Problem and Context

Origins and Scope of Discriminatory Censorship Laws

Numerous terms are used to describe the current wave of education-related censorship laws passed by local and state legislators, including educational gag orders, education censorship, and book bans. Feingold and Wieshart (2023) label these “discriminatory censorship laws” and define them as official acts that regulate classroom conversations about racism, gender identity, and other target topics. Discriminatory censorship laws have often emerged in response to developments regarding how to teach the nation’s history and incorporate issues of diversity.

Between January 2021 and September 2024, discriminatory censorship laws expanded dramatically with the emergence of 54 educational gag order bills in 24 states, with 11 becoming law in nine states. By 2024, this expanded to 22 states with enacted restrictions. These discriminatory censorship laws trace directly back to Executive Order 13950. Titled “Combating Race and Sex Stereotyping” and signed on September 22, 2020, this order prohibited federal employee training on “divisive concepts.” Forty-two state bills explicitly replicate the language used in the executive order by promoting the intentional strategic misuse of the term “critical race theory” (CRT) to build opposition. 

Since the introduction of CRT terminology in the development and proliferation of discriminatory censorship laws, there has been significant innovation in tactics to make them less inflammatory and to reduce public opposition. According to PEN America, The first tactic is to disguise censorship under the guise of broadly accepted concerns, such as Antisemitism legislation. This often takes ideas that would appear common sense and creates limitations that go beyond what is necessary to address the problem. A second tactic is indirect censorship through institutional dismantling. Frequently, this involves eliminating institutional offices that promoted diversity, equity, and inclusion and mandating neutrality. Another popular tactic is informal censorship through political intimidation, such as threatening the withholding of funds or threatening investigations. From 2020 to 2024, these tactics were developed at the state level, but beginning in 2025, the current Administration began to deploy them at the federal level. 

Impact on Teachers and Students

 Using the term “discriminatory censorship laws” implies that someone or some group of people is being systematically harmed by these laws. Discriminatory censorship laws attempt to restrict content and curriculum based primarily on race, gender, and sexual identity. While these laws often claim to address the real frustrations of parents, they are typically crafted by well-funded national think tanks rather than accurately reflecting what the public desires.

The drivers of this political agenda have created a flood of discriminatory censorship laws with intentionally vague and nonspecific language designed to create a climate of fear and self-censorship. These laws can be divided into three types. 

1. Laws that prohibit teachers from promoting an ideology.

2. Laws that prohibit teachers from compelling students to do something. 

3. Laws that prohibit teachers from discussing specific topics. 

However, precisely what teachers are prohibited from discussing or promoting is not often clearly explained. Through this uncertainty and confusion, these policies achieve their broader objectives of fear and self-censorship. 

While the effects of these laws are still being studied, there is a growing body of evidence, including both large-scale survey research and qualitative studies centered on teacher experience, which demonstrates that teachers are significantly censoring their classroom content. Stevens et al. (2025), drawing on qualitative interviews and classroom observations with secondary social studies teachers across multiple states, documents how educators describe navigating a climate of uncertainty and fear in their daily instructional decisions. In a complementary  2023 RAND analysis of the national survey conducted independently with partial funding from the NEA, researchers found that the political climate had led teachers to censor their discussions of political and social issues. Sixty-five percent of teachers nationwide reported they were limiting their discussions, including 55 percent of teachers working in states with no state or local restrictions. An additional 40 percent of surveyed teachers reported significant job-related stress attributable to the political environment surrounding instruction on race and gender.  These findings indicate that discriminatory censorship laws have been effective in stifling open academic discussion through vagueness and fear of punishment. It has caused teachers to self-censor not only in states with explicit discriminatory censorship laws, but also in states without such laws.

There is clear evidence that limiting the representation of diverse people in books and curricula causes real harm, as the teaching of such topics is correlated with reduced inequality in education, labor force participation, and other social roles. A potential long-term consequence of discriminatory censorship laws is the rollback of gains that have been made in economic and educational equality of non-white groups in the United States. 

