Isn’t it tantalizing to think that the government could simply ban the worst ideas?
Six Republican legislators in South Carolina are co-sponsoring a utopian proposal of that sort. “It is the intent of the General Assembly that educators, administrators, students, childcare providers, employers, and employees respect the dignity of individuals,” its text begins, “refrain from judging, stereotyping, or scapegoating others based on personal or group characteristics or political and religious beliefs; acknowledge the right of others to express differing opinions; and foster and defend intellectual honesty, freedom of inquiry, and instruction.” Supporters of the bill, seductively named “Freedom from ideological coercion and indoctrination,” seem to think that South Carolina’s teaching corps is full of left-wing ideologues bent on brainwashing students––and that an act of the legislature would prevent that.
The GOP lawmakers are hardly alone in wanting to banish objectionable attitudes and ideas by fiat. At Princeton in 2020, 350 faculty members signed a letter demanding, among many other things, that the administration “constitute a committee composed entirely of faculty that would oversee the investigation and discipline of racist behaviors, incidents, research, and publication on the part of faculty,” adding that “what counts as racist” should be determined by the committee. My colleague Ibram X. Kendi, author of the best-selling 2019 book How to Be an Antiracist, has urged a constitutional amendment creating a Department of Anti-racism, whose staff of “formally trained experts on racism” would, among other duties, be tasked with “preclearing all local, state and federal public policies to ensure they won’t yield racial inequity.”
Such proposals share an assumption that offenses such as “ideological coercion” or “racist behaviors, incidents, research, and publication” could be eliminated if relevant authorities had the power and the will. But within most institutions in a free, diverse, pluralistic society are earnest, intractable disputes about what constitutes racism or indoctrination. Any attempt to eliminate contested concepts as a matter of official policy will tend to invite abuses of power and chill free speech and inquiry.
When pondering whether university professors should investigate and discipline scholars for racism, Republicans understand the danger of empowering thought-policing micromanagers. Yet they sponsor statewide legislation that’s similarly untenable in hopes of stymieing the bad ideas of leftists.
I share the concern that some public-school educators encourage indoctrination by activists. I acknowledge that legislators—yes, even conservative legislators—have a legitimate role in shaping public-school curricula. I have substantive criticisms of the 1619 Project and the racial essentialism embedded in the way progressive identitarians understand whiteness. I would cheer if more American educators embraced dialogue and viewpoint diversity. And I have no problem with bills that forbid compelled speech or beliefs or that mandate transparency in curriculum (so long as they don’t create unreasonable administrative burdens).
Yet even the most cautious GOP-sponsored legislation regulating history and civics instruction seems likely to do more harm than good. Far worse is the South Carolina bill—a calamity of legislative intrusion and excess whose effects would extend far beyond which history textbooks are in public schools. The bill would chill free speech and sow bureaucratic dysfunction within any “state-funded entity”—a category that includes public and private schools; institutions of higher education; local government agencies; any business that gets tax exemptions; nonprofit organizations; state contractors, consultants, and vendors; and some labor unions.
The South Carolina bill’s crux is its ban on nine “discriminatory concepts.” If you’re a “state-funded entity” you may not “promote, engage, or treat individuals in accordance with” any of them. You may not direct or compel individuals to affirm, accept, adopt, or adhere to them. You may not subject individuals to “instruction, presentations, discussions, or counseling” affirming or promoting them.
The first “discriminatory concept” is that “one race or sex is inherently superior or inferior to another race or sex.” That’s certainly wrongheaded, and perhaps the least worrisome prohibition of the lot, though even its censoriousness is problematic. Historically important material such as the “Cornerstone Speech,” delivered in 1861 by Confederate Vice President Alexander H. Stephens, and Mein Kampf, authored by Adolf Hitler, teach that one race is superior to another. One certainly wouldn’t want South Carolina schools affirming such ideas. But this law states that a state-funded entity cannot “engage” the discriminatory concepts or “subject individuals” to material that affirms them, “regardless of whether the instruction, presentation, discussion, or counseling is part of a lesson, assigned or suggested materials made available in any format or setting.” How can you teach history without engaging or subjecting students to its most influential bad ideas?
The second verboten concept: “a group or an individual, by virtue of his or her race, ethnicity, sex, sexual orientation, national origin, heritage, culture, religion, or political belief is inherently racist, sexist, bigoted, ignorant, biased, fragile, oppressive, or contributive to any oppression, whether consciously or unconsciously.” The general thrust accords with most of our moral intuitions, yet this would seem to prohibit a history museum from asserting that Nazis, by virtue of their political beliefs, were inherently racist.
The seventh concept is that “an individual should feel discomfort, guilt, anguish, or any other form of psychological distress because of his or her race, ethnicity, sex, sexual orientation, national origin, heritage, culture, religion, or political belief.” I would object to a teacher affirming that misguided concept as truth in a public-school classroom. But a nonprofit shouldn’t lose its tax-exempt status for promulgating the belief that Americans ought to feel discomfort about (say) their culture of keeping livestock in inhumane conditions or emitting so much carbon.
