The Problem with Guidances

A prime concern of PEN America’s advocacy against educational gag orders for the past year has been that many are sloppily drafted and in some cases hastily passed. The most recent example is SB 1 in Kentucky, which, due to the rushed and rocky way the bill became law, inadvertently included a punishment of jail time for educators who teach certain topics the wrong way. Thankfully, this mistake was caught and quickly amended in a separate law. Nevertheless, the debacle illustrates the ongoing lack of thought or care that lawmakers have been putting into these bills.

One solution to this problem could come after the bills become law, when state agencies issue rules to help teachers, school administrators, and others interpret vague or contradictory legislative text. These guidances, one might hope, could smooth over the rough patches of the text, define key terms, and explain to nervous educators what they can and cannot say.

It has not worked out that way.

Twelve educational gag orders passed in 2021, of which ten are still law. Of these ten, only five have been accompanied by an official guidance: Iowa HF 802, New Hampshire HB 2, Oklahoma HB 1775, Tennessee SB 623, and Texas SB 3. The other five states that passed laws last year (Arizona, Arkansas, Idaho, North Dakota, and South Carolina) have published nothing. Teachers, administrators, and parents in these states are no more informed today about the application of these laws than on the day they were passed. In the absence of formal guidances, one recent study showed, school districts and administrators have interpreted these laws in a wide variety of ways, with extreme chilling effects when administrators overinterpret the circumstances where a law applies. 

If anything, this actually understates the extent of the problem. Most of the guidances that have been published are themselves vague and unhelpful. For instance, Texas’s guidance for SB 3 is essentially a restatement of the law, providing little additional context or tools for interpretation. Tennessee’s guidance for SB 623 has much to say about how schools will be investigated and punished, but very little to guide the regulation of teachers’ speech.