The State of Book Bans: South Carolina Is Poised to Get Worse

By: Erica Galluscio

May 10, 2024

A crisis grows in South Carolina

Between Fall 2021 and Spring 2023, there were 128 book bans across the Palmetto State. But while South Carolina lags behind Texas and Florida in terms of the number of book bans, it’s poised to get worse.

A restrictive and ill-conceived proposed regulation from the South Carolina Department of Education is up for approval by the state legislature that would subject books to a state-level “test” to determine if the materials are “age appropriate”. If passed, it has the potential to make it easier to ban books across the state.

If the South Carolina legislators pushing these regulations paid attention, they’d see that creating further pathways to remove books has consistently been a disaster – leading both to ideologically motivated bans by vocal individuals and to schools culling their own collections en masse out of fear. By attempting to manipulate existing definitions of obscenity to censor educational content, these policies frequently have a latent effect of disproportionately censoring LGBTQ+ books and books with BIPOC characters or themes of race and racism.

One such instance of mass censorship has already happened in South Carolina, in Beaufort County. In 2022, two individuals sent a list of 97 books to the district without individual challenge forms. The board responded by immediately pulling all the listed books for review, against its own challenge policy, effectively revoking students’ access to nearly 100 titles during the months it took the board to decide which books to ban permanently. 

 

What are the proposed regulations?

The South Carolina Board of Education recently passed a policy, Reg. 43-170, that could make it easier to regulate and restrict content in school and classroom libraries. The regulations previously utilized language from federal and broadcast TV regulations, a practice that advocacy organizations and professional library associations alike have criticized. Concerns about this approach stem from the risk of First Amendment violations and, further, the incongruence between the consumption of film and television and literature.

The regulations currently propose a “test” to determine if books and other educational materials are “age and developmentally appropriate” and “aligned with the purpose of South Carolina’s instructional program.” State Superintendent of Education Ellen Weaver has claimed that the regulations “simply [refer] back to a long-standing South Carolina code that has been there for a long time that specifically addresses and identifies sexually explicit materials.” If that’s the case, why bother proposing an additional test?

In most states, book challenges are largely handled at the district level. These regulations would put much of the book challenge and removal process in the hands of the state government. South Carolina advocates have pointed out that giving the state the final say on book bans would effectively revoke local control over these processes. South Carolina’s plan would enforce restrictive standards across a wide array of diverse communities throughout South Carolina, by creating an appeals process that allows the State Board of Education to overturn district decisions to retain challenged books. In other words, these regulations would hinder students’ right to read, supercharging book bans across the state and overriding nearly all local control. 

Before going into effect, the regulations must be approved by the state legislature, something that may not happen before the end of the current legislative session. Still, multiple legislators have expressed clear interest in picking the issue up again later this year, if the regulations stall.

In a recent interview, South Carolina State Superintendent of Education Ellen Weaver said these regulations are “in no way infringing on anyone’s First Amendment rights to speech or to access materials that they want their children to access.” However, multiple lawsuits on First Amendment grounds have been launched in other states against similar restrictions on “sexually explicit” content in books.

 

What else is up in SC?

It’s not just the First Amendment Weaver’s in conflict with. She’s also recommended South Carolina schools disregard the newly-released regulations for Title IX of the federal Higher Education Act, which say that sex discrimination includes discrimination based on sexual orientation and gender identity.

And this isn’t the first time Weaver has targeted libraries. In 2023, she forced the state to cut ties with the South Carolina Association of School Librarians, prompting the director of SCASL to resign. Weaver claimed the organization was using “hyperbolic rhetoric” around book bans, thus creating a “hostile environment” with the SC Department of Education.

More generally, South Carolina has been promoting additional concerning state-level regulations for a while. A proposed obscenity bill in 2023 and a proposed book rating bill this year would both have resulted in increased book bans. And between 2021 and 2023, South Carolina repeatedly renewed an educational gag order budget amendment that restricted the teaching of certain concepts related to race and sex.

 

Long story short:

The recently proposed regulations would be the latest in a series of setbacks for South Carolina’s public education system. It suggests a government agenda that prioritizes politicized and hyperbolic rhetoric over what should truly matter: students’ freedoms to read and to learn. Research has shown that when students’ access to literature is restricted, students are likely to show less interest in reading, not more. Superintendent Weaver claims the South Carolina Department of Education is promoting an “intense focus on literacy.” If that were true, they should be putting more books into the hands of South Carolina students, not fewer.

