1 of 56

Know Your Rights:

Your Guide to Understanding the 2024 Education Censorship Bills in Tennessee

June 5th, 2024 | 4:00 - 5:00 pm CT

2 of 56

Who Are We?

3 of 56

Event Co-Hosts

Thank you!

4 of 56

Goals

Provide a comprehensive breakdown of the impact and legal implications of the censorship legislation passed through the TN General Assembly in 2024

Share know-your-rights information for students, educators, librarians, and community members

Connect Tennessee censorship challenges to recent national censorship movement trends & uplift effective messaging tactics

Promote awareness how to take action, connect with Coalition partners, navigate resources & stay engaged in education advocacy

5 of 56

Agenda

History of Tennessee Censorship Movement

Bill Breakdown: ACLU TN - Know Your Rights

Q&A

National Advocacy Perspective: RALLY

Survey & Opportunity to Share Testimony

Resources

Next Action Steps

6 of 56

A Brief History of Tennessee’s Censorship Movement

7 of 56

How Did We Get Here?

National background to the “anti-CRT” movement

History of Tennessee Censorship Movement

Among earliest filed, passed & signed anti-truth laws in the country in 2021
Public Chapter 493: “divisive concepts” law
TN Department of Education rules included:

Teacher disciplinary action
Threat to withhold millions of dollars from districts

CRT is being portrayed in the media in the following ways:

Book Bans
Parents Rights
Attacks on Social Emotional Learning
Attacks on Diversity, Equity Inclusion Initiatives
Attacks on LGBTQ+ Rights
Attacks on African American Studies (e.g. College Board)

8 of 56

How Did We Get Here?

Creation of the TN Coalition for Truth in Our Classrooms

Resource Hub

Legislative Advocacy

Email Campaign & Toolkit
Legislator Meetings
Committee Input
Digital Social Media Ads
Student Public Testimony

9 of 56

Where Are We Today?

10 of 56

TN Censorship Legislation

2021

Public Chapter (PC) 493: K-12 Prohibited Concepts

2022

PC 744: Age-Appropriate Materials Act

Amended by 2023 PC 472
Amended by 2024 PC 782

PC 1137: Textbook Commission; Statewide Book Bans

New Guidance

PC 818: Higher Education "Divisive Concepts" Restrictions

What were our wins?

PC 127 & 1063: Requiring Teaching of the Civil Rights Movement in 9-12 Social Studies

PC 938: Requiring Teaching of Black History and Culture in Grades 5-8

11 of 56

2023 TN Censorship Legislation

PC 438: Restrictions on Implicit Bias Training
PC 268: The Higher Education Freedom & Transparency Act

Amended in 2024 by PC 815

PC 448: Student Pronouns Restrictions
PC 285: Private School Regulations on Sports Participation
PC 353: Expanding Parent Consent in LEA Activities
PC278: Textbook Seller Criminalization

What were our wins?

Successful defeat of bills including:

Prohibited Concepts 2.0
Restrictions on Higher Education DEI Training for Health Degrees
The Families' Rights & Responsibilities Act

12 of 56

Promising Momentum

13 of 56

Bill Breakdown: Know Your Rights

Stella Yarbrough, ACLU-TN

14 of 56

Stella Yarbrough

Legal Director�ACLU of Tennessee

15 of 56

Overview of New Legislation

Review of five pieces of new legislation

Themes to look for:

Diversion of the power to select and develop curricula away from informed, consensus-driven processes to the empowered individual.
Removal of protections for LGBTQ+ children, particularly trans and gender non-conforming kids.
Increased penalties/state control for violations of existing censorship laws.

The first theme was one that was highlighted recently in a court opinion that I’m going to talk about–so I can’t take credit for noticing this trend–but so many of the censorship laws are essentially end-runs around the normal processes of deciding what gets taught in schools. As you all know, it’s no small matter deciding how to meet the state’s requirements and picking a curriculum can take years of review on both the state and local level. But, in 2020 in particular, we all saw a lot of people suddenly showing up at school board meetings and demanding control over which books were in libraries and what concepts were taught in class. And in some ways the legislature has made it its business in the last four years enshrining heckling into state law–vastly expanding the circumstances where a single individual can sue a school or try to get a material removed.

16 of 56

Age-Appropriate Materials Act Amendment

Recap:

Age-Appropriate Materials Act (T.C.A. 49-6-3803) passed in 2022.

Requires the online publication of all available materials in an LEA’s library.
Allows for students, parents, and LEA employees to give “feedback” on materials.
Instructed local boards of education to create procedures for ensuring materials were “age appropriate” and reviewing “feedback.”

