Photo by Alexander Smith on Wikimedia Commons
Silver Flight, Associate Member, University of Cincinnati Law Review
Following the summer of 2020’s rising awareness and activism around racism in the United States, there has been a legislative backlash. In September 2020, former President Trump issued Executive Order 13950, which banned various “divisive concepts” within federal government training programs. The executive order prohibited trainings on systemic racism and implicit bias, and suggested that such trainings increase biases, despite evidence to the contrary. Instead, such trainings have been found to “meaningfully impact attitudes, knowledge, and empathy toward people from different racial backgrounds” and allow people to “reduce or change implicit biases and related behavior.” Although President Biden revoked the order on his inauguration day, bills that echo the executive order and attack education about racism, sexism, current controversies, and the true history of the United States have been introduced around the country, including Ohio. This blog will briefly summarize two bills that have been introduced in Ohio, why they are a threat to our education system, and how claims in a lawsuit recently filed in Oklahoma against a similar bill would apply to Ohio’s bills.
II. Ohio House Bill 322
Ohio House Bill 322 addresses the teaching of current events. It prohibits school districts from requiring school-board-employed teachers of “history, civics, United States government and politics, social studies, or similar subject areas” to “discuss current events or widely debated and currently controversial issues of public policy or social affairs.” If a teacher voluntarily discusses these issues, they must “explore such issues from diverse and contending perspectives.”
Additionally, in any of these courses, “no school district shall require, make part of such a course, or award course grading or credit for” any student work that relates to political lobbying or social or public policy advocacy. The bill also prohibits school districts from accepting private funding “for curriculum development, purchase or selection of curricular materials, teacher training, professional development, or continuing teacher education” for these courses.
These prohibitions against requiring teachers to discuss current or controversial events or allowing students to gain course credit from being involved in social or public policy significantly impact students’ opportunities to learn to be responsible citizens and contribute to improve society. Additionally, the prohibition against teachers expressing a viewpoint on current events or controversies raises concerns that teachers will be required to present injustice as a valid option and will not be able to vocally support those in the classroom who may be experiencing discrimination in their day-to-day lives.
House Bill 322 also contains a list of prohibited concepts, forbidding any teaching that serves to “inculcate” the concepts, although the bill does not define “inculcate.” Additionally, if a student completes a course that includes any of the prohibited concepts, that course cannot count toward requirements for high school graduation. The prohibited concepts are taken almost verbatim from EO 13950. For example, one prohibited concept is that “[a]n individual, by virtue of the individual’s race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” By prohibiting the concept of unconscious racism, this bill prohibits discussions of implicit bias.
Another prohibited concept is that “[m]embers of one race cannot or should not attempt to treat others without respect to race.” This ambiguous wording at first seems to mean that we should not teach that individuals should not discriminate based on race. Another reading, though, is that it prohibits any critique of colorblindness theory, which is the idea that if we refuse to acknowledge race, there will no longer be racism. However, rather than getting rid of racism, colorblindness prevents us from seeing racism and being able to remedy it. Therefore, if this provision of the bill prohibits any critique of colorblindness, it ultimately hinders our ability to address racism.
One particularly concerning prohibited concept is that “[a]n individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race or sex.” Many topics about historical and current oppression brought up in the classroom could potentially cause a student to experience discomfort, and the way this prohibition is ambiguously worded is likely to chill speech in the classroom. Teachers may be afraid to bring up any concepts or aspects of history that might make students in the classroom feel discomfort.
The bill also prohibits the concept that “[m]eritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race or sex to oppress members of another race or sex.” This concept would chill speech that critiques meritocracy and whether systems of measurement such as standardized testing may be racially biased.
Another distressing part of Bill 322 is that no teacher may be required to believe in systemic racism “or in the multiplicity or fluidity of gender identities . . . against the teacher’s sincerely held religious or philosophical convictions.” This prohibition would directly harm students who are experiencing systemic racism or who are transgender or nonbinary, making them feel excluded and unsafe in the classroom and prevent them from being able to thrive and learn in school.
