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Academic Freedom Battleground Shifts from Classroom to Institutions

This post is part of a series from PEN America tracking the progress of educational gag orders and censorious legislative efforts against educational institutions nationwide. These bills are tracked in our Index, updated weekly.

Two new educational gag orders were adopted in March, and two more in April. After reviewing these gag orders in this month’s Roundup, we examine a troubling new trend in censorship legislation that affects higher education: a shift from bills that ban lists of so-called “divisive concepts” in classroom instruction, toward a new class of bills that specifically restrict the content of curricula, including majors, minors, and general education. Not only are these new bills equally censorious compared to the older model, they are more brazen and have the potential to be much more destructive to the basic functioning of university life.

  • Since January 2021, 306 educational gag order bills have been introduced in 45 different states 
  • 22 have become law in 16 states (3 are not currently in effect)
  • 2 additional states have enacted educational gag orders via policies or executive orders
  • 118 million Americans live in the 18 states where an educational gag order is in effect
  • 87 educational gag orders are currently live

Of those currently live:

  • 78 target K-12 schools
  • 25 target higher education
  • 40 include an avenue for punishment for those found in violation


From Classroom Censorship to Curricular Control

For supporters of educational gag orders in higher education, this has been a year of setbacks. Since 2021, their greatest victory to date has been the passage in Florida of HB 7, also known as the Individual Freedom Act or the Stop W.O.K.E. Act, which prohibits faculty in public (and potentially private) colleges and universities from providing any instruction that “espouses, promotes, advances, inculcates, or compels [belief in]” certain ideas deemed discriminatory by the state. In both structure and purpose, the law is a naked attempt to suppress faculty speech. 

But in November 2022, a federal judge stayed these provisions, finding that they violated the First Amendment rights of individual faculty to express themselves in the classroom. It was a major defeat for gag order supporters, and has been followed in recent weeks by the failure of similar bills. Utah’s HB 451, which failed to pass in the state Senate, would have barred public college and university faculty from asking students their opinions about “anti-racism,” “implicit bias,” and “critical race theory” as part of any course or degree requirement. In North Dakota, HB 1446 was amended to remove provisions implicating faculty speech, before it also failed to pass. And in West Virginia, where last year lawmakers came within minutes came within minutes of passing a higher ed gag order, this year’s version died a quiet death in committee. 

Unfortunately, conservative policy analysts who support educational gag orders have taken note and are adjusting their strategy accordingly. One such analyst is Adam Kissel, a visiting fellow in the Heritage Foundation’s Center for Education Policy. In a December 2022 piece for The Federalist, Kissel offers what he calls “the smart lawmaker’s guide” to writing EGOs that will stand up in court. According to Kissel, legislators should stop trying to restrict the constitutionally protected speech of individual faculty members. Instead, they should target public higher ed where it is most vulnerable: at the level of curriculum. Writes Kissel:

Consider the subject of astrology. It would be reasonable for a department of astronomy, its university, or its state legislature to make a determination that astrology readings are an unserious waste of time. Accordingly, campus policy or the law may require that there be no assigned astrology texts, no astrology units, and no astrology courses at the university. None of this would prevent astrology from being discussed in the classroom incidentally, from any viewpoint. The point is that it will have no place in the regular curriculum.

Read entire article at PEN America