New PEN America Report Warns About Dangers of Educational Gag Orders

(New York, NY) — A wave of alarming legislative efforts to limit teaching and learning on topics including racism, sexism, and American history represent a censorious drive to impose viewpoint and content-based restrictions on freedom of speech and thought in American schools and universities, PEN America said in a report released today.

In the report, Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and Teach, PEN America describes these bills as “educational gag orders,” a label intended to emphasize the efforts of legislators to forcibly silence discussions of topics and perspectives with which they disagree. The bills would impose various forms of punishment for educators, schools, and districts that dare cover excluded topics, such as budget cuts and disciplinary reprisals. PEN America calls on legislators to withdraw and repeal these bills, which are inconsistent with both the letter and the spirit of the First Amendment.

As the report shows, these bills have already chilled speech in classrooms across the country, trammeled academic freedom, and resulted in the perverse convolution of classroom discussions and curricula in order to avoid the wrath of punitive legislators bent on muzzling vital societal discourse on racism, sexism, and the complexities of American history.

“Anyone who cares about freedom of speech and democratic values should be appalled by these exclusionary bills,” said Jonathan Friedman, PEN America’s director of free expression and education and an author of the report. “Educational gag orders muzzle entire subject areas, scare teachers from engaging in important discussions, and deprive students of opportunities to ask questions, learn, and grow. These intrusive bans have no place in our classrooms and institutions.”

The report shows that in the first nine months of 2021, 24 state legislatures introduced 54 bills that would restrict teaching and training in K-12 schools, higher education, and/or state agencies and institutions. Eleven of those bills have become laws in nine states. Nine laws explicitly apply to public schools, three to colleges and universities, and six to state agencies and institutions. As of the report’s writing, 18 of these bills were pending in the current legislative session, and six have been pre-filed for 2022.

From its analysis, PEN America reaches four overarching conclusions about these bills:

They represent an effort to impose content- and viewpoint-based censorship.
They have already had and will continue to have a chilling effect on the speech of educators and trainers.
They are based on a misrepresentation of how intellectual frameworks are taught, and threaten to constrain educators’ ability to teach a wide range of subjects.
They are often misleadingly framed as protecting free speech and academic inquiry, when their purpose and effect is to do the opposite.

PEN America found that the bills’ broad and vague language could affect a wide range of literature, discourse, and curricular materials, blocking discussions of facts. For example, many of the bills could be interpreted to prohibit teachers from citing to civil rights leaders, leading classroom discussions on slavery or women’s suffrage, or sharing factual information on historical events like the Tulsa Race Massacre or the Trail of Tears.

“There is a hierarchy of threats to free speech, and viewpoint-based dictates imposed by government are at the top of that pyramid, historically recognized as the most potent danger to open discourse,” said Suzanne Nossel, CEO of PEN America. “As a principle, free speech is meant to reside above politics. We are appealing to all those who care about freedom of expression to see these bills for what they are: an unprecedented effort to render certain viewpoints and ideas illegal not just in schools, but in universities teaching adults. While it is perfectly acceptable to debate the content and messages conveyed in public education on sensitive issues of race and racism, these bills reflect an attempt to address concerns about one form of enforced orthodoxy through the imposition of another.”

PEN America’s new report shows that the wave of educational gag orders followed former President Trump’s September 2020 executive order that called for sweeping bans on teachings and trainings involving so-called “divisive concepts” regarding race and sex. President Biden repealed the order, but Republican legislators have nevertheless introduced a barrage of proposed content- and viewpoint-based bans at the state and federal levels. Because they aim to suppress content and narratives about racism, sexism, and gender in society, PEN America argues that these bans silence vital discourse and will likely have a disproportionate impact on educators, staff, and students who are people of color, LGBTQ+, and women.

The report finds that many of these bills’ proponents misuse the term critical race theory—an intellectual framework used in universities and law schools to analyze racial disparities—to describe a broad range of ideas and materials they find objectionable. Some conservative activists and political leaders have co-opted the term to rally political support for these bills, and have attacked specific educational initiatives, such as The New York Times’ 1619 Project, which examines the modern impact of slavery in the United States, arguing that these should be banned from schools.

PEN America’s report shows that educational gag orders have already had an impact, even where they have not become law. Facing threats of budget cuts, dismissals, and lawsuits if they violate these confusing bills, educators, trainers, and administrators have cancelled events and courses and removed books from libraries. A college in Oklahoma suspended a sociology course on race and ethnicity in May. In Texas, a school leader last month instructed teachers to balance books on the Holocaust with those of “opposing views.”