Educational Gag Orders

In April 2022, Governor Ron DeSantis of Florida signed into law the Individual Freedom Act, also known as the “Stop WOKE Act,” in an effort to control how businesses and educational institutions address race and gender. In response to the law and the political climate, the University of Central Florida’s sociology department canceled every course on race. Florida Gulf Coast University renamed its Center for Critical Race and Ethnic Studies to eliminate the word “critical,” and at Florida State University, an instructor weeded out student-suggested questions about White privilege for class discussions. In Oklahoma, a similar state law passed in May 2021 spurred Oklahoma City Community College administrators to cancel a sociology class on race and ethnicity. In Idaho, a law banning abortion that went into effect in August 2022 prompted the University of Idaho to issue guidance on restricting campus discussions of abortion and contraception. In South Dakota, K–12 preservice teachers must complete a South Dakota Indian studies course. But after the governor issued an executive order in April 2022 prohibiting promotion of “divisive concepts” in K–12 educational content, the state Department of Education pressured public and private colleges that offer the course, including tribal colleges, to no longer require that the Indian studies curriculum “establish a fundamental awareness” of “race and gender bias, stereotyping, assumptions, etc.”

These are just some of the fruits of “educational gag orders”—PEN America’s term for laws, policies, and proposed bills that restrict teaching and training about race, racism, gender, and American history. PEN America, a nonprofit that champions creative expression and the freedom that makes it possible, has been tracking the proliferation of these censorship measures, which target K–12 schools and higher education institutions across the country. Since January 2021, more than three hundred of these bills have been introduced in forty-four states, and 118 million people—a third of the US population—live in one of the eighteen states where these laws or policies are in force. In eight of those states—Florida, Idaho, Iowa, Mississippi, North Dakota, Oklahoma, South Dakota, and Tennessee, which together have a total population of 43 million—educational gag orders specifically restrict higher education institutions. Unlike in the other states, Florida’s law applies to both public and private colleges and universities, although in November 2022 a federal judged stayed the law’s higher education provisions.

Higher education leaders cannot afford to ignore the spread of these laws. They impose politically mandated government dictates on teaching and learning, cast a pall over free expression on campus, and constitute a direct threat to the educational missions and institutional autonomy of colleges and universities. Fortunately, leaders and others in the higher education sector can do much to defend their institutions and turn back this wave of censorship. In so doing, they can build an effective defense system for higher education to stave off present and future political and legislative threats.

Many of the recent educational gag orders grew out of a backlash against the Black Lives Matter protests in the wake of the 2020 killing of George Floyd by police. Another factor was a negative and even combative reaction to the popularity of the New York Times’ Pulitzer Prize–winning 1619 Project, launched in 2019 to commemorate the 400th anniversary of the arrival of the first slave ship in America. Both the protests and the 1619 Project, with their promise of a national reckoning with race and racism in American society, generated fierce opposition among many White conservatives. In July 2020, Senator Tom Cotton, a Republican from Arkansas, introduced the Saving American History Act, with the goal of blocking federal funds to any K–12 school using the 1619 Project. In September 2020, President Donald Trump issued Executive Order 13950 on “Combating Race and Sex Stereotyping,” banning federal agencies and federal contractors from conducting diversity, equity, and inclusion (DEI) trainings that promote particular “divisive concepts” dealing with race and sex in America. Like Cotton’s bill, this executive order aimed to cut off government funding to achieve a politically motivated and censorious aim.

After President Joe Biden rescinded Executive Order 13950 on his first day in office in January 2021, advocates of these restrictions turned to state legislatures, and the avalanche of state-level educational gag orders began. Over the past two years, these have morphed from solely being legislative proposals focused on “divisive concepts” to being reframed as a necessary government intervention to stop “critical race theory” (CRT)—a term some conservative legislators and activists borrowed from the academy and applied inaccurately to a range of ideas related to DEI initiatives. Anti-CRT arguments have been used to propose prohibitions on teaching a range of topics related to race, sex, and gender and to justify ideological dictates about how certain aspects of national history must be taught.

While anti-CRT dog whistles have become a rhetorical staple for some conservative politicians—such as Governor Sarah Huckabee Sanders, who banned “indoctrination and critical race theory” in public K–12 schools on her first day in office in Arkansas—other politicians now declare that “wokeness” is the problem and must be prohibited in schools and higher education institutions. The term originated with racial justice movements in the early to mid-1900s, but today many conservatives have co-opted it to pejoratively refer to identity-based social justice issues. The new focus on wokeness is being used to justify state investigations into spending on DEI initiatives, offices, and programs in higher education systems in Florida, Oklahoma, and South Carolina, with others, including Utah, considering following their lead. In some states, lawmakers have proposed radical remedies such as banning DEI expenditures wholesale. In Florida, DeSantis has proposed legislation that would quash the autonomy of colleges and universities by giving control of academic majors and faculty hiring to politician-appointed boards of governors. DeSantis has already instated hand-selected trustees on the board of New College of Florida with the aim of turning the college into a politically conservative institution. In Texas, a proposed bill would create a statewide blacklist for faculty and staff found to have violated vague DEI prohibitions, banning them from working at any public higher education institution for a year, or for five years after a second violation. All the while, similar ideas appear to be percolating in other states, with model legislation for dismantling DEI efforts coming out of the conservative Manhattan and Goldwater institutes.

