Classroom Gag Orders: Protecting Tender Feelings or Denying Realities?
By Cade Spencer ’25
In April 2021, during the trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd the previous year, Matthew Hawn, a Tennessee public school teacher, taught in his “Contemporary Issues” class at Sullivan Central High School that white privilege is an established fact, sharing a poetry performance on the subject.
Less than a month later, Hawn was fired.
Hawn’s community of Blountville, Tennessee, a rural town near the Virginia border that leans strongly conservative, accused him of forcing a political agenda on his students and said he had failed to provide “diverse perspectives” in his teaching.
Despite insisting that he regularly urged students to challenge class content if they disagreed with anything, Hawn found no success in getting his job back. And a few weeks later, an educational gag order officially banned lessons like the one Hawn had taught throughout Tennessee, theoretically enforcing the sentiments of his community.
An educational gag order, a term coined by PEN America, typically takes the form these days of a state law that aims to curb the teaching of “divisive concepts” in public schools, including race, gender, and dark moments in American history. Simply put, Republican legislators around the country are setting limits on subjects they believe are tilted against conservatives, guiding debates over how to interpret past events and reframe progressive topics like women’s rights, racial justice, and LGBTQ+ issues.
As noted by PEN America, the firing of Hawn is emblematic of a movement to control what happens in the nation’s classrooms. And at a time when school board meetings have turned into contentious forums in one place after another, these inappropriate gag orders reflect a prevailing belief among conservatives that an alleged liberal agenda must be identified and eradicated before its young would-be victims are indoctrinated.
Sixty-six of these orders were introduced in 26 state legislatures or other governmental venues throughout 2021. Twelve of them have been signed into law. Similar to Tennessee, eight other states, including Arizona, Idaho, Iowa, New Hampshire, North Dakota, Oklahoma, South Carolina, and Texas approved educational gag orders in 2021.
However, these efforts to control public education did not emerge out of thin air.
In September 2020, former President Donald Trump’s Executive Order 13950, since rescinded, aimed to prohibit the teaching of critical race theory (CRT), an academic discipline that analyzes and critiques racial disparities in the legal system and public policies, throughout the federal government and the uniformed services.
Trump said CRT was a tool for “brainwashing” and “psychological abuse,” deriding it as “divisive” and “contrary to the fundamental premises underpinning our Republic.” He publicly encouraged his party to view CRT as a “radical revolution” that taught the youth to “hate our country” and included four categories of perceived “divisive concepts.”
In September 2020, Christopher Rufo, a senior fellow at the Manhattan Institute who helped write Trump’s executive order, said on “Tucker Carlson Tonight” that “conservatives need to wake up. [CRT] is an existential threat to the United States.”
Notably, from a political communications perspective, Rufo also told The New Yorker in June 2021 that CRT was the “perfect villain” to sow anger among a base of conservative voters who fear and oppose liberal ideology.
Although Trump’s order is reflected in the new state laws, many experts have stressed that these policies largely target a nonexistent villain. Kimberlé Crenshaw, a law professor at UCLA and Columbia, who not only is a leading proponent of CRT but also coined the term, noted that in the current public education system in the United States, CRT is not typically taught at the K-12 level. Arguing that CRT backlash was an attempt to whitewash history, Crenshaw wrote in The Washington Post that “Americans are not often taught about the policies and practices through which racism has shaped our nation.”
While Trump’s order may have pursued a nonexistent villain, the 2021 gag orders went beyond its initial goals of prohibiting the instruction of “divisive concepts,” at best a vague category. Nevertheless, this sentiment carried over into gag orders like Tennessee’s HB 0580.
Signed into law on May 25, 2021, it outlawed various “concepts” in Tennessee K-12 schools, like teaching that Tennessee “or the United States is fundamentally or irredeemably racist or sexist” and that someone “by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.”