III. Ohio House Bill 327
Ohio House Bill 327 contains a list of “divisive concepts” that, like the prohibited concepts in House Bill 322, strongly resemble the prohibited concepts from EO 13950. Schools are prohibited from teaching, instructing, or training on any divisive concepts. House Bill 327, however, also applies to higher education, and carries penalties for school districts and teachers. If a school district knowingly violates the prohibitions, the penalty is a withholding of an amount of state funding. Schools may not accept private funding for curriculum that promotes the concepts. The bill also prohibits schools from requiring a student to advocate for or against a specific topic or point of view to receive class credit. State institutions of higher education are prohibited from offering training on divisive concepts to employees, and cannot penalize employees for refusing to support or believe divisive concepts. They also must ensure that divisive concepts are not taught or promoted by employees during work hours.
One of the divisive concepts in House Bill 327 is the idea that “[t]he United States is fundamentally racist or sexist,” which would prohibit discussions about systemic racism. Another divisive concept is the idea that someone is “inherently racist, sexist, or oppressive, whether consciously or unconsciously” by virtue of their “nationality, color, ethnicity, race, or sex,” which would prohibit discussion about implicit bias.
This bill also prohibits the concept of “[a]ny other form of race or sex stereotyping or any other form of race or sex scapegoating,” defining “[r]ace or sex stereotyping” as ascribing, among other things, “privileges” based on race or sex, thereby prohibiting discussions about white privilege or male privilege. “Race or sex scapegoating” is defined to include assigning, among other things, “bias,” and includes the concept of unconscious racism or sexism, thus prohibiting discussions about implicit bias.
House Bill 327 includes disclaimers for both school districts and state agencies, stating that “[n]othing in this section shall be construed to prohibit discussing or using supplemental instructional materials, as part of a larger course of academic instruction or training, to teach divisive concepts in an objective manner and without endorsement.” The bill suggests ways to accomplish this, such as “[t]he impartial discussion of controversial aspects of history,” and “impartial instruction on the historical oppression of a particular group of people based on race.” Despite the disclaimer, the bill is likely to chill speech in the classroom, as teachers will be unsure of what they can and cannot teach without violating the bill, and what kind of speech will or will not qualify as “impartial.”
In the last week of October 2021, the Ohio House State and Local Government Committee adopted a substitute version of the bill, Sub H.B. No. 327 (l_134_1448-7). Under this version, rather than prohibiting “teaching” of divisive concepts, the school district board and state board are prohibited from “promoting” divisive concepts. This bill also has an expanded disclaimer that the divisive concepts may be discussed “in an objective manner and without endorsement,” including “nonpartisan discussion of controversial aspects of history,” “[r]espectful student-to-student discussion or debate,” and, tellingly, “[t]he promotion of American nationalism.” The bill states that “Academic freedom involves protecting the student’s right to inquiry without indoctrination.” However, the bill does not address concerns about the right of academic freedom for teachers or other students who may want to learn about these “divisive concepts.”
The changes to the bill also include harsh penalties for violations. Students who believe they have “been discriminated against or penalized by failure to adhere to a divisive concept” may file a grievance against the school, and may appeal to the chancellor of higher education. If the chancellor rules in favor of the student, the school will lose some of its funding. Parents whose children are “subjected to indoctrination of divisive concepts” may also bring a civil action against the school. Finally, teachers who violate the bill may have their official licensure suspended or revoked.
IV. Oklahoma Lawsuit
On October 19th, 2021, several parties filed a complaint in the District Court for the Western District of Oklahoma, challenging Oklahoma House Bill 1775, which was similar to the Ohio bills, with several constitutional challenges that may also apply to the Ohio bills. The complaint emphasized that the Oklahoma bill “chilled and censored speech” and infringed on academic freedom, stating that, “If schools and colleges are to fulfill their public purpose and fashion civic-minded Oklahomans, they must remain places where ideas—even ones deemed controversial by politicians—can be freely and robustly exchanged, including those related to racism and other forms of discrimination.” By singling out disfavored discussions and including vague and ambiguous language, the Oklahoma law created a chilling effect that undermined “the role that education plays in preparing students to participate in the state’s and nation’s diverse and democratic society.”
