America’s Censored Classrooms

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America’s Censored Classrooms

August 17, 2022

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Key Findings:

Finding 1

Finding 2

Finding 3

PEN America Experts:

Jeremy C. Young

Director, State, and Higher Education Policy

Jonathan Friedman

Sy Syms Managing Director, U.S. Free Expression Programs

Educational gag orders are state legislative efforts to restrict teaching about topics such as race, gender, American history, and LGBTQ+ identities in K–12 and higher education. PEN America tracks these bills in our Index of Educational Gag Orders, updated weekly.

In this report, we analyze the landscape of educational gag orders as of August 2022—a natural point for reflecting on the year’s legislation. Most state legislatures meet during the first half of the year; additional educational gag orders could become law before the end of 2022 via special sessions or in the few legislatures that meet year-round. However, the work of the vast majority of state legislatures has concluded until 2023.

This year, proposed educational gag orders have increased 250 percent compared to 2021. Thirty-six different states have introduced 137 gag order bills in 2022, compared to 22 states introducing 54 bills in 2021. While there has been a decline in new gag order laws passed from 12 last year to 7 this year, overall, legislative attacks on education in America have been escalating—fast.
This year’s bills have been strikingly more punitive. In 2022, proposed gag orders have been more likely to include punishments, and those punishments have more frequently been harsh: heavy fines or loss of state funding for institutions, termination or even criminal charges for teachers.
While most gag order bills have continued to target teaching about race, a growing number have targeted LGBTQ+ identities. This includes Florida’s HB 1557—the so-called “Don’t Say Gay” bill—and 22 others. Attacks on LGBTQ+ identities have increasingly been at the forefront of educational censorship.
Bills introduced this year have targeted higher education more frequently than in 2021, part of a broader legislative attack on colleges and universities. Thirty-nine percent of bills in 2022 have targeted higher education, compared with 30 percent last year. At the same time, bills focused on diversity trainings at government agencies have decreased. Educational gag order bills have become focused almost entirely on educational institutions. And for the first time, some bills have targeted nonpublic schools and universities, too.
Consistent with last year’s trends, Republican legislators have overwhelmingly driven this year’s educational gag order bills. Only one bill out of the 137 introduced so far this year has had a Democratic legislative sponsor. Just a few years ago, Republican legislators were championing bills protecting free expression on college campuses; many are now focused on bills that censor the teaching of particular ideas.
Meanwhile, conservative groups and education officials are working to broaden the interpretation of existing gag order laws. Lawsuits have begun to appear that ask courts to interpret gag orders as broadly as possible, while state boards of education have handed down draconian penalties in excess of what the laws require.
In 2023, we anticipate that the assault on education will continue. More gag order bills will be filed in states where they failed narrowly this year. Based on current trends, we predict that other legislative attacks on education, such as “curriculum transparency” bills, anti-LGBTQ+ bills, and bills that mandate or facilitate book banning are also likely to increase.

Introduction

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.

Proponents of educational gag orders often claim that they are necessary to avoid “indoctrination” of students. We disagree. . . . The restrictions and chilling effects of gag order laws threaten to destroy the climate of open inquiry required in free and democratic educational institutions.

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 2021.¹ 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.²

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.”³ 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.”⁴

We stand resolute that educational gag orders violate these precepts and ought to be opposed and reversed. As we stated in 2021,

The teaching of history, civics, and American identity has never been neutral or uncontested, and reasonable people can disagree over how and when educators should teach children about racism, sexism, and other facets of American history and society. But in a democracy, the response to these disagreements can never be to ban discussion of ideas or facts simply because they are contested or cause discomfort. As American society reckons with the persistence of racial discrimination and inequity, and the complexities of historical memory, attempts to use the power of the state to constrain discussion of these issues must be rejected.⁵

Finally, this report analyzes patterns among not only educational gag orders that have become law, but also those that were introduced in 2022 and failed, or that remain pending in state legislatures at the time of publication. Many such bills are close relatives of others that passed or nearly passed; others are messaging bills introduced in blue states where they were unlikely to advance. A few died thanks to effective politicking by their opponents; this list includes multiple gag order bills in Indiana, which were defeated in 2022 amid political gaffes, citizen pressure, and disagreements among Republican legislators over whether the bills went too far or not far enough.⁶ A few more failed because of the vagaries of chance. These include West Virginia’s SB 498, where lawmakers failed by just minutes to meet the end-of-session deadline, and Arizona’s SB 1412, where one state senator’s absence on the last day of the session prevented the bill from becoming law.⁷

While successful legislation is the greatest threat to classroom free expression, the avalanche of proposed bills that did not pass are also worthy of both attention and concern. Such bills evince a desire among lawmakers to censor educators in more places and using more extreme measures than they have done already, and they contain provisions that stand a good chance of being reintroduced in 2023. They also create a broad chilling effect among teachers and professors both by their pervasiveness and by the censorious discourse they inspire—part of a nationwide campaign of classroom censorship that shows no signs of abating.

The 2022 State Legislative Sessions in Review

Educational Gag Orders Passed in 2022

State and Name	Institutions Targeted	Educational Topics Affected
Florida HB 1557	Public K-12	LGBTQ+ issues and identities
Florida HB 7	Public K-12 and higher education, public and private employers*	Race, sex, color, national origin
Georgia HB 1084	Public K-12	Race, US history
Kentucky SB 1	Public K-12	Race, US history and culture
Mississippi SB 2113	Public K-12 and higher education	Race, sex, ethnicity, religion, national origin
South Dakota HB 1012	Public higher education	Race, color, religion, sex, ethnicity, national origin
Tennessee SB 2290	Public higher education	Race, sex

*HB 7 regulates speech by private employers, including “subjecting any individual, as a condition of…certification,…credentialing, or passing an examination,” to “instruction” that promotes ideas from a list of “divisive concepts.” Depending on further state guidance, this language could be construed to regulate classroom speech within nonpublic educational institutions.

The most striking development to date in 2022 has been the sheer volume of bills introduced. In the month of January alone, 18 different educational gag order bills were filed in Missouri, 8 in Indiana, and 6 in Arizona (including 1 amendment to the state constitution). By the time most legislative sessions wound down in June, virtually every state where Republicans control at least one legislative chamber had considered an educational gag order in 2022. The only exceptions were Arkansas, which had already passed a gag order the previous year, and states whose legislatures do not meet in 2022.⁸

Consistent with last year’s trends, Republican legislators have been the driving force behind educational gag order bills. Only one bill introduced from January-August 2022 has had a Democratic sponsor: Arizona’s HB 2634, which would have prohibited public K–12 schools from using any instructional materials “reflecting adversely” on certain groups of people—a standard so broad that it could have legitimated all manner of censorship.⁹ But this bill was filed only two days before the end of the Arizona legislative session and never had any chance of passage. Every other gag order bill introduced in 2022 across the country has been written and sponsored exclusively by Republican legislators.

Compared to last year’s crop, the gag order bills introduced thus far in 2022 have tended to be more expansive and to target a wider array of educational speech than those filed last year. Instruction related to race has been the most common category of speech to draw lawmakers’ attention, which was true in 2021 as well. But this year has also seen a sharp increase in the number of bills targeting LGBTQ+ issues and identities; 23 such bills have been introduced since the beginning of the year, and one, Florida’s HB 1557, became law. Overall, there has also been an increase in the complexity and scale of legislation, as lawmakers have sought to assert political control over everything from classroom speech to library content, from teachers’ professional training to field trips and extracurricular activities.