Book Banners Take the Fight to Public Libraries

By: Erica Galluscio

May 7, 2024

Out of sight, out of reach, out of mind. 

That’s the goal for a growing cadre of activists who are attacking public libraries for providing LGBTQ+ literature and sex ed materials to people of all ages.

Amid skyrocketing book bans in public school libraries, heightened rhetoric describing LGBTQ+ and sex education content as “obscene” or “pornographic” has also proliferated across public libraries from Alabama to California. The rhetoric fuels mass challenges against long lists of books or “types” of books, heightened restrictions on access to literature, and board-level fights. The sum effect is an emaciated public sphere in which students can’t access literature at school or in their broader communities. 

Losing access to specific titles is problem enough. But the push to restrict LGBTQ+ literature and books depicting sexual experiences also serve to undermine the civic role of libraries altogether. 

Alabama to California

In February 2024, librarians in Huntington Beach, CA, began to remove books from the public library children’s section and relocate them to the adult section. The action was a result of City Council Resolution No. 2023-41, a newly-passed resolution which prohibits access to books with sexual content for any patrons under 18 years old. Following the resolution, librarians expressed confusion as they re-cataloged hundreds of books ranging from titles about puberty to the picture book Once Upon a Potty

On April 2, 2024, Huntington Beach’s City Council took the additional step of creating a Community-Parent Guardian Review Board with the power to approve or reject the acquisition of children’s books and materials and to identify children’s books already in circulation for review. This task, until now, was entrusted to librarians – professionals trained to curate a collection that serves the entire community’s needs. Under this new committee, materials will likely be removed and some books may be prohibited from purchase based on vague community standards applied by a City Council-appointed review board. 

This year, a similar story unfolded in Prattville, Alabama. Activist group Clean Up Prattville and its next iteration, Clean Up Alabama, pushed to reshelve primarily LGBTQ+ books – moving them from children’s to adult sections. Across Alabama, from Mobile to Fairhope to Huntsville to Trussville, community members have questioned the shelving of LGBTQ+ literature and literature with sexual content in children and teen sections. 

In February 2024, the Autauga-Prattville Public Library responded to pressure from Clean Up Alabama and passed new acquisition policies that suspended the purchase of any children’s literature or young adult books that include “obscenity, sexual conduct, sexual intercourse, sexual orientation, gender identity, or gender discordance.” The policy also requires that adult books that include those themes be labeled with a red sticker.

Similar tactics can be found nationwide. In Fall 2023, the Phillips Public Library in Wisconsin faced a number of challenges and pressure from their community to restrict books featuring LGBTQ+ or social justice themes from the children’s section. In response, the library reshelved books, like the picture book Dress Up Day by Lisa Bullard, to sections with names like “Identity” and “Social Activism.”  LGBTQ+ stickers were added to many titles that were moved, including Introducing Teddy: A Gentle Story About Gender and Friendship by Jessica Walton and Heather Has Two Mommies by Leslea Newman. The library also moved It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health by Robie Harris, a sexual education book for young people, to adult nonfiction.

Challenging where a book is shelved and whether a young person can access that book, sometimes even with parental permission, is a key tactic in attacks against public libraries. The political push and board debates over shelving location and requests to  “move” books undermine the professional expertise of librarians, most of whom have trained for many years to respond to the needs of their communities. This expertise has been under attack  not just by local agitation, but by state legislation and increasingly heated national rhetoric

What happens next?

Acquiescing to reshelving doesn’t always stop the agitation.

Such was the case in Oconee County, Georgia, in July 2023 where Flamer by Mike Curato was moved from the young adult to the adult section of the library. But even after the move, the library continued to see opposition during board meetings to Pride displays and other books featuring LGBTQ+ stories and people. At the same time, the library saw calls to end library programs that support LGBTQ+ youth and children.  

And the case in August 2023 when the Columbia County, Washington Rural Library District was threatened with being dissolved by voters after a series of challenges by county residents who were upset about “sexual content” in books in the children’s sections. This despite the fact that the interim director moved items about sexual education to a parenting section and the entire young adult nonfiction section was moved to adult nonfiction. The pressure to dissolve the library eventually subsided after a ballot measure was removed from the ballot following a lawsuit. 