The threats to higher education and academic freedom from these varied developments are numerous. Most obvious is the vagueness inherent in the bans of “divisive concepts,” such as with Executive Order 13950, which states that it should be illegal to teach that “the United States is fundamentally racist or sexist” or that “an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.”

The laws that amount to educational gag orders are so broad that they potentially encompass concepts widely taught across multiple disciplines. Could a historian properly teach about American slavery or the existence of affirmative action policies or the “new history of capitalism,” which posits that US industrialism arose out of slavery? Might literature faculty run afoul of the law by assigning students to read works by Black writers who wrote about race and identity, such as Richard Wright or James Baldwin? What if philosophy faculty assigned C. L. R. James or bell hooks? The entire field of critical legal studies, which views the law as having inherent social biases, could be axed from college curricula, as could large portions of African American studies or gender studies programs. How will the gag orders affect business professors teaching about racial or gender disparities in employment or nursing professors teaching about similar disparities in health care? Teacher training programs in college and university education departments are at particular risk, not only from higher education laws but also from K–12 gag orders, which implicate what and how preservice teachers can be taught.

The gag orders are not all limited to the classroom. A provision in some declaring that “no distinction or classification of students shall be made on account of race” could spell the end of college and university recognition and funding for Black Student Unions and other similar student groups. Such laws could restrict content in diversity trainings or even public lectures, as well as the very existence of university DEI initiatives. Gag orders arguably violate requirements by accreditation agencies that legislatures not exercise “undue political influence” on the work of university governing boards; passing these laws could thus put colleges’ and universities’ accreditation at risk. And programs offering early college credit, such as concurrent enrollment courses in US history and literature, could be threatened by gag order laws that focus only on K–12 classrooms; since these classes count for high school as well as college credit, and since they are often offered in high school settings, they could be subject to K–12 prohibitions even though they are rightly college courses.

These impacts are likely to appear gradually, with the censorship of certain topics becoming the new norm on campuses. Over time, K–12 students who have been prevented from learning about certain topics and ideas will enter college less prepared for coursework on race and gender and potentially unaware of, or accustomed to, routine curricular prohibitions. Gag orders are likely to leave colleges picking up the slack for educational gaps created in K–12—and, because of restrictions on higher ed, with fewer tools available to do so.

So, what can colleges and universities do to respond to educational gag orders and other legislative threats to academic freedom? Effective responses by institutions and stakeholders fall under three categories: internal administrative and educational responses, external responses using the power of the institution, and individual responses in institutional leaders’ capacities as private citizens.

For institutions and stakeholders considering internal responses, we at PEN America recommend one key principle: don’t do the censors’ work for them. Because educational gag orders are intentionally ambiguous in what they prohibit—in fact, several current lawsuits charge them with unconstitutional vagueness—their enforcement often relies on institutional leaders’ overinterpreting them: banning events or discussions out of fear that someone might object to them under the law.

Recent studies have indicated that this type of administrative censorship is widespread and problematic in K–12 schools in ways that may be mirrored in higher education. In the aftermath of gag order laws or proposals, according to University of California education researchers Mica Pollock and John Rogers, teachers experienced particularly intense chilling effects in districts where local education leaders did not express “explicit protection for the right to learn and teach” about race and diversity, withdrew from earlier commitments to DEI efforts, or told teachers to be especially careful of the requirements of proposed or enacted gag order policies.

A recent RAND Corporation survey found that 24 percent of public K–12 schoolteachers nationally reported that limitations on controversial classroom topics affected their teaching and that this pressure to self-censor fell disproportionately on Black teachers, particularly in states that had enacted gag order restrictions. In a 2022 report on public high schools nationally, education researchers John Rogers and Joseph Kahne showed that professional development offerings on “how to conduct productive discussions of controversial issues” had precipitously declined in high schools in politically red and purple congressional districts.

For many areas of higher education, the prudent management of risk is the hallmark of effective university and college leaders. But educational gag orders use this prudence against institutions, incentivizing them to inflate the laws’ impact on campus. In these cases, leaders must balance risk management with the need to avoid disrupting the institution’s responsibilities to its educational mission and to academic freedom. Faculty and students need specific guidance on these laws—but that guidance should reflect the laws’ explicit prohibitions, not potential interpretations. Such guidance should also emphasize the institution’s continued commitments to free inquiry, open dialogue, diversity, and inclusion, as reflected in its mission statement.

