The Failure to Condemn White Supremacist "Education" Legislation in Tennessee

Faculty and administrators have dodged responsibility to confront bans on teaching "divisive concepts."
By David Barber

This article is part of a series, "Dispatches from States under Legislative Attack."

Each spring for the last three years the state of Tennessee has enacted what can only be termed white supremacist “education” laws. In 2021, Tennessee enacted the first of these laws banning the teaching of fourteen “divisive concepts” in the state’s K–12 public schools, effectively making the teaching of Black history illegal in public elementary and secondary schools. The legislature pushed through this law in the midst of the manufactured panic around critical race theory (CRT), which produced similar legislation and executive actions in nearly two dozen states. In 2022, Tennessee’s legislature took the anti-CRT law’s fourteen “divisive concepts,” added two more, and produced its 2022 law, this time aimed at higher education. Despite its pretense of upholding academic freedom and freedom of speech, the 2022 law reached down into college classrooms, allowing students to register complaints against individual professors for teaching “divisive concepts,” although these complaints could be registered only with difficulty. This year’s law, titled, in classic Orwellian doublespeak, the Tennessee Higher Education Freedom of Expression and Transparency Act, modifies the 2022 law, making it far easier for a student to charge a professor with teaching “divisive concepts.” The law also mandates that the university or college investigate such complaints and, if necessary, take “corrective action.”

Unfortunately, Tennessee’s ten thousand public university professors, and their faculty senate leaders across the state, have almost wholly failed to meet our responsibilities as educators in the face of these laws. Worse still, our public university administrations have not only failed to protest the laws but have also sought to reassure faculty members that the laws do not infringe on freedom of speech or academic freedom.

The 2021 anti-CRT law is the first and arguably the most important of Tennessee’s three white supremacist education laws. This law most clearly expresses the real intent behind all three laws because, in regulating the state’s nearly sixty-four thousand public school teachers and two thousand public K–12 schools scattered over nearly 150 school districts, it confronts a widely dispersed opposition. In contrast, public higher education’s ten thousand faculty members are concentrated in eleven public universities, five of which are represented by the University of Tennessee system, more easily allowing for the development of a critical mass of opposition. In short, the state’s K–12 schools and teachers provide an easier target for regulation than do our public universities.

What, then, does this anti-CRT law do? The American Historical Association, together with 150 other academic associations, including the AAUP, identified what it called “the clear goal” of the law: “to suppress teaching and learning about the role of racism in the history of the United States.” Of course, to suppress the teaching and learning of racism’s role in American history is to conceal and defend white supremacy.

Several of these fourteen “divisive concepts” that cannot be taught in public K–12 schools seem like concepts that should be banned—teaching the superiority of one race over another, for example, is illegal, as is teaching that “an individual should be discriminated against or receive adverse treatment because of the individual’s race or sex.” But since no one is today teaching such concepts, these additions to the law most likely are meant to camouflage its real intent: to portray discussions of white privilege or affirmative action as victimizing white people.

The law’s authors take further pains to provide camouflage for their censoring of discussions of racial or sexual oppression in American history: these discussions can happen provided that they are conducted “impartially.” So, we can discuss slavery, for example, if we give both the slave’s perspective and that of his loving and kindly master. But we find the real heart of the law in concepts five through eight: “(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex; (7) A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress members of another race or sex; (8) This state or the United States is fundamentally or irredeemably racist or sexist.”

While it is true that we are not responsible for the injustices perpetrated by our forebears, this law could make it illegal for a teacher to suggest that we are responsible for addressing the consequences of our forebears’ racist behavior: the disproportionate poverty or incarceration of Black people today, for example. This law also makes it illegal to teach the terrible brutality of slavery or segregation or lynching, lest we make young people uncomfortable about the history of a country that we are supposed to cherish as a champion of liberty and equality. Nor can we teach that meritocracy is a myth in a country that remains divided by race. And finally, we are barred from suggesting that the United States was founded as, and remains, a white supremacist nation. Teaching these kinds of truths will get a K–12 teacher fired or cause that teacher’s school district to lose state funding.

Unfortunately, as clear as this law is in its intention to prevent an honest discussion of American history, Tennessee’s professoriate and our public university administrators have until recently failed to condemn this first of our state’s white supremacist education laws. No one can excuse this failure on the grounds that the law doesn’t target higher education. It affects us directly in the increased historical ignorance of Tennessee students entering our universities, and, more important, it affects the hundreds of our public university graduates who each year join Tennessee’s K–12 teaching corps. Our collective silence means that the anti-CRT law will immediately confront our graduates with the choice, on becoming teachers, of lying about American history or telling the truth and losing their jobs. In short, we shift the moral burden of this law from our own shoulders to the shoulders of the young people we’ve taught, people far more vulnerable than we are.