Textbook and Instructional Materials Quality Commission charged with issuing guidance–did not do so until Spring 2023.

Notably, guidance did not define “age appropriate.”

17 of 56

Age-Appropriate Materials Act Amendment

Public Chapter 782

Material is not “age appropriate” for ANY K-12 student if, in whole or in part, it:

contains “nudity,” or “descriptions or depictions of sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse, as those terms are defined in § 39-17-901” or
is “patently offensive” or “appeals to the prurient interest” as defined in Tenn. Code Ann. § 39-17-901

Tenn. Code Ann. § 39-17-901 is the criminal obscenity statute.

I’ll note that the definitions of “not age appropriate” and criminally “obscene” are different. What they’ve done here is essentially take the whole definition of obscenity and break it down into its parts and saying that material that meets any one of those parts is not age appropriate. I highlight this because anecdotally, I’ve heard school board members expressing their fear that something might meet the definition of not age appropriate and then they are concerned that the material is actually criminally obscene and they could be committing a crime. I want to be clear: criminal obscenity is a very, very high bar and this standard is a very, very low bar.

It’s very concerning that they are using the same standard, though, to determine what’s appropriate for a kindergartener and a senior in high school. It’s also a vast departure from typical obscenity laws in that typical obscenity tests look at the work, as a whole. So many books have sexual content or violence as a part–but that’s not the point of the book. And that’s what sets literature apart from obscene materials. Obscene materials exist solely for the purpose of sexual or violent messaging–with no literary, artistic, or educational value.

And so many classic works of literature have depictions of nudity or sex in them. Those materials would ostensibly be not age appropriate even if they are not offensive or appealing to the prurient interest. The bible would not pass this test.

Effective July 1, 2024.

18 of 56

Age-Appropriate Materials Act Amendment

Amends the existing “feedback process” to allow the Textbook Commission to evaluate challenged materials if local board does not issue determination within 60 days.

(Textbook Commission can still review an appeal of local board’s final decision.)

If Commission determines book is not “age appropriate” it issues its determination to “each LEA” and the material must be removed from the libraries of “each LEA.”

19 of 56

Anti-Discrimination Amendment

Public Chapter 780

Amends Teacher’s Code of Ethics in Tenn. Code Ann. §49-5-1003

Not on the basis of race; color; creed; disability; sex; national origin; marital status; political or religious beliefs; family, social, or cultural background; or sexual orientation, unfairly:

(A) Exclude the student from participation in any program;

(B) Deny benefits to the student; or

(C) Grant any advantage to the student;

20 of 56

Anti-Discrimination Amendment

Public Chapter 780

Amends Teacher’s Code of Ethics in Tenn. Code Ann. §49-5-1003

Not on any basis, unfairly

(A) Exclude the student from participation in any program;

(B) Deny benefits to the student; or

(C) Grant any advantage to the student;

This may seem like an innocuous change but it removes specific mention of discrimination on the basis of sexual orientation, which we believe was the main contention with the original language of the law. State and federal anti-discrimination law recognizes distinct protected classes of people who have characteristics that could be, and historically have been, used to treat them differently: race, national origin, sex, religion, disability. By erasing those classes, the law seems to imply that those historical classes no longer matter or are not especially protected–which an entire ocean of law disagrees with. In addition, the change is somewhat unworkable and opens up teachers to even more complaints of “unfairness” for any reason. What does unfair mean? What if your daughter doesn’t make the cheer team? What if your son doesn’t? What makes something fair or unfair if you don’t have any guideposts? They’ve taken a law that used to ensure that teacher’s comply with federal anti-discrimination law and made it into a kind of meaningless guarantee of no unfair treatment for any reason whatsoever. Could be hard to comply with.

21 of 56

Penalties for Violation of “Divisive Concepts” Ban

Public Chapter 815

Recap:

Tennessee Higher Education Freedom of Expression and Transparency Act (T.C.A. 49-7-1901) passed in 2023.
Prohibits the instruction of the same “divisive concepts” (so-called “CRT” bans) in higher ed “trainings and seminars”

(A) One (1) race or sex is inherently superior or inferior to another race or sex;

(B) An individual, by virtue of the individual's race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;

(C) An individual should be discriminated against or receive adverse treatment because of the individual's race or sex;

(D) An individual's moral character is determined by the individual's race or sex;

(E) An individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(F) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex;

(G) A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress another race or sex;