Another notable development to date in 2022 has been the growing number of bills targeting higher education. Of the 137 educational gag order bills introduced, 39 percent have targeted colleges and universities, compared to 30 percent of those filed in 2021. Of the bills that have become law thus far in 2022, 57 percent target higher education, compared with just 25 percent of the new laws last year. There has also been a significant increase in the number of bills designed to regulate non-public educational institutions, including private universities.

Finally, the bills introduced this year have been much more punitive. Thus far in 2022, 55 percent of bills have contained some kind of explicit punishment for violations, compared to 44 percent in 2021. Moreover, those punishments have tended to be more extreme, including private rights of action, large monetary fines, faculty termination, and loss of institutional accreditation. Some unsuccessful bills have even proposed criminal penalties.

In our 2021 report, we stated that educational gag orders demonstrate “a disregard for academic freedom, liberal education, and the values of free speech and open inquiry that are enshrined in the First Amendment and that anchor a democratic society.” We also argued that they “are likely to disproportionately affect the free speech rights of students, educators, and trainers who are women, people of color, and LGBTQ+.”¹⁰ These trends continue in 2022.

Outline

This report consists of six sections. In Section I, we survey the seven educational gag order laws and two executive orders enacted in 2022. In Section II, we discuss the types of educational institutions targeted by gag order bills this year. In Section III, we delve into the design of these bills, focusing on overall structure and the ways legislators have sought to regulate educational content. In Section IV, we analyze the content of the bills themselves, exploring the shifting priorities and objectives of their advocates and supporters. Section V discusses penalties and punishments, an area where there has been considerable evolution since 2021.

Finally, in Section VI, we discuss trends we are likely to see going forward, including:

a. another wave of educational gag order bills, especially in Republican-controlled legislatures;

b. a greater focus in educational gag order bills on restricting higher education, nonpublic educational institutions, and LGBTQ+ content;

c. litigation by both opponents and supporters of educational gag orders; and

d. a broader spectrum of educational censorship, including so-called “curriculum transparency” bills, reporting hotlines, legislation facilitating book bans and undermining tenure and academic freedom, and lawsuits designed to force maximal interpretations of existing gag order laws.

Members of the Mississippi House of Representatives speak to the press on March 3, 2022, after voting against SB 2113, the state’s educational gag order.

SECTION I: Laws and Executive Orders Enacted in 2022

Of the 137 legislative gag order bills introduced in 2022, seven have become law. Additionally, two executive orders that achieve similar ends have gone into effect. These laws and executive orders are summarized below.

Laws

Florida HB 1557¹¹

This law prohibits public schools from offering any classroom instruction related to sexual orientation or gender identity prior to grade 3, or in grades thereafter in a manner “that is not age appropriate or developmentally appropriate for students in accordance with state standards.” Additional requirements related to “curriculum transparency” are also included. Parents who believe that a school has violated the law may file a complaint with the commissioner of education or sue the school in civil court.

Florida HB 7¹³

Targets: employers, public K–12 schools, public colleges and universities
Type of prohibition: inclusion, promotion, compulsion
Type of punishment: monetary fine, loss of state financial support
Legal challenges: Falls v. DeSantis [pending], Honeyfund.com v. DeSantis [pending]¹⁴

This law includes three principal provisions. The first prohibits all employers, including both public and nonpublic educational institutions, from requiring an individual to attend, as a condition of “certification, licensing, credentialing, or passing an examination,” any training or instruction where ideas from a list of “divisive concepts” about race, sex, color, or national origin are espoused, promoted, advanced, inculcated, or imposed.¹⁵ Employers who do so may be fined up to $10,000 per violation under Florida’s Civil Rights Act. The second provision extends this same prohibition to classroom instruction in public K–12 schools, colleges, and universities. In the case of public K–12 schools, no punishment is specified. However, under a separate law passed shortly after HB 7, public colleges and universities found to have violated this prohibition may lose access to state financial support.¹⁶ The third provision requires that all instruction and supporting materials in public K–12 schools be “consistent” with a list of principles related to race, color, national origin, religion, disability, or sex—principles that essentially contradict the prohibited ideas enumerated elsewhere in the law. Teachers may not “indoctrinate or persuade” students to adopt any belief inconsistent with these principles. No punishment is specified.

Georgia HB 1084¹⁷

Targets: public K–12 schools
Type of prohibition: promotion
Type of punishment: loss of institutional autonomy, professional discipline
Legal challenges: none

This law prohibits public K–12 schools from adopting or engaging in any curriculum, classroom instruction, or mandatory training program that promotes ideas from a list of “divisive concepts” related to race. School districts found to have violated this law may be subject to additional state control, and superintendents of such school districts may be suspended.

Kentucky SB 1¹⁸

Targets: public K–12 schools
Type of prohibition: inclusion, promotion
Type of punishment: none specified
Legal challenges: none

This law requires public K–12 schools to provide instruction that is “consistent” with ideas related to race, sex, US history and society, and human nature, including the idea that “defining racial disparities solely on the legacy of [slavery] is destructive to the unification of our nation.” Any instruction about “current, controversial topics related to public policy or social affairs” must be “relevant, objective, nondiscriminatory, and respectful to the differing perspectives of students.” No punishment is specified.

Mississippi SB 2113¹⁹

Targets: public K–12 schools, public colleges and universities
Type of prohibition: compulsion
Type of punishment: none specified
Legal challenges: none

This law prohibits public K–12 schools, colleges, and universities from “direct[ing] or otherwise compel[ling]” students to “adopt, affirm, or adhere to” ideas from a list of “divisive concepts” related to sex, race, ethnicity, religion, or national origin. These educational institutions are also forbidden from making any “distinction or classification of students” on the basis of race. No public funds may be spent for any purpose that would violate this law.

South Dakota HB 1012²⁰

Targets: public colleges and universities
Type of prohibition: compulsion
Type of punishment: none specified
Legal challenges: none

This law prohibits public colleges and universities in South Dakota from compelling students to adopt or affirm certain ideas from a list of “divisive concepts” related to race, color, religion, sex, ethnicity, or national origin. It also bars these institutions from requiring students or employees to attend any training or orientation where these ideas are taught or promoted. No public funds may be spent for any purpose that would violate this law.

Tennessee HB 2670²¹

Targets: public colleges and universities
Type of prohibition: inclusion, compulsion
Type of punishment: private right of action
Legal challenges: none

This law prohibits public colleges and universities from conducting any mandatory student or employee training that includes ideas from a list of “divisive concepts” related to race, sex, religion, creed, nonviolent political affiliation, social class, or any other “class of people,” or that “promotes resentment” of any such group. For the purposes of this law, “training” includes “seminars, workshops, trainings, and orientations,” which under some interpretations could include classroom instruction. Public colleges and universities may not compel students or employees to adopt these ideas, or condition hiring, tenure, promotion, or graduation on whether a student or employee endorses a “specific ideology or political viewpoint.” Individuals who believe this provision has been violated may pursue legal remedy in an appropriate court. The law contains a likely unenforceable savings clause stating that it is not to be interpreted to infringe on an individual’s academic freedom or First Amendment rights.

Executive Orders

South Dakota Executive Order 2022-2²²

Targets: public K–12 schools
Type of prohibition: promotion, compulsion
Type of punishment: none specified
Legal challenges: none

This executive order prohibits public K–12 schools from promoting any ideas “in violation of the Civil Rights Act of 1964,” including ideas from a list of “divisive concepts” related to race, color, religion, sex, ethnicity, or national origin. No punishment is specified.