States across the country have passed legislation that restricts classroom discussions on gender, sexual identity, and race. The climate of fear has been felt explicitly by teachers, LGBTQ parents and students. Laws such as Florida’s HB 1557 and HB 7, known as the “Don’t Say Gay” Bill and “Stop W.O.K.E. Act,” are some of the best-known examples of state-level education censorship laws. These laws not only negatively impact the teacher workforce but also endanger the students who are most directly harmed: students of color, LGBTQ+ students, students with intersecting marginalized identities, and students with parents in these populations. Research demonstrates that inclusive representation in curricula is correlated with reduced inequality in educational outcomes, labor force participation, and social mobility. By removing such representation, discriminatory censorship laws risk reversing measurable gains for these populations, groups already disproportionately affected by educational inequality and social isolation. 

Teachers have experienced actual threats to their employment and livelihoods while experiencing retaliation from parental groups, school boards, and administrators over the content of their instruction. Parents and LGBTQ students have also felt the effects. In the wake of Florida’s passage of the “Don’t Say Gay Bill”, some parents of LGBTQ students have indicated fearing for their children’s safety at school, while also considering fleeing the state. 

Erosion of Teacher Protections

Constitutional protection for teacher speech has significantly deteriorated. In Garcetti v. Ceballos (2006), the Supreme Court held that when public employees speak “pursuant to official duties,” their speech constitutes government speech unprotected by the First Amendment. Teachers instructing students in their classes lies at the heart of teachers’ official responsibilities, meaning that a teacher’s suit challenging the state’s excision of certain subjects and viewpoints from their lessons will likely fail. 

The Sixth and Seventh Circuits have applied Garcetti to K-12 educators, holding that when school districts hire teachers, they “employ” teachers’ speech. Politicians attempting to impose discriminatory censorship laws have expressed this same idea that teachers’ speech is government speech to boost their arguments in favor of the law. 

Because the prevailing judicial interpretation treats classroom instruction as government speech unprotected by the First Amendment, traditional constitutional challenges to discriminatory censorship laws face significant obstacles. The erosion of First Amendment protection for teacher speech makes the civil rights enforcement framework, particularly Title VI, Title IX, and Spending Clause conditions, the most viable federal avenue for addressing the harm these laws create. The policy options that follow are designed with this legal landscape in mind. 

Policy Options

The following presents a menu of options a new Administration should take to address these problems. Options could each be implemented individually, in conjunction, or as a slate of responses. 

Option 1: Department of Education Guidance and Civil Rights Enforcement

The Department of Education’s Office for Civil Rights (OCR) possesses existing authority under Title VI of the Civil Rights Act of 1964, Title IX, and Section 504 to investigate discriminatory environments created by censorship laws. In 2023, OCR investigated a Georgia school district where book removal “may have caused a hostile environment”, demonstrating existing enforcement mechanisms. 

A new administration shall issue comprehensive guidance establishing that discriminatory censorship laws create hostile environments for students, educators of color, and LGBTQ+ individuals, thus violating federal civil rights protections. This guidance shall encourage the OCR to investigate discriminatory environments created by censorship laws and take remedial action to address violations. 

This strategy can be implemented on ‘Day One’ without congressional action, as it leverages existing legal authority and establishes clear compliance guidelines. The limitations of this strategy are that it is subject to reversal by future administrations; there are enforcement resource constraints; and the executive branch does not have jurisdiction over the underlying actions taken by state legislatures. 

Option 2: Spending Clause Conditions on Federal Education Funding

Under the Constitution’s Spending Clause, Congress may condition federal funding on state compliance with civil rights requirements. Federal funding constitutes approximately 8% of total K-12 education spending, providing significant leverage. There is precedent for using this. Title VI of the Civil Rights Act of 1964 prohibits federally funded programs, activities, and institutions from discriminating based on race, color, or national origin. A new administration could work with Congress to apply new funding conditions that require states receiving federal education dollars to certify that their laws do not create hostile environments for educators or restrict instruction on historically accurate topics related to race, gender, or civil rights history. 

