Months after a federal court held that a 2021 state law regulating how teachers address race, gender, and other topics , New Hampshire’s Attorney General’s Office has filed an appeal.

In a filing to the First Circuit Court of Appeals in Boston announced Wednesday, the office argued that the U.S. District Court of New Hampshire was wrong to rule that the state law is unconstitutionally vague.

“The court applied the vagueness doctrine in a way that improperly second guesses the legitimate policy choices made by the State Legislature in setting curriculum within New Hampshire’s public schools,” read a press release by the Department of Justice Wednesday.

The case centers around a law, known to opponents as the “divisive concepts” or “banned concepts” law, that restricts teachers and other public employees from certain teaching topics and lays out professional consequences – including lawsuits and the potential loss of their teaching credentials – if they are found to have violated the law.

Under the law, teachers and government employees are not allowed to advocate that people of one race, gender, or other characteristic are inherently superior to or advantaged over others; that people of one characteristic are inherently oppressive toward others; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people “cannot and should not attempt to treat others without regard to” their characteristics. The law, labeled the Right to Freedom from Discrimination in Public Workplaces and Education, allows parents to file lawsuits against school districts if they believe teachers are violating the law, and allows them to file complaints with the New Hampshire Commission for Human Rights.

If a teacher is found by a court or the commission to have violated the law, the State Board of Education can take disciplinary action and potentially rescind their teachers license.

So far since the law’s passage as part of the 2021 budget, only one complaint has been brought forward, according to the Attorney General’s Office. But teachers unions and the American Civil Liberties Union say that because the prohibitions in the law are not clear, and because the professional consequences are so severe, the law has had a chilling effect on teachers who feel they cannot have nuanced discussions on race or gender.

After two teachers’ unions, the American Federation of Teachers of New Hampshire and National Education Association of New Hampshire, sued the state in conjunction with the ACLU of New Hampshire and LGBTQ Legal Advocates & Defenders, Judge Paul Barbadoro ruled in May that the law violated teachers’ 14th Amendment rights because it was unconstitutionally vague. That vagueness applied to both the way in which teachers might interpret the law and the way in which state officials might choose to punish teachers under the law, he ruled.

“… Because the Amendments fail to establish ‘minimal guidelines to govern [their] enforcement,’ officials are free to ‘pursue their personal predilections’ when applying the law,” Barbadoro wrote.

Barbadoro’s ruling struck down the law; the state is now seeking to restore it through the appeal.

“Today’s decision to appeal this misguided ruling underscores our commitment to upholding the right of duly elected legislators to enact carefully considered policy and clarity in our state laws,” Attorney General John Formella said in a statement Wednesday. “… This case is not just about legal technicalities; it’s about safeguarding the integrity of our legislative process and ensuring clarity and stability for our educators, students, and communities across New Hampshire.”

Oral arguments in the appeal in Boston are “expected to occur in the coming months,” the press release continued.

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The law, known by many as the “divisive concepts” law after an earlier title, bars New Hampshire educators from teaching that a person in one protected class is inherently superior to another, inherently racist, or inherently oppressive, even unconsciously, and it prohibits teaching that an individual should be treated differently for one of those characteristics.

Supporters have said the law stops teachers from tailoring lessons against one race or gender. But teachers and public education advocates say it suppresses the ability to present nuanced lessons about history and could lead to unfair punishments, including the loss of educators’ credentials.

Wednesday’s oral argument was the first in the lawsuit, in which the ACLU, the American Federation of Teachers of New Hampshire, the National Education Association of New Hampshire, and others are seeking to overturn the law in federal court.

Here’s what Judge Paul Barbadoro said in court – the U.S. District Court for the District of New Hampshire – and what it could mean for the future of the case.

A question of vagueness

At the crux of the case is vagueness: Plaintiffs argue the law is so vague that it is not possible to follow – and violates the 14th Amendment. Attorneys for the ACLU and the American Teachers Federation have said the law does not make clear what might be prohibited and what might not be – even with a frequently asked questions document released by the Attorney General’s Office last year.

The Attorney General’s Office argues that the guidance document – when combined with the statute – undermines the claims of vagueness.

The U.S. Supreme Court has held that some statutes can be so vague that they are unconstitutional. But exactly how far that principle applies to the “banned concepts” law could determine this case, Judge Barbadoro indicated Wednesday. Plaintiffs have chosen a high stakes strategy: They argue that the statute is “facially vague,” meaning that the statute is unconstitutional in all its applications and should be struck down entirely. They are not attempting to argue that it is vague “as applied,” a narrower standard.

“Facial challenges like this one are much harder to establish than an ‘as applied’ challenge,” Barbadoro told the court. It would be easier, he said, to decide that the law is unconstitutional if plaintiffs had brought a real case of a teacher facing discipline because of an inability to decipher the law. No decided cases so far exist, though the Attorney General’s Office that one charge is currently pending before the New Hampshire Commission for Human Rights.

“The plaintiffs cannot win merely by positing bizarre hypotheticals saying it might be vague in that context,” Barbadoro said.

