State Lawmakers Tell Teachers What They Can and Can’t Say

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Analysis Politics

State Lawmakers Tell Teachers What They Can and Can’t Say

Martha Kempner

Next week the Tennessee legislature will vote on a law to prevent teachers from talking about homosexuality in class.  This is not the first or the last time lawmakers have censored educators.

Over the last few weeks, Tennessee lawmakers have been working on legislation that would effectively make it illegal for teachers to talk about homosexuality in the classroom before ninth grade. The laws states that “No public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality” in grades K-8. While they went back and forth with amendments and counter amendments, the Senate education committee ultimately passed the bill which has been proposed by its sponsor for each of the last six years. The full Senate will likely vote on the measure this week or next. 

Not surprisingly, some people applauded the bill for keeping “inappropriate” topics away from young children while others called it censorship and discrimination. Some people in the state questioned why the bill was necessary as, according to one lawmaker, the “existing laws already prohibits such instruction by deeming it a misdemeanor to teach any sex education that is not part of the ‘family life curriculum’ adopted by the state Board of Education.”  Many just wondered how such a law could work and why a state legislature would get that intimately involved in what teachers can and cannot say in the classroom.

But we shouldn’t be shocked or even surprised by this. State lawmakers have had their hands and voices in sex education classes for years.  In truth, it is not entirely outside their purview to do so.  While specific decisions about curricula and lecture topics are often left up to local school boards and even principals and teachers, laws in most states set the stage for sexuality education. States routinely tell schools what they have to teach and what they can’t teach. According to the Guttmacher Institute, 20 states and the District of Columbia mandate both sex education and HIV education and 12 states mandate HIV education alone (interestingly, no state mandates just sex education).  In addition, 29 states say that if such education is taught it must meet certain requirements such as being age-appropriate and/or medically accurate. 

While many states stop there and let local officials and educators make the rest of the decisions about what gets said in the classroom, others go farther by setting content requirements and limitations around certain topics; 36 states require that information on abstinence be included (27 of them require that abstinence be stressed), 18 states require that instruction on the “importance of engaging in sexual activity only within marriage be provided,” and 12 states require that sexual orientation be covered.

Roe has collapsed and Texas is in chaos.

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No Homo Promo

Unfortunately, when sexual orientation is mentioned in state laws, it often looks much like what is proposed in Tennessee.  Sometimes glibly referred to as “no homo promo” policies, these laws insist that education be biased against homosexual relationships and families.  In Mississippi, for example, sex education classes must present “monogamous heterosexual relationships as the only appropriate place for sexual intercourse.” In South Carolina classes may not discuss “alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships, except in the context of instruction concerning sexually transmitted disease.”  

Arizona’s law includes what I see as an interesting conundrum for teachers as the program must be medically accurate but  cannot promote a “homosexual lifestyle,” portray “homosexuality as a positive alternative life-style,” or “suggest that some methods of sex are safe methods of homosexual sex.”  Given that what makes sex safer has to do with the behavior one chooses to engage in, not the sex or gender of one’s partner, this would be a hard rule to follow in a medically accurate manner. 

Teachers in Alabama face a similar dilemma; there, classes must:

“emphasize in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state.” 

There is no public health perspective that one could call on to make this claim.  Moreover, state laws criminalizing homosexual behavior like the one that this law refers to were found to be unconstitutional by the United States Supreme Court in the 2003 Lawrence v. Texas decision.   

Advancing Their Own Opinions

Stacey Campfield, the author of the Tennessee law, claims that his goal is to prevent what he sees as gay rights activists pushing their agenda in the schools because schools “should not be advocating for or against homosexuality.”  And yet, by preventing discussion of it, he is clearly advancing a specific opinion. 

State lawmakers do this all the time.  They use their power to control what topics are taught, what types of materials are used, and what teachers say. 

