The Republican party’s assault on teaching subjects related to diverse identities and marginalized groups is in full swing. But many of the “divisive concept” bills under consideration in state legislatures nationwide also have financial implications for school districts and their employees that have largely gone overlooked so far.
Roughly 30 bills in 13 states that aim to censor teaching topics related to race and sexual orientation target funding for school districts or threaten to extract money from school employees for failing to comply with the policy.
In early 2021, many of the proposed bills started as attempts to prohibit teachers from talking about diversity and inequality in so-called “divisive” ways or taking sides on “controversial” issues. The early bills included a list of eight “divisive concepts,” such as teaching that a certain race is inherently racist or that people should feel guilt or anguish because of their race or sex.
Some of these early bills included financial consequences for violating the law, such as Tennessee’s law allowing the state education department to withhold up to 2 percent in state aid from districts for every violation.
This year, the topics new bills cover are much more expansive. Many have officially titled the list of banned concepts “critical race theory,” and expanded the definition to include proposed restrictions on teaching that the United States is a racist country, that certain economic or political systems are racist, or that multiple gender identities exist.
Many bills also aim to ban books about gender identity and sexuality, bolster parents’ rights to review curriculum and instructional material, and impose restrictions on what school teams transgender students can join.
These bills arrive as schools face enormous fiscal challenges in responding to and recovering from the pandemic. Here are four ways these bills aim to use money as an enforcement tool for schools.
Withholding funds from districts
Withholding state aid from districts for teaching banned concepts or knowingly violating any other aspect of the proposed bills is the most common financial consequence mentioned in the bills.
At least 15 proposed bills in Georgia, Idaho, Mississippi, Missouri, New Jersey, and South Carolina mention withholding state aid, although most don’t provide specifics.
But based on the state aid cuts laid out in last year’s bills, the withheld amounts can be significant. In August 2021, Tennessee outlined withholding up to 2 percent per violation of its “critical race theory” law, one of the first passed across the county.
Most proposed bills do not elaborate how much state aid will be withheld, but some do.
A bill in Missouri proposes withholding 50 percent of a district’s state aid funding if the Attorney General investigates the district and finds that it taught banned concepts such as “critical race theory” or the 1619 Project.
The funding would be withheld until the district presents evidence to the department of education that it’s no longer in violation of the law.
Two other bills in Missouri propose withholding 10 percent of the district’s state aid funding until the district is no longer in violation.
In South Carolina, a proposed bill would require districts to make all instructional materials accessible online within five days of the class starting. If a district does not make the material available from the school’s homepage using no more than three links and make it searchable by keywords, the department of education would have to withhold 1 percent of a district’s state funds for every class that fails to publish its instructional materials.
Imposing fines for teachers or districts
Some state lawmakers want school staff and school districts to pay up.
In Oklahoma, two proposed bills would prohibit lessons related to critical race theory, which is not defined in the text of the bill, and sex or sexual orientation. Teachers or other school employees who violate those laws, if they go into effect, would be required to pay a minimum of $10,000 per incident out of their own pockets. If they try to borrow money from an outside source to cover the cost, they could be fired and barred from teaching in the state for five years.
A bill in Missouri that aims to enshrine parents’ rights to review and offer feedback on curriculum materials would allow parents to collect $1,000 each time a school district knowingly violates the policy, and $5,000 each time a school district purposely violates the policy. School districts would be required to pay parents’ attorney fees and other costs of filing the complaint.
Under that same bill, districts could also face a fine for a violation. If they do, 20 percent of that fine would go to the parents who filed the complaint, and 80 percent would be deposited into the state’s “empowerment scholarship fund.” That fund offers parents public funds to enroll a student in a school of their choice, whether a different public district or a private provider.
Fines for teaching “divisive concepts” or mandating gender or sexual identity training for students would be even steeper elsewhere. Under a Kentucky bill, districts that teach concepts defined as divisive would lose an allotment of $5,000 each day until they stop. And in Indiana, a bill proposes to penalize districts between $1,000 and $10,000 for each student affected by school policies that allow for teaching about Marxism, socialism, communism, abortion, and transgender people, or that refer students to mental health counseling without their permission.
Creating avenues for parents to sue districts
Parents or community members can sue districts for violating the law according to at least eight bills proposed in five states.
The first such law was passed in New Hampshire last summer. It allowed parents to sue teachers if they taught banned concepts about race, racism and sexism. This year, Republican lawmakers in the state have added gender and sexuality issues to bills which districts can be sued for violating.
A bill in Oklahoma will allow parents to ask for books about sexuality and gender identity to be removed from the school library. If the district doesn’t remove the book in question, parents can seek monetary damages including a minimum of $10,000 per day the book is not removed, attorney fees, and court costs.
A proposed Florida bill would allow parents or students to file a lawsuit against a district known to “encourage classroom discussion about sexual orientation or gender identity.” The court can award damages and attorneys’ fees to parents or students if it finds the district violated the law.
A bill in Idaho allows anyone in the state to file a civil complaint in district court against any school district if they believe an employee taught banned concepts, such as any race or sex is inherently superior or that anyone by virtue of their race or sex is inherently responsible for actions committed in the past by other members of their race or sex.
If the court finds that a school district or public charter school knowingly violated the law, then the court will stop the school from receiving 10 percent of any state aid to the school district until the district complies with the law. The district will also be required to pay attorneys’ fees to the plaintiff.
Restricting how districts can spend their money
At least eight bills in four states—Georgia, Mississippi, South Carolina, and Washington—contain provisions that dictate certain things districts can’t purchase with their funds, or certain funds districts can’t accept.
A bill in Washington prescribes a civics education course for all students and prohibits districts from requiring teachers to include “critical race theory” curricula. If that bill passes, districts would be prohibited from accepting private funds for developing or selecting civics course materials.
Districts in South Carolina could be required to affirm on purchase orders and contract agreements that they’re complying with a law that prohibits teaching ideas that, for example, a person’s race makes them inherently racist or biased, or that people should feel guilty or uncomfortable because of their race. The bill also prohibits classroom materials or presentations on those topics.
Four bills in Mississippi would prohibit schools and the state department of education from using any funds for materials that teach topics adjacent to the long list of critical race theory-related subjects that bills across the country have been targeting for the last year.
And in Georgia, if a bill to ban divisive concepts were to pass, the state would not allow schools to spend money on consultants or guest speakers who differ from various ideas, like the view that “Democratic societies built on the ideals of individual freedom and the self-driven pursuit of prosperity with a dedication to equal opportunity for all will thrive in perpetuity, while societies built on the false promises of equity and equal outcomes for all have consistently ended in failed states.”
For more on the contents of these bills, and the intentions of the lawmakers who crafted them, read this Education Week report on the GOP’s efforts to ban a long list of topics from the classroom, and this EdWeek tracker of state laws aiming to restrict “critical race theory” and associated subjects.
