Educational Censorship Continues: The 2023 Legislative Sessions So Far
Educational censorship is continuing to spread across the country in 2023, with 86 educational gag orders introduced as of February 14 this year.
Bills legislating educational censorship in schools, colleges, universities, and libraries have been on the rise in the past two years, as PEN America has documented previously. At the state level, the 2023 legislative session is shaping up similarly; there has been a large increase in clones of Florida’s “Don’t Say Gay” law, a slight decrease in “divisive concepts” bills, and overall a similar number of bills introduced this year compared with 2022. Many of these bills follow templates established in prior sessions, but some reflect novel proposals to bring censorship to new extremes.
These are some of the major categories and trends among the educational censorship bills we have seen so far this year. Since state legislative sessions are ongoing, this update focuses on bills that have been introduced; it is too early to know which proposals will ultimately become law. Detailed information on many of these bills can be found in PEN America’s Index of Educational Gag Orders, updated weekly.
Expanding Censorship of Sexuality and Gender
In 2022, Florida adopted HB 1557, the “Parental Rights in Education Act.” Known to critics as the “Don’t Say Gay” Act, the law has now spawned a wave of copycat bills in statehouses across the country, and in many instances with even more censorious rules.
HB 1557 prohibits public schools from offering any “classroom instruction related to sexual orientation or gender identity” in grades K-3, or thereafter in a manner that is not age and developmentally appropriate. Since the start of the 2021 session, 38 “Don’t Say Gay”-style bills have been proposed in 20 states, including 26 bills in 14 states during the current legislative session alone.
The vast majority of these bills follow the template of HB 1557, but many are more restrictive. Whereas Florida’s law permits instruction on sexual orientation and gender identity from Grade 4 onwards if “age-appropriate or developmentally appropriate for students in accordance with state standards,” ten subsequent bills would extend the prohibition to Grades 5 or 6, and seven to Grade 8. Seven bills currently under consideration would ban instruction on sexual orientation and gender identity altogether, from kindergarten right through to Grade 12. And four current bills apply to private schools or colleges.
The scope of materials and ideas these new bills would ban is also greater, raising the possibility that teachers could find themselves muzzled on a confusing and ever-growing array of topics. Indiana’s HB 1608 prohibits any instruction in grades K-3 related to sexual orientation or gender identity, but also to “gender fluidity,” “gender roles,” “gender stereotypes,” or “gender expression.” South Carolina’s HB 3827 prohibits a long list of activities including “instruction, presentations, displays, performances, discussions, assignments,” related to “gender theory,” “gender identity,” “gender multiplicity,” or “gender expression.” Under New Hampshire’s HB 619, teachers in grades K-8 would be banned from teaching that “gender is a choice, optional or fluid and that there are more than 2 genders: male and female.” Such concepts may be mentioned in higher grades, but only within a psychology course, and there only in the context of a discussion of mental health conditions. And Oklahoma’s SB 937 would prohibit public schools from offering a curriculum at any grade level related to “non-secular self-asserted sex-based identity narratives” unless as part of a sexual education course, and then only after alerting parents that the “messaging” of the material “could expose their child to licentiousness and one particular religious worldview” and with written parental permission to proceed. The bill also prohibits mandating the use of “non-obvious pronoun changes.” Another bill in Oklahoma, HB 1780, proposes an especially sweeping ban, stating simply: “Public schools shall not provide a sex education class, program, test, survey, or questionnaire.”
In addition to these curricular prohibitions, a host of bills have been introduced that would restrict or ban information related to sexuality and gender in other ways, in both public schools and public libraries. (Details concerning legislative proposals that implicate public libraries can also be found on the website of EveryLibrary.)
For example, North Dakota’s HB 1205 would ban gender and sexuality information directly, by prohibiting libraries from maintaining or promoting books on certain topics. Bills in Texas, Oklahoma, and Utah would take a different approach: instituting state-mandated age ratings systems for books, to strictly delineate at what ages students could read about certain topics. With HB 1655 in Texas, vendors to public schools who fail to rate their books as directed by the state would risk being placed on a “no-buy” list. In a related vein, Virginia’s SB 1463 would require schools and libraries to affix a “parental advisory label” to the front of any book that contains “sexually explicit material.” As PEN America has said previously, these kinds of ratings and labeling systems “would inherently contain subjective and potentially politicized decisions,” and “would concentrate power in the hands of government officials to dictate the bounds of what all students and families can read, learn, and share–in ways that are deeply undemocratic.”
Another subset of bills introduced this legislative session have a criminal element. These bills involve the threat of criminal charges against teachers and librarians, in such a way as to chill the teaching of books about sexuality and gender. This is being attempted in two ways. First, at least 27 bills introduced in 12 states could have the effect of removing existing protections for employees of schools, libraries, and sometimes museums, exempting them from being charged with violations of state obscenity laws — exemptions that have long been in place to facilitate public education about anatomy, sex education, and art, among other topics. Second, at least 15 bills in 7 states contain provisions which claim to broaden protections for minors from material that is harmful, but in reality would ban books containing things like “profane language” (e.g. HB 3826 in South Carolina), or “depictions of gender identity” (e.g. HB 1205 in North Dakota), which would mean banning any book where a character uses certain curse words or identifies themselves as a boy or a girl.
