An Educational Warzone: The Battle Over Education Censorship in Post-2020 America

By: Alexandra Henriquez

Edited by: Regan Cornelius and Anna Dellit

In 2020, the United States faced two transformative epidemics. The first is the infamous global health emergency, the Covid-19 pandemic. The second is a less novel epidemic: systemic racism. The killing of George Floyd, a black man, by a white Minneapolis police officer in May of 2020 brought renewed attention to the presence of the institutional racism that underlies police brutality. As the Black Lives Matter movement demonstrations took place across the country, so did discussions about the historical and systemic legacy of racism in the United States, not only in policing but also in other various institutions, including education. 

In response to the heightened awareness of systemic racism, calls for more inclusive and accurate representations of history, particularly concerning the experiences of marginalized groups, gained traction in schools. Thus, educational content was expanded around the country to encompass concepts such as Critical Race Theory (CRT), the idea that racism is a systemic and institutional problem. The College Board even introduced a new Advanced Placement exam in African-American History.

However, these efforts toward reforming the education system were soon met with resistance. In the years following 2020, 10 states passed classroom censorship bills restricting discussions about race and gender in educational settings. According to PEN America, a nonprofit organization focused on raising awareness of free expression violations in the United States, 122 educational “gag order” bills have been introduced or prefilled in 33 different states. [1] Even in states not pursuing formal legislation, school boards and parent groups have challenged curriculum by advocating for book bans and censorship of material related to social justice causes. As of November 2023, UCLA Law School’s CRT Forward Tracking Project has identified a total of 777 anti-critical race theory efforts (statements, policies, or legislation) introduced at the school board or government levels. [2] 

While these censorship policies are a direct response to the rise in the diverse curriculum, they are also an extension of former President Trump's "Executive Order on Combating Race and Sex Stereotyping." The order, which was declared in September of 2020, barred "divisive concepts" in "the Federal workforce or in the Uniform Services." The stated purpose of Trump’s order was to stop anti-American sentiment. [3] Although President Biden has revoked and replaced this order with a new executive order titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” the state-level education censorship policies modeled after Trump’s executive order still stand and continue to rise.

Over the past few years, Florida has actively led the censorship of education. In 2022, Florida Governor Ron DeSantis signed legislation which was later coined the “Stop WOKE” Act, which restricted CRT conversations in schools and businesses. Among many provisions, the law specifically bars instruction that implies that “a person’s moral character or status as privileged or oppressed is determined by race, color, national origin or sex.” [4] DeSantis, like President Trump, explains the law was created so no individual would “feel as if they are not equal or shamed because of their race.” [5] In January of 2023, the Florida Department of Education issued a letter to the College Board explaining its decision to ban the pilot AP African American Studies Course from high schools, claiming the course was historically inaccurate and stands in violation of state legislation. [6] In a press release, Florida Senator Powell of District 24 said that the ban fundamentally violated Florida’s longstanding nondiscrimination law that “requires public school students to be taught the history of African Americans.” [7] Florida’s current controversy is emblematic of the waves crashing around the entire country. Schools all over the nation have faced the shaking consequences of the censorship laws, canceling classes principally or even minimally related to civil rights, race, and even sexuality and feminism.

The constitutionality of this new legislative movement has recently begun to be challenged. The ACLU and other advocacy groups argue, in a potentially monumental lawsuit, that Oklahoma H.B. 1775 violates free speech and inhibits students’ freedom. The lawsuit contends that the law “restricts discussions on race and gender in Oklahoma’s elementary, secondary, and higher education schools without any legitimate pedagogical justification, using language that is simultaneously sweeping and unclear.” [8] This lawsuit is preceded by other Supreme Court of the United States (SCOTUS) decisions on free speech in schools. Burnside v. Byars (1966) held that students’ freedom of speech rights extended to the wearing of “freedom buttons” protesting racial discrimination since the action did not "materially and substantially interfere" with the operation of the school. [9] This precedent was then reaffirmed by Tinker v. Des Moines (1969) when the court held that students’ freedom of speech also included the symbolic speech of wearing their armbands to protest the Vietnam War. Consequently, in the context of limiting conversations on diversity and race, government lawyers will need to prove that these discussions significantly disrupt school operations. To build upon this scrutiny, in the case of The School Board, Island Trees Union Free School District No. 26 v. Pico (1982), the SCOTUS decided in a 5-to-4 decision that while school boards have a legitimate interest in fostering order and community values, their discretionary authority is subordinate to the integral American principles of freedom. The barely scraping-by majority held that since libraries were destinations for “voluntary inquiry,” school libraries enjoy an inalienable, innate connection to freedom of speech and press. Therefore, the board could not practice viewpoint discrimination via book bans. But are schools subject to the same scrutiny as libraries? The Pico decision notes that there is an inherent difference between the “compulsory environment of the classroom” and the voluntary nature of libraries. [10] However, given the intersection of race and education, it is likely that such scrutiny for censorship in schools will nonetheless be stringent and undergo strict legal examination. The Brown v. Board of Education (1954) majority opinion highlights a significant difference between applying the “separate but equal” doctrine to transportation and it being applied to schools, considering the unique role education plays in American society. [11] More closely related to teaching material, the majority opinion in Meyer v. Nebraska (1923) found that a state law prohibiting teaching grade school children any language other than English was unconstitutional under the Due Process Clause of the Fourteenth Amendment. [12] Thus, in addition to First Amendment violation arguments, we might also see Fourteenth Amendment due process arguments arise. The Meyer decision recognized the value of linguistic and cultural diversity. Similarly, proponents of open discussions on CRT might argue that exposing students to diverse perspectives, including those related to race and history, is crucial for fostering a well-rounded education.

