The year 2021 marked a crucial turning point in the landscape of American education, as the PEN America Index of Educational Gag Orders began its diligent work of tracking a surge of legislative efforts aimed at reshaping curricula and controlling discourse in classrooms nationwide. This initiative, alongside the subsequent November 2021 publication of “Educational Gag Orders: Legislative Restrictions on the Freedom to Read, Learn, and Teach,” cast an unsparing light on what has been characterized as a “legislative war on education in America”.
These “educational gag orders” are state legislative attempts to restrict teaching and learning in K-12 schools and higher education, often targeting topics such as race, gender, American history, and LGBTQ+ identities. The unstated, yet increasingly evident, goal of these bans is to systematically “erase the perspectives and histories of marginalized groups,” particularly the history of Black Americans, whose ancestors were enslaved and brutally subjugated in this country. The legislation frequently targets concepts like structural racism, intersectionality, and critical race theory (CRT), theories that explain how subjugation operates, changes over time, and persists.
The immediate impetus for this legislative onslaught can be traced back to August 2019, with the release of The New York Times’ “1619 Project,” and the widespread racial justice protests that swept the country in 2020 following the murder of George Floyd. As many Americans and institutions began a genuine reckoning with the profound role of race and racism in American history, powerful opposing forces “pushed back ferociously, feeding into a culture war”. Republican legislators and conservative activists seized upon the academic framework of critical race theory, inaccurately applying it as a “bogeyman” to a broad spectrum of ideas and practices related to diversity, equity, and inclusion.
A significant catalyst for this movement was President Donald Trump’s Executive Order (EO) 13950, “Combating Race and Sex Stereotyping,” issued on September 22, 2020. Though this EO was repealed by President Joe Biden on his first day in office, it had already served to galvanize a widespread effort. What began as an “election-season gambit” quickly transformed into a nationwide movement among Republican legislators, governors, pundits, and activists to “crush a sweeping set of ideas and teachings”. This deliberate campaign, often supported by “Koch-funded think tanks” and “astroturfed parent organizations,” became a strategic means to “preserve a white supremacist society and maintain power”.
PEN America’s 2021 report meticulously documented the rapid escalation of these legislative attacks:
- Volume and Scope: By the end of 2021, 54 bills had been filed in 22 states, with 12 becoming law. This intensified dramatically in 2022, with lawmakers in 36 states introducing 137 educational gag order bills, representing a 250% increase over 2021. By May 2023, 26 of these bills had become law in 17 states, with policies enacted through executive order in three others, affecting nearly one-third of the entire U.S. population—125 million Americans.
- Targeted Content: While instruction related to race remained the most common target, 2022 saw a sharp increase in bills specifically targeting LGBTQ+ issues and identities, with 23 such bills introduced, including Florida’s highly publicized HB 1557, known as the “Don’t Say Gay” bill. Other targets included any content deemed “unduly critical of American history and of the United States today,” such as the 1619 Project, or any teaching suggesting 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”. Some bills even explicitly demanded that education “promote an overall positive…understanding of the United States” or prohibit “anti-American bias”.
- Broadening Institutional Reach: Initially focused on K-12, the legislation increasingly targeted higher education, with 39% of bills in 2022 (up from 30% in 2021) and 57% of laws passed in 2022 (up from 25% in 2021) aimed at colleges and universities. A notable shift also occurred in targeting non-public educational institutions, including private universities, devising new enforcement mechanisms like loss of state accreditation or tax-exempt status.
- Types of Prohibitions: The bills employed three main types of prohibitions:
- Compulsion: Prohibiting schools from compelling individuals to adopt or affirm a specific idea. While seemingly aligned with free speech principles, these laws, in practice, function as “viewpoint-based prohibitions while masquerading as defenses of intellectual freedom”.
- Promotion: Banning the promotion, endorsement, or inculcation of particular ideas, often through vague language that makes it “impossible to draw a clear line between teaching about a point of view and ‘promoting’ that point of view”.
- Inclusion: The most censorious, forbidding even neutral or objective discussion of certain topics or ideas regardless of how they are presented. For instance, a Tennessee law could be construed to mean a historian cannot include sources that might inspire “resentment” of groups like the Ku Klux Klan or Nazis.
- Punitive Measures and Surveillance: The legislation became “strikingly more punitive” in 2022, with 55% of bills including explicit punishments (up from 44% in 2021), ranging from heavy fines, loss of state funding for institutions, and termination or even criminal charges for teachers. The rise of “private rights of action,” allowing individuals (even those with no direct connection to a school) to sue over perceived violations, significantly amplified the threat. Furthermore, “curriculum transparency” legislation and even proposals for cameras in classrooms or live-streaming instruction were introduced, effectively creating a “surveillance of teachers”.
The profound implications of these educational gag orders are undeniable. They represent a “full-frontal attack on academic freedom”, a concept integral to a democratic society, allowing scholars to work without interference and provide vetted knowledge. The vagueness and overbreadth of these laws pose significant constitutional issues, leading to a “chilling effect” where teachers self-censor, avoiding potentially controversial but essential topics to protect their careers. This manufactured climate of fear exacerbates the nation’s teacher shortage and distorts the lens through which future generations will understand American history.
Indeed, some scholars argue that the current situation is “worse than McCarthyism,” as the inquisition now directly reaches into the classroom, unlike the Cold War Red Scare which focused on individuals’ political activities. This concerted effort to “cultivate an ignorant populace” actively undermines citizens’ ability to make informed decisions and “destroy[s] all hopes for a stable democracy”.
In response to this alarming trajectory, a strong resistance has emerged. Organizations like PEN America, the American Association of University Professors (AAUP), and the American Civil Liberties Union (ACLU) have been at the forefront, condemning these gag orders as violations of free speech and academic freedom. Faculty senates across the country, recognizing this “existential threat”, have mobilized, passing resolutions to defend academic freedom to teach about race and gender justice and critical race theory. Legal challenges are ongoing in multiple states against these laws, with some early successes.
This is a battle for the “soul of American education”. It is a stark reminder that while the “teaching of history, civics, and American identity has never been neutral or uncontested,” in a democracy, the response to disagreements “can never be to ban discussion of ideas or facts simply because they are contested or cause discomfort”. The fight to uphold academic freedom is crucial to defending and strengthening our democracy itself.