FAQs on Educational Gag Orders

At a time when the nation is confronting our deep-rooted racial inequity, legislators in a number of states have moved to impose educational gag orders that restrict teaching about oppression, race, and gender. Here are some frequently asked questions about how these bills apply to higher education.

What and where are these bills?

• In 2021, educational gag orders were introduced in twenty-six states, and some version was signed into law in eight. Of the eight states that succeeded in censoring the teaching of race and racism, only two—Idaho and Oklahoma—include higher education. The rest target K-12 exclusively.
• Though 2022 legislative sessions still have weeks or months left to go, AAUP has already identified over 120 educational gag orders in state legislatures, including forty-seven that explicitly target higher education.
• Language varies significantly from state to state, in terms of exact topics or language that are prohibited and the types of punitive measures, if any, that have been proposed. Generally the bills prohibit teaching or training about vaguely defined “divisive concepts,” including racism and oppression. The bills also could preclude teaching about, or even discussing, topics such as systemic racism, anti-racist theory, or white privilege.
• Of the forty-seven educational gag orders that target higher education, twenty-six include punitive measures of some kind, from reductions in funding to allowing faculty to be fired to the outright elimination of funding. Click here to see a map showing the locations of active gag orders, and click here for a full list, including maps and a list of upcoming state legislative committee hearings.

Do legislators have the responsibility or authority to decide what is taught in public institutions?

No.

• Decisions about curriculum and subject matter should be made by educators who have expertise in the subject. Under principles of academic freedom widely endorsed by the higher education community, college and university teachers are entitled to freedom in the classroom in discussing their subject.
• Politicians in a democratic society should not manipulate curricula to advance partisan or ideological aims.
• The Supreme Court explained the rationale for protecting teaching from state interference: “The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234 (1957)

Proponents of these bills say that examination of racism in this country’s classrooms may cause some students “discomfort” because it is an uncomfortable and complicated subject. Why not just avoid potentially controversial or uncomfortable topics?

• This assumes that students have a right not to have their beliefs challenged. It contradicts the central purpose of higher education, which is to challenge students to think hard about their own perspectives, whatever those might be.
• Growth and learning often require confronting topics that create discomfort, including those related to racism and sexism.
• The Supreme Court explained that "the mere dissemination of ideas . . . on a state university campus may not be shut off in the name alone of 'conventions of decency.'" Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670, 93 S. Ct. 1197, 35 L. Ed. 2d 618 (1973) (per curiam).

What is critical race theory?

Critical race theory is a field of study that looks at how race has shaped history and society. A fundamental idea is that racism is not just the product of individual bias or prejudice, but something that is baked into US institutions, including education, policing, the legal system, and housing policies. While legislation seeking to suppress teaching about race often mentions critical race theory or the 1619 project, it is much broader than these theories.

What does this have to do with President Trump’s 1776 commission and the 1619 Project?

• The 1619 Project, produced by the New York Times, looked at American history through the frame of the African American experience. Former President Trump issued an executive order creating the 1776 Commission in direct response to the 1619 Project.
• The 1776 Commission sought to remove race and other intersectional lenses to analyze history from US classrooms and promoted a “patriotic” curriculum designed to thwart progress by suppressing teaching and learning about the role of racism in the history of the United States.
• While President Biden has disbanded the 1776 Commission, its members are still working to promote its vision of a whitewashed, limited curriculum in the media, and through legislators (at both the state and federal level). Some of these legislators hope to attract attention for their support of “patriotic” education”, and use it for campaigning and fundraising purposes.

Why should the history of race in the United States be taught?

• Suppressing discussion of “divisive concepts” in higher education deprives faculty and students of the ability to understand US history and to discuss and foster solutions to the divisions and injustices in this country.
• As educators, we owe students a nuanced and frank delivery of history, so that they may make their own decisions about how to learn and grow from it.
• While progress has been made with regard to racial and socioeconomic justice, true equality and equity have not been acheived. Today’s students will have the civic and moral responsibility to uphold and build on that progress.
• Educators, not legislators, should decide what materials to use.

Does teaching about racism discriminate against white students?

• No. While students should not be discriminated against, either as individuals or as a group, because of their race or sex, class discussion of uncomfortable topics is an entirely different matter.
• Some opponents of critical race theory, and of addressing racism in general, have argued that teaching about racism or theories that categorize individuals based on race constitutes discrimination against white people. This assertion is a red herring designed to conceal motives behind attempts to prevent the teaching and discussion of racism in the United States.
• It is also legally specious. Discussion of theories, ideas, or concepts is not discriminatory, even if it makes students or others uncomfortable. Illegal discrimination exists when there is a tangible action against a person based on race, or where there is severe or pervasive racial harassment. The teaching and discussion of critical race theory and racism is neither.
• It is neither harassment nor discriminatory treatment of a student to criticize an idea or viewpoint the student has posited or advanced.

Overall points:

• The purpose of education is to serve the common good by promoting open inquiry and advancing human knowledge; it should not be used to advance partisan aims.
• Legislation that would restrict the teaching of history is fundamentally against the principles of free speech. The AAUP has a long history of standing up for the right to free speech and expression, in and out of the classroom.
• Ideas about democracy and the sun-centered solar system were once new, controversial, and resisted by governments.

What happens if one of these bills emerges in my state?

• These bills can have a chilling effect on academic freedom in higher education even when they have not become law, or only apply to K–12 schools.
• Up and until a bill is passed, campus and system administrators should not take action to implement it. Administrators and boards should robustly defend academic freedom and the freedom to teach and learn—not preemptively go along with legislation that has not passed or does not apply to higher education.
• In states that have passed restrictions on teaching about racism in K–12 settings, some college administrators have unnecessarily broadened the scope of the legislation. An Oklahoma community college instructor reported that her course was canceled in response to such a bill.
• The vague provisions in the bills may make administrators wary of even unsubstantiated complaints. At Boise State, a required course was suspended after it was alleged that a white student was demeaned during a discussion of structural inequities. A subsequent investigation found the allegation to be false.
• Where legislation has been introduced but not passed, administrators may preemptively comply with it. At Iowa State, faculty spent a year helping update undergraduate learning outcomes for a longstanding diversity requirement. The faculty senate approved the new outcomes, but the administration rejected them, citing pending legislation against “race and sex stereotyping.”
• AAUP chapters and conferences can and should organize against these bills. See an example of a letter campaign from Ohio. 

Resources and statements

• Resources on teaching about race.
• Statement on state efforts to restrict the teaching of history
• Statement opposing “viewpoint diversity” legislation in Florida
• Statement on the Iowa legislature's threats to academic freedom and tenure
• Statement in opposition to the 1776 Commission report