But Barbadoro also appeared skeptical of the state’s argument that because the statute could be understood in one way, it was not unconstitutionally vague, citing an opinion by Justice Antonin Scalia  in the 2015 case

“A statute is not vague if it is vague in a single application that has no real bearing to the issues that the court addresses,” he said. “But it doesn’t have to be vague in all respects.”

One clause of the “banned concepts law came under particular scrutiny Wednesday. The law states: “That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Barbadoro brought up the fourth concept, asking for clarity.

An attorney for the state, Sam Garland, agreed that the “triple negative creates a problem.” He said that the clause is meant to prevent teachers from advocating that “colorblind” treatment of classes of people is not possible. But throughout the back and forth, the two at times became confused.

“(That) you and I are having so much trouble even communicating about the fourth concept may tell us a lot…,” Barbadoro said. “If we’re having this much trouble, do you think a person of ordinary intelligence (could interpret it)?”

A missing ‘scienter’ requirement

Meanwhile, the state’s case could be complicated by one one missing phrase from the “banned concepts” law: a “scienter” clause, Barbadoro said.

Nowhere in the new anti-discrimination law does the statute state that a teacher must have violated the statute “knowingly,” “intentionally,” “recklessly,” or in any particular state of mind. That type of clause, known as scienter clause, is often added to criminal statutes in order to set a standard for “mens rea”: the mindframe of the defendant, which can then determine whether they’ve violated the statute.

The “banned concepts” law is not a criminal statute, but without the clause, a teacher could be found in violation of teaching one of the banned concepts without directly meaning to or having any awareness of it, Barbadoro said. The absence of the clause, he added, makes the case that the statute is too vague slightly stronger.

“The Attorney General’s Office is saying to educators, or people who offer sensitivity trainings, that if you do something that implies that a banned concept is true, you could be disciplined for violating the statute,” Barbadoro said. “That’s how the attorney general interprets the statute, and that seems to broaden it quite expansively, especially when there is no scienter requirement.”

Barbadoro said that educators could be potentially avoiding advocating a banned concept but find themselves afoul of the law anyway.

“That’s where my core concern is,” he said.

A lawyer for the Attorney General’s Office pushed back, arguing that the “frequently asked questions” make it clear to teachers which types of lessons can and cannot be taught.

A teacher’s right to speech

Plaintiffs are also attempting to argue that the “banned concepts” law violates a teacher’s freedom of speech. On that point, Barbadoro said, they may have an uphill battle.

The success of the First Amendment argument could hinge on Barbadoro’s reading of , a 2006 Supreme Court case that held that public employees do not have First Amendment rights for speech they give during their official duties. In that case, the Supreme Court ruled that a California prosecutor did not have a First Amendment protection after he was transferred to a different position after criticizing a sheriff’s deputy’s search warrant affidavit.

On its face, that and other cases would seem to bind teachers’ free speech rights in the classroom, Barbadoro said.

“The school board at the local level and DoE at statewide level have unlimited ability to impose any restriction on teaching, as long as it serves a legitimate pedagogical purpose,” Barbadoro said, addressing the state’s attorney.

Barbadoro said that case law has afforded “academic freedom” to professors and teachers in higher education, but that that principle is much more limited when it comes to elementary and secondary school teachers.

But Barbadoro also noted that there are limits to teachers’ official duties. Citing a Supreme Court decision this year, , in which the court held that a school should not have fired a high school football coach who led his players in prayer after games, Barbadoro noted that the court had drawn lines around conduct seen to be outside the educator’s official school role.

“I don’t think they lose that right entirely,” he said, speaking about the First Amendment. “They can’t teach what the curriculum says they can’t teach. But outside of the classroom, it’s entirely different.”

Severability

At one point in the hearing, Garland, with the Attorney General’s Office, raised a little-discussed piece of the “banned concepts” legislation: the severance clause.

“If any provision… is held to be invalid, the remainder of such sections, and their application to any other persons or circumstances shall not be affected thereby,” the bill that contains the law, , states.

The proposal – and the state’s mention of it – raises the possibility that the law could be abridged by a future court decision, and made narrower.

Barbadoro blocked the suggestion from being discussed, arguing it would not be fair to the plaintiffs.

“We may have to confront severance later down the road,” Barbadoro replied. “But I don’t feel like the plaintiffs have to respond to this.”

But elsewhere during oral argument, Barbadoro was skeptical of the notion that his ruling should help interpret the statute to make it workable.

“A judge can’t and shouldn’t try to save the statute,” he said. “…It’s either vague or it isn’t. I just have to say what it means. If I said that it meant only conduct that expressly advocates and not anything by implication, it would be a far narrower statute and of far less concern to the plaintiffs. But that’s not what the statute says.”

Next steps

Wednesday’s hearing is only the start in a potentially years-long process. The plaintiffs are requesting that the judge grant a full hearing and limited discovery. The Attorney General’s Office is pushing for the motion to be dismissed before that can happen.

In his closing remarks, Barbadoro noted his heavy workload, and said his decision would come sometime between 60 and 90 days. If he grants the motion to dismiss, the plaintiffs may appeal. If he denies the motion to dismiss, Barbadoro said he would intend to set up a short discovery period so the hearing can happen relatively quickly.

