The following coalition statement is a response to attempts during the 2021 legislative season to limit teaching related to racism, gender and critical race theory, under a broad umbrella of “divisive concepts.” The non-partisan statement enumerates five clear dangers of this type of state control of school curricula.
Five Reasons to Oppose “Divisive Concepts” Bills
The undersigned organizations are deeply concerned by measures recently introduced in a number of states designed to limit how K-12 teachers can teach about topics such as race and gender. The measures target what many are calling “divisive concepts,” a broad term for ideas about race and sex that challenges the dominant narrative of America’s founding and history. At least seven such bills have been introduced just since the beginning of April 2021, including Arkansas’s SB267, Ohio’s HB327, Louisiana’s HB564, Michigan’s SB0460, South Carolina’s H4343, Missouri’s HB952, and Tennessee’s SB0623. Bills in Arkansas, Tennessee and Texas have become law. The initiative is not limited to legislatures: the Georgia Department of Education, for instance, has also adopted a resolution addressing the “divisive concepts,” and calls for the development of formal regulations which forbid the “inculcation” of those concepts in public schools.
The divisive concepts mentioned directly echo those in the defunct Trump-era executive order banning “divisive concepts” in workplace diversity trainings conducted by the U.S. Uniformed Services, federal agencies and federal contractors, as well as those listed in a more recent model statute developed by Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center, in conjunction with the National Association of Scholars.
While the legislation is ostensibly intended to prevent ideological indoctrination, it may do exactly the opposite: impose an impermissible ideological orthodoxy in the teaching of race, gender, and American history. The bill in Texas, for instance, forbids teachers from discussing whether
- “meritocracy or traits such as a hard work ethic are racist or sexist”;
- “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,” and
- “members of one race or sex cannot … treat others without respect to race or sex.”
Florida has proposed a rule that instruction in public schools “may not define American history as something other than the creation of a new nation based largely on universal principles stated in the Declaration of Independence.”
We offer the following five reasons why these legislative proposals are dangerous and unacceptable:
- First Amendment principles forbid censorship based on ideological viewpoint. As the Supreme Court stated almost 80 years ago, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion”. When legislatures ban particular political or historical interpretations and prescribe ideological uniformity within the educational system, they not only disregard these foundational principles, but impermissibly use school curricula to advance politically partisan viewpoints. However, the Supreme Court has made clear that although public authorities may promote community values in public schools, they may not cross the line into forbidding consideration of disfavored ideas. 
- The proposed bans conflict with well-established requirements that students be exposed to different interpretations of history and learn to think critically about them. Texas currently requires students to “use critical-thinking skills . . . to explain and apply different methods that historians use to understand and interpret the past, including multiple points of view and historical context,” and specifically asks students to “discuss how and whether the actions of U.S. citizens and the local, state, and federal governments have achieved the ideals espoused in the founding documents.” Florida standards call for students to “develop claim(s) and counterclaims fairly and thoroughly, supplying the most relevant data and evidence for each while pointing out the strengths and limitations of both claim(s) and counterclaims.” The new measures directly threaten the teaching and encouragement of critical thinking in public school classrooms.
- The language of the laws is often vague and thus would chill academic freedom. Of the many bills introduced since the beginning of the year, at least eight seek to altogether ban “teaching” the concepts or “making [them] part of a course.” Six others bar schools from asking students to adopt the concepts, and two others refer to “promoting” them. The Georgia regulation bans “inculcating” the ideas. These terms are all open to interpretation. Bans on “inculcating divisive concepts” or promoting them, for instance, open the question: Does a teacher “inculcate” or “promote” those concepts just by introducing them into the classroom? What of historical documents which make an argument, as many did in the past, that “one race or sex is inherently superior to another race or sex”?  Fearful of potentially violating a law, teachers are likely to censor themselves and avoid discussing important historical and current controversial issues. The Supreme Court has long recognized that vague laws impinge upon the right to free speech because “[u]ncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’” and hence to “restrict their conduct to that which is unquestionably safe.”
- While the bans are purportedly designed to eliminate the threat of political indoctrination in the classroom, they do exactly the opposite: by implementing an absolute ban on even the discussion of certain concepts they impose State indoctrination. After all, the most effective way to impose one’s views on another is to prevent that person from hearing an opposing view. Students must be allowed to analyze a variety of viewpoints in order to develop their own ideas.
- The laws may set a dangerous precedent of political manipulation of the curriculum. Were they to be emulated across the political spectrum, the result will be that teachers will teach only what is politically orthodox in their community and students everywhere will be deprived of the opportunity to exercise independent thought. Indeed, in Illinois, a bill forbids the use of reading material which may “perpetuate bias against persons based on, but not limited to…ability, race, beliefs, language, gender, culture, family dynamics, socioeconomic status.” The New Jersey legislature just passed a bill requiring instruction on the effect of unconscious bias. And the school board in Rochester, MN, has passed a resolution asking the superintendent to “promote” messages such as “Black Lives Matter” in the district’s schools
Avoiding the perception of classroom indoctrination does not require silencing any particular viewpoint or “divisive” idea. Several states have addressed this concern recently without censoring teachers and students. In Idaho, a recent law was also triggered by concern over the controversial ideas that Texas seeks to ban. Instead of banning all mention of those ideas, the law simply states that schools cannot “compel students to personally affirm, adopt, or adhere to” any of them. In singling out specific ideas as unacceptable, the Idaho law might end up being problematic in practice, but the Idaho legislature at least tried to appear evenhanded. In contrast, Texas and many other states are explicitly trying to silence speech with which they politically disagree. Our students deserve better.
National Coalition Against Censorship
The Authors Guild
Comic Book Legal Defense Fund
Defending Rights & Dissent
International Literacy Association
National Council for the Social Studies
National Council of Teachers of English
National Youth Rights Association
People For the American Way
Student Press Law Center
Woodhull Freedom Foundation
 Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)
 Several of the bills are ambiguous in other ways. For example, New Hampshire’s HB2 states that teachers are free to discuss “the historical existence of” the listed “divisive concepts.” The bill does not say how far back in history is sufficiently “historical” — What of the “Jews will not replace us” chants of the Unite the Right marchers in Charlottesville in 2017? Is four years ago “historical”?