Virginia Executive Order 1²³

Targets: public K–12 schools
Type of prohibition: compulsion
Type of punishment: none specified
Legal challenges: none

This executive order prohibits public K–12 schools from directing or otherwise compelling students to adopt or affirm any ideas “in violation of Title IV and Title VI of the Civil Rights Act of 1964,” including a list of “divisive concepts” related to race, skin color, ethnicity, sex, or religion. No punishment is specified. Separate from the executive order, Virginia Governor Glenn Youngkin created an email tip line for members of the public to report violations.

SECTION II: Types of Institutions Targeted

As in 2021, the vast majority of educational gag order bills introduced this year have targeted K–12 schools. Of those bills introduced, 132, or 96 percent, have trained their sights on primary and secondary education, including classroom instruction, faculty and staff trainings, invited speakers, school libraries, field trips, and extracurricular activities.

Beyond K–12 schools, a growing number of bills have targeted public colleges and universities. Last year, 30 percent of educational gag order bills targeted public higher education. In 2022, that number has increased to 39 percent, several of which, like South Dakota’s HB 1012, focus exclusively on higher education.²⁴

This trend represents something of an about-face for many Republican lawmakers, who just four or five years ago were enthusiastically touting so-called Campus Free Speech Acts purportedly designed to protect intellectual diversity and free expression.²⁵ Now many are targeting higher education with some of the most censorious language to date.

One of the most prominent examples in 2022 of a law that restricts higher education is Florida’s HB 7. Officially titled the Individual Freedom Act, the law prohibits public K–12 schools, colleges, and universities from “subject[ing] any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe” a list of concepts related to race, color, national origin, or sex.

This provision poses a threat to college and university faculty members’ First Amendment rights. “To impose any strait jacket upon the intellectual leaders in our colleges and universities,” Supreme Court chief justice Earl Warren declared in Sweezy v. New Hampshire (1957), “would imperil the future of our Nation.” The constitutional freedom of public university faculty to “espouse,” “promote,” and “advance” whatever ideas they view as relevant to their scholarship or course content is integral to the academy’s mission; “otherwise,” wrote the court, “our civilization will stagnate and die.”²⁶

HB 7 also deals a significant blow to academic freedom. For example, one of the concepts that HB 7 prohibits faculty from espousing is that “an individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” By any reasonable interpretation, HB 7 makes it illegal in the state of Florida for a law professor to articulate arguments in favor of affirmative action in the classroom—even though affirmative action exists and is currently held by the Supreme Court to be constitutional in some forms.²⁷ Recent guidance issued by the Florida Board of Governors and various state universities has not allayed these concerns.²⁸

Tennessee’s HB 2670, which also became law this year, goes further. It forbids public colleges and universities from including certain “divisive concepts” in a seminar, workshop, training, or orientation.²⁹ Educational gag orders that contain prohibitions on inclusion of certain concepts (analyzed at length in Section III) are typically the most censorious, forbidding even neutral and objective discussions of particular ideas. For example, under the law, public universities in Tennessee may no longer discuss in a seminar or assign for an orientation any material that “promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.” This provision could be construed to mean that a historian of the US civil rights era or of the Holocaust cannot include in a course historical sources that might inspire “resentment” of the Ku Klux Klan or the Nazis, each of whom might be considered a “class of people,” a term that is not defined.

These concerns are not far-fetched. In a lawsuit challenging HB 7, a University of Central Florida professor explained that he no longer felt free under the law to discuss with his students Michelle Alexander’s 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, which argues that the American justice system perpetuates a racial caste system.³⁰ According to the professor, Alexander’s argument violates HB 7’s rule against promoting the view that “[a] person’s . . . status as either privileged or oppressed is necessarily determined by his or her race.” In their response, lawyers for the state of Florida acknowledged this example but argued that the professor could still discuss The New Jim Crow so long as he did so objectively and without endorsement. “Is that really all the First Amendment offers,” wrote the judge hearing the case in his decision denying the government’s motion to dismiss, “that you can speak all you want as long as you toe the government line?”³¹

This year has also brought a sharp increase in the number of bills targeting nonpublic educational institutions. In all of 2021, only one bill (Louisiana’s HB 564) sought to regulate speech in such institutions. By contrast, 13 bills have done so in 2022, though most have been unsuccessful.³² These bills have adopted new and creative enforcement mechanisms designed to overcome the fact that nonpublic schools and universities are better shielded constitutionally against government curricular dictates. These mechanisms, as well as the bills more generally, are discussed at length in Section IV.

Finally, lawmakers in 2022 seem to have lost their appetite for regulating speech and conduct in nonschool settings. The original model for most educational gag orders, President Trump’s September 2020 Executive Order 13950 on “Combating Race and Sex Stereotyping,” focused primarily on trainings in federal agencies and military academies, but not in other K–12 or higher education institutions.³³

Whereas last year it was quite common for gag order bills to target state agencies, political subdivisions, and state contractors, reference to these institutions has been more or less absent in bills introduced this year. Thanks in part to a perception that Glenn Youngkin won the Virginia governor’s race in November 2021 by campaigning against critical race theory in schools, most 2022 educational gag order bills have focused on educational settings—that is to say, they have aimed to restrict students’ education.³⁴

School Libraries

School libraries have emerged this year as especially tempting targets for lawmakers. For instance, Oklahoma’s SB 1142 and SB 1654 would have prohibited public school libraries from including on their shelves any book that makes as its “primary subject” LGBTQ+ issues or identities.³⁵ Other bills introduced in 2022 have proposed to strip certain exemptions from obscenity laws currently enjoyed by public school libraries, placing the institutions in legal jeopardy for granting students access to materials dealing with sex or sexuality. Some bills have proposed something similar for public (non-school) libraries as well.³⁶ And Tennessee’s HB 2666, which became law, created a government commission that will have final say over which books a school district may ban from its library in cases where district-level decisions are appealed.³⁷

Some educational censorship bills contain provisions designed to make it easier to challenge and remove library content that offends an individual’s sensibilities. For example, Florida’s HB 1467, which became law in 2022, contains two important provisions relevant for school librarians. First, it allows any parent or resident of the county to challenge a library book on the grounds that it is “pornographic,” “not suited to student needs and their ability to comprehend the material presented,” or “inappropriate for the grade level and age group for which the material is used.” If the school district finds that the challenge is justified, the offending materials must be removed. Second, the law requires school districts to collect these challenges, regardless of their merit or outcome, and report them to the commissioner of education. The Department of Education will then publish a list of these challenges and disseminate them to schools across the state.³⁸ The likely consequence is that school districts will avoid stocking controversial material.

In another example, after Utah’s HB 374, “Sensitive Materials in Schools,” became law this year, the state attorney general’s office issued a guidance directing school districts “to immediately remove books from school libraries that are categorically defined as pornography under state statute.”³⁹ In July, Alpine School District in Utah announced a plan to remove 52 books in response to this guidance.⁴⁰

Bills with such provisions are common in 2022. Not all of these bills are considered by PEN America to be educational gag orders, a term we reserve for legislation prohibiting the expression of certain ideas in a school or university. Nonetheless, the bills targeting school libraries are best understood as attempts to legalize book banning. For a more detailed analysis of recent book-banning trends, see PEN America’s April 2022 report, Banned in the USA.⁴¹

SECTION III: Types of Prohibitions

In broad terms, the educational gag order bills introduced since 2021 contain three distinct types of prohibitions: on compulsion, on promotion, and on inclusion of so-called “divisive concepts.” Many bills contain more than one of these prohibitions.