For the plaintiffs, that discovery could prove key: At a press conference after the hearing, attorneys for the ACLU said it could provide more information into how the law is being interpreted and enforced by the five bodies that can take up complaints: the Department of Education, the Department of Justice, the Department of Labor, the New Hampshire Commission for Human Rights, and the Superior Court system.

“We’re gonna be looking for complaints and how they’ve been adjudicated and the nature of the Department of Education’s involvement,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.

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An Indiana bill sought to stop schools from teaching divisive concepts, create parental curriculum committees and permit families to sue if their children were exposed to banned lessons.

It made it through the state House at the start of the year. But then Republican supporters objected to tweaks, saying they watered down the , and last month joined with Democrats to deprive it of the votes it needed in the state Senate.

In a state with a Republican supermajority, it was a stunning defeat — one that Jennifer Smith-Margraf, vice president of the Indiana State Teachers Association, attributes to community members mobilizing against it.

“Parent organizations and community organizations from across the state came together and spoke out forcefully against this bill,” said Smith-Margraf, a Spanish teacher and instructional coach at Oakland Academy in Lafayette, Indiana. “It was presented as representing parents, but it’s clear from our interactions with parents and the parent organizations that joined us that that was simply not the case. They want to see honesty in education and want us to be able to teach what we’ve been teaching in our curriculum according to the standards.”

Similar “parental rights” and “curriculum transparency” legislation has died or stalled in at least eight states, including Indiana, often in the face of opposition by teachers. In Utah, a legislator in January and learning materials each day for parental review. In Pennsylvania, , and, in Colorado, in early March. and have also killed such bills, while an if teachers exposed their children to “obscene” materials died as well. In neighboring Illinois, .

Educators are still pushing back against more of these bills, which have been pre-filed or introduced in about 35 states over the past year. Teachers and their unions say the legislation would place an undue burden on educators who are overextended during the coronavirus pandemic. Parents already have ample opportunity to weigh in on learning materials and review classwork, they say, with the chance to provide feedback when school boards vote to adopt curricula or see their children’s assignments via the learning management systems that have become staples in public schools. Teachers see the wave of parents’ rights bills in state legislatures as a ploy to drive a wedge between educators and parents. Moreover, as schools grapple with the pandemic and a personnel shortage, educators point out, the bills create a hostile climate for teachers that could drive them out of the workforce.

“One of our major concerns is that we were going to see an increase in the teacher shortage because of this,” Smith-Margraf said. “We had many, many people telling us that they were going to leave education if this passed. There are thousands upon thousands of jobs available at this particular moment, and all sorts of industries that our people are very well qualified for because they’re very well educated. And so we were very concerned about seeing a mass exodus because of this.”

In Utah, educators have also raised the concern that “curriculum transparency” bills could worsen a teacher shortage. Although the Utah legislature last year passed resolutions in schools, the state has yet to pass a bill that would give parents significant new influence over the curriculum.

“The onslaught that’s happening in some other states hasn’t happened in the same way here,” said Sara Jones, the Utah Education Association’s government relations and professional programs director. “I don’t want to say that there hasn’t been an issue that educators are concerned about here, but we haven’t necessarily had the same outcomes.”

The Utah Education Association did object to a school curriculum transparency bill that would have required public school teachers to post instructional materials online every day for parents to review. After a public backlash from educators and their supporters, ’s sponsor, Rep. Jordan Teuscher, withdrew the bill. He blamed what he called a “coordinated misinformation campaign” against the bill and insufficient time in the legislative session to get it passed.

But this month a Utah bill focused on “” passed with the support of parental rights groups such as Utah Parents United. That bill “requires a local education agency to include parents who are reflective of a school’s community when determining whether an instructional material is sensitive material.” The legislation’s most controversial aspects, including a provision that could have allowed about the use of “sensitive materials” in the curriculum, were excluded from the final version of the law.

“We still oppose the final version, but it doesn’t go nearly as far as the original version did,” Jones said. The legislation bans pornographic material in schools, which was already prohibited, and will track complaints lodged against schools and how schools resolve them.

“So, who knows what might come next year once this data is presented to the legislature, but it doesn’t create a new parental ability to challenge [learning materials] in court,” Jones said.

Tiffany Justice, co-founder of Moms for Liberty, which supports curriculum oversight bills, said that the weakening of legislation like Utah’s HB 234 stems from lawmakers compromising away parental rights in education. She said that parental rights bills make it clear that the boundary between home and school should be respected and that families should be part of all discussions regarding the mental and physical health of their children.

“When you see a lot of compromises or changes being made to this legislation, I think it’s being overcomplicated in many ways,” Justice said. “I think there’s been an effort to do so much at once regarding curriculum transparency that the parental rights legislation really does need to stay and begin at a very fundamental level, which is that the state recognizes that the parents have the fundamental right to direct the upbringing of their children, and everything else must go through that lens.”

Although groups that back these curriculum bills have been dealt blows in several states, they have succeeded in others. Justice points to Florida’s HB 1557, widely known as the “Don’t Say Gay” bill, which Republican Gov. Ron DeSantis is expected to sign soon. The legislation prohibits school personnel or third parties from teaching lessons on sexual orientation or gender identity to children in grades K-3 or in a way that would not be developmentally appropriate for students. The bill will also affect how mental health services are provided to Florida youth and how much influence parents have over the conversations between their minor children and mental health counselors. Florida’s previous school counseling standards affirmed gender and sexual diversity.

