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Rise of Legislation Targeting “Divisive” Concepts and What It Means for Research Libraries

Legislative History & Congressional Inquiry

The legislative origin of the bills targeting so-called divisive concepts is an executive order signed by then-President Trump in 2020, “Combating Race and Sex Stereotyping.” The executive order required federal agencies and grant funders to assess proposals and programs to ensure they align with the order’s restrictive stipulations regarding the content of diversity, equity, and inclusion training. ARL, along with higher education associations, objected to Executive Order 13,950; and President Biden repealed it on the first day of his administration in January 2021. State and federal laws, many of which draw language from Executive Order 13,950, target not just federal and federally funded training but also schools, libraries, and classrooms. There is also a model bill by the right-leaning National Association of Scholars, called the Partisanship out of Civics Act, which has been copied as well. 

The US House Oversight and Reform Committee’s Civil Rights and Civil Liberties Subcommittee held two hearings in April and May 2022:

April 7, 2022: Free Speech under Attack: Book Bans and Academic Censorship

May 19, 2022: Free Speech under Attack (Part II): Curriculum Sabotage and Classroom Censorship

Academic Freedom for Public Institutions

According to the American Association of University Professors (AAUP) and other legal experts, these laws trigger a fundamental First Amendment right of academic freedom for public institutions in the US. This right was first recognized by the US Supreme Court in 1952, during the McCarthy era, and has been affirmed a number of times since. The Supreme Court (which has since changed in composition) says that an institution has the right to determine what is taught, and how those subjects are taught, within its classrooms. Representing both content and viewpoint censorship, these “divisive concepts” bills intrude on the First Amendment right to academic freedom, which is closely tied to the right of free speech. The more intrusive the violation, the more strict the scrutiny the courts apply to a First Amendment analysis. By telling institutions what positions they cannot take on an issue, explained First Amendment attorney Ishan Bhabha, the bills amount to saying that it’s permissible to take the opposite view.

Academic freedom, as defined by AAUP and pertaining to individual faculty, is governed by a combination of professional norms and standards and the law. See: Rachel Levinson, “Academic Freedom and the First Amendment,” AAUP, July 2007.

The educational gag-order laws are broad and vague, which leading opponents say contributes to a chilling effect on speech, causing concern among professors and university administrators about what can be taught and discussed in the classroom.

In a very short time, we have already seen the chilling effects of this kind of legislation, which has been used to justify suspending a sociology course on race and ethnicity in Oklahoma, providing professors at Iowa State University written guidance for how to avoid “drawing scrutiny” for their teaching under their state’s Act, instructing teachers that they should balance having books on the Holocaust with those with “opposing views” in Texas, and challenging the teaching of civil rights activist Ruby Bridges’s autobiographical picture book about school desegregation in Tennessee. 

—Jonathan Friedman and James Tager, Educational Gag Orders, PEN America, accessed September 7, 2022.

Calls to Action

The AAUP and the African American Policy Forum (AAPF) have been working together since fall 2021 on a #TruthBeTold campaign to mobilize faculty to pass resolutions in their academic senates pushing back against legislative proposals that target and ban critical race theory, so-called divisive concepts, and teaching about structural racism, as well as stating their commitment to stand firm against encroachment on faculty authority by legislatures or boards of trustees. In 2021, AAUP, PEN America, the American Historical Association, and the Association of American Colleges & Universities released the “Joint Statement on Efforts to Restrict Education about Racism,” which has now been signed by 150 scholarly organizations, including ARL.

AAPF is tracking institutions with faculty senate resolutions for #TruthBeTold. To get started organizing faculty on your campus, or to learn more, see the resources compiled by AAPF’s #TruthBeTold campaign

The following organizations provide tracking sites for educational gag-order legislation:

  1. African American Policy Forum Legislative Map
  2. American Association of University Professors Legislative Page and Map/Tracker
  3. Education Week Map/Tracker
  4. PEN America Index of Educational Gag Orders
  5. UCLA School of Law CRT Forward Tracking Project

Statements from Scholarly, Higher Education, and Library Communities

Joint Statement on Efforts to Restrict Education about Racism, AAUP, PEN America, the American Historical Association, and the Association of American Colleges & Universities, June 2021

Reckoning with the Chilling Effect of New State Laws, Inside Higher Ed, December 2021

AERA Statement on the Significance of Academic Freedom in a Divisive Political Climate, American Educational Research Association, February 2022

Defending Our Right to Learn, American Civil Liberties Union, March 2022

Call for Papers for Session at IFLA Congress in Dublin, Ireland, 2022:Truth, Evidence, and Memory: Academic Libraries as Cultural Rights Defenders,” IFLA Academic and Research Libraries Section, March 2022

Black History Is American History, The Leadership Conference Education Fund, NAACP, People for the American Way, and NAACP Virginia State Conference, April 2022

Statement by AAC&U and PEN America regarding Recent Legislative Restrictions on Teaching and Learning, American Association of Colleges and Universities, June 2022