On February 16, 2022, nearly 200 people signed up to speak in opposition to Indiana’s HB 1134 gag order bill at a state senate subcommittee hearing. The committee cut off public comments before most attendees had spoken, sparking a media controversy that ultimately contributed to the bill’s failure.

Prohibitions on Compulsion

These gag order bills would prohibit schools or universities from compelling individuals to adopt, affirm, or espouse a specific idea. For example, Idaho’s HB 377, which became law in 2021, states that no public university or school shall “direct or otherwise compel students to personally affirm, adopt, or adhere to” certain concepts related to sex, race, ethnicity, religion, color, or national origin.⁴² Missouri’s HB 1995 would have forbidden public schools from “compel[ling] a teacher or student to adopt, affirm, adhere to, or profess ideas in violation of Title IV or Title VI of the federal Civil Rights Act of 1964.”⁴³ During 2022, bills with this type of prohibition became law in Mississippi and South Dakota.⁴⁴

Prohibitions on compulsion have increased significantly in 2022, appearing in 24 percent of bills compared to just 10 percent in 2021.

Prohibitions on Promotion

The second type of gag order bills would prohibit the promotion, endorsement, or inculcation of particular ideas or concepts. Florida’s HB 7 is a good example. It prohibits public universities and K–12 schools from “subject[ing] any student or employee to training or instruction that espouses, promotes, advances, [or] inculcates . . . such student or employee to believe” certain concepts about race, color, national origin, or sex.⁴⁵ Similarly, South Carolina’s H 4605 would have forbidden state-funded entities from “subject[ing] individuals to . . . instruction, presentations, discussions, or counseling that affirms or promotes” what the bill describes as “discriminatory concepts.”⁴⁶

A related set of bills would require that all instruction on controversial topics be “balanced” or “objective.” Many such provisions are adapted from the “Partisanship Out of Civics Act” model legislation developed by Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center.⁴⁷ For instance, Texas’s SB 3, which became law in 2021, states that whenever public K–12 school teachers broach a “current event or widely debated and currently controversial issue of public policy or social affairs,” they must “strive to explore the topic from diverse and contending perspectives without giving deference to any one perspective.”⁴⁸ Missouri’s SB 694 would have required teachers to teach controversial topics “from both sides and without showing preference or deference to one perspective.”⁴⁹ And under Kentucky’s SB 1, which became law in April 2022, instruction must be “relevant, objective, non-discriminatory, and respectful to the differing perspectives of students.”⁵⁰

The frequency of prohibitions on promotion this year has been virtually unchanged from 2021: 40 percent of bills have contained a ban on promoting certain types of ideas in 2022, compared to 39 percent in 2021.

Prohibitions on Inclusion

The final type of prohibition found in gag order bills would prohibit educators from “including,” “discussing,” or “making part of a course” certain topics or ideas in the curriculum, regardless of how objective or balanced the discussion is. For example, under Mississippi’s HB 437, public K–12 schools would have been unable to “include … divisive concepts as part of a course of instruction or in a curriculum or instructional material.”⁵¹ A similar provision appears in Indiana’s SB 167, Indiana’s SB 415, and other proposed gag order bills.⁵²

Other bills would achieve a similar effect via a different route. Instead of prohibiting the inclusion of certain concepts, they would require that instruction be “consistent” with those concepts’ ideological opposites. For instance, Kentucky’s SB 1, which became law in 2022, contains an Orwellian passage requiring that all “instruction and instructional materials” in public K–12 schools be “consistent with” the following “understanding”: “that the institution of slavery and post-Civil War laws enforcing racial segregation and discrimination were contrary to the fundamental American promise of life, liberty, and the pursuit of happiness, as expressed in the Declaration of Independence, but that defining racial disparities solely on the legacy of this institution is destructive to the unification of our nation.”⁵³ Similar “consistency” language can be found in Florida’s HB 7 and Rhode Island’s H 7539.⁵⁴

Inclusion bans have become less commonplace in bills introduced in 2022. Whereas half of all gag order bills contained a prohibition on inclusion in 2021, this year only 35 percent have contained such a prohibition.

Graph showing the percentage of proposed educational gag orders containing types of prohibitions

Analysis

Of these three types of prohibitions—compulsion, promotion, and inclusion—those bills that prohibit inclusion are the most censorious. Where the bills have been implemented, it makes no difference how objectively a teacher discusses a given idea, or even whether they forcefully critique it. The mere fact of including that idea in the curriculum risks violating legislation in this category.

Yet there are many occasions in which a teacher would be justified in discussing a controversial topic or idea, even those that are racist or sexist. For instance, a history teacher might wish to assign, as part of a unit on the US Civil War, Alexander Stephens’s 1861 “Cornerstone Speech,” in which the Confederate vice president mounts a defense of slavery. Or a civics teacher might wish to discuss racism in the United States, citing by way of example the ideas of contemporary white supremacists. If these teachers work in a state with an inclusion ban, presenting such ideas in the classroom would put them at risk of violating the law.

The prohibitions on promotion are problematic as well. Such requirements may seem harmless, but in practical terms their vague, nonspecific language offers limitless opportunities for activists or administrators to claim teachers are in violation of such provisions.⁵⁵ As PEN America has previously explained, it is impossible to draw a clear line between teaching about a point of view and “promoting” that point of view. It is in the nature of education that some students will embrace and believe in at least some of the concepts taught. These prohibitions on promotion are in effect prohibitions on inclusion, albeit differently worded.⁵⁶

Similarly, no universally accepted distinction exists between a “balanced” presentation of material and a biased one; implementation of such requirements is essentially subjective, dependent on the interpretations of individual parents, administrators, or enforcement agencies. Heterodox Academy, an organization “deeply concerned about . . . an absence of viewpoint diversity” at the college level, has nevertheless opposed laws mandating balance in college classrooms; “legislation that takes this judgment away from intellectual communities,” they wrote in 2019, “threatens the ability of those communities to maintain order and advance pedagogical aims.”⁵⁷

The damage these prohibitions may cause is especially clear for bills that target public colleges and universities, where the First Amendment protects the right of faculty members to teach in the classroom whatever idea they wish, provided it is germane to the overall subject matter of the course and delivered in a manner that complies with university policies. That right is also protected under the principles of academic freedom, both in public universities and in the vast majority of private colleges that have voluntarily undertaken to uphold academic protections. Without these freedoms, university educators would be unable to engage in rigorous scholarship or effective teaching, intervene critically in public debates, invite speakers representing a range of views to campus, or distinguish forcefully between truth and falsehood.

While governments have greater leeway to determine what is taught in K–12 schools, that does not mean that prohibitions on promotion are wise. For instance, how does one determine whether a teacher has illegally “promoted” an idea in the classroom? What one student views as a ringing endorsement might appear to another to be a straightforward description of facts. Faced with such ambiguity, the prudent teacher will be apt to self-censor.

Perhaps most ambiguous are the prohibitions on compulsion. On their face, by prohibiting compelled speech, these gag order bills appear to adhere to existing First Amendment doctrine. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court struck down a state law requiring that public school students recite the Pledge of Allegiance. As Justice Robert H. Jackson declared in his majority opinion, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion or force citizens to confess by word their faith therein.”⁵⁸

According to some observers, these compulsion bills are relatively harmless, simply reinforcing the notion that speech cannot be compelled in schools. This seems to be the position of the Foundation for Individual Rights and Expression (FIRE), which has actively steered multiple state legislatures toward this formulation.⁵⁹ But as FIRE itself acknowledges, “we have seen instances when universities misapply these laws,” and elected officials have done the same—either mistaking the definition of compulsion as constituting an outright ban on certain speech, or purposely misreading these laws in an effort to expand their prohibitions.

