New laws targeting controversial issues already having chilling effect, report finds

A recent analysis of state-level legislation introduced to curtail the teaching of ethnic studies or critical race theory suggests many of the laws are written so vaguely that they may chill a broad range of speech.

PEN America, an advocacy group that promotes the protection of free expression and other human rights, reported that 48 bills targeting K-12 schools were introduced between January and September 2021 seeking to ban lessons about the history of white supremacy and the ongoing effects of racism in the U.S. So far, nine bills have become law in eight states, sometimes within days of being introduced, according to the report. Another 22 are pending from the 2021 legislative session or have already been pre-filed for 2022.

Among the bills analyzed, nine attempt to enforce nonpartisanship by requiring that social studies, politics, history or civics teachers who discuss either “current events” or “widely debated and currently controversial issues” in public policy or social affairs must explore them from “diverse and contending perspectives.”

“The requirement to explore controversial issues from diverse perspectives may sound laudable. Debate, in any academic or scientific field, is key to discovery, the production of knowledge, and the emergence of consensus,” the report states. “The problem arises when determining just what constitutes ‘controversial’ content and ‘diverse perspectives.’ As the American Association of University Professors has taken pains to explain, such requirements can impose absurd obligations to balance multiple ideas even if some political philosophies (such as Nazism) have no redeeming value among scholarly opinion within political theory.”

Researchers note that while the idea that teachers would be compelled to teach Nazism in school as a result of these bills may seem absurd, evidence suggests that’s already happening.

In Texas, House Bill 3979 — one of the 11 educational gag order bills that has become law — requires “widely debated and currently controversial issues” to be taught without giving “deference to any one perspective.” The law went into effect in September. In October, a school administrator in Southlake, Texas, advised teachers, as they went through their curricula, to “just try and remember the concepts of [House Bill] 3979, and make sure that if you have a book on the Holocaust, that you have one that has opposing — that has other perspectives.”

“Supporters of these bills may respond by saying they do not intend to distort factual teachings of the Holocaust. That intent is irrelevant,” researchers wrote. “The Southlake administrator’s statement is a powerful illustration of how the demand to teach ‘diverse perspectives’ on ‘controversial issues’ will in fact play out, with teachers and administrators scrambling to water down the teaching of history to remove all trace of ‘controversy.’”

Continuing misconceptions

Much of the debate that led to the introduction of these bills began with ethnic studies and the sudden attention to critical race theory — a legal framework developed by Harvard Law School Professor Derrick Bell in the mid-1970s as Critical Legal Studies and refined by other legal scholars such as Kimberlé Crenshaw, who coined the term ‘critical race theory.’ In practice, those who study law through the lens of critical race theory use it to acknowledge and interrogate ways in which racism is embedded within systems and institutions that replicate racial inequality — codified in law, embedded in structures and woven into public policy — and how this impacts people.

Ethnic studies, meanwhile, includes the history, heritage and culture of minority groups whose contributions have often been excluded in typical history courses. (CSBA has created FAQs to help facilitate members’ discussion on ethnic studies and critical race theory in their own districts.) While the two are not synonymous or interchangeable, some critics of CRT have mislabeled any discussion of equity, diversity or ethnic studies as critical race theory.

Despite communities rallying against the teaching of critical race theory in schools, polling has demonstrated that not only do many people have no understanding of what CRT actually entails, parents overwhelmingly support their children learning about racism and racial equity in school.

Asked in a September USA Today/Ipsos poll whether CRT should be taught to their children, 49 percent of parents said yes, 30 percent said no and 21 percent said they didn’t know. But when asked whether the “ongoing effects of slavery and racism in the U.S.” should be taught in classrooms — a basic premise explored by CRT — 63 percent of parents said those concepts should be taught, while just 30 percent opposed the idea.

School administrators and lawmakers alike are going to be dealing with blurred lines as bills like these continue to be introduced, the report suggests.

“There is a big difference between introducing ideas or perspectives influenced by an intellectual framework with promulgating that framework as dogma,” researchers wrote. “In fact, the argument over whether CRT is being taught in K-12 classrooms demonstrates just how difficult it is to identify and isolate a specific academic idea. Does citing a CRT theorist mean that an educator is ‘teaching critical race theory,’ or that they are simply referencing a specific idea that the theorist raises? … The bills’ vague and sweeping language means that they will be applied broadly and arbitrarily, threatening to effectively ban a wide swath of literature, curriculum, historical materials, and other media, and casting a chilling effect over how educators and educational institutions discharge their primary obligations.”