The Oklahoma complaint gave specific examples of instances of chilled speech following the enactment of House Bill 1775. For example, a high school English teacher was instructed to avoid using certain phrases including “diversity” and “white privilege,” district schools had “stuck texts by Black and women authors from their reading lists,” the University of Oklahoma (OU) cancelled previously required student trainings on sexual violence and diversity, and students at OU had texts that addressed race, gender, and sexual orientation removed from their courses. These examples of chilled speech are a look into Ohio’s future if House Bills 322 and 327 are enacted.
One of the challenges raised in the complaint against the Oklahoma bill was that it was unconstitutionally vague. For example, prohibiting “the concept that ‘one race or sex is inherently superior to another race or sex’” is vague and raises concerns for educators “if they teach about historical events and individuals who subscribed to these viewpoints, even if they do so to critique these positions and without advocating these positions.” Very similar language is included in Ohio H.B. 322 and 327, and a California district court found that the language of EO 13950’s prohibited concepts was likely unconstitutionally vague, strengthening the argument that the Oklahoma and Ohio bills are unconstitutional as well.
The Oklahoma complaint also highlighted the vagueness of the prohibited concept that people “cannot and should not attempt to treat others without respect to race or sex” and described it as “undecipherable,” writing that “[w]hile treating others with respect, or treating others equally and fairly, would be laudable goals to teach and encourage,” the bill’s wording “creates a confusing double negative” and makes it unclear what the bill means. The Ohio bills each contain similar provisions, and are equally as unclear as to what they mean, whether they are prohibiting discrimination or prohibiting any discussion about discrimination or colorblindness theory.
A second challenge to the Oklahoma bill was that it violated the First Amendment right to receive information. The complaint held that “[t]o prohibit making any ‘concept’ a ‘part of a course’ reaches an unlimited scope of classroom discussion and of the general free speech and expression that occurs within a school.” The Supreme Court has held that the First Amendment “protects the right to receive information and ideas” and students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court has also emphasized that students’ access to information “prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.” If the Ohio bills were enacted, they would greatly restrict the information that students are able to receive, and would prevent students from learning to become involved citizens who can contribute to society.
A third challenge to the Oklahoma bill was that it violated the First Amendment by being an overbroad and viewpoint-based restriction on academic freedom, which the Supreme Court has repeatedly held deserves First Amendment protection. The complaint alleged that the bill specifically targeted speech about biases on the basis of race or sex that was disfavored by politicians, and was “not narrowly tailored to achieve any compelling interest” that would be “served by this type of censorship.” Similarly, the Ohio bills challenge specific types of speech about concepts such as systemic racism and implicit bias, thereby engaging in a viewpoint-based restriction on academic freedom.
The Ohio bills, if enacted, are likely unconstitutional due to vagueness and suppression of free speech. They pose a threat to Ohio’s education system by prohibiting concepts that are necessary to address issues of racism and sexism, and by limiting opportunities for students to engage in discussion about current or controversial events. Education and opportunities to learn about and discuss controversial topics are essential for students to learn to be responsible citizens who will contribute to improve society. We cannot shield students from any potentially uncomfortable topics and expect them to come out of the educational process ready to fulfill that role. Therefore, it is essential that we uphold a robust educational system, and prevent bills like Ohio House Bills 322 and 327 from censoring speech and academic freedom in schools.
 Exec. Order, 85 Fed. Reg. at 60685. “(1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term ‘divisive concepts’ also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
(b) ‘Race or sex stereotyping’ means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.
(c) ‘Race or sex scapegoating’ means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
 Rebecca L. Fix, Pernicious Executive Order 13950 Revoked, Yet Structural Racism Looms Large, 0 Leadership 1, 2 (2021).