South Dakota’s HB 1012, which became law in 2022, is a good example of this phenomenon, and one mentioned specifically in a recent FIRE analysis. Though HB 1012 contains only compulsion language, Governor Kristi Noem commented after the law’s passage that it had “banned [critical race theory] in our universities.”⁶⁰ Such statements create a broad chilling effect on educators’ pedagogical choices by telegraphing that a ban of any type may be enforced as expansively as a particular official sees fit.⁶¹ Educators might well conclude that a ban on compulsion will in practice be interpreted to mean something far more censorious than the plain language suggests.

In other proposed 2022 bills, the legislative text itself has conflated compulsion with persuasion or confusion. For instance, Illinois’s HB 5505 appears at first glance to have been a straightforward ban on compulsion. It states that no public school or university may “direct, require, or otherwise compel a student to personally affirm, adopt, or adhere to” certain ideas related to sex, race, ethnicity, religion, color, or national origin. It also offers a list of remedies that a school may adopt when a teacher has been found guilty of compelling speech. Among them is that the teacher may “provide additional balance or factual basis, or correct any factual bases found to be incorrect or biased.”⁶²

Note that these two remedies (providing balance and correcting false claims) do not address a situation where a teacher is compelling student speech or belief. Rather, they address an entirely different situation, where a teacher is offering biased or factually incorrect instruction. Providing additional facts can no more remedy compelled speech than reading the Gettysburg Address can undo a mandatory recitation of the Pledge of Allegiance.

On the surface, educational gag orders that prohibit compelled speech may seem on relatively sound constitutional footing. But the potential for abuse is both obvious and inevitable. As PEN America explained in our 2021 report on educational gag orders, by identifying a specific set of beliefs disfavored by the state, these prohibitions on compulsion function as viewpoint-based prohibitions while masquerading as defenses of intellectual freedom.⁶³

In the current political climate, lawmakers and activists are primed to interpret many pedagogical practices, from “biased” instruction to true/false exams, as forms of compulsion. For that matter, compulsion laws could easily be used to block educators from asking their students to play devil’s advocate, engage in formal debate, or defend controversial viewpoints as part of a pedagogical exercise. In a less politically charged environment, these concerns might not be so salient. But for an educator in today’s climate, to be accused of compulsion even if such charges are spurious could lead to public uproar, an investigation, stigmatization, and other career-disrupting consequences. Accordingly, out of an abundance of caution, educators may reasonably act on the assumption that topics that are the subject of compulsion bans are best not even touched in the classroom.

SECTION IV: Types of Educational Content Targeted

As mentioned above, the first wave of educational gag order bills in 2021 were modeled on the Trump administration’s Executive Order 13950 on “Combating Race and Sex Stereotyping,” which the Biden administration revoked in January 2021.⁶⁴ As its name suggests, this executive order regulated how federal agencies and contractors could discuss issues surrounding race and sex. Most state-level educational gag order bills in 2021 targeted similar topics, with a secondary focus on patriotism and US history.

For the most part, these trends have continued into 2022. The majority of this year’s bills have sought to regulate how educators discuss racism and sexism, though many have targeted systemic discrimination and issues of identity more generally. Many have also targeted instruction related to US history and contemporary American society. However, the greatest change this year has been a heightened focus on LGBTQ+ issues and identities—a development that resulted in the most highly-publicized educational gag order of the year, Florida’s HB 1557.

Ideas related to race, sex, and gender have continued to be the most common target of educational gag order bills.

Race, Sex, and Gender

Ideas related to race, sex, and gender have continued to be the most common target of educational gag order bills. Many still contain elements from the executive order on “Combating Race and Sex Stereotyping,” but often with significant elaboration. For example, Rhode Island’s H 7539 would have prohibited teachers from using any “instructional material” that suggests an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously, solely by virtue of his or her race or sex,” or that “an individual, by virtue of his or her race or sex, [bears] responsibility for actions committed in the past by other members of the same race or sex.” All of this is copied more or less verbatim from Trump’s executive order.

But H 7539 then goes on to prohibit teachers from using terms such as “supremacy,” “racial guilt,” and “racial fragility.” Indeed, it includes a more general attack on “identity politics,” stating that “no exclusive focus or centering of curricula on the history, literature, current events, or cultural contributions of individual identity groups shall be permitted.” It also forbids teachers from making use of any “ideological materials, worksheets, homework, texts or assigned reading, and/or mentored discussions that depict identity groups as oppressors and/or victims.”⁶⁵

We see here how an earlier focused attack on instruction related to racism and sexism has transformed in 2022 into a more general assault on discussions of systemic inequality. Minnesota’s HB 3301, for instance, contains a similar provision, proposing to forbid teachers from requiring that students examine “the role of race and racism in society, the social construction of race and institutionalized racism, and how race intersects with identity, systems, and policies.”⁶⁶

While none of these bills passed in 2022, similar bills could easily become law in the future. In 2021, the North Dakota legislature passed HB 1508 after just five days of debate. Consequently, it is now illegal in that state for public K–12 teachers to include any instruction suggesting that “racism is systemically embedded in American society and the American legal system to facilitate racial inequality.”⁶⁷ Language of this type, which has spread widely in 2022, would shut down important conversations in the classroom and would particularly imperil cultural and ethnic studies courses.

Shielding American history and society from negative moral judgments has been a major priority for lawmakers in 2022.

US History and Contemporary American Society

Another set of ideas targeted frequently by lawmakers in 2022 is speech deemed unduly critical of American history and of the United States today.⁶⁸ For instance, lawmakers have introduced 14 bills that explicitly limit use of the New York Times’s 1619 Project on the grounds that it identifies slavery as part of the nation’s “true founding.” Other bills have targeted similar historical perspectives that emphasize the deep roots of slavery in American history and society. South Carolina’s H 4392, for example, would have forbidden educators from making use of any instructional material that could lead students to believe that “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.”⁶⁹

Such bills may reflect an understandable desire to repudiate slavery as inimical to the ideals of equality and freedom extolled by the nation’s founders. In practice, however, they would outlaw historical perspectives that explore how racial discrimination and slavery were entrenched in the lives of the Constitution’s framers and the country they birthed. Similarly, when it comes to contemporary society, public schools do play an important role in fostering a healthy civic culture, imputing national ideals, and instilling an understanding and appreciation of students’ community and society. But legislation restricting what concepts and perspectives may be covered constricts classroom teaching and learning unreasonably. Education in a liberal society must include the examination of critical perspectives and alternative viewpoints, material that these bills would too often rule out of bounds.

Nevertheless, shielding American history and society from negative moral judgments has been a major priority for lawmakers in 2022. Rhode Island’s H 7539 states baldly that “history shall be taught using the standards, customs, and traditions in use at the time of the historical event.”⁷⁰ New Hampshire’s HB 1255 sought to forbid teachers from promoting “any doctrine or theory promoting a negative account or representation of the founding and history of the United States of America in New Hampshire public schools which does not include the worldwide context of now outdated and discouraged practices.”⁷¹ And Oklahoma’s HB 2988 would have prohibited teaching that “America has more culpability, in general, than other nations for the institution of slavery”; that “America, in general, had slavery more extensively and for a later period of time than other nations”; or that one race “is the unique oppressor in the institution of slavery” while another is its “unique victim.”⁷²

Other educational gag order bills in this category have focused less on US history than on the current state of American society. Many bills in this category are notable for their brevity. A pair of Missouri bills (HB 2189 and SB 645) state simply that K–12 schools and colleges must offer courses that “promote an overall positive . . . understanding of the United States.”⁷³ Two in Oklahoma (SB 588 and SB 614) would have prohibited “anti-American bias.”⁷⁴ The bans in these bills are both pithy and absolute, with no elaboration on how these standards would be judged.

