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States weigh a raft of proposed laws to limit race, sexuality lessons in schools

The explosion of bills — tracked in a new analysis by PEN America — is led by conservative lawmakers in GOP-controlled state legislatures.
Image: School Children walking
Schoolchildren wearing masks outside Condit Elementary School in Bellaire, Texas, outside Houston, in December 2020.Francois Picard / AFP via Getty Images file

WASHINGTON — In just the first three weeks of 2022, more than 70 bills have been filed in 27 states seeking to regulate how and what educators may teach about race, history and sexuality in schools, according to an analysis a free speech advocacy group published this week.

Advocates say the sheer number of bills — as well as how severe many of them would be — is part of a robust effort by conservative lawmakers in GOP-controlled state legislatures to censor lessons surrounding race and sexuality.

The analysis, conducted by PEN America, a nonprofit group that promotes freedom of expression, found that at least 71 bills have already been introduced or pre-filed in state legislatures across the country in 2022. PEN America, which labels itself nonpartisan but sued then-President Donald Trump in 2018, alleging that his administration engaged in attempted media censorship, described the bills as “educational gag orders.”

It has been an “incredible escalation in just both the number and also the intensity and scope of these bills coming out of state legislatures,” said Jeffrey Sachs, a PEN researcher and political science professor at Acadia University in Nova Scotia.

“They overwhelmingly target speech related to race and sex or sexuality,” Sachs added, and they are “getting more and more severe, more and more ambitious, and the punishments are getting more and more draconian.”

The explosion of bills marks a significant uptick in both scale — the 71 bills introduced so far this year are more than half of the 122 that have been introduced since January 2021 — and severity. Of those 122 (proposed across 33 states), 10 have become law in nine states.

Of the 71 bills proposed this year, 15 would give students, parents or people with no connection to the school in question the right to sue schools and recover damages in court — punitive measures that risk “bullying” teachers and defunding public schools, Sachs and others say.

Nearly half of the bills introduced so far this year target higher education (26 percent of the bills introduced in 2021 did so), according to PEN, while 55 percent of the bills introduced this year propose punitive measures for violators (compared to 37 percent of measures introduced in 2021). Republican lawmakers in Missouri proposed 19 of the bills, while eight were proposed in Indiana, many of which would allow for the harshest punitive measures against teachers and schools.

One such bill, Indiana’s HB 1362, would ban public school teachers and college faculty members from teaching certain ideas about “sex, race, ethnicity, religion, color, national origin, or political affiliation," including lessons that explain how such traits relate to "meritocracy or traits such as hard work ethic."

The bill would also prohibit the instruction of “anti-American ideologies,” which it does not define.

The bill would allow violators to face civil lawsuits. It would also require districts to post lesson plans online — a measure known as “curriculum transparency,” which critics have warned could lead to more censorship in K-12 schools.

Another Indiana bill, HB 1040, would ban public K-12 teachers from teaching that "socialism ... or similar political systems are compatible" with the "principles" of the U.S.

Yet another Indiana bill, HB 1231, would ban teachers in all public education institutions from “introducing any controversial subject matter or current event germane to the subject matter being taught.”

The bill would also ban teachers from using lessons that “include or promote” the idea that “the United States was founded as a racist or sexist state or nation and is fundamentally or irredeemably racist or sexist” — language critics said is designed to instill fear in teachers.

“We give teachers authority just like we give police authority. They can’t do anything they want, but they have a circumscribed latitude of action,” said Nicholas Christakis, a professor of sociology at Yale University. Christakis predicted that many of the laws would not survive legal challenges made on First Amendment grounds.

Potent issue for 2022 midterms

The explosion in the introduction of such measures follows efforts over the past two years by lawmakers to limit the teaching of racial equity and white privilege.

In some cases, those concepts have been inaccurately described as “critical race theory” — the academic concept typically taught in college courses to examine how laws and institutions perpetuate racism. Some conservatives, including politicians like Florida Gov. Ron DeSantis, a Republican, have used the term to describe ideas and books that they believe are too progressive or political for the classroom.

The broader tensions can be traced to the Trump White House, which in 2020 ordered a halt to funding of federal training about diversity and critical race theory. Republicans made major inroads on the issue last year, when Glenn Youngkin won the Virginia governor’s office fueled in part by a pledge to target the teaching of “critical race theory.”

His victory is being treated as a template for other Republicans to win state and local elections.

“Last year, we saw that we won this debate. Coming back into session, state legislatures are cementing that victory with really concrete legislative language, which will become law in many states,” said Christopher Rufo, a senior fellow at the Manhattan Institute, a conservative think tank. He added that the bills are designed to protect “kids from abuse and indoctrination in the classroom.”