“DIVISIVE CONCEPTS” LEGISLATION
Legislation currently under consideration by state legislatures around the country menaces the academic freedom essential to all classrooms, especially those where history is the focus of discussion and debate. Such bills, broadly referred to as “divisive concepts,” are designed to limit discussion about racism, sexism, and discrimination in the classroom and/or the workplace. What is especially pernicious about these bills is that they masquerade as legislation defending free speech, but in fact have been purposely designed to curb consideration of subjects controversial and in any way critical of American society and culture.
While each one differs slightly from the other, many of these bills, according to Education Week,  forbid any mention of:
- the continuities and systemic nature of racism, whether nationally or within a state;
- The idea that individuals, because of their race or sex, are inherently oppressive whether consciously or unconsciously;
- suggestions that individuals bear responsibility for actions committed in the past by members of their same race or sex;
- or indication in class that anyone should feel “discomfort, guilt, anguish, or any other form of psychological distress” because of their race or sex.
Many bills also reference and oppose the teaching of “Critical Race Theory (CRT).” According to Education Week, “Critical race theory is an academic concept that is more than 40 years old. The core idea is that race is a social construct, and that racism is not merely the product of individual bias or prejudice, but also something embedded in legal systems and policies.” In reality, CRT is not being taught in K-12 classrooms, but has been adopted as a pejorative term by the right and applied to any curricula that includes consideration or discussion of racism.
NCH Position Statement
The National Coalition for History opposes the passage of so-called “divisive concepts” legislation at the state and local level. NCH deplores the intent of these bills to foment confusion and have a chilling effect on teachers. We denounce such bills as thinly veiled attempts to place limits on a curriculum which fosters a comprehensive and critical look at our history from a variety of perspectives. Free and open discourse promotes the critical thinking skills that students need to excel both in the classroom and later in life. Recent times have also shown the importance of robust civic education for students to evolve into informed citizens and voters.
Our nation’s history is complex. The study of it requires not just a celebration of our triumphs, but frank discussion of our shortcomings, indeed our divisions. “Divisive concepts” legislation stifles that debate and our ability to move forward as a nation. It is not possible to heal division by denying its continued existence, and its wide and deep influence on the very framework of American society and culture. We encourage our members to join with us in actively opposing all legislative obstacles to free speech and open debate on our history and institutions.
NCH has joined coalitions of other like-minded groups who are in opposition to this movement to restrict academic freedom. NCH belongs to the Learn from History Coalition. It is a coalition of parents, educators, and other concerned Americans who are working together to combat “divisive concepts” bills and to ensure that all children can learn accurate, thorough, and fact-based history in our schools. NCH is also a member of an informal coalition formed by PEN America, to share information, coordinate advocacy and monitor developments across the country. We have also created a clearinghouse on our website to provide our members with additional resources on the subject (see a list of resources at the end of this document).
Background and Status
Over the past two years, anti-CRT and divisive concepts legislation have proliferated and are now being considered in nearly every state. According to PEN America, “This year, proposed educational gag orders have increased 250 percent compared to 2021. Thirty-six different states have introduced 137 gag order bills in 2022, compared to 22 states introducing 54 bills in 2021.” The PEN America study also found a growing number have targeted LGBTQ+ identities.
According to Education Week, as of July 15, 2022, “Since January 2021, 42 states have introduced bills or taken other steps that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism. . . Seventeen states have imposed these bans and restrictions either through legislation or other avenues.” 
The divisive concepts ideology is no longer an isolated phenomena but has become a well-coordinated and well-funded movement by those on the right to allegedly “take back our schools.” Most divisive concepts bills are now in a cookie-cutter format to make it easier for proponents to hone a consistent message and advocacy in states across the nation.
There is now a concerted effort putting pressure at the grassroots on local school boards to become involved in curricula decisions and creating “parents bill of rights” to encourage intervention at the K-12 classroom level. Anti-CRT and divisive concepts candidates are being recruited to run for school boards and other offices that control education policy. The Commonwealth of Virginia has gone as far as to intimidate teachers by creating a “hotline” where parents can report teachers who they allege are teaching CRT or divisive concepts in the classroom. The divisive concepts movement has also spread to school libraries where efforts to ban books have become more prevalent.
Divisive concepts are no longer just an issue at the K-12 level but have also spread to colleges and universities. These “educational gag orders” are designed to limit free and open discussion in classrooms. “Bills introduced this year have targeted higher education more frequently than in 2021, part of a broader legislative attack on colleges and universities. Thirty-nine percent of bills in 2022 have targeted higher education, compared with 30 percent last year.” PEN America and the American Association of Colleges and Universities (AAC&U) published a joint statement raising alarm about the recent spread of legislative restrictions on the freedom to learn and teach, calling attention to the grave threats these measures pose for shared governance, academic freedom, college and university accreditation, and the institutional autonomy enjoyed by colleges and universities nationwide. Texas and Florida have enacted legislation requiring periodic tenure review or elimination of tenure at state universities to “depoliticize the classroom.”
For additional information, we recommend:
- The American Historical Association’s (AHA’s) “Teaching History with Integrity”
- “Reframing History,”Reframing History is the result of a two-year, deep-dive research effort to understand how Americans think about history and how our field can more effectively explain history’s value. It was funded by the Mellon Foundation and conducted in partnership with the FrameWorks Institute, American Association for State and Local History, National Council on Public History, and Organization of American Historians.
- American Association of University Professors (AAUP) Resource Page on “Educational Gag Orders.”
- AAUP FAQ’s on “Educational Gag Orders.”
- Pen America’s Free Expression and Education website.
- PEN America responds to 5 popular (but incorrect) myths about educational gag orders: https://pen.org/5-myths-about-educational-gag-orders/
- PEN America’s report on educational gag orders in 2022 state legislative sessions: America’s Censored Classrooms
- “What’s Actually Being Taught in History Class?” New York Times, August 17, 2022
- Divisive Concepts Bill Tracker from Civics Alliance (includes analysis of the various bills from the proponents’ point of view)