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Ignorance of Law is No Excuse

By: Andy Spinks

A few weeks ago, Georgia’s republican governor Brian Kemp signed several controversial education bills into law. Included among them were SB226, which prohibits school libraries from including materials with sexual content that is “harmful to minors” and HB1084, which prohibits the teaching of “divisive topics” regarding racism.

The passage of these laws is intended to do two things: The first is to create political theater that will appeal to right wing voters and bring them out to the polls in the midterm elections. The second is to intimidate educators, causing them to fear that any discussion of race or any mention of human sexuality in schools will be cause for termination. The lawmakers are betting that we will not read the laws and will just “err on the side of caution” and self-censor anything even remotely related to these topics. And from what I have seen so far, their plan is working. Educators immediately started pulling back and avoiding these topics, even though the laws were not yet in effect.

But here’s the thing: These bills probably don’t say what you think they say. They’re bad, yes, but the concepts they define as forbidden aren’t nearly as broad as the censors might have wished for. It’s critical that every teacher, school librarian, and administrator read the actual bills to see what they do and don’t say.

SB 226 creates a new process for addressing “material that is harmful to minors.” It does not define “materials,” so we have to assume this means everything from library books to the videos teachers show in instruction. The bill defines “harmful to minors” as sexual content that “taken as a whole” appeals to the basest of interests and is “patently offensive to prevailing standards [for children] in the adult community as a whole,” and “taken as a whole” lacks literary or informational value. Note that it has to meet all three of those standards to be considered “harmful to minors.” Also note the repeated use of the phrase “on the whole.” This is exactly the way we have always wished for materials to be judged: Look at the whole work and judge it by the standards of the whole community. As written, this bill should have zero effect, because there are zero librarians or teachers who are selecting materials that fit the definition of “harmful” specified in the bill.

Unfortunately, SB226 does override existing policies for reviewing and removing inappropriate materials and sets a very tight timeline for responding to challenges, requiring “the principal or his or her designee” to decide within one week whether the challenged material is harmful, according to the bill’s definition. Ideally, principals will give materials full consideration against this standard (which no material selected by a teacher or librarian is likely ever to meet), or they will leave the decision to the designee best qualified to make it: their certified library media specialist. But that’s not what the lawmakers were going for here. They assume that already overtaxed principals will automatically remove any materials that are challenged, but more importantly, they hope that principals, teachers, and school librarians won’t read the bill and will preemptively censor any materials that have any hint of human sexuality or depict characters outside of their heteronormative standards.

HB 1084 is a broader bill intended to prevent the teaching of “divisive concepts” regarding racism. The most important thing for librarians to understand is that this bill does not apply to the books and other materials you purchase for your collection. At the school level, it only appears to apply to “curriculum, classroom instruction, and mandatory [teacher] training programs.” Also, the definition of “divisive concepts” is pretty narrow; in most cases we would need to teach that something is “inherently racist” or say that a person is racist “by virtue of their race.” I interpret this to mean we can call out a person, institution, or policy as racist because its actions are racist or its impact is racist.

But how will others interpret this? Fortunately, HB 1084 includes a long list of things the bill isn’t supposed to do. It says right in the bill that it’s not supposed to prohibit the discussion of these “divisive topics” in instruction, it’s not to prohibit educators from responding to student questions about these topics (in a non-political way), and it’s not to prohibit the teaching of coursework that covers these topics (in a non-political way). The bill specifically says it does not limit AP courses, IB courses, nor curricula that address “slavery, racial oppression, racial segregation, or racial discrimination, including topics relating to the enactment and enforcement of laws resulting in racial oppression, segregation, and discrimination.” (This last part is the definition of actual, real critical race theory, is it not?) I can’t find much that this bill actually does prohibit, at least not anything that anyone is actually teaching, but like SB226, the real intent of this bill is intimidation. Those who created it hope that teachers, librarians, and administrators won’t read the bill and will avoid any and all discussion of racism, just to be ”safe.”

The old saying “Ignorance of the law is no excuse” takes on a different meaning in this context. We owe it to our students to read and understand these bills, and to encourage our colleagues to do the same. We owe it to our students not to overcompensate and fearfully censor books just because they include mentions of sex. We owe it to our students to provide an education that accurately portrays the historical and ongoing impacts of racism. Nothing in these laws prevents us from doing so, and if we lack the courage to acknowledge the realities students see, they will dismiss us as irrelevant. And they will be right.

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