Or take Indiana’s Hamilton East Public Library. In August 2023, the public library was ready to move more than 1,300 Young Adult titles to the Adult section of the library, based on a collections development policy that overroad publisher, author, and librarian recommendations on where to shelve books. It took a community push back and the social media attention of author John Green to alter course for that library.

While some librarians and allies have been able to push off the most burdensome of restrictions, attacks are becoming more frequent across the country. 

Libraries, by their nature, serve the entire community. When books are reshelved or removed based on personal or political preference, it impedes the ability of the library – and of highly-skilled librarians – to fulfill their civic role: to encourage discovery, dialogue, and debate.  Coordinated opposition illustrates the shared motivation behind the attacks: eliminate LGBTQ+ expression from public spaces, undermine libraries as a site of civic discourse, and challenge the professional expertise of librarians. 

Daniel Shank Cruz contributed research to this blog.

What’s going on in Louisiana?

By: Sam LaFrance

April 19, 2024

When Louisiana’s then-governor John Bel Edwards, a Democrat, vetoed HB 466 in 2023, his message was clear: the bill, which was modeled after the “Don’t Say Gay” law in Florida, was “unworkable, burdensome, cruel, and likely unconstitutional.”

The legislature seems to have missed the message. 

Republican Rep. Dodie Horton, who sponsored the previous iteration of Louisiana’s “Don’t Say Gay” bill, has once again introduced legislation to prohibit instruction related to gender and sexuality in K-12 schools. The bill, HB 122, recently passed the House, and is poised to advance to the new governor, Jeff Landry, a sympathetic Republican who has already signaled his support. 

Horton says the bill is intended to prevent “inappropriate influence and persuasion” in the classroom. But even Horton admits that no school board has reported such indoctrination. Rather than save Louisiana schoolchildren from “inappropriate influence,” this bill will chill expression in K-12 schools, potentially prohibiting teachers from teaching LGBTQ+ history, answering students’ questions about their classmates’ parents, or even having a photo of their spouse on their desk. 

Despite the concern over alleged indoctrination, Horton has also introduced another bill this year that is moving swiftly through the legislature—one that would impose religious doctrine in public schools.

HB 71, which recently passed the House, would require any school that receives state funds—including colleges and universities—to display the Ten Commandments in each building and classroom. “I’m not concerned with an atheist. I’m not concerned with a Muslim,” said Horton. “I’m concerned with our children looking and seeing what God’s law is.”

The bill is almost certainly unconstitutional, as it would erase the barrier between church and state that is guaranteed in First Amendment jurisprudence. Its introduction makes clear which specific “influence and persuasion” Horton believes is appropriate in public education. 

But if free expression advocates hope that such bills will die in the state senate, they should reconsider. Louisiana’s other chamber has advanced a censorial agenda of its own. 

The state senate recently passed SB 262, an educational gag order that would prohibit teaching students that they are “currently or destined to be oppressed or to be an oppressor based on the child’s race or national origin”—language that echoes similar divisive concepts bills designed to chill discussions about race, racism, systems of oppression, and American history. Louisiana is currently one of the only Southern states that has avoided passage of such a bill.

Similar legislation in other states has resulted in classrooms where teachers are too afraid to teach the history of jazz and the blues, book bans that verge on the tragic and the absurd, and school environments where students feel unsupported and teachers are walking on eggshells. This raft of bills, were they to be signed into law, would cast a stark ideological pall over Louisiana classrooms.

Destabilizing public libraries | Louisiana HB 777

By: Sam LaFrance

April 9, 2024

Madison Markham contributed research to this blog. 

As book bans surge across public schools and public libraries, state legislative tactics meant to intimidate librarians are a growing cause for alarm.

The latest threat is emerging in Louisiana. In late March, state legislators introduced HB 777, a bill that would criminalize the use of public funds, by institutions or by individual public employees, “to or with” the American Library Association (ALA). Under the bill, were a Louisiana librarian to attend a conference cosponsored by the ALA, they could be fined $1,000 and/or incarcerated for up to two years. The sweeping bill would disrupt librarianship by prohibiting individuals and groups from participating with the country’s main professional association for librarians, diminishing the quality of public libraries.

In order to grasp the magnitude of this proposal, it is important to understand the movement to attack the autonomy of public libraries, as well as how the ALA serves the librarian profession.

