Panel Approves Temporary Rules On Instruction About Race, Gender

By Anita Wadhwani, Tennessee Lookout

February 1, 2022

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 fall on school districts that fail to properly abide by the rules.

The emergency rules have been in effect since July 31, then tweaked again 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 that 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 the rules crafted by the state’s Department of Education.

The controversial law lays out 14 “prohibited concepts” in the classroom related to how teachers lead discussions of race and gender. The law gives the state Department of Education the authority to withhold education funding for school districts that fail to prevent, investigate or discipline the teaching of them. The banned 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.”

“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 is based on the wording of legislation, but should a complaint arise over an educator’s teaching of a subject, the school district would make the determination of whether one of the 14 prohibited concepts was “tripped.”

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

Any violation could result in a teacher being suspended, losing their teaching license or fired. 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 that 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 its 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.”

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.

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