There is a legislative war on education in America. At the heart of this war are educational gag orders—state legislative attempts to restrict teaching, training, and learning in K–12 schools and higher education. These bills, which generally target discussions of race, gender, sexuality, and US history, began to appear during the 2021 legislative session and quickly spread to statehouses throughout the country. By the year’s end, 54 bills had been filed in 22 states, of which 12 became law.

In 2022, these battles have intensified.

Since the start of this year, lawmakers in 36 different states have introduced a total of 137 educational gag order bills, an increase of 250 percent over 2021. Only seven new gag order bills have become law so far this year, but these include some of the most censorious laws to date. And the dramatic increase in the number of bills introduced is itself a cause for alarm, reflecting a heightened inclination toward censorship. Bills introduced in 2022 have tended to be more punitive, to target a greater number of educational institutions, and to restrict a wider array of speech. The entire year can be summarized in a single word: escalation.

This report offers a deep dive into what these bills say and how they operate. It builds on PEN America’s 2021 report on educational gag orders, as well as the PEN America Index of Educational Gag Orders, a comprehensive dataset, updated weekly, of every gag order bill introduced since January 2021. Taken as a whole, this report represents the most detailed legislative analysis available of educational gag order bills and laws at a national level, including the specific content being targeted by legislators, new strategies in gag order design, and the emerging dangers that these bills pose to freedom of speech, thought, and access to information. Bills that have become law in 2022, as well as executive orders enacted this year, are singled out for special analysis in Section I.

A note on the scope of this report: PEN America recognizes that public education is a public good, subject to public debate, deliberation, and oversight; that a wide range of stakeholders should have a say in our educational system; and that views will vary regarding which materials and courses are of legitimate educational value. Our aim is not to take a position on the pedagogical benefits or drawbacks of specific curricular materials, educational approaches, intellectual frameworks, or professional trainings. Our serious concerns are about gag orders, and constitute neither an endorsement of specific wholesale curricula nor a rejection of the concerns of parents, teachers, and others with a stake in public education. 

As a literary and human rights organization, our chief concern is with state censorship of the free flow of ideas, and with government restrictions on the freedom to read, to learn, and to teach. Proponents of educational gag orders often claim that they are necessary to avoid “indoctrination” of students. We disagree. As discussed below, the vagueness and overbreadth of these laws pose significant constitutional issues; they are hardly an effective tool. Instead, the restrictions and chilling effects of gag order laws threaten to destroy the climate of open inquiry required in free and democratic educational institutions.  

While state governments and school boards do have leeway to set curricular standards, it has also been recognized by the Supreme Court that in doing so they should reflect democratic principles and retain space for dissent. In the words of Justice William J. Brennan, writing for the majority in Keyishian v. Board of Regents of the University of the State of New York (1967), schools must not “cast a pall of orthodoxy over the classroom.” Writing for the plurality in Board of Education, Island Trees Union School District No. 26 v. Pico (1982), Brennan further elaborated that public schools must operate “in a manner that comports with the transcendent imperatives of the First Amendment.”