Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says

In K-12 public schools, the government and school boards can set curriculums. However, courts have generally held teachers don’t have the same academic freedom as students in universities. PEN argues however that many of these bills may restrict speech.

Jonathan Friedman (PEN’s director of free expression and education), said that they are alarming because of their over-breadth, ambiguity, and unpredictability. “The truth is, most administrators and general counsels will quickly say, ‘let’s not run afoul of this.'”

Erwin Chemerinsky who is a First Amendment expert as well as the dean of Berkeley’s legal school, previewed and approved the report. “Whenever the government regulates speech, it has to be clear about what’s prohibited and what’s allowed,” he said. These laws are so vaguely written that it’s difficult for teachers to tell the difference.

PEN states that nine bills specifically target critical races theory. Eleven bills ban explicit lessons based upon the 1619 Project initiative of The New York Times Magazine that explores the history and legacy of slavery. It has been adapted into an classroom curriculum.

According to PEN’s count, 11 bills are currently in law in nine different states. Sometimes these bills become laws within days. The 2021 legislative session has 18 more bills pending, while six others have been prepared for consideration in 2022.

According to PEN a majority of the bills contain language intended to affirm freedoms speech and thought. Ten bills prohibit schools or teachers from “compelling” a person to affirm belief in a “divisive concept,” while eight mandate “balanced” teaching of “controversial” topics. One Texas school official suggested last month that teachers who teach Holocaust should ensure that they have books that provide opposing views.

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