By contrast, other bills are much more labyrinthine. One Indiana bill states that students must be taught that

socialism, Marxism, communism, totalitarianism, or similar political systems are incompatible with and in conflict with the principles of freedom upon which the United States was founded. In addition, students must be instructed that if any of these political systems were to replace the current form of government, the government of the United States would be overthrown and existing freedoms under the Constitution of the United States would no longer exist. As such, socialism, Marxism, communism, totalitarianism, or similar political systems are detrimental to the people of the United States.[/mfn]Indiana HB 1040, https://legiscan.com/IN/text/HB1040/id/2462805/Indiana-2022-HB1040-Introduced.pdf.[/mfn]

And West Virginia’s HB 4016, which targets public K–12 schools, would have prohibited

the presentation or promotion of any political, economic, or political-economic system that is based on ideological concepts rooted in or inspired by Marxism, Marxist-Leninism, Maoism, socialism, communism, or so-called critical political theory or critical economic theory, of any form or intellectual tradition whatsoever without:

(A) The inclusion of the historically documented occurrences, scope and scale of state sponsored terror and murder, absence of legal process and protection of civil and political rights, forced labor, economic inefficiency, and starvations which have transpired under such forms of political economy; and

(B) the provision of equal pedagogical instruction time and student curricula material content dedicated to political-economic systems based in the western tradition of constitutional representative democracy;

(C) the preservation in law of civil, political rights, private property rights, intellectual property rights in constitutional representative democracies;

(D) the historically documented greater efficiency and productivity of free enterprise, and free market capitalism in constitutional representative democracies;

(E) the impact of monetary policy on pricing and inflation; and

(F) presentation of political spectrums as measured by the factors of state control versus individual liberty, regardless of economic model.⁷⁵

Bills this elaborate remain uncommon, but they have appeared with much greater frequency in 2022 than in 2021.

The Don’t Say Gay bills are only the most visible aspect of a broader campaign by legislators in 2022 against discussion of LGBTQ+ issues in educational settings.

LGBTQ+ Issues and Identities

Finally, lawmakers have increasingly attempted to regulate whether and in what ways educators may expose students to LGBTQ+ issues and identities.⁷⁶ Twenty-three anti-LGBTQ+ bills that would censor classroom speech have been proposed in 2022, compared with just five in 2021. (Note that PEN America tracks only those anti-LGBTQ+ bills that censor speech in educational institutions; this is only a small fraction of the hundreds of anti-LGBTQ+ bills filed across the country in 2022. A comprehensive legislative tracker for those bills can be found at the ACLU’s website.⁷⁷)

The most well-known example of an anti-LGBTQ+ educational gag order from this year is Florida’s HB 1557, referred to by its critics as the “Don’t Say Gay” bill. This law states that classroom instruction “on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.” The law also creates a private right of action, permitting a parent to sue a school it believes violated HB 1557 and recover damages in court.⁷⁸

HB 1557 was introduced in the Florida House of Representatives on January 11, 2022. Since then, copycat bills have been filed in many other states. For example, under Louisiana’s HB 837, public school teachers would have been unable to “cover the topics of sexual orientation or gender identity in any classroom discussion or instruction in kindergarten through grade eight” or to “discuss [their] own sexual orientation or gender identity with students” in any grade.⁷⁹ Ohio’s HB 616 would forbid them from teaching, using, or providing “any curriculum or instructional materials on sexual orientation or gender identity.”⁸⁰ Georgia’s SB 613 states that teachers in private schools would not be allowed to “promote, compel, or encourage classroom discussion” of sexual orientation or gender identity at any primary grade level.⁸¹ And a pair of North Carolina bills, HB 755 and HB 1067, would have banned instruction on these topics until the fourth and seventh grades, respectively.⁸² Such bills would likely have ruled out a host of curricular content, including books with LGBTQ+ characters, history about LGBTQ+ rights movements, and more.

While none of these copycat bills have become law as of August 2022, several have come close, and more seem likely to be introduced in 2023. One bill with substantially similar language, Alabama HB 322, did become law, though it does not contain an explicit age or grade-based prohibition on speech.⁸³

The Don’t Say Gay bills are only the most visible aspect of a broader campaign by legislators in 2022 against discussion of LGBTQ+ issues in educational settings. South Carolina’s H 4605 would have forbidden public K–12 teachers from “subject[ing]” students to “controversial and age-inappropriate topics” such as “gender identity or lifestyles.”⁸⁴ Indiana’s HB 1040 would have prohibited them from discussing “sexual orientation,” “transgenderism,” or “gender identity” without parental consent.⁸⁵ (Note: the word “transgenderism” is generally considered offensive by the transgender community.)⁸⁶ As originally introduced, Kansas’s HB 2662 would have redefined the state’s obscenity law to make it a class B misdemeanor for a teacher to present in the classroom any depiction of homosexuality.⁸⁷ And a slew of bills introduced this year in Oklahoma would have regulated whether public school libraries could stock books about LGBTQ+ issues; university professors could discuss “gender, sexual, or racial diversity, equality, or inclusion”; or teachers or professors could promote a position that contradicts a student’s sincerely held religious belief.⁸⁸

This surge in anti-LGBTQ+ speech legislation reflects a growing alignment between different political efforts. Social conservatives, who object to LGBTQ+ identities on cultural or religious grounds, have long sought to regulate how educators discuss these matters but have had only limited success at the state legislative level. Their efforts have been boosted, however, by the loosely knit and much more recent “anti–critical race theory” campaign, whose advocates argue that much of what passes for instruction on LGBTQ+ topics in public schools constitutes a kind of left-wing indoctrination. Some have even gone so far as to liken such lessons to “grooming,” the action by a pedophile to prepare a child for sexual exploitation.⁸⁹ Over the past two years, the anti–critical race theory campaign has displayed remarkable energy and success in targeting classroom discussions of race and sex, as the 19 educational gag order laws passed in 15 states demonstrate. Now this campaign appears to have turned its attention to gender identity and sexual orientation as well.

The alignment of these efforts has in some instances breathed new life into efforts to enact bills restricting classroom expression about LGBTQ+ identities. Legislation of this type is not new; in Tennessee, for example, such bills have been introduced multiple times since 2013, without success.⁹⁰ But the energy of the newer anti-critical race theory campaign has helped such bills gain new momentum, becoming law in Florida and proliferating to other states.

SECTION V: Punishments

Of the educational gag order bills introduced in 2022, 55 percent have included some form of explicit punishment. This represents a significant increase over 2021, when only 44 percent explicitly referenced a punishment. Similarly, 57 percent of laws passed in 2022 have included such punishments, compared with 42 percent in 2021.⁹¹

The vast majority of the punishments proposed in 2022 have fallen into three different categories: a civil suit, monetary penalty or loss of state funding, and professional discipline. A smaller percentage of bills have contained other forms of punishment, such as loss of institutional accreditation and criminal penalties. And in many instances, a bill has featured multiple types of punishment, offering parents, state officials, and members of the public different ways to address a violation.

After Florida passed HB 1557, the “Don’t Say Gay” bill, signs and billboards reading “Say Gay” cropped up across the state in protest.