 #TruthBeTold, Afr. Am. Pol’y F., https://www.aapf.org/truthbetold (last visited Oct. 30, 2021) (containing an interactive map listing all current legislative attacks on racial and gender justice education).
 H.B. 322, 134th Gen. Assemb., Reg. Sess., at 9 (Oh. 2021).
 Id. at 9-10.
 Id. at 10.
 Id. at 11.
 Id. at 12.
 Exec. Order, 85 Fed. Reg. at 60685.
 Ohio H.B. 322, at 10.
 See Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317-88 (1987) (discussing implicit bias as unconscious racism).
 Ohio H.B. 322, at 10.
 Neil Gotanda, A Critique of “Our Constitution is Colorblind”, 44 STAN. L. REV. 1-68 (1991) (arguing that the Supreme Court’s colorblind constitutionalism fosters white racial domination, and that nonrecognition of race “fosters the systematic denial of racial subordination and the psychological repression of an individual’s recognition of that subordination, thereby allowing such subordination to continue.” Id. at 16).
 Ohio H.B. 322, at 11.
 See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1771 (1993) (arguing that merit is a constructed idea, and that supposedly neutral criteria such as standardized testing are not the only way to measure merit).
 Ohio H.B. 322, at 12.
 H.B. 327, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
 Exec. Order, 85 Fed. Reg. at 60685.
 Ohio H.B. 327, at 3.
 Id. at 3.
 Id. at 18
 Id. at 19.
 Id. at 2.
 Id. at 3.
 Id. at 4, 20.
 Id. at 4.
 Am. Sub. H.B. 327, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
 Id. at 2.
 Id. at 7.
 “Promote” is defined as “[s]eeking to advance or encourage support of a partisan philosophy or religion by indoctrination, coercion, or furthering divisive concepts by teaching an individual or group of individuals to accept a set of beliefs in a one-sided, biased, and uncritical manner” or “[i]nculcating ideas, attitudes, beliefs, and cognitive strategies during the transfer of cultural traditions from one generation to the next with the expectation that such traditions will not be questioned but practiced in the future.” Id. at 3-4.
 Id. at 8.
 Id. at 9.
 Sub 9
 Id. at 27.
 Id. at 27-28.
 Id. at 28.
 Id. at 7.
 Id. at 6-7.
 Complaint at 2, Black Emergency Response Team v. O’Connor, No. 5:21-cv-01022 (W.D. Okla. Oct. 19, 2021).
 Id. at 2.
 Id. at 4.
 Id. at 27.
 Id. at 13.
 Id. at 2.
 Id. at 34.
 Id. at 35.
 Id. at 66.
 Id. at 24.
 Ohio H.B. 322, at 10 (“One race or sex is inherently superior to another race or sex”); Ohio H.B. 327, at 1 (“One nationality, color, ethnicity, race, or sex is inherently superior to another nationality, color, ethnicity, race, or sex”).
 Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump , 508 F. Supp. 3d 521, 543 (N.D. Cal. 2020) (granting preliminary injunction against the order, specifically highlighting provisions such as “inculcate in its employees,” “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously” as vague).
 Complaint, supra note 37, at 25.
 Id. at 24-25.
 Ohio H.B. 322, at 10 (“Members of one race cannot or should not attempt to treat others without respect to race”); Ohio H.B. 327, at 2 (“Members of one nationality, color, ethnicity, race, or sex cannot and should not attempt to treat others without respect to nationality, color, ethnicity, race, or sex”).
 Complaint, supra note 37, at 68.
 Id. at 23.
 Stanley v. Georgia, 394 U.S. 557, 564 (1969).
 Tinker v. Des Moines School Dist., 393 U.S. 503, 506 (1969).
 Bd. of Educ. v. Pico, 457 U.S. 853, 868 (1982) (plurality opinion); Complaint, supra note 37, at 17.
 Complaint, supra note 37, at 69 (citing to, among others, Regents of Univ. of Cal. V. Bakke, 438 U.S. 265, 312 (1978) (“Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.”)).
 Complaint, supra note 37, at 70.