Last year, Florida also passed a “” law that prohibits government entities or other institutions from infringing “upon the fundamental rights of a parent to direct the upbringing, education, health care and mental health of a minor child” without justifiable cause. The bill states that parents have the right to be informed about their children’s educational programs and requires school districts to promote parental involvement by providing families access to children’s classwork and instructional materials. It also recognizes a parent’s right to withdraw a child from portions of the school’s curriculum.

“Every state needs to have a parental rights legislation that recognizes the parent has the fundamental right to direct the upbringing of their children,” Justice said. “That includes the education, the medical care, the moral, religious, character training — all of those things that come from the parent. We need to work to redefine what the school should be doing in that child’s life, and then we need to stick to it.”

Paige Duggins-Clay, chief legal analyst for the , an independent education nonprofit in San Antonio, Texas, said parental rights bills are misleading because they suggest families don’t already have a say in their children’s education when they can take part in school board meetings or approach teachers and administrators about any concerns. In Texas, Republican Gov. Greg Abbott kicked off the year by announcing his to “amend the Texas Constitution to make clear that parents are the primary decision-makers in all matters involving their children.”

Like Utah’s “” bill, the proposal references obscene content in schools, stating that teachers who show students such materials would “lose their educational credentials and state licensing, forfeit their retirement benefits and be placed on a ‘do not hire list.” Abbott’s plan would also allow parents to review curricula online, ensure their concerns about learning materials are heard, and give them the option to determine if their children should repeat a grade instead of leaving that decision to school personnel alone.

“The reality is parents already have really robust rights, whether they’re in the constitution, state law or federal law,” Duggins-Clay said. “So what this does is create this really harmful relationship, or try to generate a really harmful relationship, between parents and the community and schools.”

In 1995, outlining parental rights in education. It states that parents have the right to access students’ attendance, academic, disciplinary and health records as well as to participate in school board meetings and review curricular materials. Given this, Duggins-Clay said, the new legislation is duplicative and unnecessary. She suspects some lawmakers are introducing such policies because they want to defund public education and eventually privatize it.

“For many folks, creating that divisive rhetoric and partnering it with this concept of rights and choice is one way that we’re seeing folks who are unfriendly or adversarial to public education promote privatization policies,” Duggins-Clay said. “It’s important to see that for what it is and for folks to recognize that that’s not a productive thing for anybody. We know that the way that we can solve issues around mental health and the pandemic and talking about difficult issues in the classroom is not by creating even more rancor in our discourse; it’s by bringing people together.”

Texas parents are largely happy with public schools, she said, citing a , which works toward educational equity in Texas. The poll found that 68 percent of Texas parents give their local public schools a grade A or B, while just 48 percent of non-parents do. The poll also found that approval ratings for local public schools have risen during the pandemic.

In Georgia, though, many parents have been swayed by the divisive political rhetoric they’ve heard about education, said Lisa Morgan, president of the Georgia Association of Educators. There, earlier this month. Morgan testified against the legislation, calling it an attack on public educators. Echoing Duggins-Clay, she said that these laws aren’t needed, as parents may already provide feedback about instructional materials before their local school boards. Instruction is based on standards set by the state, with community input, she said.

Morgan said some lawmakers have been motivated to pass these bills after seeing how last fall that focused on provocative reading materials and parents’ rights in schools. Rather than help public education, Morgan said, these bills harm it.

“They are intended to drive a wedge between parents and educators,” she said. “These bills turn what should be that partnership, and what has always been a partnership, into an adversarial relationship.”

Earlier this month, Georgia lawmakers passed legislation in schools. Under the law, parents and other stakeholders can submit formal complaints to school administrators about offensive learning materials.

Morgan said the curriculum is not divisive — it’s the legislation.

“Your divisive content — it’s right here,” she said.

The bill, sponsored by Del. Dave LaRock, R-Loudoun, wasn’t officially endorsed by Gov. Glenn Youngin. But its language mirrors the text of and closely resembles Youngkin’s banning so-called divisive concepts — including critical race theory — in Virginia schools. 

LaRock’s bill is all but certain to meet a quick death in the Democrat-controlled Senate, where legislators a similar Youngkin-supported bill from Sen. Jen Kiggans, R-Virginia Beach. But the opposing votes between the two chambers speaks to the fierce debate still occurring over public education in Virginia, a core aspect of Youngkin’s campaign platform.

“I think this bill gets into legislating emotions and beliefs,” said Del. Schuyler VanValkenburg, D-Henrico, a public school civics teacher who’s become a vocal critic of many of the administration’s initiatives. “And to paraphrase Chief Justice John Roberts, I think that is a sordid business.”

The legislation would ban any public school employee from teaching concepts largely related to race, including that “one race or sex is inherently superior” to another. Like the Senate bill and Youngkin’s executive order, it takes aim at equity initiatives adopted by some Virginia school districts, some of which have focused on the among students or among teachers intended to provide “safe spaces” for educators to speak about their experiences. 