The ALA is the largest professional organization for librarians in the United States and serves as the primary accrediting body for graduate programs in library science. The organization creates and maintains best practices for how libraries ought to be run, and members pay dues in order to benefit from continuing education, programming, and the legitimacy that comes along with professional affiliation. In this way, the organization seeks to promote not only robust professional standards for librarians, but also libraries themselves. 

That mission is the sticking point for opponents of the freedom to read. Since 2021, state legislators have experimented with new ways to undermine public libraries, including by attacking the legitimacy of the profession of librarianship. These attacks have frequently been accompanied by rhetoric claiming that the ALA or similar state-based library associations have been captured by “woke ideology” and “Marxism” – rhetoric that should be familiar to anyone who follows school book bans. In reality, these bills are not really about the nonpartisan association itself, or about the allegations about its politics. They are about destabilizing librarianship as a profession, and libraries as a public resource. 

Anti-ALA bills, like Louisiana’s HB 777, have been introduced in several states this year, including Alabama, Georgia, and Oklahoma. And they come alongside other legislative attacks on librarians, like in the form of laws like Montana’s HB 234, which added new criminal penalties for librarians who distribute “obscene” material to minors. Together, these laws reflect a climate in which libraries and librarians are under increasing attack, as part of a campaign that could have long-term impacts on libraries as democratic institutions. 

The motivation in each state appears to be the same: to create an emaciated public library system, and diminish access to information and ideas for broad swaths of the country that depend on libraries as spaces to read, think, work, and create.

‘Don’t Display Gay’ and McCarthyism 2.0: Emerging Themes in K-12 Censorship

By: Sam LaFrance

March 21, 2024

The movement to stifle certain types of expression in K-12 schools is continuing to expand – and the laws go way beyond enabling book bans. 

While “Don’t Say Gay” bills and other educational gag orders continue to spread across states, a diverse set of provisions are gaining popularity this legislative cycle. From the return of McCarthyism to bogus book ratings, below are three types of legislative proposals that aim to censor free expression in K-12 schools.

 

“Don’t Display Gay”

While most know about “Don’t Say Gay” bills, which began in Florida in 2022, a new trend targeting K-12 free expression is “Don’t Display Gay” bills. Though they vary from state to state, these proposals aim to legislatively restrict the use of LGBTQ+ Pride flags, signs, displays, and safe space stickers in classrooms and school libraries. 

Oklahoma’s HB 3217, the “Patriotism Not Pride Act,” is one of the most stringent of this type. The bill would defund any public agencies that show support for or simply recognize Pride month “or any event with a similar theme.” The bill is broad, and would bar not just Pride events, but anything related to LGBTQ+ Pride, including official social media posts and educational programs. The bill also bars any LGBTQ+ identity flags from being displayed on any state property.

In a demonstration of the censorial intent behind the proposed law, one Oklahoma representative said he supported the bill because it would prevent state agencies from using “state resources to advocate lifestyles that Americans have regarded as an immoral influence and harmful to those who participate.”

Other bills are less explicitly anti-LGBTQ+, but their sponsors have similarly made their intentions clear. In Tennessee, HB 1605 would restrict the display of flags in public schools. The text doesn’t explicitly say “Pride” or “LGBTQ+,” but the primary sponsor of the bill said he authored the bill after parents in his district complained to him about Pride flags in some school classrooms. The main sponsor of SB 1722, the bill’s senate companion, said in a hearing that his support for the bill was similarly spurred by several parents from his district complaining about a teacher who had a Pride flag on their desk.

As we’ve seen with “Don’t Say Gay” bills, these “Don’t Display Gay” policies also originated at the local school district level before reaching state legislation. School districts in multiple states, such as Ohio, New Jersey, Wisconsin, and Pennsylvania, have all banned Pride or LGBTQ-related flags, signs, or displays; one district in Utah enacted a ban targeting both Pride and Black Lives Matter flags.

According to the Trevor Project, nearly two-thirds of LGBTQ+ youth cite proposed and enacted legislation censoring LGBTQ+ people in schools as a contributing factor to their poor mental health. Further, states where legislators target LGBTQ+ expression in schools have seen a sharp uptick in hate crimes against LGBTQ+ students, according to the Washington Post. As legislators find new ways to chill LGBTQ+ expression and undermine inclusivity in schools, the climate for LGBTQ+ students is bound to worsen.

 

Red Scare 2.0?

A second type of bill targeting K-12 schools is attempting to bring McCarthyism to the 21st Century.

