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Informed Citizens

are Better Citizens

by Phyllis Raybin Emert

The history of the United States is complex with many highs and lows in its nearly 250 years. How and what to teach of that history is sparking debates across the country.

According to the RAND Corporation, a nonprofit research institute, 18 states have passed policies or laws that restrict what teachers are allowed to teach as of January 2023. Labeled “divisive concepts laws,” they focus mainly on how issues of race and gender are taught in K-12 schools.

Reporting from The Washington Post reveals that more than 110 of these laws and policies have been enacted since 2017. The Post maintains a tracker of these state measures, and reports that “…among other things, [these measures] outlaw teaching a long list of concepts related to race, including the idea that America is systemically racist or that students should feel guilt, shame or responsibility for historical wrongs due to their race. For example, a 2021 Texas law forbids teaching that ‘slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality.’”

These state measures stem from an executive order that former President Donald J. Trump issued in September 2020. The order, titled “Combating Race and Sex Stereotyping,” listed nine “divisive concepts” that were prohibited from being promoted in federal agencies, or by federal contractors and subcontractors. The order effectively stopped any workplace diversity training at the federal level.

What do the state laws say?

President Joseph Biden rescinded the Trump administration’s executive order in January 2021; however, some state legislatures based their divisive concepts laws on the nine concepts outlined in the order. Some states used the same language, while others use slightly different wording and added other concepts. For example, Tennessee’s law, enacted in 2021, includes 16 banned concepts.

Laws in some states allow citizens to report educators for teaching something that they believe violates a divisive concepts law. Penalties for teachers that violate these laws often include the loss of their job and suspension of their teaching license. In addition, the schools where they teach could be in jeopardy of losing state funding.

The National Coalition for History, a group of 43 organizations representing historians, archivists, researchers, and educators, opposes divisive concept legislation. In a statement, the organization said, “What is especially pernicious about these bills is that they masquerade as legislation defending free speech, but in fact have been purposely designed to curb consideration of subjects controversial and in any way critical of American society or culture.”

In a 2023 hearing to pass an additional divisive concepts law, Tennessee state Senator Joey Hensley, who sponsored the 2021 law, argued against diversity, equity and inclusion (DEI) programs, saying they are “really divisive concepts” and “favor one group over another.”

“We’re not saying schools should not be diverse, because they should be,” Senator Hensley said. “DEI has come to mean other things—it’s come to mean favoring one group over another one and trying to make some people feel inferior to others, and we just don’t think that’s right.”

Proponents of divisive concepts laws often mention the teaching of critical race theory (CRT) as a need for these laws, even though the notion that the controversial theory is being taught in K-12 schools has been disputed by education experts. The theory, which is introduced in graduate level courses and law school, examines the premise that racism is a systemic problem and is embedded in U.S. institutions. CRT is often lumped in with teaching anti-racism or used as an “umbrella term” for any lesson dealing with race or racism, including lessons on slavery or the civil rights movement.

Challenges in court

So far, legal challenges to state divisive concepts laws have been brought in Arizona, Florida, Georgia, New Hampshire, Oklahoma, and Tennessee. Most of the challenges cite the vagueness of the laws, with teachers not sure what is allowed and what is not.

“Teachers are in this gray area where we don’t know what we can and can’t do or say in our classrooms,” Kathryn Vaughn, a visual arts teacher at a Tennessee elementary school, told Chalkbeat, a nonprofit news organization that covers education.

Vaughn, along with four other educators and the Tennessee Education Association, are challenging Tennessee’s Prohibitive Concepts Act in a Nashville federal court.

“This law interferes with Tennessee teachers’ job to provide a fact-based, well-rounded education to their students,” Tanya Coates, president of the Tennessee Education Association said in a statement.

The lawsuit, filed in July 2023, gives examples of how the state’s nearly one million students are being affected by the law in terms of what they are not learning.

“In Tipton County, one school has replaced an annual field trip to the National Civil Rights Museum in Memphis with a trip to a baseball game,” according to the lawsuit. “In Shelby County, a choir director fears that his decades-long practice of teaching his students to sing and understand the history behind spirituals sung by enslaved people will be perceived as ‘divisive’ or otherwise violate the ban.”

