Tracking the Increase in Educational Gag Orders

Monthly Roundup, January

This post is part of a blog 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 monthly.

It has been an extraordinary month for educational gag orders. Over the last three weeks, 71 bills have been introduced or prefiled in state legislatures across the country, a rate of roughly three bills per day. For over a year now, PEN America has been tracking these and similar bills. This is where things stand today.

• Since January 2021, 122 educational gag order bills have been introduced or prefiled in 33 different states 
• 10 have become law in 9 states
• 88 are currently live

Of those currently live:

• 84 target K-12 schools
• 38 target higher education
• 48 include a mandatory punishment for those found in violation

A closer look at bills introduced or prefiled so far in 2022 reveals a significant escalation in both scale and severity. Forty-six percent of this year’s bills explicitly target speech in higher education (versus 26 percent in 2021) and 55 percent include some kind of mandatory punishment for violators (versus 37 percent in 2021). Fifteen also include a private right of action. This provision, which we analyzed in an earlier post, gives students, parents, or even ordinary citizens the right to sue schools and recover damages in court.

One final feature that is increasingly common to 2022’s bills is how sloppily many are written. Legislators, in their haste to get these bills out the door and into the headlines, are making basic factual errors, introducing contradictory language, and leaving important terms undefined. Given the stakes, the result will be more than mere confusion. It will be fear.