“Anti-Critical Race Theory” Education Legislation, Passed and Pending, is Unconstitutional Censorship

Censorship, Diversity, Education, School Libraries

Turns out, extreme book censorship originating this past fall in Texas, fueled by outrage and unfounded educational hysteria, was just the beginning.

According to this news article, a new Tennessee law bans the teaching of “critical race theory,” and the state is now “pursuing plans to strip teaching licenses from instructors and cut state funding to schools that persistently teach taboo material.” However, if anything related to racial injustice is now banned, does that mean educators cannot include historical figures like Martin Luther King, Jr., and Rosa Parks in the curriculum? After all, education “involves basic American history about slavery, post-slavery segregation and the long struggle for racial equality.” One grassroots parent organization gaining national attention is Moms of Liberty (other groups include 603 Alliance and No Left Turn). Moms of Liberty argues that these topics are divisive, give the impression that all white people are bad, and ignore all of the good that has happened in recent decades.

My True Story by Ruby Bridges

A complaint was indeed filed soon after by a representative from the Moms of Liberty Williamson County chapter. The complaint alleges that a unit being taught in Williamson County Schools second grade classrooms using books such as Martin Luther King Jr. and the March on Washington by Frances E. Ruffin violates the new law. Specifically, pictures in Ruffin’s book showing “white firemen blasting black children to the point of ‘bruising their bodies and ripping off their clothes make children hate their country, each other, and/or themselves.” However, the Tennessee Department of Education declined to investigate because the incident occured in the school year before the new legislation was passed and before a procedure was established for complaints. That does not bode well for future complaints.

According to this article from Forbes, New Hampshire has passed new legislation, the “Right to Freedom From Discrimination in Public Workplaces and Education,” NH HB2, which “Establishes and describes a right to freedom from certain types of discrimination based on age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin in public workplaces and education.” This law is based on disinformation that studying the effects of racism teaches white students to feel badly about themselves, which the GOP-controlled legislature interprets as discrimination. I had to do a good bit of mind gymnastics to work out that logic.

The New Hampshire Department of Education went one step further, creating a website for parents to report suspected violations of the new law, and if the educator is found to have been in violation, the teaching license can be revoked. After perusing the bill and the FAQ, the wording is so vague that I’m not even sure what would be acceptable and what would be considered a violation. One possible effect of this unconstitutional censorship will be self-censorship as teachers decide the risk to their careers is not worth the effort to create robust, well-rounded educational experiences, limiting other students’ rights to education.

NH public education intake questionnaire for RSA 354-A:29-34
NH public education intake questionnaire for RSA 354-A:29-34

A Texas librarian and blogger shared an example of an opt-out form being circulated among Ohio parents by the organization Protect Ohio Children Coalition. It includes anything related to ethnic studies, action civics, antiracism, and Brain Pop along with grossly misrepresented sexual education topics. Given recent statistics related to bullying and safety among LGBTQ+ students in public schools (32.7% of LGBTQ students missed at least one entire day of school in the past month because they felt unsafe or uncomfortable), it is particularly disturbing to read this point on the opt-out form: “any group, organization, club, entity or activity that discusses or addresses sexual activity, sexual orientation or gender identity, under the guise of “bullying.” It also targets the use of databases which have long been established as excellent sources of information: “Any obscene or harmful to minors materials whether in print or online databases like Galileo, Gale and EBSCO.”

Protect Ohio Children Coalition opt-out form on website
Protect Ohio Children Coalition opt-out form on website

Does this mean that a teacher saying, “We should not bully LGBTQ+ students because of their sexuality” could be reported if a child opted out of such “indoctrination?”

While a lot of this is theatrics, simply trying to be the loudest, most hysterical voice, we are seeing real-world consequences. 

Some parents tried to make it a criminal offense to include certain books in school libraries. In Flagler County, Florida, “Flagler County School Board member Jill Woolbright of District 1 filed a criminal complaint with the Sheriff’s Office on Tuesday over a book that is on school library shelves,” All Boys Aren’t Blue by George M. Johnson, a memoir in which Johnson relates lived experiences growing up Black and non-binary.

The Flagler Sheriff’s Office concluded that public school libraries did not commit a criminal offense by having it on shelves, further stating that the issue should have been resolved by the local school board instead of being brought as a criminal complaint. This is a positive step toward public school library book selection remaining within the local jurisdiction and not labeling diverse books as pornography or obscene. 

Another criminal complaint was filed in Wyoming at Campbell County Public Libraries. According to this AP News report, 35 complaints have been filed recently about 18 books, one of which is the sex education book Sex is a Funny Word by Cory Silverberg, which is no stranger to attempted censorship. A complaint was filed with the sheriff’s office which was deciding whether or not to pursue charges. The complaint seeks “to charge the library with disseminating obscene material, in violation of local child-sex laws.”

In late October 2021, Weston County Attorney Michael Stulken declined to pursue charges, in part by including the 3-part test of obscenity which he determined did not apply to the books in question:

  1. when applying contemporary community standards, taken as a whole, the material appeals to the prurient interest;
  2. when applying contemporary community standards, the material depicts or describes sexual conduct in a patently offensive way; and
  3. taken as a whole, the material lacks serious literary, artistic, political or scientific value.

For a more comprehensive analysis, read this recent OIF blog post.

The common argument used as evidence for these charges is simply that the books are pornography, which has become synonymous with “books I don’t like.” As librarians and educators know, flimsy arguments supporting unconstitutional censorship have no place in classrooms and libraries.

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