Chilling discussion

According to findings from the 2023 State of the American Teacher Survey, conducted by RAND Education and Labor, funded by the National Education Association and the American Federation of Teachers, and published in 2024, 36% of educators teach in one of the 18 states that have divisive concepts laws on the books. The survey, which is a representative sample of more than 25,000 teachers across the nation, also revealed that 55% of educators that teach in states with no restrictions admitted they limit class discussion on political or social issues for fear of reprisal.

“We suspect that teachers who are not subject to state-level restrictions are nevertheless experiencing the consequences of these policies and adjusting their instruction accordingly,” according to RAND’s report.

Art Worrell is the director of history instruction at Uncommon Schools, a charter school network serving over 19,000 students in New Jersey, New York and Massachusetts.

“History is messy. It is complicated and full of people and societies capable of outstanding achievements and brutal atrocities,” Worrell wrote in an op-ed for The Star-Ledger. “By embracing that messiness and helping our students embrace it, we come to understand our world and what it means to be human.”

PEN America is a nonprofit organization that raises awareness for the protection of free expression worldwide. PEN refers to divisive concepts laws as educational gag orders.

“Teaching of history, civics, and American identity has never been neutral or uncontested, and reasonable people can disagree over how and when educators should teach children about racism, sexism, and other facets of American history and society,” a PEN America 2021 report said. “But in a democracy, the response to these disagreements can never be to ban discussion of ideas or facts simply because they are contested or cause discomfort. As American society reckons with the persistence of racial discrimination and inequity, and the complexities of historical memory, attempts to use the power of the state to constrain discussion of these issues must be rejected.”

Exploring history classes

The American Historical Association (AHA), a professional association for historians, embarked on a two-year study, gathering practical data regarding middle and high school history classes. AHA reviewed the K-12 social studies content standards in all 50 states and interviewed district officials and history department heads. In addition, they surveyed 8,000 educators in nine states.

“The divisive concepts legislation that have been introduced by lawmakers make assumptions about what teachers are teaching,” James Grossman, a historian and the executive director of AHA, told EdWeek. “We always knew that teachers don’t really teach critical race theory in the classrooms. But not one [piece of legislation] had any data on what’s being taught.” Grossman also told EdWeek that for the most part teachers keep politics out of their classrooms.

“They aren’t telling students to feel guilty about what their parents or grandparents did,” Grossman said.

In an essay published in Time magazine, AHA researchers revealed the key finding of its study was that “the typical American history classroom is neither awash in white supremacy nor awoke with critical race theory.” In addition, teachers surveyed by AHA strongly agreed that the goals of social studies are to promote critical thinking and informed citizenship.

“History teachers instruct and inspire, but they do not indoctrinate,” the researchers wrote in Time. “Ultimately, what history teachers teach their students about (cause and consequence, structure and agency, context and complexity, contingency and continuity) bears little resemblance to what partisan culture warriors argue about (‘who we are as a nation’ and how we should feel about it). The former trains the mind for judgment, the latter for propaganda. Everyone should agree on which one of these we want for the next generation of Americans.”

Discussion Questions

  1. According to the RAND research report, some teachers self-censor regarding political and social issues. How do you think that affects classroom discussion? Have you ever hesitated to ask a question in class for fear it might be controversial? Explain your answer.
  2. Have you ever felt discomfort in class when learning about race or gender-related issues? Do you think possible discomfort should be a factor in whether, or how topics such as slavery, the civil rights movement, or LGBTQ+ issues are taught? Explain your answer.

Glossary Words
legislation
—the enactment of law by a legislative body (ie., Congress or a state legislature).
partisan
— someone who supports a particular political party or cause with great devotion.
pernicious
— having a harmful effect, especially in a gradual or subtle way.
propaganda
— misinformation or half-truths.
rescind
—take back or cancel, repeal; to void an act or an order.

This article was originally published in the spring 2024 edition of Respect.