In several states, bills specifically requiring the teaching of the “threat” and “unspeakable atrocities” of communism have been proposed this year. For example, a failed and lengthy educational gag order proposed in New Hampshire – HB 1153 – would have mandated anti-communism courses for middle and high schoolers. The bill outlines the curriculum for the courses in significant detail, including requiring schools teach that communism “is a cult prophesy that goes against nature” and that “the history of ‘McCarthyism’ as a ‘witch hunt’ was a communist-and-sympathizer driven disinformation operation aimed to discredit the senator … and to stymie the attempt to root out Communists in powerful positions.”

Such specific language is plainly ideological, going well beyond what is typical when it comes to the legislature setting guidelines for the teaching of history or political philosophy. Similar bills in Florida and Tennessee together add to a trend of legislators delineating what viewpoints must be taught in such a manner as to potentially restrict educators’ professional discretion, and impose an ideological constraint on the freedom to learn. 

Another bill in Oklahoma includes a provision banning “the display of flags or propaganda of any organization or symbol of socialism, communism, Marxism, or anti-American sentiment” within classrooms and at school-sponsored or sanctioned events. As with other educational gag orders, the terms are vague and will certainly chill any efforts to teach about any of these topics, without consideration of existing professional and pedagogical standards. 

This development comes as little surprise, as historically, and once again over the past three years, fear-mongering about communism or socialism has advanced in tandem with efforts to manufacture panic over LGBTQ+ people, critical race theory, and DEI programs.

 

READER Acts: Over-rating and overrated

In Texas, HB 900, dubbed the ‘READER Act,’ is currently enjoined on First Amendment grounds. First passed in 2023, the law requires vendors who sell books to public schools to apply ratings to them based on their sexual content, stipulating that books that are determined to be “sexually explicit” cannot be sold to schools at all, and those deemed to be “sexually relevant” can only be accessed by students with their parents’ permission. The ratings are based on vague and overbroad criteria – a recipe for inconsistent application and restricting students’ freedom to read. 

Despite the unconstitutionality of HB 900 and its clear infringement on students’ freedom to read, legislators in other states are now introducing copycat legislation. Georgia’s SB 294 and South Carolina’s H 4701 are two nearly identical examples. Like the original READER Act, these bills attempt to impose government-mandated ratings on books. 

The enforcement of ratings on books based on specific criteria is inherently subjective. The language in these READER Acts is vague and overly broad, making it difficult to standardize a rating system; how one person (or private company or public school) assesses a book could vary from another. Frequently, the pressure to conduct such reviews encourages people to scrutinize for particular words, scenes, or settings, rather than evaluate a work of literature as a whole. What’s more, these bills don’t take into account the fact that publishers already offer age and reading level recommendations for their books.

Further, these bills require schools to put many hours into assessing their entire library collections for books that fit a vague criteria of “sexually explicit.” According to an analysis by EveryLibrary, school districts can spend upwards of thousands of dollars and hundreds of hours assessing books due to reviews – at a cost of millions of dollars to the state.

In under a year, Texas’s READER Act caused a firestorm in the state, resulting in hundreds of preemptive book bans and a lawsuit. Texas librarians have already expressed concerns about how their READER Act requires mass reviews of their entire library collections and the financial burden it will cause. Texas students, publishers, booksellers, authors, and advocates have also spoken out against the damaging law. The chaotic rollout of HB 900 in Texas should be a cautionary tale for legislators in Georgia, South Carolina, and beyond.

Three new bills that threaten the freedom to read

By: Sam LaFrance

March 1, 2024

Madison Markham contributed research to this roundup.

Bills fueling book bans and censorship in K-12 schools have proliferated since 2021, and the current legislative session is no exception. Waves of bills with anti-LGBTQ+ rhetoric, a concerted effort to broaden and harden “obscenity” laws, and the removal of local control have characterized an intensifying legislative movement to suppress expression and literature in schools and libraries. 

Below is our analysis of three bills that reflect some of the trends we’re seeing in state legislatures:

Don’t Say Gay in Alabama either

Alabama has proposed to be the seventh state to adopt a “Don’t Say Gay” style law with HB 130, which would prohibit instruction related to gender identity or sexual orientation all the way through twelfth grade. 