LaRock’s bill would ban educators from teaching students that any individual is inherently racist, sexist or oppressive, “whether consciously or unconsciously,” or that an individual bears responsibility for past actions committed by members of the same race or sex. 

Democrats in the House unanimously opposed the legislation, arguing it would ban public schools from educating students on historical injustices. In a lengthy floor debate before the bill went for a final vote, they unsuccessfully tried to introduce 11 different amendments specifically excluding certain subjects from the bill.

They included specifically allowing educators to teach about the — a push by ex-Confederates and their defenders to frame the Civil War in favorable terms to the South — and the Jim Crow era. Del. Clinton Jenkins, D-Suffolk, introduced an amendment that would exempt the story of Ruby Bridges, the first Black student to desegregate an all-White school. And Del. Sally Hudson, D-Charlottesville, endorsed a change that would allow instruction on policies that led to still-existing wealth and income gaps between different races and genders.

“When it comes to dollars and cents, we end up unequal,” she said. “I don’t know how anyone could, in good conscience, teach American history, civics or economics without confronting how race and gender drive income and wealth inequality in this country.”

Republicans in the House unanimously voted down the amendment, saying the legislation wouldn’t prohibit any specific history lessons.

“I am very glad to say that this bill would in no way prevent the teaching of these amendments in schools,” LaRock said. 

“It would, however, prevent teachers from taking sides and presenting these in a manner that indoctrinates children to accept one side or the other in these issues,” he added.

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With repeated controversies erupting this year over how schools teach issues of race, gender, and sexuality, Republican lawmakers in state after state have proposed and passed laws focused on classroom discussions of “divisive concepts.” The movement — only the latest to ensnare local education officials in national political debates — has won the approval of some families, who fear their children are being taught anti-American propaganda about systemic oppression and the sins of whiteness. But many teachers say the bans trample on their free speech and risk sanitizing the realities of American society.

To Bonnie Kerrigan Snyder, a fellow at the Foundation for Individual Rights in Education (FIRE), the pushback against what she calls “thought reform” in the classroom is overdue. A former teacher and school counselor, she is the author of Undoctrinate: How Politicized Classrooms Harm Kids and Ruin Our Schools — and What We Can Do About it, by Bombardier Books. And while she proclaims herself somewhat uneasy with the prospect of legislating what can and can’t be said in the classroom, she also believes passionately that teachers in too many communities have lapsed into preaching about politics.

It’s an accusation that has at board meetings and led to calls for some teachers to be . But the controversies also vary widely in substance. On the one hand, critics point to to describe their identities in terms of privilege and oppression, and major school districts ; on the other, educators around the country are earnestly attempting to refocus some lessons on long-neglected episodes from American history, such as the Tulsa race massacre.

The struggle over politics in teaching is typically associated with higher education, which is where FIRE focuses most of its efforts. The nonprofit often represents faculty members suing their colleges over restrictions to free speech on campus and of students accused in Title IX investigations of sexual misconduct. It also takes a nuanced view of the proposed restrictions on classroom speech, with Kerrigan Snyder and organization president Greg Lukianoff that many are “probably constitutional,” though not above criticism.

FIRE does not presently take on K-12 cases, but Kerrigan Snyder — who helps lead FIRE’s high school outreach program — argues that K-12 educators are becoming increasingly willing to indulge their own ideological predispositions, in large measure because of teacher preparation programs that have developed into what she describes as political “monocultures.” When it comes to the teaching of intrinsically controversial subjects, she adds, instructors need to ask themselves: “Is it age-appropriate? Is it aligned with the curriculum? Can I be even-handed? And could the discussion become inflammatory?”

In a conversation with ����Ӱ��, Kerrigan Snyder discussed her views on how schools began to drift toward “indoctrination.” The interview has been edited for length and clarity.

����Ӱ��: FIRE is an organization I associate with the cause of free speech on college campuses. Where does K-12 teaching, and controversies around its content, become a free speech issue? A lot of your book focuses on protecting the rights of kids to be able to speak their minds in the classroom. But many argue that the state laws being proposed to curb discussion of “divisive concepts,” such as race or or gender, just end up censoring teachers. Where do you stand on that?

Bonnie Kerrigan Snyder: At FIRE, we’re paying close attention to this legislation that seeks to ban certain ideas in K-12. We support what the First Amendment says and what the Supreme Court has ruled on freedom of expression. We’re very concerned about the thought reform aspects of this, where teachers are attempting to enter the private realm of thought and belief and try to compel students to affirm views that they might not wish to. And we’re concerned about students who self-censor. When children are afraid that if they say something the teacher doesn’t like, there’ll be retaliation, then everybody is being inauthentic in the classroom, and nothing meaningful is being discussed.

Students are showing up on college campuses with some very strange notions about the First Amendment, their rights, and other people’s rights; they seem to think they have the right to censor other people if they don’t like their speech. So a lot of what we try to do is educate teachers, students, and parents to counteract this, and generally, we’re in favor of more speech versus enforced silence. That’s why we would prefer that these disputes over curriculum be settled through persuasion, not coercion. When the government gets involved, it’s a matter of might making right.

