2021 has been marked by a wave of educational gag orders; now two states have raised the punitive stakes.
As noted in a PEN America report, the various bills owe much to the influence of U.S. Senator Tom Cotton’s Saving American History Act, former President Trump’s 2020 Executive Order on Combating Race and Sex Stereotyping, and conservative lawyer Stanley Kurtz’s Partisanship Out of Civics Act, attempting to outlaw “critical race theory,” use of the 1619 Project, and other vaguely-defined “divisive concepts” in the classroom. But now a new influence has entered the mix—the Texas abortion ban bounty law.
The new Texas abortion law comes with a bounty hunter provision allowing any citizen to collect money by suing anyone involved in a violation of the state prohibitions against abortion. While this is seen by critics as an attempt to make an end run around the Constitution by delegating enforcement to private individuals instead of the state, the Supreme Court has let the law stand for the moment.
California Governor Newsom has threatened to use the same trick to implement gun control in his state. But while his move may be dismissed as a “stunt,” politicians in Oklahoma and Florida are proposing laws that would apply this same end run to the enforcement of teacher gag laws.
In Florida, Governor Ron DeSantis has asked the legislature to pick up the “Stop WOKE Act,” which would include the feature of creating a “private right of action” on top of the CRT ban the state already has in place. Parents would be able to sue any school they suspected of violating the state’s rules (with the expectation that a losing school would also have to pay their lawyer fees).
In Oklahoma, Republican State Senator Rob Standridge introduced a bill that would allow any parent to demand the removal of any book from a school library— and after thirty days collect $10,000 in “monetary damages” for every day the book is not removed. The “responsible employee” may also be fired and barred from working in a school for two years. Standridge’s bill prohibits having or promoting books that deal with gender identity or sexual orientation as well as “books that contain content of a sexual nature that a reasonable parent or legal guardian would want to know about or approve before their child was exposed to it.”
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Both proposals rest on definitions that are broad and vague. “Critical race theory” has come to mean for some folks “anything having to do with race” and Florida’s law already led to one school district administrator guessing that classrooms should be prepared to carry books showing “the other side” of the Holocaust. Standridge’s proposal could easily be deployed against The Bible. By leaving the determination of when the law has been violated up to parents, the state makes the question of where the line is crossed even broader. By enlisting parents as enforcement agents, lawmakers make broad, vague laws even broader and vaguer, and schools will face the possibility of being sued by just about anybody for just about anything.
The effect is easy to predict. If these proposals become law, some school administrators will issue directives that all material that has any chance of drawing a parent lawsuit will be axed. Some Florida teachers will be told not to bring up race at all, ever. Some Oklahoma teachers will be told to get rid of any materials that say anything at all about sex, especially any that reference LGBTQ issues.
Supporters of these proposals will argue that parents will be restrained from going too far by the prospect of losing their suit, but school districts will still have to bear the expense of fighting every frivolous lawsuit parents throw at them. Many school administrators, looking at their already limited finances, will determine that they can’t afford to defend themselves against every lawsuit a parent files, even if the school wins.
And schools will have to fight those parent suits with taxpayer dollars.
Meanwhile, as the chill on classroom speech becomes a deep freeze, whole categories of students will find their stories erased from the classroom. They’ll be left to wonder why they are not represented in public education. Perhaps their parents will decide to sue.