DISCRIMINATORY CENSORSHIP LAWS

80 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

Suffolk University Law School

Date Written: February 4, 2024

Abstract

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring. 

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed 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. These laws cover 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 research. Drawing on this scholarship, we identify two overarching threats discriminatory censorship laws pose to students, educators, and public education writ large: (1) hostile learning environments and (2) miseducation. We also surface how discriminatory censorship laws have spread notwithstanding their lack of popular support. Albeit unpopular, this ongoing campaign of discriminatory censorship is unlikely to relent absent 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, Suffolk University Law School Research Paper No. 24-20, 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

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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