Lawmakers spar over new rules to punish teachers, schools for instruction about race, gender

By: - February 1, 2022 6:00 am
Lockeland Elementary School in Nashville. The Tennessee Supreme Court ruled that a measure to allow private school vouchers in only Davidson and Shelby Counties don't violate the state's home rule law.(Photo: John Partipilo)

Lockeland Elementary School in Nashville. The Tennessee Supreme Court ruled that a measure to allow private school vouchers in only Davidson and Shelby Counties don’t violate the state’s home rule law.(Photo: John Partipilo)

A legislative panel on Monday approved temporary rules that guide how Tennessee school districts investigate complaints about classroom discussions of race and gender — and the hefty financial penalties that could befall on school districts that fail to properly abide by the rules.

The emergency rules were first proposed in July, then finalized in November, following the passage of legislation barring K-12 educators from teaching critical race theory in the classroom. Critical race theory is an academic framework for studying the persistence of race and racism in shaping the nation’s social fabric and institutions. Critical race theory is not typically taught in K-12 schools.

And while Monday’s review of the rules by the Legislatures Joint Government Operations Committee was routine, some lawmakers took the opportunity to levy sharp criticisms at the underlying law and resulting rules crafted by the state’s Department of Education.

The controversial law lays out 14 “prohibited concepts” related to how teachers lead discussions of race and gender. The law gives the state Department of Education the authority to withhold education funding from school districts that fail to prevent, investigate or discipline the teaching of the prohibited concepts. Those concepts include that the United States is “fundamentally or irredeemably racist or sexist” and “an individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.”

Rep. Gloria Johnson, D-Knoxville, argued against the legislature raising its own pay. (Photo: John Partipilo)
Rep. Gloria Johnson, D-Knoxville. (Photo: John Partipilo)

“Teachers teach facts. We do not teach feelings. How do you hold someone accountable with legislation or rules because of how a student feels when they are learning facts,” said. Rep. Gloria Johnson, a Knoxville Democrat who is also a retired teacher. “Say it’s the Trail of Tears and their grandmother is an Indian. How do you legislate or punish based on feelings when a teacher is teaching facts?”

Attorneys for the Department of Education noted that the rules they crafted are based on the wording of legislation.

The rules lay out a process available only to current students, their parents and district employees who believe a prohibited concept was wrongly taught in schools. Complainants must first take their concerns to the local school board, who conduct an investigation and make their own determinations. Appeals of local school board decisions may be made to the Department of Education.

Any violation could result in a teacher being suspending, fired or their teaching license revoked. Financial penalties can also be levied on entire public school districts or charter schools. Those penalties amount to 2% of state funding for the first offense and up to 10% by the fifth.

Slide from presentation by Tennessee Department of Education officials describing emergency rules put in place after passage of law prohibiting teaching of critical race theory in state schools.

Complaints may also be lodged by citizens who are not parents of school-age children or employees, but these complaints must go through school boards’ existing grievance procedures, department attorneys told lawmakers. Those complaints may also result in districts losing their funding.

“If a district has a knowing violation, we will withhold their funding,” said Charlie Bufalino, the department’s assistant commission of policy and legislative affairs. Bufalino noted districts will have the opportunity to rectify a violation before it is subject to financial penalties.

Rep. Mike Stewart, D-Nashville raised the spectre of more books could be banned under the rules, citing the recent example of the Pulitzer Prize winning graphic novel about the Holocaust, Maus by Art Spiegelman that was removed from the 8th grade curriculum in McMinn County Schools.

“The easiest thing to do for the LEA (local education authority) if it’s presented, say, with this book Maus, which talks about the Holocaust — which was apparently just banned in McMinn County — the easiest thing for the LEA to do is just ban the book because then they’re guaranteed…to not face second guessing by the department and not have their funding cut, right?” Stewart said.

“If I’m an LEA the best thing I can do is just ban every book someone complains about, and that way there’s no way under your statutory framework I can ever be subjected to fines, right?” Stewart said. “That’s how it works.”

Rep. John Ragan, R-Oak Ridge (Photo: Tennessee General Assembly)
Rep. John Ragan, R-Oak Ridge (Photo: Tennessee General Assembly)

Republican lawmakers indicated they may revisit the rules when they come before them again next fall, some concerned that the rules should include the ability for any citizen to complain through the same process as students, their parents and employees.

But some Republicans also had a sharp message for their Democratic colleagues: “If you don’t like the law, you can file another bill to change it.” said Rep. John Ragan, an Oak Ridge Republican who serves as a chairman of the Joint Government Operations Committee.

Here is what the legislation says: 

The following concepts are prohibited concepts that shall not be included or promoted in a course of instruction, curriculum, instructional program, or in supplemental instructional materials:

a. One race or sex is inherently superior 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 members of another race or sex;

h. This state or the United States is fundamentally or irredeemably racist or sexist;

i. Promoting or advocating the violent overthrow of the United States government;

j. Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;

k. Ascribing 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 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; or

n. Governments should deny to any person within the government’s jurisdiction the equal protection of the law.

Clarification: Emergency rules were released in a draft version in July before being finalized in November. An earlier version of this story reported they were effective in July.

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Anita Wadhwani
Anita Wadhwani

Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. Wadhwani lives in Nashville with her partner and two children.