The legislature passed a law in 2022 to prohibit such instruction through fifth grade “in accordance with state standards.” The board of education, however, never updated the state standards, which meant that the “Don’t Say Gay” clause was never implemented. Now, HB 130 would correct this ambiguity, removing the board of education from the equation and mandating an explicit ban through twelfth grade. 

In other states, similar bans on instruction related to gender and sexuality have led to the removal of books, including And Tango Makes Three, a picture book about the true story of two male penguins who raise a chick together, and Call Me Max, a book about a child who realizes that he’s trans. Florida’s law has caused widespread confusion and self-censorship as teachers question what they are allowed to say or display in their classrooms.

If passed, Alabama would join several states with their own ‘Don’t Say Gay’ laws: Arkansas, Indiana, Iowa, Kentucky, North Carolina, and, of course, Florida. In doing so, we can predict that picture books about gay penguins and Pride Month celebrations will likely become verboten in Alabama classrooms.

Threats of jail time for educators and librarians 

Labeling material as “obscene” or “pornographic” in order to ban it is a tactic that far predates the current movement to ban books – but that doesn’t mean it has stopped being effective. 

That’s what lawmakers in West Virginia seem to be hoping for with HB 4654, which passed the House in February. The bill would remove existing exemptions for employees of schools, museums, and public libraries from being criminally charged with distributing “obscene” materials to minors. As EveryLibrary explained in a policy paper last year, such exemptions have existed in some form since the early 1960s and can be found in 44 states. In rolling those protections back, this new bill would mean that providing material deemed “obscene” to a minor – via a library book or an art history assignment, for example – could result in up to five years in prison. 

Legislation like HB 4654 poses a threat because of the risk that the legal definitions of “obscenity” will be misunderstood or misapplied. This potential for misapplication has made space for attempts by lawmakers to label any works related to LGBTQ+ identities or sexual health as obscene. And when the exemptions for educators are removed from state statutes, librarians and teachers are almost guaranteed to self-censor in order to avoid being branded a felon for doing their jobs. Such is the case in Missouri, where a similar law has resulted in bans of books like Maus and Gender Queer and librarians have admitted to self censoring out of fear. 

If West Virginia passes this bill, it will join a sorry list of states including Tennessee and Montana in chilling education and intimidating teachers and librarians into censoring books, content, and other education opportunities.

Accelerating book bans through statewide mandates 

A key element of the legislative push to undermine public education have been bills that would make it easier or more efficient to ban books. This year in Utah, HB 29 seeks to make the book banning process so painless, it only takes three challengers to ban a book from the entire state. 

Under the proposed bill, if three school districts determine that a book or instructional material is “objective sensitive material,” every school district in the state must remove it from student access. This applies even if a school district has already determined that the material is acceptable, or if students, parents, and teachers wish to keep it available locally. 

That the objection process is designed for material deemed to be “obscene” makes it all the more troubling, given the systematic misapplications of the term. Based on bans that have already occurred in Utah, books by Sarah J. Maas, Ellen Hopkins, and Maia Kobabe could be prohibited statewide under this proposal. 

Efforts to mandate statewide bans have also been seen in Tennessee, where provision similar to the Utah bill became law in 2021, and in Florida, where the state maintains a list of challenged material for school districts to consult when acquiring new books or materials. And in South Carolina, the State Board of Education recently passed a resolution leaving decisions on book challenges to the state rather than district school boards. This means that any book challenged in a public school may be at risk of being banned statewide.  

It’s unclear at this point whether Governor Cox will sign the Utah bill into law, but in the meantime, Let Utah Read has organized a vigorous campaign urging him to veto it.

Stopping WOKE in Alabama | AL SB 129

By: Sam LaFrance

February 27, 2024

Alabama is poised to pass the most pernicious educational gag order impacting higher education since Florida’s Stop WOKE Act became law – and in some ways, it’s even more restrictive. 

Like many gag orders, SB 129 includes a prohibition on the “divisive concepts” popularized by a Trump executive order in 2020 which ban large swaths of educational speech about race, racism, sex, and American history. The bill would ban faculty from requiring any student to participate in coursework that “advocates for or requires assent to a divisive concept” – essentially a ban on even including such content in a course, an extreme prohibition currently present only in Florida’s currently-stayed Stop WOKE Act among higher ed laws. The bill also edits one of the familiar “divisive concepts,” prohibiting content that contends an “individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.”

