The Chilling Effect of Republican Education Policy

Education Policy Brief #90 | By: Rudolph Lurz | April 02, 2024

Featured Photo: www.pen.org

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The term “chilling effect” is relatively new. It entered the modern legal vernacular in the 1950s and 60s during the Red Scare, as policy makers like Joseph McCarthy sought to find hidden communists in the public sphere. It is now ubiquitous in legal briefs, and a central part of any 1st Amendment course at American law schools. The Free Speech Center of Middle Tennessee State University defines the term as “deterring free speech and association rights protected by the First Amendment as a result of government laws or actions that appear to target expression.”

Generally speaking, when legal experts and policy makers analyze bills and executive actions, it is not a positive thing to receive a chilling effect label. It is a warning that the proposal requires revision. It signals that an action can have a harmful effect if it progresses. The prudent response to a chilling effect accusation is to return to the drawing board and make sure the language contained in the proposal is clear, unambiguous, and will not have the unintended consequence of stifling free speech or individual liberty.

Recent policy initiatives from conservative policy actors have run through the red-light warnings of chilling effect designations. Florida’s Parental Rights in Education Act, commonly referred to as the “Don’t Say Gay” law, is one recent example of chilling effect becoming policy. The designed outcome of that legislation was to prevent the instruction of gender identity or sexual orientation in K-3 classrooms.

The language contained within the legislation was purposely vague. What constitutes “instruction”? Is it a classroom discussion? A storybook on the bookshelf that has a character with two moms? A rainbow paperweight on the teacher’s desk?

As legal challenges to the law unfolded, Florida’s educators were caught in a chilling effect no man’s land. The law, despite the rationale of protecting young learners, was quickly expanded to all K-12 classrooms in the state. Florida’s educators, not wanting to risk losing their jobs or licenses, removed any potentially controversial materials or covered their bookshelves with construction paper.

Other initiatives added to the deep freeze taking place in the Sunshine State. HB 1069 made it easier for books to be challenged for containing pornographic content. The Stop W.O.K.E. Act targeted the instruction of controversial content that would make students upset, such as critical race theory. The end result was districts removing thousands of books from library bookshelves, and teachers walking on proverbial eggshells as they wrote and executed lesson plans in their own classrooms.

From classrooms to libraries to courtrooms, the message is clear. A chilling effect is the end goal for Republicans. As conservatives blow past legal stop signs, any efforts to reverse the deep chill through litigation will always run behind the laws going into effect.

Analysis

Politically, these measures are wise. Republicans, and most sane people for that matter, are generally opposed to pornographic content in elementary schools. Parents want to protect their kids. Most folks would like to be assured that little Johnny is learning about mathematics, science and history instead of debating gender identity in the classroom.

The actual implementation of these initiatives is more complicated. What defines “pornography”? Associate Supreme Court Justice Potter Stewart famously stated, “I know it when I see it,” when referring to obscene content.

The various school and library laws being implemented across the country provide just as much ambiguous leeway when challenging educational materials as pornographic or obscene.

If a lesbian kiss or a gay protagonist expressing romantic feelings for a crush can be challenged as pornographic content, then it is not surprising to see districts removing books by the thousands from school libraries.

It is safer for public school districts to bring books down than leave them up and face lawsuits and brigades of out-of-town partisans turning school board meetings into screaming matches.

Just this month, and well over a year after “Don’t Say Gay” became Florida law, a settlement was reached that clarified how the law was to be implemented. That settlement made clear that discussion of LGBTQ+ issues was acceptable, along with individual teachers’ expressions of their own beliefs, such as a picture with their same-sex spouse or a rainbow flag displayed in the classroom, as long as they were not formal topics of instruction in the curriculum. Governor DeSantis considered it a win, because the law was not repealed.

Why shouldn’t he consider it a win? Don’t Say Gay was signed into law almost two years before the legal settlement that thawed some of the chilling effects on expression and discussion. It might be months or years before further judicial decisions put books labeled as “pornographic” back on library bookshelves.

The goal of conservative policy actors is to freeze any so-called “woke” content in schools and society at large. Since they cannot legally do that, the best they can do is pass purposefully vague legislation which forces people to self-regulate their speech and behavior.

By self-regulate, let me be clear, I mean stifle or repress.

Since the courts will always be months or years behind the policies, the chill will remain in effect long before the legal thaws arrive to make freedom of expression safe again.

Educators, students, and free thinkers are left out in the cold.

Engagement Resources
  •  Initial Guidance from Florida Education Association (Florida’s largest teachers’ union), on implementation of the Parental Rights in Education Act can be found here.
  • PEN America. (2023 ). Educational Intimidation [Report].
  • Full terms of court settlement can be found here.

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