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 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.


Moments after Professor Barber’s excellent article was shared with the University of Tennessee, Knoxville VoxProf listserve (the state’s flagship university), it was met with a thud by Distinguished Professor of Law, Lucy Jewel, demonstrating one of the core problems in the academy.

“Decent article, but I disagree with the argument that there was some kind of failure to protest these divisive concepts bills. Not true [sic] The divisive concepts bills are terrible, but people are speaking out against them. There also seems to be a little naivety here, in the idea that faculty senate action could actually do anything with respect to the Legislature and the Board of Trustees. Also, some of us need our paychecks. We pick our battles.”

Wars are not battles and disease is not a war. For decades the American university has been I consumed by a disease that is wholly treatable and curable. Yet, if history is any teacher, the disease may soon win out.

Historically, UTK faculty tend not to pick battles. More circumspect, they respond to perceived threats, and even then, owing to the ability of upper administration to cloud the simplest of situations, faculty often are uncertain what is being threatened. Examples of the senate’s ability to protect tenure and protect faculty from administrative over-reach or other unsavory actions are legion as is the uninterrupted expanse of administrative real estate relative to shrinking tenure line positions.

Having spent the last four decades in the academy, witnessing firsthand the erosion of one of the greatest American institutions, the Jewel retort was depressing, both in Jewel’s conflating quiet commentary or individual retorts, for full-throated political action, and for her accurate assessment of the UTK’s flaccid faculty senate, sequestered behind a Faculty Handbook devised to thwart what was once referred to among serious UTK academicians as “shared governance”.

I have been in battles, and I have fought disease. As a cancer survivor, I was fortunate that it was found early and cut out. That was not a battle. That was a disease that required swift action before it metastasized.

If we wait to pick battles while the twin diseases of a gerrymandered ultra-right-wing legislature further erode our academic freedoms, and a weak-kneed professorate fearful of reprisals permits egregious erosions of one of the greatest American institutions, before the decade is out there may be nothing left to safe.

All wars are not won by battles and no disease was ever cured on a battlefield.

In October of 2022, dozens of tenured faculty at UTK took part in an action we called a "speak-in". We read the statement below in our classes, and then taught our classes just as we normally do. All of us documented our participation; some of us shared our action publicly on social media:

Our goals in taking this collective action were: 1) to educate our students about the law and its detrimental effect on their education and our ability to educate them in accordance with our expertise and our obligations to them. 2) to protect all impacted faculty, especially those faculty who are more vulnerable to beings targeted, by either a) triggering a lawsuit that would force the issue to be resolved in court, or b) performing the action and NOT getting sued, thus setting a precedent that would generally increase the security of all faculty to teach what we normally teach, and specifically weaken future attempts to apply the law selectively to "pick off" NTT/untenured/marginalized/otherwise vulnerable colleagues. The latter outcome was (so far) the result.

I am proud of what we did, but Dr. Barber is right: it was only ONE STEP in what must be a state-wide, faculty-led, sustained resistance to these terribly unjust laws. In particular, Dr. Barber gives vivid proof of their real power: namely, their chilling effect. Fear leads administrators and faculty alike to censor themselves in response to these laws; this is their PRINCIPAL MECHANISM, not a byproduct. My colleague Mary Campbell in Art History produced the following passage from Thurgood Marshall's dissenting opinion in the 1971 case Kennedy v. Arnett: "That this court will ultimately vindicate an employee if the speech is constitutionally protected is of little consequence -- for the value of a sword of Damocles is that it hangs -- not that it drops. For every employee that risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all."

Dr. Barber is right that faculty at Tennessee's public institutions of higher education, especially those of us with the extra speech-related protections of tenure, have a special role and obligation to resist and discredit these specious, White Supremacist laws. Perhaps a statewide reiteration of last Fall's UTK Speak-In is in order.

UTK Faculty "Speak-In" Statement:
“As you may already know, last spring the Tennessee State legislature drafted a so-called “Divisive Concepts” bill -- now signed into law as Public Chapter 818. Section 7 of the law claims to respect the academic freedom and first amendment rights of faculty. But the law simultaneously forbids us to teach you about a long list of “divisive” concepts, including many facts and ideas related to race, gender, power structures, and class.
To deny students the chance to engage with so-called divisive concepts is to deny you your education, to deprive you of the knowledge you need to be full-fledged citizens, and to take away the skills you need to participate in democratic society. College education MUST teach the concepts that this law labels divisive. And it must teach students how to engage with challenging and divisive issues in general. Centuries ago, it was divisive to teach the notion that the Earth rotates around the Sun, and less than a century ago in this state it was divisive to teach evolutionary biology. The fact that people may be divided in their views of the concepts named in this law does not mean that you should be prevented from learning about them.
And yet according to some construals of Public Chapter 818 (and certainly according to many of the bill’s initial drafters), its aim is to prevent me from teaching, and to prevent you from learning, at least some of what I am about to teach and discuss with you today. Therefore it is possible that in teaching today’s class, I am breaking this law.”

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