The most common type of punishment proposed in 2022 has been a civil suit, which has appeared in 35 percent of all educational gag order bills. This represents a significant increase compared to 2021, when only 19 percent had this particular penalty. The vast majority of the 2022 civil suit bills would create a private right of action that would permit students, parents, or even unrelated members of the public to sue an educational institution and recover damages in civil court. A smaller number of bills would confer this right on the state attorney general, the county attorney, or some other public official.

The second most common type of punishment this year has been a monetary penalty or loss of state funding, which has appeared in 26 percent of all gag order bills—the same percentage as in 2021. Common forms of this punishment have included a direct monetary fine for the school or institution, a reduction in state funding, and loss of eligibility for a state grant or award.

The third most common form of punishment in 2022 has been professional discipline for the teacher or professional committing the violation. This punishment has appeared in 22 percent of bills introduced this year, up from 15 percent the year before. Punishments in this category have included everything from temporary suspension to dismissal, and even in some cases loss of teaching license.

Finally, a smaller but still significant number of gag order bills have included some other form of punishment, such as loss of institutional accreditation, loss of tax-exempt status, or criminal penalties. Nine percent of bills have included one or more punishments of this type, the same percentage as in 2021.

Analysis

Taken as a whole, the overwhelming trend in 2022 has been toward punitiveness. Educational gag order bills have been more likely to feature an explicit punishment for violators, in some cases proposing multiple punishments for the same alleged violation. Compared to 2021, penalties have also tended to be more extreme, with higher monetary fines and more severe forms of professional discipline. Some bills have widened the scope of individuals who would have standing to file civil suits, and have experimented with new ways of targeting nonpublic educational institutions.

Virginia’s HB 781 is a good example of these trends. The bill would have prohibited public K–12 schools from including in their curricula certain ideas related to race, religion, ethnicity, sex, and US history. The bill goes on to state,

Any individual, including any school board member, who knowingly and intentionally violates any provision of this section is guilty of a Class 4 misdemeanor and, in the case of a school board employee, may be terminated or, as applicable, have his license revoked or suspended in accordance with all relevant policies, regulations, and laws.

Moreover:

In the event that a local school board finds that a school board employee has persistently, knowingly, and intentionally violated any provision of this act, the parent of any student affected by such violations may request and the local school board shall provide a voucher in an amount equal to all sums from any source that the local school board received for the education of such student, and the parent shall use such voucher to provide for the education of his child.⁹²

HB 781 is one of the more extreme bills from 2022, but there have been several others like it, including those that would have carried severe monetary fines. For instance, Kentucky’s HB 18 would have prohibited public K–12 schools from offering “any classroom instruction or discussion, formal or informal, or distribut[ing] any printed or digital material, including but not limited to textbooks and instructional materials, that promotes” the standard list of “divisive concepts.”⁹³ This vague and sweeping language would have been backed up with financial penalties of up to $100,000 per violation.⁹⁴

Another notable development has been the spread of private rights of action, an enforcement mechanism popularized by the 2021 Texas abortion ban, which allowed private citizens to sue abortion providers as a novel mechanism for curtailing abortion rights.⁹⁵ Private rights of action have appeared in 37 educational gag order bills introduced in 2022. Compared to 2021, the bills introduced this year would permit a far wider array of people to file suit. No longer has standing been limited to students or their parents. Instead, many of the bills introduced this year would allow unrelated parties who have no direct connection to a school to file suit as well. This includes individuals who happen to live in the school district, elsewhere in the county, or who simply pay taxes somewhere in the state.⁹⁶ Kentucky’s HB 706, the most extreme private right of action bill, would have given any resident of the state a right to sue, including a “domestic business entity residing in the [state]” or a “foreign business entity that is registered and in good standing with the Secretary of State.”⁹⁷ Such a measure would allow any ideological actor within the state to hold school districts hostage to their political views regarding what schools should and should not teach.

Finally, lawmakers have begun to experiment with new approaches for targeting nonpublic (private and parochial) schools and universities. The key innovation here involves enforceability. Civil suits and professional discipline, two of the most common types of gag order punishments in 2022, are difficult to wield against private institutions, which generally enjoy wide discretion over what they teach and whom they hire. Nevertheless, 13 bills filed in 2022 have targeted nonpublic schools and universities, and Florida HB 7, which targets private employers and could be interpreted to include schools and universities, became law.

Many 2022 bills aimed at nonpublic educational institutions have embraced three alternative levers of enforcement: loss of state accreditation, loss of tax-exempt status, and loss of access to state funding. Each of these mechanisms could be used to punish a nonpublic school or university.

For instance, Indiana’s HB 1231 would have stripped state accreditation from any nonpublic K–12 school that discussed race, sex, or US history in an unacceptable way.⁹⁸ Kentucky’s HB 487 would have punished private universities in a similar fashion.⁹⁹ Under South Carolina’s H 4605, nonpublic schools, universities, and any other “place of learning” would have lost their state funding, tax-exempt status, and “any other state-provided accommodation or privilege” for even a single violation.¹⁰⁰ Mississippi’s HB 437 would have denied state funds (e.g. tuition vouchers) to private K–12 schools.¹⁰¹ And in Georgia, a nonpublic school found to have discussed sexual orientation or gender identity in a primary grade level would, under SB 613, have been unable to participate in either the state’s Special Needs Scholarship Program or any athletics tournament in which a public school is a member.¹⁰²

Other bills have taken a different approach to targeting private institutions: they have folded their gag order language into state civil rights statutes, thereby exposing private institutions to civil suits. The most important example of this trend is Florida’s HB 7. The new law prohibits public and private employers alike from subjecting any individual to training or instruction that promotes, espouses, or in any way advances certain ideas related to race, sex, color, or national origin.¹⁰³ Violators may be sued by the state attorney general under Florida’s civil rights statute.¹⁰⁴ Similarly designed bills were introduced in Kentucky and Indiana in 2022.¹⁰⁵

The combination in 2022 educational gag order bills of extreme vagueness and extreme penalties would virtually guarantee a significant chilling effect on teachers and schools were these bills to become law. In their 2021 report The Conflict Campaign, education scholars Mica Pollock and John Rogers documented numerous instances of school district administrators withdrawing commitments to support teacher initiatives in the face of policies restricting classroom speech.¹⁰⁶ Advocates who believe that educational gag orders are narrowly focused instruments to fight “indoctrination” of students should recognize that these laws, in practice, create broad and unspecific new government restrictions on speech that are difficult to interpret and easy to overenforce. The likely result is that teachers will hew only to the safest areas of instruction and avoid even touching on topics that might spark protest from any corner.

Teacher Surveillance

Before violators can be punished, they must be identified. In part for this reason, many bills introduced in 2022 have included provisions designed to make it easier for parents, members of the public, and officials to subject classroom teachers and curricula to microscopic scrutiny.