This new language would prohibit assigning readings of essays, books, or films where the author expresses that they feel complicit in past wrongs because of their identity, or historical documents demonstrating historical perspectives on race, gender, or class. This is a more expansive restriction than even Florida’s HB 7 (Stop WOKE), which only prohibits assigning readings advocating for complicity, not merely expressing the author’s experience

Alongside coursework, the bill would prohibit DEI offices and programming that determines participation based on identity group, which could include info sessions for international students or university recognition of the Black Student Union. And should public universities attempt to get around the severe measures in this bill by using federal or private funding, they will find themselves stymied by a clause prohibiting them from procuring any money to fund such activities. 

The result would be a campus environment devoid of intellectual freedom, and a state law so draconian that it gives Florida a run for its money.

More cowboys, less freedom | WY SF 1S3013

By: Sam LaFrance

February 26, 2024

Legislators in Wyoming are hoping that when it comes to banning gender studies, the third time’s the charm.

The legislature is attempting once again to defund gender studies departments at the University of Wyoming. The budget amendment was adopted by the Senate and failed to pass the House; it could still become law via the budget reconciliation process. A separate budget amendment, which passed the Senate, would also ban most DEI initiatives at UW. 

The gender studies ban would prohibit state or federal funds for gender studies majors, minors, courses, or even extracurricular activities. According to the sponsor, the intent of the amendment is to prohibit universities from funding something that is “more of an ideology than a program.” 

“The world needs more cowboys,” said another senator. “The world does not need more social justice warriors.” Ideological meddling in higher education, then, is acceptable to the bill’s supporters – so long as it reflects a certain viewpoint.

It is hard to imagine a more severe violation of academic freedom than for the legislature to ban an entire field of academic inquiry that they don’t like. In allowing the state to “micromanage” the affairs of the university, in the words of a senator who opposed the bill, Wyoming’s proposal parallels Florida’s effort to restrict access to sociology on public campuses and attempt to severely limit the scope of teacher preparation programs. 

The attack on gender studies specifically echoes a move at the New College of Florida to dissolve the school’s gender studies program for openly ideological reasons, which PEN America previously compared to Viktor Orbán’s prohibition on gender studies in Hungary in 2018. And like in Hungary, the bans may be a signal that broader ideological attacks are on the horizon.

New ‘diversity’ bills in Kentucky and Indiana miss the mark

By: Sam LaFrance

February 16, 2024

Lawmakers across the country are focusing on diversity in higher education, both in the form of “intellectual diversity” on campus and diversity, equity, and inclusion initiatives. In Indiana, a new bill would allow students to rat out professors who fail to promote “intellectual diversity,” while in Kentucky, lawmakers are targeting class teachings that would promote “resentment” of another class of people. Both bills are likely to chill speech on campus.

 

Indiana’s intellectual diversity in name only

Indiana SB 202 threatens tenure protections and disregards academic freedom at public universities – and it sailed through the state senate this month. Much like an Ohio bill that nearly passed last year, SB 202 is preoccupied with “intellectual diversity” – the phrase appears in the bill 37 times. But the mechanisms it creates will actually threaten the diversity of ideas available on Indiana campuses. 

The bill does this by creating a tipline for students to report professors who fail to adequately promote “intellectual diversity” in their classrooms. Professors reported on the tipline could then face a hearing with the board of trustees, who could then deny them tenure or promotion. Importantly, tenure would not save professors either: The board of trustees would also have to conduct a post-tenure review process every five years to assess if the faculty member has made adequate attempts to foster “intellectual diversity” in their classrooms. If they haven’t, by metrics legislators have so far failed to specify, professors may be fired by the trustees without any input by other faculty. 

Intellectual diversity on campus is an undeniably good thing. But because defining it is necessarily subjective, it’s best adopted as a guideline, not enforced by the power of the state. Mandating that each professor foster it in nonspecific ways is a recipe for self-censorship and politically motivated reporting – and it is a direct violation of academic freedom, which allows professors broad latitude to set their own syllabi and run their own classrooms. 

To understand the problem with encouraging students to report their professors for their speech, look no further than Florida, where one professor reported feeling “pressure from students to give them a grade that they want in exchange for not submitting a complaint about me.” This would easily become the reality in Indiana under SB 202.

 

In Kentucky, no diversity at all

“We aren’t always for diversity,” according to Kentucky state senator John Schickel, who believes it is “being thrown way out of proportion.” His solution to this allegedly disproportionate attention is to support SB 6, a bill prohibiting professors from discussing vague concepts with adult students at the university level. 