That being said, at the end of my book, I warn teachers that if they lose the trust of the community, they’re going to be micromanaged and see greater supervision than they have before. I submitted the book earlier this year, and already what I said is coming true: With these laws coming down from legislatures, we now see that teachers could lose professional discretion in ways that will limit the scope of their operations within the classroom.

When there is goodwill and trust between parents, teachers, and the community, teachers can operate with a great deal of flexibility. But I’ve unearthed some teacher communications where they call themselves “co-conspirators,” or they talk about “creative insubordination.” I wrote giving the example of a district official in Missouri that was getting complaints about some of the lesson plans; the official just instructed teachers to so that parents wouldn’t know what was being taught. When these sorts of duplicitous means are being used, it does not surprise me that the state gets involved. [Editor’s note: The district placed private security at the home of the literacy coordinator in question following what the local teachers union described as “personal attacks and outright threats of violence” in response to the incident.]

In the end, checks and balances come into play. Teachers are going to speak their minds, it plays out at the school board, and we get to vote for the people in our legislatures. These bills have been proposed, not all of them have been passed, and we’re going to see where it goes. But the phrase that comes to mind is, “When you sow the wind, you reap the whirlwind.”

But aren’t you concerned that if whole areas of inquiry are banned from the classroom, it will prevent students from becoming informed participants in democratic discussion? It strikes me that if teachers are nervous about initiating any uncomfortable conversations, kids will just be living in an intellectual safe space.

Teachers should absolutely have some flexibility, and it goes back to the issue of trust. The more professional you are, the more trust you build, the greater the latitude you should have in addressing those controversial subjects.

in the Journal of the Middle States Council for the Social Studies about guardrails for educators. I know teachers are concerned about this, so I looked at the existing legal precedents from when teachers have found themselves in hot water. Based on what the law shows, one of the guidelines you should follow is, “Is it age-appropriate?” If you’re an elementary school teacher, should you be talking about, for instance, Afghanistan? What would make you think that you’re the right judge of what’s happening? Maybe it’s too recent for you to have sufficient perspective.

Another question is, “Is it aligned with the curriculum?” Do you even have a curricular mandate to be talking about current events? Possibly in social studies, but unlikely in other classes, so you might have to ask yourself why a certain topic is coming up. Then you ask, “Is it even-handed?” If you’re going to talk about something that’s going to ruffle feathers, it needs to be done in a way that gives the perspectives of competing sides. Teachers are expected to be honest brokers — are you doing that? If not, you’re liable to hear from angry parents.

And the last question is, “Is it inflammatory?” Which basically means that people get so upset, you can’t meet your learning objectives for the day. I tell teachers that sometimes you can hit a tripwire, and there’s no predicting that you just stepped into some inflammatory material. But anything that’s trending on Twitter or in the op-ed pages of your local newspaper probably won’t make for the best learning experience. Adolescents in particular can become very emotional, especially with things that are really personal to them, and then your rational faculties go out the window.

So you do have to exercise a certain amount of professional discretion, but that doesn’t mean that you steer away from every topic that might be considered controversial. You want to be somewhere between “So boring that the kids fall asleep” and “So incendiary that an argument breaks out and no learning takes place.” A lesson can work in four classes and then just explode in a fifth because of the maturity level of the kids. That’s what professional experience helps teachers to navigate. So those questions I put forward are guardrails, but teaching is a practice; educators are not just functionaries, they have to apply their accumulated wisdom to an ever-changing array of circumstances. That’s what makes it a challenge.

Some of the backlash against what’s being called “critical race theory” in schools has been directed at efforts to broaden the curriculum and educate kids about the history of America’s racial problems. In one instance, the teaching of a curriculum that includes one of the first African-American students to integrate an all-white school in New Orleans. Are you concerned that casting too wide a net can hurt learning?

I absolutely agree that so much negative attention has been attracted by some of the more objectionable aspects of CRT that reasonable attempts to broaden the curriculum could be undermined. On the other hand, all of the negative attention focused on CRT — they call this the “” — might just make it more appealing, more alluring to students. If you tell somebody they can’t study something, the natural instinct of a young person would be to defy that, so it’s important to be careful not to overstate the dangers of it. The theory at FIRE is that more speech, not enforced silence, is the best way to deal with what might be deemed bad speech. While I could argue that other things should occupy more curricular space, the wholesale banning of an idea typically can backfire.

I’ve actually worked with [an educational project launched by the nonprofit Woodson Center in 2020 what it described as the “dangerous and debilitating message” of the New York Times’s 1619 Project], which includes a lot of African American scholars, as they develop lesson plans around these topics. And I discovered in that process many gaps and deficiencies in my own education on topics such as these. I learned about the , which were some of the schools that Brown vs. Board of Education eventually decided were separate and inherently unequal. I’ve lived in South Carolina, and this was in plain sight, but it was just invisible to me because I grew up in a different part of the country and didn’t know anything about it.

I would love for kids to learn more about Native Americans in the curriculum, not to mention women. I’m a woman, and probably 95 percent of the U.S. history I’ve studied has been either written by or about men. That being said, it never really stopped me from looking for the common threads that are relatable to me. There are lots of stories about people, or by people, who look different from us, but we all want to see ourselves reflected to some extent in what we learn. That’s completely understandable.