This strategy holds strong constitutional precedent established through Title VI and civil rights legislation, and it creates strong compliance incentives. The limitations are that it requires congressional action, and per South Dakota v. Dole 1987, conditions must be clearly stated and related to federal interest. This means that whatever funding strings the federal government is conditioning, the conditions must be relevant to the purpose of the money. The conditions cannot be unrelated to the funding source.  Additionally, the current Supreme Court’s treatment of Spending Clause authority in National Federation of Independent Business v. Sebelius(2012) imposes further constraints. In that case, the Court held that the Affordable Care Act’s Medicaid expansion was unconstitutionally coercive because it threatened states with the loss of all existing Medicaid funding, not merely new funding for noncompliance. Any funding conditions proposed under this option must therefore be carefully designed to avoid coercive conditions. Conditions should be unambiguous, proportionate, clearly related to the federal interest in non-discriminatory education, and ideally tied to new or supplemental funding streams rather than threatening the entirety of existing Title I or IDEA allocations. 

Option 3: Vagueness and Due Process Strategy

Federal courts have successfully struck down discriminatory censorship laws on constitutional vagueness grounds, establishing a developing but concrete legal strategy with identifiable momentum. 

In May 2024, in AFT v. State of New Hampshire, federal judge Paul Barbadoro ruled New Hampshire’s HB 2 unconstitutionally vague under the Fourteenth Amendment’s due process clause, finding that teachers could not reasonably determine what conduct the statute prohibited. The ruling was issued at the district court level and addressed the law’s restrictions on classroom instruction about race and gender. Separately, Florida’s Stop WOKE Act (HB 7) has been mostly halted at the district court level in the Northern District of Florida. In Pernell v. Florida Board of Governors (2022), Judge Mark Walker declared portions of the law “Orwellian,’’ specifically addressing the higher education provisions of the statute..The case has been subject to ongoing appellate proceedings in the Eleventh Circuit, and the ultimate precedential reach of these rulings remains in development.

A new administration shall direct the Department of Justice to file statements of interest in pending litigation and/or initiate enforcement actions where discriminatory censorship laws violate constitutional protections. The contradictory commands in many discriminatory censorship laws, including requirements concerning factual instruction about civil rights history while simultaneously prohibiting teachings about systemic racism, provide a strong baseline for legal challenges of vague language.

Option 4: Comprehensive Legislative Response

A new administration must also work with Congress to enact legislation protecting American educators’ civil rights. This must include establishing federal protections for educators who teach historically accurate and inclusive content. Such legislation must accomplish several goals: 

1. Create a federal cause of action for educators terminated or disciplined for teaching content consistent with nationally recognized, educator-developed professional teaching standards, specifically the National Board for Professional Teaching Standards (NBPTS) Five Core Propositions and the Interstate Teacher Assessment and Support Consortium (InTASC) Model Core Teaching Standards. 

2. Establish safe harbor provisions for instruction aligned with these nationally recognized professional standards. For purposes of this legislation, “professional teaching standards” shall be defined as standards developed and maintained by nationally recognized, educator-led professional bodies, not state-legislated curriculum frameworks. This ensures that safe harbor cannot be rendered circular by state legislatures revising their own standards to exclude protected content. 

3. Authorize emergency relief funds for educators facing termination. Federal emergency relief funds shall supplement, not replace, existing union-administered legal defense and income support programs, including those operated by NEA and AFT, to avoid duplication of infrastructure and jurisdictional conflict. 

4. Mandate data collection of educator discipline related to curricular content. 

The anchoring of safe harbor provisions to NBPTS and InTASC standards is a deliberate structural choice. These frameworks are developed by educators rather than legislators, are already embedded in the licensure and professional development infrastructure of most states, and are substantively independent of state legislative control. This independence is critical: if safe harbor protections were instead anchored to “state academic standards” or undefined “professional standards”, a state legislature could simply revise its own standards to exclude the very content the safe harbor is designed to protect, rendering the provision circular and self-defeating. 