SB 6 would prohibit professors in gen ed courses or program requirements from promoting “discriminatory concepts,” a laundry list of vague terms that builds upon the “divisive concepts” common in educational gag orders since 2020. This prohibition would now apply in any course offered for general ed credit or required in any major. The “discriminatory concepts” include anything that promotes “resentment of … a class of people,” a category so broad that it would prohibit instruction that implies disapproval of, for example, litterbugs, animal abusers, or historical enslavers. The bill would also ban the use of state funds for any activity promoting these concepts, which would hamstring the ability of professors and students to go to conferences, subscribe to journals, or advance research partnerships — all based on the DEI programming of external, private institutions. 

In doing so, SB 6 would impinge on academic freedom and undermine the university’s ability to educate students. As University of Kentucky president Eli Capilouto put it, the bill would prevent the university from building “a community where everyone feels as though they belong as we pursue our mission to advance this state in everything that we do.” College presidents comment on legislation only rarely and only when the bill would impact the university in “potentially significant ways,” Capilouto said. “This is one of those moments.”

The bill just passed the state Senate despite opposition from the president of the Kentucky Council on Postsecondary Education. It heads to the House next, and if it passes there, will likely be vetoed by Governor Andy Beshear before heading back to the legislature for an override vote.

 

These bills, and more like them, are tracked in PEN America’s Index of Educational Gag Orders.

Nebraska lawmakers are considering damaging DEI and tenure bans

By: Sam LaFrance

February 12, 2024

Addendum, April 22, 2024: Legislators in Iowa are close to passing SF 2435, a bill with nearly identical language to Nebraska LB 1330. Per our February analysis, the expansive list of concepts banned by the bill would “hobble the state’s public colleges and universities, sowing chaos and confusion as general counsels attempt to interpret the list of prohibited concepts.”

Legislators in Nebraska are hard at work undermining higher education in the state in the name of destroying “woke” ideologies. Below are two bills that would threaten tenure, academic freedom, and university autonomy. If passed, the bills would put the future of higher education in Nebraska in serious doubt. 

Both bills are opposed by the University System of Nebraska, as well as the Association of Students of the University of Nebraska.

 

So long, tenure

With only a few lines of text, a new bill would wipe out one of the strongest foundations of academic freedom in higher education. Nebraska LB 1064 would prohibit tenure in the state university system, leaving current faculty members in doubt over their employment status. The bill is almost comically short on detail about what would happen to currently tenured faculty and will also likely scare off new hires who can pursue tenure protections elsewhere.  

In sponsor Sen. Loren Lippincott’s own words, he introduced the bill to combat “woke ideology” on campus. However, by eliminating tenure, this bill will do nothing but facilitate brain drain as qualified faculty turn to states without restrictions. Tenure exists to protect professors from political and corporate pressure, allowing them to research freely and teach according to their expertise. Sen. Lippincott may fail to see the irony in eliminating this protection for political reasons, but we don’t.

 

What’s DEI anyway?

In another bill, LB 1330, a litany of concepts would be banned from programming and initiatives in public colleges and universities. The list includes: “Unconscious or implicit bias, cultural appropriation, allyship, transgenderism, microaggressions, microinvalidation, group marginalization, anti-racism, systemic oppression, ethnocentrism, structural racism or inequity, social justice, intersectionality, neopronouns, inclusive language, heteronormativity, disparate impact, gender identity or theory, racial or sexual privilege” – and “any concept substantially related to any of these theories.”

This bill includes these concepts within its absurdly expansive definition of DEI, and goes on to prohibit any state funds being used to promote them. This broad definition could restrict funding for conferences or research projects, transition services for international students, or even student organizations. 

LB 1330 also prohibits colleges and universities from taking any official position on any of those concepts. That means that not only would DEI offices and initiatives become illegal, but so could cultural heritage celebrations, Pride month displays, preferred pronoun name tags, or anything that could be interpreted as “inclusive language.” The restriction on “any concept substantially related to any of these theories” is so vague that it could effectively ban universities from promoting any idea of any kind.

LB 1330 would hobble the state’s public colleges and universities, sowing chaos and confusion as general counsels attempt to interpret the list of prohibited concepts.

 

These bills, and more like them, are tracked in PEN America’s Index of Educational Gag Orders.