Georgia is the latest state to face the prospect of a lawsuit challenging its “divisive concepts” law because it is vague and instills fear in educators of the consequences of speaking about race and racism in the classroom.
According to a letter the Southern Poverty Law Center, the National Education Association and the Georgia Association of Educators sent to the state attorney general Nov. 4, the groups plan to sue the state for having a list of divisive concepts in place bans teachers from discussing in class and having a chilling effect on language in the classroom.
As of 2021, 17 states have enacted similar laws restricting the teaching of what they first called “critical race theory” and later called “divisive concepts.” More than 40 states have introduced laws to ban these concepts, first seen in a 2020 executive order by former President Donald Trump.
Georgian law contains a teaching prohibition: that everyone is responsible for the actions of people of his race, that a person should feel “discomfort, guilt, fear or any other form of psychological distress” because of his race, and that everyone, because of his race, is inherently racist or oppressive.
It also prohibits “racial stereotyping” or “racial scapegoating,” which the law defines as attributing personality traits, flaws, or prejudice to a race, espousing personal beliefs that the law deems indoctrinating students, or teaching that the United States is fundamentally racist.
“When we talk about the majority population trying to change the history of Georgia by saying that certain concepts could hurt the feelings of the majority community, they don’t think about the whitewashing of history and how that might denigrate the experience of another group of people.” in this state who are just as Georgian as they are,” said Gerald Griggs, president of Georgia’s NAACP group, in a previous interview.
Under the law, all Georgia school districts are required to have policies that conform to them and a grievance process for parents, students, and staff for violations.
Vague and confusing language identified as problematic
Experts across the country have called such laws, including Georgia’s, confusing and vague because they don’t specify what teachers can and can’t say. In other states, even professional development has resulted in downgrading of district accreditation due to implicit bias.
Georgia’s lawsuit alleges that the state’s law violates the First and 14th Amendments and alleges that it attempts to censor classroom discussions. According to Craig Goodmark, an attorney representing an AP World History teacher in the lawsuit, the teachers involved in the lawsuit were unable to carry out their job of teaching students the truth about history or social studies for fear of retaliation. Goodmark also works as a network attorney for the Georgia Association of Educators, which would be one of the plaintiffs in the lawsuit.
“The feedback from our members and from teachers in this area is that they just don’t understand or know what the law prohibits,” he said. “It’s confusing and there’s growing concern that if they don’t know what’s actually breaking the law, they could be held accountable for something they weren’t aware of.”
Similar legal challenges have led to different outcomes in other states
Georgia would be the sixth state where teachers’ unions and civil rights organizations have filed lawsuits over divisive-concept laws. To date, only one lawsuit, the first in Arizona, has been successful in overturning state law.
Lawsuits in Oklahoma, New Hampshire and Florida are still pending. But because each of those laws was written differently, Goodmark said, it’s hard to tell if they serve as good precedent for the Georgia lawsuit.
“This is one of those laws that shouldn’t stand as a law or as a policy,” Goodmark said. “It’s bad for public education and bad for our country.”
