Academic Gag Orders

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