For educators who do not wish to suffer the same fate as Hawn, navigating vague and confusing guidelines has proven to be challenging. Consequently, PEN America noted that teachers are afraid to engage in open discourse on controversial topics. As the Free Speech Project has reported, tempers flared after a school official in Southlake, Texas, instructed employees that new guidelines required the teaching of opposing views on the Holocaust, as if Holocaust denial were on the same plane as the teaching of well-documented, but uncomfortable and dark, historical facts.
Following the extreme cases like the Southlake incident, among others, the constitutionality of the educational gag orders themselves has come into question.
Prior to the gag orders, U.S. District Court Judge Beth Labson Freeman of the Northern District of California had ordered the suspension of two clauses of EO 13950, as they likely violate the First and the 14th Amendments. According to Freeman, the speech restricted under Trump’s order, “addressing issues of racism and discrimination, goes to matters of public concern.”
If bans on “divisive concepts” can be interpreted as viewpoint discrimination, this could lead to the 12 gag orders already in place being contested and repealed.
In 1995, the Supreme Court decision in Rosenberger v. Rector concluded that viewpoint discrimination, in the public sphere, is an “egregious form of content discrimination” and a violation of the First Amendment. Acting on this precedent, in October 2021, a coalition of civil rights groups challenged Oklahoma HB 1775, a gag order signed into law in May of that year which places blanket prohibitions on any classroom conversations related to “implicit bias,” “systemic racism,” and “intersectionality.”
The Oklahoma ACLU described the law as “intended to inflame a political reaction, not further a legitimate educational interest,” adding that the bill “prevents students from having an open and complete dialogue about American history — one that includes the experiences and viewpoints of all historically marginalized communities in the country.”
Genevieve Bonadies Torres, associate director of the Educational Opportunities Project, said the Oklahoma bill was “an unvarnished attempt to silence the experiences and perspectives of Black, Indigenous, and LGBTQ+ people, and other groups who have long faced exclusion and marginalization in our institutions, including in our schools.”
Another gag order, Florida SB 148 (“Individual Freedom”), was approved by that state’s Senate Education Committee in January 2022. According to The Associated Press, the bill prohibits public schools and private businesses from causing white people to feel “discomfort” when teaching students about discrimination in the nation’s past.
The Florida gag order states, “An individual, by virtue of his or her race or sex, does not bear responsibility for actions committed in the past by other members of the same race or sex” and “should not be made to feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race.” SB 148 also prohibits private businesses from leading white people to feel “discomfort” during employee racial sensitivity training. The AP noted that while SB 148 aims to curb CRT, the bill does not explicitly mention it.
Many Republican Party leaders also view these gag orders as unjust. New Hampshire Gov. Chris Sununu, for example, described them as a “slippery slope,” and Utah Gov. Spencer Cox observed that the intention of education policy should be “never stifling thought or expression.”
PEN America expects most of the gag orders of 2021 to be found unconstitutional in eventual court challenges. But the battle may be long and tiresome. According to Education Post, more states may pursue gag orders in 2022 with similar laws that reflect Trump’s rescinded order. And Oklahoma, Tennessee, and South Carolina, are now considering additional gag orders for public higher education.
Thus, going forward, it is crucial that such legislation, while disguised as protections for “diverse perspectives,” be recognized as affronts to the Free Speech of educators and students. Whether the acts pursue an end to “divisive concepts” or attack the elusive “liberal agenda,” the legislation embodies an aspiration by politicians to manage classrooms nationwide.
When educators are able to have open and comprehensive dialogues on “divisive concepts,” the conversations benefit students and their relationships to society. The gag orders do not protect students from a liberal or any other views, but rather reflect a conservative desire to control educational practice and rhetoric. As a nation, we must strive to remove the culture wars from our schools. At its core, the classroom is our hope for inclusion, equity, and empathy, a “think lab” of new philosophies, relationships, and beliefs to come.
When discourse is gagged, the entire system suffocates, resulting in a nation of indoctrination, not education. As history teaches us, the consequences may be grave.