When it comes to external responses, every institution’s circumstances are unique. Only institutional leaders themselves can know whether a call to a legislator, a public statement defending academic freedom on campus, or building coalitions with other educational institutions and organizations will be effective. However, we do recommend two considerations when deciding whether and how to respond to gag order proposals and laws.

First, be prepared. Lay the groundwork for defeating such legislation before it is introduced. Increasingly, legislative threats to higher education originate in national conservative think tanks—such as seen with the anti-DEI models from the Manhattan and Goldwater institutes—and are then deployed in state legislatures via a near-simultaneous, multi-state approach, with legislators copying bills from other states in real time. Because these bills often do not originate in the states where they are introduced, normal legislative channels may not provide sufficient warning that these proposed laws are coming to a particular state. Therefore, higher education leaders must pay attention to national policy trends unfolding in states other than their own to stay alert to bills that could be mimicked in their legislature.

Second, embrace the possibilities for coalition-building. The higher education sector is notoriously fractious and difficult to organize; too often, faculty, staff, students, and administrators perceive few common interests and reflexively oppose one another’s priorities. But today’s legislative attacks threaten every aspect of colleges and universities, presenting an unusual opportunity for higher education groups to unite against a common threat.

A successful response to educational gag orders will require building a broad defensive coalition rooted in sector-wide solidarity. It will also need to involve collective action across institutions within a state or region that in other circumstances might compete with one another for resources or enrollment.

Although their institutions are less frequently targeted by educational gag orders, leaders of private colleges and universities should also feel empowered to join, instigate, and support these coalitions. After all, in some states, gag orders are aiming to target public and private institutions alike, and the attack could easily spread to other places. Private universities also receive public funding in some circumstances, and that funding could be at risk if certain versions of gag order legislation become law. By speaking publicly in defense of higher education, leaders of private institutions not directly affected can address this issue with less fear of political retribution and perform a great service for their colleagues in more politically precarious circumstances.

Finally, in their role as citizens of a local community, college and university leaders and other stakeholders should consider mounting individual responses to the threat of educational gag orders.

Numerous studies—including recent surveys by the American Historical Association and Fairleigh Dickinson University and a poll by CBS and YouGov—have shown that the teaching of uncomfortable truths about slavery and racism in both high school and college has broad support among Americans, including among a majority of Republicans. Yet by and large, the censorship-supporting minority places a higher priority on this issue than does the free expression–supporting majority. There is a vital need for a mass communication and mobilization effort to raise the salience of the threat of the gag orders affecting colleges and universities in the public consciousness.

Higher education leaders, faculty, staff, and students are well suited to sound the alarm about educational gag orders. Beyond their areas of scholarly expertise, they are individuals whose professional status often garners respect in their communities. They are often excellent written and verbal communicators, and they care deeply about their institutions.

While some leaders may fear repercussions from speaking up—and in some circumstances, their fear may be justified—those interested in advocating against educational gag orders in their capacity as citizens should consider penning op-eds and letters to the editor in their local papers; making public appearances to speak on the topic; and engaging in direct communication with family and friends. In doing so, they might choose to emphasize the united opposition to these restrictions among higher education leaders and groups, pointing to the multiple joint statements issued by academic organizations, a resolution adopted by faculty senates at eighty-six colleges and universities, and even a public statement by the head of the conservative Charles Koch Foundation. Advocates of academic freedom might also focus on the broad popularity of teaching honest history and diverse literature or on the risks to early college credit programs, teacher training programs, and university accreditation. They might emphasize the threats to campus free expression represented by government restrictions on teaching and learning.

In addition, advocates can draw inspiration from a June 2022 joint statement by the American Association of Colleges and Universities and PEN America that encapsulates both the promise and possibility of higher education and the threat posed by censorious laws. “The freedom to engage in intellectual debate,” write the organizations, “and to share ideas and raise questions without fear of retribution or censorship, expands the boundaries of knowledge and drives innovation. . . . Any legislative effort to circumscribe freedom of inquiry and expression in order to hew to political directives and agendas denies students essential opportunities for intellectual growth and development. In doing so, such an effort undermines our society’s democratic future.”

We hesitate to suggest that any phenomenon, even the proliferation of educational gag orders, is truly without historical precedent. Take the investigations of alleged communist infiltration during the McCarthy era, or the political attacks on higher education institutions in Hungary, Poland, Russia, China, and Brazil in recent years. But today’s US-based higher education leaders have an opportunity to do something truly unprecedented: to band together as never before in a grand coalition capable of defending their institutions and defeating this and future waves of educational censorship. If college and university leaders can muster the strategic thinking, bold leadership, and moral courage necessary to stand up for their work and their institutions, higher education will prevail.

Illustrations by Matt Chase