Discriminatory Censorship Laws

64 Pages Posted: 28 Feb 2024 Last revised: 27 Mar 2024

See all articles by Jonathan Feingold

Jonathan Feingold

Boston University School of Law

Joshua E. Weishart

West Virginia University - College of Law

Date Written: February 4, 2024

Abstract

The summer of 2020 ignited global protests for racial justice. In the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment sparked unprecedented efforts to build more inclusive classrooms and curricula. Yet before summer had ended, America’s antiracist turn provoked a backlash campaign that has proven far more enduring and impactful.

Central to this campaign are “discriminatory censorship laws”—a term we apply to government action that regulates classroom conversations about racism, gender identity, and other targeted topics. The specific prohibitions and penalties contained in these acts vary. But all further two clear aims: to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As of January 2024, over 20 states and 145 school districts had enacted at least one discriminatory censorship law regulating K-12 schools—covering over 1.3 million educators and nearly half the nation’s 50 million public school students.

Many have analyzed the legality of discriminatory censorship laws. Few have systematically assessed their impact. This Article fills that gap by synthesizing otherwise siloed scholarship and identifying two pressing threats these laws pose to students, educators and public education writ large: (1) hostile learning environments and (2) miseducation. This article also surfaces how the ferocious spread of discriminatory censorship laws obscures a critical fact: these laws are widely unpopular. Even so, this ongoing campaign of discriminatory censorship is unlikely to relent unless federal officials and national civil rights organizations mount an equally committed and coordinated response.

Keywords: education law, equal protection, censorship, free speech, critical race theory, democracy

Suggested Citation

Feingold, Jonathan and Weishart, Joshua E., Discriminatory Censorship Laws (February 4, 2024). Tulane Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4716323 or http://dx.doi.org/10.2139/ssrn.4716323

Jonathan Feingold (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Joshua E. Weishart

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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