by Jeremy C. Young
Educational gag orders are coming to college. In some states, they’ve already arrived. What are educational gag orders? They are laws, policies, and proposed bills, proliferating over the past two years, that restrict teaching and training in higher education as well as primary and high schools. The majority of this legislation aims to censor discussions of race, racism, gender, and American history, banning a series of what have been deemed divisive concepts for teachers and trainers in educational settings. Today, 122 million people – nearly one-third of the United States population – live in one of the 19 states where these laws and policies are in force.
At PEN America, the 100-year-old free speech and human rights nonprofit where I work, I help lead the fight against educational censorship. There’s never been a moment quite like this, with so many different proposals circulating to censor teachers and professors – part of an effort to censor specific ideas, particularly those related to race, sex, and gender. This comes amid an unprecedented scale of book bans in school libraries: more than 2,500 in the past school year alone. So-called curriculum transparency bills propose to subject teachers’ curricula and assignments to microscopic scrutiny; other bills would restrict LGBTQ-affirming practices or even ban teachers from mentioning homosexuality in the classroom. At the college level, there are renewed legislative attacks on tenure, academic freedom, and shared governance.
As a whole, these acts have been referred to as the Ed Scare: a broad effort to create a moral panic concerning schools and higher education that echoes the Red Scares of the past. Today’s moral panic is evolving and more diffuse, spreading to curricula, school libraries, teacher training, and, in an increasing number of places, to colleges and universities. The chilling effect of censorship on those who work with students is dire; unquestionably, educational gag orders restrict academic and educational discussions and impose strict, politically mandated government dictates on teaching and learning.
In total, PEN America has tracked nearly 200 proposed educational gag orders in the legislatures of 41 states over the past two years, with the vast majority appearing in 2022: a 250% increase over the year before. Virtually all gag orders affect K-12 classrooms and thus have begun to shape the experiences of students who will be entering residence halls for the first time. But some impact colleges and universities more directly. Gag orders restricting higher education became law in 2021 in Idaho, Iowa, and Oklahoma. In 2022, four new states have passed higher ed gag orders: Florida, Mississippi, South Dakota, and Tennessee. In all, 42 million Americans now live in states with higher ed-focused gag orders in force.
In higher education, gag orders could ban ideas or curricular materials in a variety of subject areas: most obviously U.S. history and literature, but also law, political science, sociology, biology, and even business and the health sciences.
The momentum for educational gag orders grew from a backlash against the protests in 2020 responding to the murder of George Floyd and the popularity of the Pulitzer Prize-winning 1619 Project at The New York Times. These developments, and their promise of a national reckoning with the role of race and racism in America’s past, generated fierce opposition from those opposed to these cultural changes. In response, some legislators and conservative activists borrowed the term critical race theory from an academic framework and applied it inaccurately to a range of ideas related to diversity, equity, and inclusion initiatives.
When President Donald Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping,” in September 2020 it banned federal agencies and federal contractors from conducting diversity, equity, and inclusion training that promoted particular “divisive concepts” dealing with race and sex in America. Many of these banned ideas, such as the argument that “the United States is fundamentally a racist country” or that “an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,” are so broad that they potentially encompass concepts widely taught and even necessary, such as the history of American slavery or the existence of affirmative action policies.
President Joe Biden rescinded Executive Order 13950 on his first day in office. Newly unable to carry out gag order policies at the federal level, advocates turned to state legislatures, and the avalanche of state-level educational gag orders began – but they were now focused squarely on educational institutions.
Educational gag orders are vaguely written; indeed, the vagueness is often the point. They maximize the chilling effect on speech by rendering the lines around acceptable educational discourse especially opaque. As such, what these orders actually ban often depends on who’s interpreting and enforcing them. In a worst-case scenario, they could restrict large portions of the educational enterprise.
In higher education, gag orders could ban ideas or curricular materials in a variety of subject areas: most obviously U.S. history and literature, but also law, political science, sociology, biology, and even business and the health sciences. Whole curricula in gender and ethnic studies programs could be restricted.
But the impact of these orders may not be restricted to the formal classroom either. Outside of the classroom, a provision in some gag orders banning “division or classification of students by race” could restrict institutional recognition or funding of student groups such as Black Student Unions. Some diversity training programs could be banned, along with courses that require student attendance at lectures where “divisive concepts” are mentioned. Because gag orders represent political interference in matters traditionally controlled by institutional governing boards, there may even be risks to college and university accreditation – a concern raised by the American Association of Colleges and Universities, representing more than 1,000 institutions of higher education.
Even gag orders that focus only on K-12 institutions impact higher education. Such laws could restrict content that can appear in programs that offer early college credit, such as concurrent enrollment and Advanced Placement courses. They could also restrict teacher training materials in college education departments, including at private colleges, something that has occurred in at least one state. Finally, by limiting the ideas and perspectives that students encounter in K-12 classrooms, they leave students less prepared for college courses or for interacting with students from backgrounds different from their own.
Considering the potentially wide-ranging effects of these orders, how can housing and residence life professionals help students navigate the shifting landscape of educational gag orders?
First, campus leaders should not do the censors’ work for them. Because of the typical vagueness of gag orders, we’ve seen many cases of administrative censorship (school or university officials overinterpreting gag orders to ban any mention of race, gender, or sexual identity) and self-censorship (staff and faculty avoiding these topics out of fear of controversy). Staff should, of course, follow the guidance given by the institution. But, generally speaking, not one gag order law specifically mentions housing and residence life, so these laws should have as little effect on your work and your students as possible. Ideally, they should not restrict what students can post on their room doors, what flyers they can hang on bulletin boards, or what events they can host in residential spaces. If the law or institution isn’t explicitly telling you to create new restrictions in these areas, don’t create them.
Campuses should help their students understand these laws and their impact. Because of the controversial nature of gag order laws, higher ed staff are often afraid to explain them publicly, which simply compounds the chilling effect of the laws. If students ask, don’t be afraid to help them understand the laws’ context and impact on campus life. You don’t need to take a position on whether the laws are advisable – students themselves have differing views on this point – but providing facts and context can help demystify things for everyone.
Campuses should also offer support for diversity, diverse students, and diverse viewpoints. In a study of K-12 gag orders, researchers Mica Pollock and John Rogers found that the degree to which these orders had a negative impact on teachers and students was directly correlated with whether staff and school officials made explicit their support for diversity initiatives. When appropriate, continue to voice your institution’s commitment to diversity and inclusion as reflected in its mission statement. Make sure to offer support to underprivileged students or those with marginalized identities who may be deeply upset by the effects of gag order laws. At the same time, continue to be supportive, welcoming, and fair to students who hold views all across the political spectrum, including views about gag orders.
Finally, it is important for staff to speak out, but not to the point of endangering their position. People in the community need to hear from higher education professionals about how educational gag orders affect their work and their students. But higher education professionals, particularly those in non-faculty roles, aren’t always free to speak publicly about matters relating to their institution. Despite these restrictions, there’s still plenty you can do to help. Talk to your family and friends about your experiences. Work with your staff senate to advocate on gag orders within your institution. And, of course, continue to support students as they navigate these treacherous waters.
This issue is not something to be tackled alone. Censorious legislation can be isolating; indeed, that’s often the point. No matter where your institution is located or how it is organized, you’re not alone in dealing with educational gag orders. Connect with supportive colleagues and administrators at your institution or online. Or feel free to contact groups like PEN America; we’re happy to offer you advice and support.
Jeremy C. Young is the senior manager of free expression and education at PEN America. Young also spoke as part of the 2022 ACUHO-I Multicultural Institute.