In Utah, for example, the law goes so far as to say that teachers cannot answer certain questions. In Utah, consensual sexual intercourse outside of marriage is illegal, and yet the sex education law states that:  “[a]t no time may instruction be provided, including responses to spontaneous questions raised by students, regarding any means or methods that facilitate or encourage the violation of any state or federal criminal law by a minor or adult.”  This has been interpreted to mean that teachers cannot discuss sexual behavior at all nor can they discuss contraception or condoms. 

In fact, controversy erupted in 2008, when a middle school teacher in Utah’s Jordan School District reportedly responded to students’ questions about “homosexual sex, oral sex and masturbation.”  Though it is unclear exactly what the teacher said, she was placed on administrative absence while the school investigated the claims because the information provided was deemed contrary to state law. 

Upon hearing about the scandal, Carl Wimmer, a conservative state lawmaker, decided that the real problem with the existing law on sex education was that the penalties teachers faced for violating it were purely administrative. He said he would introduce legislation that would criminalize such violations of policy. (Rep. Wimmer told me in an email that he ultimately did not introduce the legislation because the district was able to handle the situation to the satisfaction of his constituents.)  

Wimmer’s solution may have seemed extreme but he is not the only state legislator in the country who has reacted to something said or seen in a classroom.  In 2003, Kansas State Senator Susan Wagel was outraged by materials used in a college-level human sexuality class at the state university.  A legislative aide who was taking the class was apparently offended by movies shown during a lecture as well as comments allegedly made by the professor, a 20-year veteran of the university.  The Senator argued that the materials were pornographic and constituted harassment of female students. 

In response, she proposed an amendment to the state budget that would have cut all state funding for any university department that showed “obscene” videos to students.  The amendment was passed by the legislature but vetoed by then-Governor Kathleen Sebelius (now the Secretary of the U.S. Department of Health and Human Services) who felt it violated academic freedom. 

Over ten years ago, Ohio state legislators were so offended by materials used in an HIV-prevention training of teachers that they passed an amendment freezing the CDC funds that had supported the training. The lawmakers were apparently appalled by information on condoms as well as a handout of common terms for sexual activities and reproductive anatomy despite the fact that the training was for adults and none of the material in question was ever intended for students.  Nonetheless, legislators felt it was highly inappropriate. The long and short of this controversy (which dragged on for more than two years) is that the state of Ohio returned one million dollars of federal money to the CDC, only 10 percent of which was even slated for HIV-prevention programs. The rest would have supported prevention programs for heart disease, cancer, and tobacco use; programs to promote of physical exercise; and dental services for young people. 

Unenforceable yet Highly Effective

Laws like the one proposed in Tennessee are in many ways unenforceable.  Big brother is not in fact watching, there are no cameras in classrooms, and we have yet to invent the human version of the anti-bark collar (imagine a necklace that sends a short electric shock when “offensive” words like gay, lesbian, masturbation, or condom are spoken).  Still, these laws have a huge impact.  Teachers know that what they say in a classroom can and will be repeated to other students, administrators, or parents.  And they know that all it takes is one person who thinks they crossed some line or another to start a controversy that makes it all the way to the state house.  Teachers across the country censor themselves every day so as to avoid becoming the target of these kinds of incidences. 

If the Tennessee legislation becomes law, teachers there will undoubtedly watch what they say even more than usual. While it may be easy enough not to introduce lesson plans on sexual orientation, I can’t quite figure out what a teacher is supposed to do when talking to a student who has two mothers, what a guidance counselor will say when a student who is questioning his/her sexual orientation asks for help, or how administrators will handle bullying incidents that involve taunts of “that’s so gay.” 

Campfield may or may not have thought about these situations. I’m guessing that either way he doesn’t care. He is advancing his own opinion through legislation, and in his mind it is better to completely ignore the existence of homosexuality than help young people. But I have to wonder if the other members of the Tennessee Senate, even those who are likely to vote in favor of this measure, have given any thought to the real implications of silencing teachers.  And I have to hope that when they do, they (and their counterparts across the country) will stop using their power to control classroom discussions and instead leave the education of our young people to those with the skills and training to do it well.