(H) This state or the United States is fundamentally or irredeemably racist or sexist;

(I) Promotes or advocates the violent overthrow of the United States government;

(J) Promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;

(K) Ascribes character traits, values, moral or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual's race or sex;

(L) The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups;

(M) All Americans are not created equal and are not endowed by their Creator with certain unalienable rights, including, life, liberty, and the pursuit of happiness;

(N) Governments should deny to any person within the government's jurisdiction the equal protection of the law;

(O) Includes race or sex stereotyping; or

(P) Includes race or sex scapegoating;

22 of 56

Penalties for Violation of “Divisive Concepts” Ban

Previously:

Student or employee could file report with institution for alleged violations of the law (teaching of the divisive concepts)
Institution was required to

investigate complaints
report annually violations and remedial measures to State Comptroller’s Office.

23 of 56

Penalties for Violation of “Divisive Concepts” Ban

Now:

Institutions must:

investigate in “timely manner”
report results of investigation to Comptroller within 10 days (not just violations)
reports must be detailed (nature of complaint, outcome)
give status reports to Comptroller every 30 days

Comptroller must report institution to state legislative committee for untimely investigation/reporting or failure to perform remedial measures.

24 of 56

Penalties for Violation of “Divisive Concepts” Ban

Now:

“If the Comptroller receives more than ten (10) reports from an institution in any one (1) academic year[...] that each independently allege a separate and distinct violation of § 49-7-1903, then the comptroller shall report the same to the education committee of the senate and the education administration committee of the house of representatives.”
Does not have to be a violation–just a complaint.

25 of 56

Penalties for Violation of “Divisive Concepts” Ban

Building momentum in challenging “divisive concepts”

Tennessee Education Association v. Reynolds

Middle District Court of Tennessee
Suit brought on behalf of T.E.A. and individual teachers challenging the “concepts” as legally vague.
“Every or nearly every concept prohibited by the Act is poorly defined in that way, set out in language that might be at home in an angered blog post or an opinion column but which, when imported into a legal code, is manifestly unworkable.”

Local 8027 A.F.T-NH v. Edelbut

New Hampshire case; declaring N.H.’s similar divisive concepts law as “vague”

26 of 56

Mandatory “Outing” Law

Public Chapter 832; T.C.A. 49-6-316

“An employee of an LEA or public charter school shall not knowingly give false or misleading information to the parent of a student regarding the student's gender identity or the student's intention to transition to a gender that differs from the sex listed on the student's official birth certificate…”

27 of 56

Mandatory “Outing” Law

Public Chapter 832; T.C.A. 49-6-316

“If a student … requests an accommodation from an employee of the LEA or public charter school that is intended to affirm the student's gender identity, including a request that the student be addressed using a name that differs from the name assigned to the student on the student's school registration forms or in the student's educational record, or that the student be addressed using a pronoun that does not correspond with the sex listed on the student's official birth certificate … then the employee of the LEA or public charter school shall report the student's request to a school administrator, and the school administrator shall report the student's request to the student's parent.”

Similar laws in other states like Oklahoma and Indiana. They have not really been challenged yet. A lot of these cases involve some conflicting constitutional rights: parental rights to direct the upbringing of their children and children’s rights to free speech and expression. It may be hard to see a court finding that an LEA can knowingly provide false information to a parent or else not disclose information about a student’s gender identity. That said, the effect of these laws is to eliminate potential safe spaces for LGBTQIA+ kids who might not feel safe or accepted at home. Laws like this can pose a serious risk of harm to kids who could face physical and emotional abuse from their caregivers. It also places LEAs and teachers in impossible positions of having to verify student’s birth certificates, which they do not normally have access to. As with many laws that rely on outdated and bigoted understanding about gender identity, unclear how, functionally, this law could be enforced by the LEA.

28 of 56

Mandatory “Outing” Law

Public Chapter 832; T.C.A. 49-6-316

Allows a parent or student to sue for violations
Allows the A.G. to sue to enforce the law

Similar laws in other states like Oklahoma and Indiana. They have not really been challenged yet. A lot of these cases involve some conflicting constitutional rights: parental rights to direct the upbringing of their children and children’s rights to free speech and expression. It may be hard to see a court finding that an LEA can knowingly provide false information to a parent or else not disclose information about a student’s gender identity. That said, the effect of these laws is to eliminate potential safe spaces for LGBTQIA+ kids who might not feel safe or accepted at home. Laws like this can pose a serious risk of harm to kids who could face physical and emotional abuse at home. It also places LEAs and teachers in impossible positions of having to verify student’s birth certificates, which they do not normally have access to. Unclear how, functionally, this law could be enforced.