Going back to your book, could you describe the problem you address? You refer to it as “thought reform.” In your view, how prevalent is it in K-12 schools, as opposed to university settings, where FIRE is most active?

I would describe it as teachers exceeding the boundaries of their prescribed role in the classroom and commandeering the classroom for personal or partisan ends. When we’re talking about public schools, they’re a public good that’s paid for with tax dollars, so that really is a misuse of public funds.

I think this is much bigger than the current controversy. It’s not actually new; this problem has been with us for decades, and it’s been low-grade and chronic. But recently it’s become acute, like an underlying condition in your body that you’re able to ignore until you have some sort of sudden medical incident. It’s pretty well understood that this year, there was just a lot more transparency and ability for parents to see what’s going on in the classroom. And with all the cultural upheaval, some educators felt emboldened to do what they’d been inclined to do anyway, and what they’ve been doing in classrooms for quite some time.

As to how much of this is going on, I think it varies from district to district, school to school, and classroom to classroom. It’s partly a function of location and partly one of demographics. At FIRE, we’ve seen a lot of anecdotal evidence that the problem is most acute in affluent areas and private schools, and seems more common in cities than in rural areas. Certainly I’ve mentioned this problem to people in a few places, and they didn’t even know what I was talking about.

I suspect that it is increasing because of the retirement of Baby Boomers, who were themselves educated by teachers from older generations with more traditional ways of instruction. I was educated by people who were probably trained in the ’50s. So you have to think not just of the age of the educator, but the age of the educator who educated them! It seems like the younger teachers coming out of ed schools are much more activist-minded, so I think this problem is increasing rapidly.

​​You’re arguing that a big pedagogical change has occurred over the last few generations, as older teachers have been replaced by younger, more radical ones. Isn’t it possible that the movement toward “anti-racist” pedagogy is driven by a much broader change in racial attitudes among whites along with a desire by younger, more diverse Americans to see themselves more reflected in schools and classroom materials?

There are some demographic changes that are driving this. One would probably be the decreasing number of white people in the population, but there’s also this who were born in the ’40s and ’50s. So it’s a confluence of demographic forces. I think the Baby Boomers have tended to portray themselves as being radical, but having been taught by prior generations, their education very much was not. That said, the Baby Boomers had a big hand in educating this generation, so maybe their radicalism is now showing through somewhat.

Historically, whenever there is a large group of young people, you tend to see big movements form. What we have now is a Baby Boom-let, the Millennials, who are their own bubble in the population. In the same way that Baby Boomers created something more than a ripple, partly because of their huge numbers, I think part of what we’re seeing now is a large generation that is of an age where people tend to be inclined to upend the existing order and make dramatic changes. It’s a stage that people pass through as they mature. In that sense, it’s not surprising, and it’s probably a factor in the appeal that these ideologies hold with such a large group of young people.

Where do you think these intellectual trends came from, particularly in K-12? For most of our history, it seems like public schools promoted a view of American history and society that was essentially patriotic, if not chauvinistic — certainly not one that questioned existing power structures.

FIRE where we talked about how common schools in America were established by the government to promote government speech and ensure domestic tranquility. It’s not surprising that they would teach a view that promotes cohesion and patriotic ideas.

So there is a dominant position on American history that is open to interrogation, and I certainly would never want to interfere with a student’s right to critique it or with exposing kids to a reasonable amount of competing views; that’s part of what a thorough education provides. But when the critique seeks to become the dominant narrative, it’s giving kids a pre-digested conclusion and asking them to retrofit all the information they haven’t yet been given to this preconceived conclusion.

I’d also say that this critique seeks to suppress competing narratives and disallow dissent, which short-changes kids’ education and, really, trains them not to question authority. I just think this isn’t a healthy learning environment, and it doesn’t let kids develop the intellectual muscles they need to prepare them for self-government.

FIRE often defends the rights of university professors who say they’re being censored by their institutions. You’re not part of the legal team, but can you see a role for FIRE, or other organizations like it, in coming to the aid of teachers who are disciplined under laws restricting discussions of divisive concepts in K-12 classrooms?

We have people who ask FIRE to jump into the K-12 legal realm all the time, and I’d say it’s something that is under consideration. Teachers have the unions, which will obviously help to defend them. My understanding is that [leaders of the American Federation of Teachers and the National Education Association] have come out to say that they will defend teachers who teach CRT.

I would say that parents have rights, and students have rights, but teachers have responsibilities. That’s why they’re paid. Teachers’ speech in the classroom is hired speech, and it’s really government speech; the government is hiring you to deliver a curriculum that’s democratically adopted by districts, in accordance with state legislatures. So I think that teachers have to realize that their instruction needs to be aligned with the learning standards that their state has adopted.

Anything you’re teaching, you should be able to relate it to the published learning standards for the grade and subject that you’re teaching. You don’t want to present a conclusion to students and work backwards from that because these are open-ended questions that we’re trying to figure out as a society. Critical race theory is a lens through which to view the world, but it’s not the only one. If I were going to talk about it, I would always want to present it in the context of competing versions of how to interpret historical and current events.