A final trend, illustrated by 23 bills introduced in 14 states thus far this legislative session, is bills which aim to censor or restrict minors from seeing drag performances, many of which directly target schools and libraries. Some include explicit bans on such performances in these settings, while others include prohibitions on drag performances being hosted on public property or with the use of public funds. Oklahoma’s HB 2186 goes as far as to explicitly prohibit “drag queen story hours” on public property altogether.
As PEN America has previously noted, these bills utilize broad and vague definitions of “drag” which could easily apply to a wide range of musical or theatrical performances in public institutions. In outlawing events where an individual performs while wearing dress or makeup associated with a gender other than the one assigned to them at birth, many of these bills would effectively ban trans authors, singers, or performers from being featured in a range of events in educational settings. West Virginia’s SB 252 would prohibit “any transvestite and/or transgender exposure, performances or display to any minor” within 2,500 feet of a public school. If adopted, this bill would, at a minimum, make the presence of any trans person on or near school grounds a criminal offense. This bill not only has serious implications for individual and artistic expression — it could potentially be applied to a student or parent attending or affiliated with the school.
The spread of these bills to many states, amid the broader momentum surrounding educational censorship broadly, poses a grave threat to the circulation of information and ideas in public schools and libraries, as well as to the very individuals engaged in this educational work.
Ongoing Efforts to Prohibit Teaching about Race, Racism, and American History
We have written previously about the focus of many legislative and policy efforts to curb teaching about racism in American history, many of which include language copied from President Trump’s 2020 Executive Order 13950 barring a list of “divisive concepts” in federal trainings (the Executive Order was revoked by President Biden). Despite the free speech concerns surrounding that language, this type of bill continues to be introduced in 2023, with a growing list of topics to be prohibited — ranging from critical race theory to the theory that race is a social construct.
Fifty educational gag orders of this type have been introduced in 16 different states so far this year, with 34 focused only on K-12 schools, 4 focused only on colleges and universities, and 12 that would target both.
Two such bills would essentially prohibit teachers from expressing ideas or facts of history that might cause discomfort. In Connecticut, SB 280 would bar schools from adopting a curriculum that makes “any individual feel discomfort, guilt, anguish or any other form of psychological distress on account of the individual’s race or sex.” And under New Jersey’s SB 598, teachers would be unable to discuss or assign any classroom material that promotes “division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.” Meanwhile, Texas’s HB 1804 would require public school teachers to always “present positive aspects of the United States and its heritage” and, when discussing American society, to stress “the positive contributions of all individuals and groups to the American way of life” – a “compulsory patriotism” bill of a type we have previously described as censorious. In each case, it is hard to see how an accurate account of American slavery, Jim Crow, or Japanese internment would survive such restrictions. And should these bills become law, many teachers may simply avoid any content that could even approach the restrictions laid out in this legislation.
One final bill of this type bears mention: South Carolina’s HB 3779, which would prohibit public school history teachers from offering any instruction “about persons who owned slaves.” However, this bill, which is one of just three educational gag orders to have been authored by a Democrat so far in 2023, is not meant to ever become law. Rather, as its lead sponsor, Rep. Jermaine Johnson, explained, it was introduced to protest the hypocrisy of his House and Senate colleagues who support educational gag orders:
“If we’re afraid of teaching children about things that could cause discomfort, then we need to add slave owners to the list. Many people find this topic uncomfortable and upsetting, especially the grandparents of children who lived through the Civil Rights Movement and had relatives who were slaves themselves. We should protect our children from being exposed to this evil by sweeping it under the rug and never addressing it.”
Higher Education Remains in the Cross Hairs
Among the most notable educational censorship trends over the past two years has been the expansion of restrictions on higher education. Restrictions of this type are particularly concerning because of the principle of academic freedom that applies to teachers in colleges and universities. In 2022, 39% of all proposed educational gag orders restricted higher education, up from 30% in 2021. In 2023, higher education continues to be a target, with 20 bills of this nature already introduced in 13 states. This represents 20% of bills introduced this year, but 34% of bills outside of the newly-prevalent “Don’t Say Gay” clones – a percentage roughly consistent with previous years.
South Carolina’s HB 3827 is one of the most sweeping. It would prohibit public schools and higher education institutions, as well as private schools, colleges, and universities that benefit from any state fund or grant, from promoting or endorsing the “narrative” that “the United States was founded for the purpose of oppression, that the American Revolution was fought for the purpose of protecting oppression, or that United States history is a story defined by oppression.” Educators are also prohibited from teaching that “with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.” They may not provide instruction that “teaches theoretical ideas or uncorroborated claims as factual,” expose minors to any “sexually explicit or obscene” content (including any mention of gender identity), or promote the idea that “race or biological sex is a social construct.” Again, in a higher education context, these prohibitions run directly counter to the dictates of academic freedom protections.