Individuals and institutions who break the proposed law would be identified by way of callouts that trigger investigations: The bill establishes a “public reporting hotline telephone number and email address for receiving reports of violations” and compels the South Carolina attorney general to promptly “investigate all reported violations,” making large swaths of the state vulnerable to false allegations, harassment by way of investigation, and the targeting of institutions by their political enemies. (Imagine running a small business that is constantly under state investigation as competitors call in anonymous discrimination complaints that a state official must probe.)
Offenders would quite literally get canceled: Perpetrators of a single violation “must lose” their state funding, tax-exempt status, and “any other state-provided accommodation” until proving compliance “to the Attorney General,” and all funds lost in the meantime are “forfeited and may not be repaid.” That appears to give one state official extraordinary power over many kinds of institutions. “For a college or university in South Carolina—even a private one—this would be a death sentence,” the academic and free-speech advocate Jeffrey Sachs wrote in his analysis of the legislation. “Given such drastic consequences, the chilling effects could be grave, forcing teachers and professors to give any content that is even remotely risky a wide berth.”
The bill goes on to further constrain entities it covers, declaring that they may not subject minors to “instruction, presentations, discussions, counseling, or materials in any medium” that involve “a) sexual lifestyles, acts, or practices; b) gender identity or lifestyles; or (c) pornographic, lewd, explicit, profane, or similarly age-inappropriate materials.” While a rule that porn has no place in public schools needn’t worry us, this language seems to prohibit public and private schools alike from teaching standard sex ed and even certain pages in biology textbooks.
Indeed, the bill would seem to prevent educators from uttering even the most commonsense advice. If a high-school football coach learns that a rumor is spreading among his players that women can’t get pregnant during a full moon, so that’s the time to try sex without a condom, shouldn’t he be allowed to tell them they’ve been misinformed rather than biting his tongue? If a ninth grader goes to a school counselor and says, “I think I’m gay, and I’m afraid my dad will try to kill me to spare the family shame if he finds out,” should counseling be forbidden?
A final prohibition in the bill forbids “instruction of students in any place of learning or preschool or childcare” in a manner that:
- repeatedly distorts or misrepresents verifiable historical facts;
- omits relevant and important context;
- encourages, pressures, or coerces students into accepting or affirming a particular ideology or political belief;
- advertises or promotes ideologies or sociopolitical causes or organizations;
- interjects the instructor’s personal views;
- advocates for, or denigrates certain students or their views;
- penalizes or marginalizes students who express differing opinions; or creates an atmosphere hostile to open and respectful inquiry and discussion.
That’s just an invitation to endless fights.
In theory, no one objects to the inclusion of all “relevant and important context” in instruction. In practice, what’s “relevant and important” are subjective questions that everyone answers in different ways. Parents or students have every right to raise disagreements with a teacher or principal or school board, or with the officials who buy the textbooks. What’s absurdly unreasonable is compelling South Carolina’s attorney general to launch an investigation anytime someone emails the state to complain that “important context” was left out of a teacher’s lesson. In many cases, resources will be wasted on frivolous complaints. And even the most diligent teacher would struggle to cover world, American, or South Carolina history without omitting anything important. To lose state funding over any such failure would signal a broken system.
If the South Carolina bill were an anomaly, perhaps it could be ignored unless it passed. But it is part of a trend. Since the beginning of 2021, dozens of bills that the free-expression advocacy group PEN America dubs “educational gag orders” have been introduced in the United States. “Collectively, these bills are illiberal in their attempt to legislate that certain ideas and concepts be out of bounds, even, in many cases, in college classrooms among adults,” the organization writes in a report on the bills. “Their adoption demonstrates a disregard for academic freedom, liberal education, and the values of free speech and open inquiry that are enshrined in the First Amendment and that anchor a democratic society.”
The bills do have staunch defenders. In a recent podcast conversation with Andrew Sullivan, the populist-right activist Christopher Rufo, best known for exposing instances of leftist excesses in American institutions and branding them as “critical race theory,” complained that the American center-left recognizes and dislikes “woke politics” but offers only a “neutered or impotent response.” Instead, Rufo argues for “a firm conservative opposition driven by conservative states.”
But in South Carolina (where, as in other solidly red states, public schools are not typically dominated or captured by “wokeism”) the conservative push for this bill is not a potent assertion of the values of open inquiry and educational freedom. It is a flagrant violation of those values.
As PEN warns, the “vague and sweeping language” of bills like the one in South Carolina “means that they will be applied broadly and arbitrarily, threatening to effectively ban a wide swath of literature, curriculum, historical materials, and other media, and casting a chilling effect over how educators and educational institutions discharge their primary obligations.” That the South Carolina law applies even to institutions of higher education puts its GOP sponsors in competition with the most illiberal campus administrators for the title of most blatant enforcer of political correctness. Its application to private businesses and charities is more big government run amok.
If you’re a Republican who doubts those characterizations or cannot see any danger in this bill, ask yourself: Would you trust the attorney general of California to set up a phone hotline and email address; field complaints about allegedly discriminatory ideas uttered in schools, colleges, nonprofits, and businesses; and reach subjective judgments as to their merit, with severe penalties for those found guilty? Of course not—any more than the Princeton faculty would entrust a GOP attorney general of South Carolina to make determinations about what laws or scholarly work is racist.