who are hurt by them the most are our students, ... particularly students who identify with some sort of minority identity and who are seeing their identities be censored and silenced in the classroom,” Young said.

Likewise, he said, other students are losing an opportunity to learn about their world and their classmates and communities.

“This is changing our rising generation’s ability to understand the world in which they live,” he said, “and that’s going to lead to a less-educated and less-democratic society than we’ve had in the past.”

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