Abstract

Excerpted From: Jonathan Feingold and Joshua Weishart, Discriminatory Censorship Laws, 99 Tulane Law Review 585 (February, 2025) (368 Footnotes) (Full Document)

The Georgia school board voted 4-3, along party lines, to fire elementary school teacher Katherine Rinderle. Her offense: Rinderle read her fifth-grade class “My Shadow is Purple,” a children's book that explores gender roles and identity. Rinderle purchased the book, which her students had selected and which was nominated for an award, at her school's district-approved Scholastic Book Fair. According to the district superintendent, Rinderle violated a state law passed the prior year. Rinderle's attorney disputed the claim and took aim at the law itself: “To fire a teacher under a law that no two people could agree on is wrong. Ms. Rinderle, like other Georgia educators, does not know where the lines are drawn when it comes to sensitive, controversial, or divisive concepts. After two days of trial, we still do not know.”

The state board nevertheless upheld Rinderle's dismissal, “without discussing it.” She sued, joined by a transgender student and youth organization, asserting that LGBTQ+ students have since “suffered the ripple effects” of Rinderle's firing under the new “censorship” regime.

Around the same time as Rinderle's termination, a similar law in Florida undermined educational offerings at 562 high schools. If the schools offered the full AP Psychology curriculum, a staple for thirty years, they risked violating Florida's new “Don't Say Gay” law. But if teachers did not “teach all of the content in the course,” the students would not receive AP credit. The College Board, which oversees the AP curriculum, claimed that Florida's Department of Education--by targeting content about sexual orientation and gender identity--had effectively banned the course. Although the state eventually relented, the announcement came too late for districts to reinsert AP Psychology into the year's curriculum. The offending content: AP Psychology “asks students to ‘describe how sex and gender influence socialization and other aspects of development.”’

Earlier that year, Florida officials invoked a separate 2022 law (the “Stop WOKE Act”) to reject a pilot AP African American Studies course. To justify their decision, state officials characterized the AP course as “woke indoctrination,” “inexplicably contrary to Florida law,” and ““significantly lack[ing] educational value.” The targeted material: topics on “Intersectionality and Activism,” “Black Queer Studies,” “Movements for Black Lives,” “Black Feminist and Literary Thought,” and “The Reparations Movement.”

Those same Florida officials did more than retract the curriculum. They also infused the curriculum with openly right-wing viewpoints hostile to the Movement for Black Lives and related equality-oriented social movements. Among other changes, the state's GOP leadership adopted new social studies standards that suggested enslaved people benefitted from slavery and approved PragerU's self-described rightwing “indoctrination” videos for classroom use.

The foregoing examples are neither isolated, nor surprising. They reflect the now-common and predictable impact of “discriminatory censorship laws”--a term we apply to recent government efforts to regulate classroom instruction on racism, gender identity, and other targeted topics. Others have employed terms such as “backlash bills,” “[a]nti-literacy laws,” “‘anti-CRT’ laws,” and “[e]ducational gag orders” to describe this new body of law. We prefer “discriminatory censorship laws” because we believe the term captures two discrete goals these laws further: (1) to discredit and demean inclusionary principles and practices and (2) to deny students access to critical knowledge about racism, sexism, gender identity, and other targeted topics (collectively, “targeted topics”).

As we detail below, discriminatory censorship laws buttress a broader campaign to morally stigmatize and legally outlaw “diversity-and inequality-related discussion, learning, and student support in educational settings” and beyond. One University of California research team has described this right-wing political project as a “conflict campaign,” a term that locates discriminatory censorship laws within a calculated effort to “inflam[e] Americans to battle public schools and one another.”

A growing number of scholars have analyzed the constitutionality of discriminatory censorship laws. But few, if any, have provided a systematic assessment of the laws' impact. This Article fills that gap. Specifically, we synthesize available research on the spread, scope, and impact of the still-growing body of discriminatory censorship laws. We then offer a series of recommendations for stakeholders best positioned to stem this backlash campaign.

As measured by spread, scope, and impact, the GOP's discriminatory censorship campaign has been immensely effective. Between January 2021 and January 2024, state and local officials enacted over 240 discriminatory censorship laws that regulate K-12 classrooms. These laws directly touch over 1.3 million educators and over 20 million students--a total that represents roughly half of the country's public school students.