Currently, Escambia County School District is facing a lawsuit by the PEN American Center, Penguin Random House, authors, parents, and students because of the school board's removal of books, particularly those “by non-white and/or LGBTQ authors, or which address topics related to race or LGBTQ identity.” [13] While the ACLU lawsuit answers a new constitutional interpretation question, the PEN American Center suit will challenge the decision from Pico. Will courts uphold the precedent from Pico or overturn it? Will these issues rise to the Supreme Court? For better or for worse, we will have to wait and see.

Notes

1. Jeffrey Sachs, “Steep Rise in Gag Orders, Many Sloppily Drafted,” PEN America,
   January 24, 2022, https://pen.org/steep-rise-gag-orders-many-sloppily-drafted/.

2. CRT Forward Tracking Project, accessed November 13, 2023,
   https://crtforward.law.ucla.edu/map/.

3. Donald J. Trump, “Executive Order 13950, Combating Race and Sex Stereotyping.”
   September 22, 2020 https://trumpwhitehouse.archives.gov/presidential-actions/executive- order-combating-race-sex-stereotyping/

4.  “Stop the Wrongs to Our Kids and Employees Act” H.R. 7, 124th Leg. Reg. Sess. (Fla. 2022). https://www.flsenate.gov/Session/Bill/2022/7/ByVersion

5. “Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination”, April 22, 2022, https://www.flgov.com/2022/04/22/governor-ron- desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke- indoctrination/.

6. Eesha Pendharkar, “Florida’s Ban on AP African American Studies, Explained,” Education Week, January 24, 2023, https://www.edweek.org/teaching-learning/floridas- ban-on-ap-african-american-studies-explained/2023/01. 

7. “Senator Bobby Powell: Governor’s Discriminatory Move Tramples Florida Law.” Press Release - The Florida Senate, January 21, 2023. https://flsenate.gov/Media/PressRelease/Show/4387#.

8. Bert v. O'Connor, Case No. 5:21-cv-1022-G, (W.D. Okla. November 9, 2021). https://www.aclu.org/legal-document/amended-complaint-6. 

9. Burnside v. Byars, 363 F. 2d 744 (5th Cir. 1966)

10. Island Trees Sch. Dist. v. Pico by Pico, 457 U.S. 853 (1982), 869.

11. Brown v. Board of Education, 347 U.S. 483 (1954).

12. Meyer v. Nebraska, 262 U.S. 390 (1923).

13. PEN America v. Escambia County School District, Case No. 3:23-cv-10385, (N.D. Fla. Pensacola Div. May 17, 2023), https://pen.org/wp-content/uploads/2023/05/1- Complaint.pdf. 

Bibliography

Bert v. O'Connor, Case No. 5:21-cv-1022-G, (W.D. Okla. November 9, 2021). https://www.aclu.org/legal-document/amended-complaint-6

Brown v. Board of Education, 347 U.S. 483 (1954).

CRT Forward Tracking Project, accessed November 13, 2023, https://crtforward.law.ucla.edu/map/.

“Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination”, April 22, 2022, https://www.flgov.com/2022/04/22/governor-ron- desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke- indoctrination/.

Island Trees Sch. Dist. v. Pico by Pico, 457 U.S. 853 (1982), 869.

Meyer v. Nebraska, 262 U.S. 390 (1923)

PEN America v. Escambia County School District, Case No. 3:23-cv-10385, (N.D. Fla. Pensacola Div. May 17, 2023) https://pen.org/wp-content/uploads/2023/05/1- Complaint.pdf

Pendharkar, Eesha. “Florida’s Ban on AP African American Studies, Explained.” Education Week, January 24, 2023. https://www.edweek.org/teaching-learning/floridas-ban-on-ap- african-american-studies-explained/2023/01.

Sachs, Jeffrey. “Steep Rise in Gag Orders, Many Sloppily Drafted.” PEN America, January 24, 2022. https://pen.org/steep-rise-gag-orders-many-sloppily-drafted/.

“Senator Bobby Powell: Governor’s Discriminatory Move Tramples Florida Law.” Press Release - The Florida Senate, January 21, 2023. https://flsenate.gov/Media/PressRelease/Show/4387#.

“Stop the Wrongs to Our Kids and Employees Act” H.R. 7, 124th Leg. Reg. Sess. (Fla. 2022). https://www.flsenate.gov/Session/Bill/2022/7/ByVersion

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Trump, Donald J. “Executive Order 13950, Combating Race and Sex Stereotyping.” September 22, 2020 https://trumpwhitehouse.archives.gov/presidential-actions/executive-order- combating-race-sex-stereotyping/.