29 of 56

“Baby Olivia” Video

Public Chapter 795

“A family life curriculum that directly or indirectly addresses human growth, human development, or human sexuality must include the presentation of a high-quality, computer-generated animation or high-definition ultrasound of at least three (3) minutes in duration that shows the development of the brain, heart, and other vital organs in early fetal development, such as "Meet Baby Olivia," a high-quality, computer-generated animation developed by Live Action that shows the process of fertilization and the stages of human development inside the uterus.”

30 of 56

Submit questions in the Q&A feature

31 of 56

2024 Coalition Legislative Wins

32 of 56

2024 Legislative Wins

HB1605 / SB1722: Prohibition of Pride Flags
HB1632 / SB1858: Parents’ Right to Sue, Age-Appropriate Materials
HB1913 / SB1873 : Parents Bill of Rights
HB1414 / SB0620: Families' Rights & Responsibilities Act
HB1661/ SB2173: Restricted Access by Minors to Obscene Library Materials Act
SB2107/ HB2457: Sexually Explicit Materials Restrictions
HB1660/ SB2351: Anti-Discrimination and Protected Classes (Higher Ed)
HB1948/ SB235 0: Dismantling Diversity, Equity & Inclusion (DEI) in Higher Ed

33 of 56

ACLU - TN

Know Your Rights Resources

34 of 56

Know Your Rights Resources: FAQ

35 of 56

Know Your Rights Resource: FAQ - Censorship in Tennessee’s Public Institutions of Higher Education

36 of 56

Know Your Rights Resource: CRT FAQ & Youth Activism

37 of 56

ACLU-TN Legal Intake Form

If you are aware of a school using new laws to stop student speech, association, or other activity, contact ACLU-TN:

https://action.aclu.org/legal-intake/aclu-tn-legal-intake-form

38 of 56

National Perspective: RALLY

39 of 56

Amy Clark

Director,

RALLY

40 of 56

About RALLY

RALLY is an advocacy agency

with a record of driving progress on complex political, cultural, and social problems.

41 of 56

Resources: We Believe Campaign

We Believe partner toolkit

Strategic messaging guidance

Latest message testing insights

42 of 56

Keeping the Energy:

How to Stay Engaged

43 of 56

Reflections: 2024 Legislative Session

44 of 56

How to Stay Engaged: 2024 Election Season

Key Dates in the 2024 Election Cycle

Thursday, August 1: State and Federal Primary Elections

Tuesday, July 2: Voter Registration Deadline

Tuesday, November 5: State and Federal General Election

Monday, October 7: Voter Registration Deadline

45 of 56

Sign Up for Legislative Updates

46 of 56

Local Action, Resources

& How to Stay Engaged

47 of 56

Next Actions

Take Event Survey

Share anonymous testimony

Sign up for weekly legislative updates

Includes our bill tracker

ACLU- TN Intake Form

If you are aware of a school using new laws to stop student speech, association, or other activity, contact ACLU-TN

ET-TN’s TN Education Advocacy Hub
TN Coalition for Truth in Our Classrooms

Review & share ACLU-TN Know Your Rights resource hub

Is your organization, or do you know an organization, interested in getting involved with our Coalition? Contact: mpowell@edtrust.org

48 of 56

Coalition Partner Engagement & Resources

Follow our Coalition partners & sign up for their newsletters

See websites & social media in the resource links document

Action Opportunities:

ACLU TN relaunched their volunteer program - learn more
TEA early enrollment is happening now - join today

An educator can join now (summer) and not pay dues till September

TEA launched educator survey - take the survey now

Input from educators helps drive TEA focus on growing impact of public education

TN Educator of Color Alliance has a free statewide membership network - join now
TN Association of School Librarians: reach out to TASL if you or you know a librarian who faces censorship in their districts
Ed Trust TN EmpowerED Youth Advocacy Network - register to join now

49 of 56

Survey - Share Your Testimony!

https://www.surveymonkey.com/r/CTCWeb_Jun2023

50 of 56

Resource Hub

https://edtrust.org/tennessee/tn-coalition-for-truth-in-our-classrooms/

51 of 56

Coalition Resource Hub

52 of 56

Coalition Resource Hub

53 of 56

Coalition Resource Hub

54 of 56

Coalition Resource Hub

55 of 56

Survey Sign Up for Updates

56 of 56

Thank You!

mpowell@edtrust.org