I want to pose another argument I’ve seen, even from those who are probably sympathetic to your views: There may be some teachers mixing ideology into their history or social studies lessons, but the fundamental issue is that too many kids just don’t reach proficiency in those disciplines at all, according to year after year of standardized test results. Given that the overall academic performance is so poor, shouldn’t we be more concerned about just providing kids with basic knowledge?

Yeah, it’s kind of amazing that teachers have time to be discussing these esoteric, advanced perspectives. I just don’t consider most of it to be introductory, it’s more in the realm of a late-night graduate study session. It’s not a good way to introduce students to basic material, so it really serves teachers’ needs more than students.

One of the problems we’re seeing is that teachers are covering content that is of interest to them but isn’t necessarily what their students need, and that’s poor pedagogical practice. The teacher is paid to meet the needs of the students, and the learning outcomes we’re seeing show that these ideological itches that are being scratched are not serving students in the classroom well.

I also think that the way these ideologies are being expressed in the classroom is being perceived by students and parents as abrasive and, in some cases, tantamount to bullying. As Maya Angelou said, “People forget what you said, but they remember how you made them feel,” and I suspect that a lot of students don’t feel good about what’s going on in their classrooms. Kids are not a means to anyone’s end, they’re ends in themselves; their compulsory presence in your classroom is not to serve some partisan goal that you cherish. The word education means “to draw out” — to draw from the student what is inside of them. Each one is a unique, autonomous being, and you’re there to find out what they are capable of, not to enact your worldview.

Parents are mobilizing around this issue. There have definitely been some heated school board meetings this year, and state lawmakers seem happy to make this a campaign issue, but do you think it’ll go further than that?

Parents are certainly coming forward, and they’ve obviously had a great impetus to want to come forward: These are their children, and nothing’s nearer to their hearts.

I’ve been following this problem as a sort of unpleasant hobby for over a decade. Going back years, I’ve heard anecdotally about incidents all over the place, though I’ve focused on the ones that appear in the press. But for a long time, the strategy has mostly been to say, “It’s just a few more years, I’ll get my kid through and fly under the radar.” But it’s suddenly become very acute, so parents are speaking up — some would say too much, though I happen to think that we’ve been complacent too long, and people should have always been more involved with their school boards. Some of them are being too aggressive, but I do get it. They feel like their children are being targeted.

I think I’m optimistic at this point, mostly because I see parents asserting themselves. It doesn’t mean they’re right about everything they say, but it’s good that everyone is in the conversation and the checks and balances are operating as they should. Parents have been way too uninvolved, handing everything off to the teachers, and now they realize they’re going to have to pay closer attention to what’s going on in school board meetings.

If you’re ambivalent about the laws being passed in legislatures around divisive concepts, what do you think education authorities should be doing to address the concerns of parents? One of the avenues I’ve usually heard discussed involves changes to teacher preparation programs. 

FIRE has previously when it came to [the National Council for Accreditation of Teacher Education] trying to impose “social justice dispositions” on educators — meaning that you’d have to believe in certain political ideas in order to be certified as a teacher. We fought back on that because of the aspects of thought reform, and we won. [Editor’s note: In 2006, following protests from FIRE and other groups, NCATE — formerly a leading accreditor of teacher education programs, and since reorganized as the Council for the Accreditation of Educator Preparation — referring to “social justice” in its glossary of recommended dispositions for future teachers.]

Definitely, we recognize that the best way to change this is in the ed schools. It’s going to be a tough climb, but it’s necessary at this point. Teachers are licensed for the same reason that doctors and dentists are licensed: They’re in a position to do real harm to vulnerable people, and no one in our society is more vulnerable than children. States have all the power they need to award or withhold licensure, and I think they’re going to have to apply more oversight.

One of the recurring questions in this book is, “Where’s the oversight?” Department chairs and principals and curriculum directors should be applying more consistency throughout schools. The subtext needs to be that this isn’t a free-for-all; you can’t have one teacher who’s a freewheeling zealot doing whatever they feel while the rest of the classes are teaching to the end-of-year tests. That’s just a failure of administration.

Any time you have a one-party monoculture, things go awry. Things have definitely gone awry, and we’re overdue for a correction in our ed schools.

The thing is that teacher prep programs are themselves downstream of the larger intellectual culture. In the book, you talk about a need for a return to “normative social agreements” — basically, ideological restraint and respect for diversity in thought from all people, not just educators. It seems like it will be a lot harder to develop those traits than to just pass a law saying what teachers can and can’t say.

I actually think it’s kind of easy to legislate how contentious issues should be handled, which is that they should be approached from a variety of angles, leaving room for dissent. There are some things on which I think we’ve achieved cultural consensus — for example, that we were the good guys in World War II. I suppose somebody could advance a counter-narrative, though I wouldn’t give a lot of class time to that because I think we have a near-unanimous consensus. But when it comes to current issues under debate, you have to show some epistemic humility and leave room for the possibility that you might be wrong.

When you have this unscholarly certainty that you’re in possession of the absolute truth, that’s where you’re likely to get in trouble, because it’s a very un-academic stance for an educator to take. It’s that old John Stuart Mill idea, “He who knows only his side of the case knows little of that”: You have to give the devil his due.