The advantages of this strategy are that it provides durable statutory protection, creates enforceable rights, and addresses root causes. However, it would require congressional passage and could face uncertain judicial reception given the current Supreme Court composition. 

Recommendations

Based on the evidence documenting severe chilling effects and hostile work environments created by discriminatory censorship laws, a comprehensive, multi-pronged federal response is needed, combining executive action with longer-term legislative solutions. 

Immediate Actions

A new Administration shall direct

1. The Department of Education, to issue formal guidance developed in consultation with national educator organizations, including NEA and American Federation of Teachers, clarifying that discriminatory censorship laws that create a hostile environment for students or educators based on race, national origin, or sex may violate Title VI, Title XI, and other federal civil rights protections. Consultation with these organizations ensures alignment with existing collective bargaining frameworks and professional practice. They must also establish a streamlined complaint mechanism for educators and students to report hostile environments created by these laws. 

2. The Department of Education’s Office of Civil Rights, to prioritize investigations of districts implementing discriminatory censorship laws in ways that create hostile environments. Reinforce that federal law creates an affirmative obligation for schools to provide an inclusive and safe education free from race-based and sex-based harassment. 

3. The Department of Justice, to file statements of interest in cases challenging unconstitutionally vague and discriminatory censorship laws, supporting plaintiffs in challenges such as Pernell v. Florida Board of Governors. 

Long-Term Actions

A new Administration shall work with Congress to

1. Hold hearings documenting the impact of discriminatory censorship laws on students, teachers, and public education. These proceedings must highlight empirical research demonstrating chilling effects and gather testimony from affected educators, including those who have left the profession or relocated. The NEA and AFT should be invited as formal institutional witnesses alongside individual educators, positioning them as institutional stakeholders in the legislative process rather than solely the recipients of policy. 

2. Draft and enact legislation establishing:

   (1) a federal right of action for educators terminated for teaching content consistent with nationally recognized, educator-developed professional teaching standards, specifically the NBPTS Five Core Propositions and InTASC Model Core Teaching Standards;

   (2) Safe harbor provisions protecting instruction on civil rights history, systemic racism, and LGBTQ+ topics when aligned with these professional standards, with “professional teaching standards” defined as standards developed and maintained by nationally recognized, educator-led professional bodies independent of state legislative control;

   (3) Emergency relief funds providing temporary income support and legal defense costs for educators facing discipline, designed to supplement rather than replace existing union-administered legal defense funds operated by the NEA and AFT;

   (4) Mandatory reporting requirements for states receiving federal education funds for documenting educator discipline related to curricular content. 

3. Condition continued receipt of federal education funding on state certification that laws and policies do not create hostile learning or working environments based on race, national origin, or sex, and do not prohibit historically accurate instruction on civil rights, discrimination, and American history. Consistent with NFIB v. Sebelius (2012), such conditions must be unambiguous, proportionate, and clearly related to the federal interest in non-discriminatory education, and should be structured to avoid coercive withholding of existing state funding streams. 

Conclusion

The research evidence is clear that discriminatory censorship laws create hostile work environments that harm educators and undermine the quality of public education. Teachers across the country report significant self-censorship, professional stress, and fear of retaliation. Students, particularly students of color and those who are LGBTQ+, face environments where their identities are stigmatized and critical knowledge is suppressed. Federal action is both constitutionally authorized and urgently necessary to protect the civil rights of educators and students while preserving the integrity of public education.

References

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Corbin, Caroline Mala. (2024). The government speech doctrine ate my class: first amendment capture and curriculum bans. Stanford Law Review, 76(7), 1473-1510.

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Goldberg, A. (2023). Impact of HB 1557 (Florida’s Don’t Say Gay Bill) on LGBTQ+ Parents in Florida. UCLA School of Law Williams Institute. https://williamsinstitute.law.ucla.edu/publications/impact-dont-say-gay-parents/

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