Georgia is the latest state to face the prospect of a lawsuit challenging its “divisive concepts” law for being vague and instilling fear in educators about the consequences of talking about race and racism in the classroom.
According to a letter sent on Nov. 4 to the state’s attorney general by the Southern Poverty Law Center, the National Education Association, and the Georgia Association of Educators, the groups plan to sue the state for passing into law a list of divisive concepts that teachers are prohibited from discussing in class, and creating a chilling effect on classroom speech.
Since 2021, 17 states have passed similar laws restricting the teaching of what they initially called “critical race theory” and later, “divisive concepts.” Legislation was introduced in more than 40 states to outlaw those concepts, first seen in an executive order by former President Donald Trump in 2020.
Georgia’s law includes a ban on teaching: that anyone is responsible for the actions committed by people of their race, that an individual should feel “discomfort, guilt, anguish, or any other form of psychological distress” because of their race, and that anyone, by virtue of their race, is inherently racist or oppressive.
It also bans “race stereotyping” or “race scapegoating,” which is defined in the law as assigning character traits, faults, or bias to a race, espousing personal beliefs which the law deems to be indoctrination of students, or teaching that the United States is fundamentally racist.
“When we’re talking about the majority population trying to change Georgia history by saying certain concepts could hurt the feelings of the majority community, they’re not thinking about the whitewashing of history, and how it could denigrate the experience of another group of people in this state, who are just as Georgian as they are,” said Gerald Griggs, the president of Georgia’s NAACP chapter, in a previous interview.
Under the law, all school districts in Georgia are required to formulate policies that align with it and outline a complaint process for parents, students, and employees for any violations.
Vague and confusing language cited as problematic
Experts across the country have called such laws, including Georgia’s, confusing and vague, because they do not elaborate on what teachers can and can’t say. In other states, even professional development on implicit biases has led to districts having their accreditation demoted.
The Georgia lawsuit alleges that the state’s law violates the First and 14th Amendments, claiming that it is attempting to censor classroom discussions. The teachers that are part of the lawsuit have not been able to do their jobs of teaching students the truth about history or social studies because of fear of retaliation, according to Craig Goodmark, an attorney who is representing an AP World History teacher in the lawsuit. Goodmark also works as a network attorney for the Georgia Association of Educators, which would be one of the plaintiffs in the lawsuit.
“The feedback from our membership and from teachers in the field is they simply don’t understand or know what the law is prohibiting,” he said. “It’s confusing and there is a growing concern that if they don’t know what actually violates the law, they could be held accountable for something that they had no notice of.”
Similar legal challenges have led to varied outcomes in other states
Georgia would be the sixth state where teachers’ unions and civil rights organizations have filed lawsuits against divisive concepts laws. So far, only one lawsuit, the first one, in Arizona, has been successful in striking down state law.
Lawsuits in Oklahoma, New Hampshire, and Florida are still pending. But because each of those laws were written differently, Goodmark said, it’s hard to tell whether they serve as good precedent for the Georgia lawsuit.
“This is one of those laws that shouldn’t stand either legally, or as a policy,” Goodmark said. “It’s bad for public education, and bad for our country.”