Beyond these proposed prohibitions on what faculty can teach are other bills that target academic freedom, by either weakening tenure protections or attacking universities’ institutional autonomy. While not all of these are direct attacks on speech, institutional independence has long been understood to be a necessary precondition for academic freedom and free speech on campus; without it, colleges would be subject to the whims of the legislature, inviting ideological control or politically-motivated incursions over what should be a bastion of open inquiry.
Bills attacking institutional independence have appeared in at least 5 states, including Iowa, North Dakota, Mississippi, Texas, and Oklahoma. In Iowa and Mississippi, the proposed bills would eliminate tenure entirely. In Texas, one bill would ban public universities from having DEI offices, and another would prohibit the use of diversity statements in hiring. (While PEN America opposes the mandatory use of such statements in hiring processes, a legislative ban on such use represents government overreach and infringes on the independent governance of universities.) North Dakota’s HB 1446 goes so far as to prohibit faculty from disparaging the campus administration on social media.
And in Florida, Governor Ron DeSantis has proposed an outline of sweeping–and draconian–legislative changes to the state’s public university system. While the legislative text is not yet publicly available, the governor’s press release suggests that it would ban the pursuit of diversity, equity, and inclusion and critical race theory initiatives at public universities; effectively end tenure protections by giving boards of trustees hiring and firing power over faculty; force the Board of Governors “to align universities’ missions to education for citizenship of the constitutional republic and Florida’s existing and emerging workforce needs,” effectively rewriting university mission statements by fiat; and compel colleges and universities to deprioritize certain fields that are deemed to further a “political agenda.”
In his press release, Governor DeSantis also announced his intent to “overhaul and restructure” New College of Florida, a traditionally progressive school whose new board of trustees, made up largely of out-of-state conservative figures, fired the college president last month and replaced her with the former Florida Education Commissioner, a DeSantis appointee. Christopher Rufo, the Manhattan Institute staff member responsible for many of these proposals (and a new member of New College’s board), has stated that his goal is to have the legislation introduced in Florida spread to other states.
Meanwhile, the presidents of two- and four-year colleges in the Florida College System earned the dubious distinction of becoming the first college leaders in the country to voluntarily adopt an educational gag order policy. Their joint letter commits their institutions not to “fund or support any institutional practice, policy, or academic requirement that compels belief in critical race theory or related concepts such as intersectionality,” and requiring that any course that includes such concepts will do so only “objective manner” – cutting to the heart of academic freedom protections.
Some Proposals are Growing More Extreme and Reflect Conspiracy Theories
Finally, many of the educational gag orders and other censorious proposals introduced in 2023 reflect the growing influence of extreme ideologies and conspiracy theories among the legislators behind them.
For instance, North Dakota’s HB 1522 would bar public and private schools from adopting “a policy establishing or providing a place, facility, school program, or accommodation that caters to a student’s perception of being any animal species other than human.” This is a reference to the urban myth, popular along the political fringe and embraced by Representative Lauren Boebert, that schools are providing litter boxes for students who believe that they are cats.
Two bills in North Dakota and Oklahoma take aim at social-emotional learning. This pedagogical approach emphasizes the importance of teaching students how to understand and manage their emotions, but has recently been identified by conservative conspiracy theorists as a Trojan horse for critical race theory.
Under North Dakota’s HB 1526, schools would be forbidden from teaching that a “student’s inner feelings are capable of guiding the student’s life” or “inform[ing] a student’s worldview based on emotions.” And Oklahoma’s SB 1027 would prohibit schools from using any instructional materials that address “non-cognitive social factors including but not limited to self-awareness, self-management, social awareness, relationship skills, responsible decision making, and/or other attributes, dispositions, social skills, attitudes, behaviors, beliefs, feelings, emotions, mindsets, metacognitive learning skills, motivation, grit, self-regulation, tenacity, perseverance, resilience, and/or intrapersonal resources.”
Montana’s SB 235 would prohibit public school science teachers from offering instruction on anything other than “scientific fact,” defined in the bill as “an indisputable and repeatable observation of a natural phenomenon.” The fact that the scientific method generates theories, not facts, via a process of both observation and experimentation goes unaddressed.
Finally, two Oklahoma bills are worth singling out for special attention. Under both SB 937 and SB 935, “secular humanism” would be defined as a type of religion, with critical race theory, drag queen story hours, sexual orientation, and gender identity identified as “inseparably linked” to secular humanism. According to the bills’ author, should any public or private school in Oklahoma “promote the plausibility” of these concepts, it would therefore “excessively entangle the government with the religion of secular humanism,” and violate the Establishment Clause of the US Constitution.
The early returns from the 2023 legislative sessions suggest that lawmakers’ fervor to censor and ban content from educational institutions has not abated. Far from it. Indeed, lawmakers have continued to introduce “anti-CRT” and “Don’t Say Gay” bills with regularity. And they have outdone one another in a race to the bottom, finding new, more extreme, and more conspiratorial ways to impose censorious government dictates on teaching and learning. It is too early to tell whether any of these bills will garner enough legislative support to become law, but their mere introduction tells us that the “Ed Scare” remains in full swing. Advocates of free expression and education should respond accordingly.