The ferocious spread of discriminatory censorship laws has ushered in a new, invidious form of school segregation. Two separate public education systems have emerged--split between “free” schools and “censored” schools. Students in “free” states and districts access schools that invite inclusionary values, promote critical thinking, and offer comprehensive coverage of targeted topics. Students in “censored” states or districts, in contrast, must navigate regimes that compel exclusionary values and spread miseducation. Yet, as we unpack below, this segregation metaphor arguably understates the challenge. Even in “free” states, educators report a chilling effect based on anxiety that covering targeted topics could trigger backlash.

In addition to assessing impact, this Article identifies two underappreciated dynamics. First, the public and media have internalized an overreading of discriminatory censorship laws that incorrectly assumes all such laws prohibit any instruction on targeted topics. This overreading facilitates discriminatory censorship because it incentivizes educators to self-censor (unnecessarily) and it enables right-wing actors to target disfavored (but lawful) curricula and classroom conversation.

Second, increasing evidence suggests that discriminatory censorship laws--and the assault on public education they buttress--are deeply unpopular. Public opinion should reassure those committed to more inclusive classrooms and curriculum. But as we detail, absent an equally coordinated and committed campaign against discriminatory censorship, there is little reason to believe public opinion will be sufficient to limit--let alone remedy--the harm discriminatory censorship laws have already wrought.

This Article proceeds in four main Parts. Part II outlines the genesis of discriminatory censorship laws. We outline how discriminatory censorship laws arose within a well-funded and calculated backlash campaign that emerged in response to the summer of 2020's global uprising for racial justice. Part III documents the spread and scope of discriminatory censorship laws. Most of the students who attend censored schools reside in GOP-controlled states. Still, numerous school districts within Democrat-controlled states have imposed discriminatory censorship regimes. Part IV synthesizes existing research on the harms discriminatory censorship laws pose to students, educators, and public education. As detailed below, we divide these harms into two primary categories: (1) hostile learning environments and (2) miseducation. Part V shifts the focus by identifying sites of resistance--what we term “backlash to the backlash.” We conclude with concrete recommendations directed at a range of stakeholders--all of whom are positioned to halt the spread of discriminatory censorship laws and mitigate their negative effects.

[. . .]

Discriminatory censorship laws are wreaking havoc on educators, students, and public education writ large. Yet contrary to their ubiquity across the country, these laws--and the exclusionary values they embody--are widely unpopular. Still, little suggests that right-wing backlash will slow absent an equally organized, resourced, and committed response. In this spirit, we conclude by offering recommendations directed at specific stakeholders--each of whom is well-positioned to close ranks around critical thinking, inclusive curricula, and the basic dignity of all school community members.

We urge Congress to hold hearings on discriminatory censorship laws and the threats they pose to students, teachers, and public education writ large.

We urge the United States Department of Education to: (1) provide legal guidance for educators; (2) initiate investigations to protect the civil rights of students and educators in “censored” states and districts; and (3) create more streamlined mechanisms for students and educators to file complaints with the U.S. Department of Education's Office for Civil Rights when discriminatory censorship laws create hostile environments or otherwise violate federal civil rights.

We urge state legislators to: (1) enact legislation that requires or affirmatively permits antiracist, inclusive, and culturally sensitive pedagogy and curriculum; and (2) enact laws modeled after the American Library Association's Library Bill of Rights, such as IL HB2789, which prohibit the removal of material and the banning of specific books or resources because of partisan or doctrinal disapproval.

We urge state departments of education and local school officials to: (1) develop and disseminate clear guidance that identifies, with precision, what any governing discriminatory censorship law prohibits and what it permits; and (2) review existing guidance or issue new guidance that reinforces the notion that federal law creates an affirmative obligation for schools to provide an inclusive, safe education free from race-based and sex-based harassment--protections that would extend to LGBTQ+ students and educators.

We urge national civil rights, civil liberties, and education advocacy groups to: (1) create a national hotline to provide educators with immediate up-to-date legal information and guidance; (2) establish a legal defense fund to cover targeted educators' legal expenses and lost compensation and benefits pending disciplinary proceedings; (3) create a network of pro bono legal and public relations services for targeted educators; and (4) prepare and disseminate curricular materials that enable educators to teach targeted topics without violating discriminatory censorship laws while still providing a comprehensive and truthful account of the subject.

We urge progressive legal organizations to develop new litigation strategies that, for example, (1) employ discriminatory censorship laws to defend equality-oriented educators and pedagogy; and (2) assert state constitutional rights, statutes, or regulations to challenge discriminatory censorship laws.

We urge all champions of public education and multiracial democracy to close ranks around the millions of students and frontline educators who must now navigate regimes of discriminatory censorship.

Jonathan Feingold. Associate Professor of Law, Boston University School of Law.

Joshua Weishart. Professor of Law, Suffolk University Law School.