Our failure to condemn this law in 2021 opened the door wide to the 2022 “divisive-concepts” law aimed at Tennessee’s public higher education system. Although the 2022 law shares all fourteen of the earlier law’s “divisive concepts,” it was not as explicit in its penalties for universities and their faculty members as the previous law was for K–12 school districts and their teachers. Evidently, our state government felt that shutting down discussions about racial oppression in college classrooms required a more incremental approach. Nevertheless, the 2022 law had an immediate impact on higher education in the state.

As I’ve argued elsewhere, in at least three cases the 2022 law, and the political climate surrounding it, shut down projects aimed at providing a more diverse educational experience for students at Tennessee’s public universities—even before enactment. The most telling of these three cases occurred on my own University of Tennessee at Martin campus. At the end of the spring 2021 semester a group of UTM faculty members managed to place a proposal for a general education requirement for the study of diverse Americans before the faculty senate. For technical reasons, the faculty senate committee handling this diversity proposal delayed consideration until the fall 2021 semester. Over that summer, however, legislators prefiled what would become the 2022 “divisive-concepts” bill, and after word reached the university that the legislature would likely cut funding to the campus were the diversity requirement to pass, the proposal quietly disappeared from the faculty senate’s agenda without explanation.

Once the 2022 bill passed, however, the University of Tennessee system claimed that the new law was harmless and that guarantees of academic freedom and freedom of speech were written into the bill. Even those faculty members on my campus who knew of the prospective law’s quashing of the diversity proposal insisted that they could, with complete impunity, say whatever they wanted in their own classrooms. But this is not the case. In the legislative discussion of the bill, senate sponsor Mike Bell acknowledged that “we can’t tell faculty members that they can’t [teach ‘divisive concepts’]. But we need to make sure that whether it’s a faculty member or a student, that no punishment is taken out on them either through denial of tenure or promotion or even a grade” (emphasis added). In other words, students could complain that they had allegedly received bad grades because they refused to “conform” to the divisive concepts being taught.

The 2022 law did make it difficult for students to complain about faculty teaching divisive concepts—students wishing to complain needed to find some “court of competent jurisdiction” to act on their behalf. The 2023 law, however, mandated that our public universities establish a mechanism allowing students to easily file complaints on each campus against professors they believed were forcing divisive concepts on them. The law further mandates that our public universities investigate these complaints, take “corrective action” when warranted, and report these complaints and corrective actions to the state comptroller annually. Of course, reporting these complaints to “the state’s ‘money cop’”—rather than to the natural recipient of such complaints, the Tennessee Higher Education Commission—carries with it an implicit monetary threat.

Faculty responses to both the 2022 and 2023 laws have largely been muted. Our public university faculty senates have, by and large, opted to trust their administrations’ reassurances that these laws do not compromise academic freedom or freedom of speech. One faculty senate leader, for example, told me in an email that her institution’s legislative liaison and campus president had recommended that faculty not protest the 2023 bill on the grounds that the law itself doesn’t “have a lot of teeth” and that faculty action “could put a target on our backs.” On my own campus, a faculty senate leader used the same expression in order to justify not protesting these laws. The irony here, of course, is that expressions of concern that we not protest against these laws lest we place “a target on our backs” demonstrate that these laws have already compromised freedom of speech.

All three of Tennessee’s recently enacted “education” laws have been parts of a wave of white and male supremacist legislation and actions in Tennessee, including book bannings in public schools and libraries, the shutting down of “inappropriate” school plays, the firing of at least one high school teacher for discussing a Ta-Nehisi Coates article in his classroom, the closing down of municipal police review boards by state authority, the extension of charter schools at the expense of public K–12 schools in the state, the criminalization of drag entertainment, and the banning of compulsory diversity training containing any of the enumerated “divisive concepts” in the 2022 and 2023 laws discussed here.

That our Tennessee professoriate can so readily accept the assurances of administrators and ignore the central place that these laws have in the white supremacist upsurge roiling the state and the nation is an indictment of people who are supposed to be educators, who are supposed to teach, and who are supposed to serve as examples of responsible citizenship.

David Barber teaches history at the University of Tennessee at Martin and is the author of A Hard Rain Fell: SDS and Why It Failed. His email address is [email protected]. The author thanks Christine Church, professor of law at Western Michigan University’s Cooley Law School, for helping him understand the free-speech implications of these laws.