Two major mechanisms have been proposed. The first is so-called “curriculum transparency” legislation, bills that, in practice, have often amounted to a kind of surveillance of teachers.¹⁰⁷ This surveillance has taken many forms. Numerous bills have required teachers to post on a publicly accessible website all course materials, assignments, and lesson plans prior to using them in instruction.¹⁰⁸ Others have gone further. A Mississippi representative proposed a bill to install cameras in classrooms, something she said was necessary to hold teachers “accountable” for teaching “so much critical race theory.”¹⁰⁹ An Iowa bill, HF 2177, would have live-streamed instruction over the internet so parents could monitor their children’s classroom in real time.¹¹⁰ And an Indiana bill would have allowed random members of the public—even those without any connection to the school or its students—to sit in on classes or attend professional workshops for teachers.¹¹¹

The second mechanism is a reporting apparatus for alerting the authorities to any violation. Typically, this has taken the form of a proposed telephone or email hotline. For instance, West Virginia’s SB 587 would have created a tip line that parents could use to report teachers “where their fundamental rights are being violated, where their children are not being respected, and where there are inherently divisive practices being taught in schools.”¹¹² Similar tip lines have been proposed in Alaska, New Jersey, and Oklahoma.¹¹³ In Virginia, Governor Glenn Youngkin has actually created such a tip line via an email address, though no legislation specifically called for one.¹¹⁴

Advocates who believe that educational gag orders are narrowly focused instruments to fight “indoctrination” of students should recognize that these laws, in practice, create broad and unspecific new government restrictions on speech that are difficult to interpret and easy to overenforce.

SECTION VI: Future Trends

Given the enthusiasm among many conservatives for educational gag orders, it is almost certain that more will be introduced next year. State lawmakers will begin pre-filing their bills in the run-up to the November 2022 midterm elections, especially in states where Republicans failed to pass an educational gag order despite controlling both legislative chambers and the governor’s mansion—states such as Alabama, Arizona, Indiana, West Virginia, and Wyoming, all of which came close to passing gag order bills during their 2022 legislative sessions but ultimately failed to do so. In these states and others, a new wave of educational gag order bills seems probable.

It is also likely that future gag order bills will continue to target instruction related to LGBTQ+ issues and identities. Bills of this type have drawn increased interest from lawmakers through the spring and summer, largely because of media attention surrounding Florida’s HB 1557, which has spawned similar bills in several other states, some of which have added further provisions. More bills will likely also be introduced that target private K–12 schools and higher education.

It is also likely that we will continue to see the adoption of district-level educational gag orders that are not enshrined in state legislation. Some of these policies have borrowed language from state bills and have proposed prohibitions on teachers related to instruction about race and sex. Others have restricted LGBTQ+ identities in new and troubling ways. Districts have enacted policies such as barring LGBTQ+ pride flags or other political flags and symbols in schools, forbidding teachers from including pronouns in their email signatures, or even banning them from wearing rainbow-colored clothing.¹¹⁵ Similarly, the CRT Forward Tracking Project at UCLA Law School has documented hundreds of district-level educational gag order measures on instruction related to race.¹¹⁶

New litigation challenges to educational gag orders also seem inevitable. Two lawsuits challenging Florida’s HB 7 have already been filed: Falls v. DeSantis (discussed in Section II) and Honeyfund.com v. DeSantis.¹¹⁷ Another pair of suits, Equality Florida v. DeSantis and Cousins v. the School Board of Orange County, have been brought against Florida’s HB 1557.¹¹⁸ They join lawsuits already underway in New Hampshire and Oklahoma against last year’s laws.¹¹⁹ Finally, a group of parents have sued the Forest Hills School District in Ohio to block a district-level educational gag order.¹²⁰ More lawsuits opposing gag orders are likely.

Meanwhile, supporters of educational gag orders have filed complaints of their own in a bid to persuade courts and regulatory bodies to stake out a maximal interpretation of what these laws prohibit—and more such actions will likely appear in the coming months. One complaint, filed by the conservative America First Policy Institute on behalf of an Iowa student, claims that a planned elective class on social justice in literature would violate that state’s ban on “race or sex stereotyping” in education. Importantly, the complaint does not accuse the teacher of promoting race or sex stereotypes or even of assigning texts containing them. Rather, it argues that since students themselves might, on their own initiative, select books to read that contain race or sex stereotypes, the teacher will violate the law if she fails to stop them.¹²¹

Similarly, a lawsuit by Parents’ Choice Tennessee, citing one of Tennessee’s two educational gag order laws, seeks to ban Wit & Wisdom—an English language arts curriculum—from Williamson County schools.¹²² And in a case of a regulatory body offering its own maximal interpretation of a gag order without the need of litigation, the Oklahoma Board of Education disciplined two school districts for supposed violations of the state’s law, in both cases handing down harsher penalties than called for by the law.¹²³ “This instance,” said a spokesman for the Oklahoma State Department of Education, which had recommended lesser penalties, “underscores how the vague language of HB 1775 invites imprecise judgement calls, which in turn can have a chilling effect on classroom instruction.”¹²⁴

Finally, the future of educational gag orders will likely unfold as part of a broader legislative campaign of educational censorship. At the K–12 level, this includes so-called “curriculum transparency” bills and tip-line-style reporting mechanisms, which have become more common in legislative proposals, as well as bills that make it easier for parents to file challenges for the removal of books from school libraries (see inserts above). In higher education, educational gag orders are just one of the ways lawmakers are increasingly seeking to undermine academic freedom, shared governance, and faculty tenure. In 2022, bills and policies weakening tenure have been adopted in Mississippi and Florida, with similar efforts underway in Texas and Louisiana.¹²⁵ The Wyoming State Senate attempted to defund the gender studies program at the University of Wyoming.¹²⁶ And Florida adopted SB 7044, a law that undermines the system of higher education accreditation and makes it more difficult for colleges and universities to retain access to federal student financial aid.¹²⁷

Such legislation seems likely to have a pronounced chilling effect on teachers and to exacerbate tensions between educators and the communities they serve. In April, a group of students at Iowa’s Johnston High School reported that there was “a different atmosphere at the school” after the state’s gag order became law; that one teacher, explaining the history of redlining, felt compelled to deny in class that they were trying to make students feel guilty; and that another teacher felt unable to explain the motivations behind the Three-Fifths Compromise in the Constitution without violating the state’s educational gag order law.¹²⁸ According to a new survey by the RAND Corporation, a quarter of teachers nationwide have been directed by school administrators “to limit discussions about political and social issues in class.”¹²⁹

Such strained conditions also seem likely to add to the nation’s worsening teacher shortage. As Hannah Natanson writes in the Washington Post, a key contributing factor to the shortage is “some educators’ sense that politicians and parents…have little respect for their profession amid an escalating educational culture war that has seen many districts and states pass policies and laws restricting what teachers can say about U.S. history, race, racism, gender and sexual orientation, as well as LGBTQ issues.”¹³⁰

Whatever the 2023 legislative session brings, it is clear that legislative attacks on the freedom to learn and teach have not only continued in 2022 but have by some measures increased in harshness, breadth, and censoriousness. These trends should alarm advocates of free expression and public education alike.

According to a new survey by the RAND Corporation, a quarter of teachers nationwide have been directed by school administrators “to limit discussions about political and social issues in class.”

Acknowledgments

This report was written by Jeremy C. Young, Senior Manager, Free Expression and Education; research consultant Jeffrey Sachs; and Jonathan Friedman, Director, Free Expression and Education Programs. Summer Lopez, Chief Program Officer, Free Expression Programs; James Tager, Director of Research; Nadine Farid Johnson, Managing Director, PEN America Washington and Free Expression Programs; and PEN America CEO Suzanne Nossel reviewed and edited the report. Melissa Joskow, Coordinator, Graphic Design and Communications, designed the graphs that accompany the report. Erica Galluscio, Website Administrator, laid out the report for publication. Geraldine Baum, Chief Communications Officer, oversaw production and release of the report, with assistance from Debi Goldberg, Senior Communications Consultant. PEN America would like to thank Rita Carlberg for editing; Isaac Engelberg for support with legislative tracking; and Nick DeSantis, Jonny Levenfeld, Jessica Sarstedt, and Manisha Sunil of West End Communication Strategies for public relations assistance.