States Have Long Tried To Ban Ideas From The Classroom
The Current Road Brings a Fresh Evil
By Len Niehoff
This piece is a part of our Spark Series Miseducating the Public: Anti-CRT Movement Rhetoric, Policy, and Impact
Efforts by state and local officials to ban ideas and books from public school classrooms are nothing new. Recent attempts to do so, however, have a uniquely pernicious characteristic. The current wave of bans doesn’t just seek to censor thoughts or words; it seeks to censor identity.
Book Bans: A Brief History
Early efforts to keep ideas out of classrooms sometimes arose from religious objections. A famous example came in Tennessee’s Butler Act of 1925. The Act prohibited instructors in all public schools (including universities) from teaching that human beings had “descended from a lower order of animals.” Teachers were expected to address the origins of life by offering the answer provided in the book of Genesis. The Act led to the notorious Scopes Monkey Trial later that year.
Because biblical instruction in public schools violates the Establishment Clause of the First Amendment, the Supreme Court in 1968 held a similar Arkansas law unconstitutional. By then, however, the folly of the Butler Act had made it a subject of scorn. Clarence Darrow’s brilliant defense of the schoolteacher charged with violating the law made it look both sinister and ridiculous, a view reinforced by the dramatization of the trial in the 1955 play Inherit the Wind and the 1960 film adaptation.
In general, however, efforts at censoring public school instruction have gone after smaller game than an entire scientific theory, focusing instead on a specific book. Identifying the most frequently banned books proves difficult because many censorship efforts go unreported. Since 1990, however, the American Library Association’s Office for Intellectual Freedom has tried to document them and it has compiled a list of the “Top 100 Most Challenged Books” during the years 2010–2019. Informative patterns emerge.
First, the fact that the book is widely recognized as having significant literary value hasn’t dissuaded officials from banning it. The ALA list includes such critically acclaimed works as To Kill a Mockingbird by Harper Lee, A Brave New World by Aldous Huxley, Of Mice and Men by John Steinbeck, The Adventures of Huckleberry Finn by Mark Twain, Beloved by Toni Morrison, The Catcher in the Rye by J. D. Salinger, The Color Purple by Alice Walker, Diary of a Young Girl by Anne Frank, A Clockwork Orange by Anthony Burgess, Awakening by Kate Chopin, and I Know Why the Caged Bird Sings by Maya Angelou.
Second, officials usually offer as the reason for banning a book the fact that it describes events or behaviors inappropriate for young and impressionable minds. For example, the top-ranked book on the list, Sherman Alexie’s The Absolutely True Diary of a Part-Time Indian, has been banned because of its use of profanity and its descriptions of sexual activity, masturbation, violence, and bullying. Another high-ranking book, Stephen Chbosky’s The Perks of Being a Wallflower, has been banned for its depictions of date rape, homosexual conduct, and drug and alcohol use.
Public officials have sometimes targeted books for reasons other than their adult language or explicit references to sex or drug abuse. The dark visions of the future reflected in books like George Orwell’s 1984, Margaret Atwood’s The Handmaid’s Tale, Lois Lowry’s The Giver, and Ray Bradbury’s Fahrenheit 451 probably fed the controversies around them. That’s ironic, because some of these dystopian fantasies imagine a world in which the abuses of a tyrannical government include the banning of books. But most censorship in public schools has been driven by arguments about what we don’t want our children doing: having sex, drinking, taking drugs, engaging in violence, and swearing a blue streak.
A New Era of Book Bans
The current wave of censorship differs. It doesn’t go after scientific theories that conflict with religious beliefs. It doesn’t go after fictional narratives that anxious parents don’t want their children to glamorize or emulate. It goes after who people are. And it does so through far-reaching policy proposals rather than through challenges to specific texts.
PEN America monitors these proposed laws in its Index of Educational Gag Orders. PEN defines an Educational Gag Order as a legislative effort to restrict teaching about race, gender, LGBTQ+ status, or history about those identities. In a recent report, PEN summarizes its key findings regarding this legislation. It shows these new efforts to censor classroom discussions to be significantly more worrisome than past attempts in multiple respects.
First, past attempts to censor classroom discussion have mostly been relatively isolated frolics involving a limited number of states or communities. But the PEN report indicates that in 2022 lawmakers in 36 states introduced a total of 137 educational gag order bills, a 250% increase over 2021. And these numbers understate matters because the PEN report doesn’t monitor local authorities like school boards.
Second, past book banning efforts have usually led to limited consequences, like the removal of a text from a reading list or a shelf. But the current round of proposed laws includes punishments like heavy fines, loss of state funding, teacher termination, and even criminal charges. The PEN report finds that within the past year these proposed laws have become “strikingly more punitive.”
Third, past censorship projects have usually focused on the K-12 context and legislators have largely stayed away from trying to dictate the contents of instruction in universities. But some laws in the current batch expressly apply to higher education, 9% more in 2022 than 2021. This attack on institutions of higher education blissfully ignores precedent from the Supreme Court, which more than fifty years ago recognized that the academic freedom protected by the First Amendment “does not tolerate laws” that “cast a pall of orthodoxy” over the university classroom.
Finally, past censorship efforts focused on banning an individual book from a school curriculum or library. Current efforts seek to exclude from the classroom all conversations about social identities that don’t align with the version that the majority favors — and that favors the majority. They seek to forbid any meaningful discussion of how our race burdens or privileges our experience, how the social architectures of advantage and repression shape our society and our lives, how race actually works in the world as we find it and as we have made it, and how race makes us who we are. The PEN report also shows that these efforts have expanded in reach, increasingly targeting classroom discussion of LGBTQ+ status. These attacks on identity go even further. These laws don’t just require teachers to pretend that individuals in this population have the same experiences and opportunities as everyone else. They require teachers to pretend that these individuals don’t exist.
Of course, some of these statutes won’t pass into law. And some that do will be struck down because they violate the First Amendment, the Due Process Clause, or other bedrock legal principles. Most of these statutes are as poorly drafted as they are poorly conceived.
But those possibilities offer cold comfort. We have a long history of adopting bad laws. And bad laws are more easily got than got rid of. Clarence Darrow put the silliness of the Butler Act on full display in 1925. It stayed on the books for over four decades.
That’s a long time to deny where we came from.
It’s an even longer time to deny the characteristics that define who we are.
Len Niehoff teaches First Amendment and Media Law at the University of Michigan Law School. He has practiced First Amendment law for almost forty years and is the co-author of Free Speech: From Core Values to Current Debates (Cambridge 2022).