For the past several weeks newspapers have given extensive coverage to HB 1557, Florida Gov. Ron DeSantis’s recently signed “Don’t Say Gay” legislation, one of many pieces of “hot button” legislation that threaten to make teaching an even more difficult career.
A recent New York Times article by Dana Goldstein offered a good overview of the law, noting that its vague language will likely lead to lots of litigation. She cited one sentence in the law as an example: “The language … prohibits not only ‘instruction’ around gender identity and sexual orientation, but also ‘classroom discussion’ of these topics.”
Ms. Goldstein notes that the law’s restrictions on “classroom instruction” could result in teachers eliminating books with LGBTQ characters, historical figures or artists whose sexual orientation might provoke controversy.
She also notes that “while the language of the bill highlights the youngest students, all grades are affected by the provision requiring gender and sexuality to be discussed in ways that are ‘age appropriate or developmentally appropriate’” — highly subjective terms that also are likely to provoke controversy.
Finally, Goldstein notes that the vague wording in the bill could limit the counseling and mental health services schools offer and that it incorporates the “idea of deputizing parents to enforce a law,” a concept included in Florida’s recently enacted anti-CRT legislation and New Hampshire’s law that prohibits the teaching of “divisive concepts.”
As one who served on Maine’s legislative committees as a school superintendent from 1981-84, I recall wrestling with similar legislation four decades ago, legislation derived from the Hatch Amendment (now known as the Protection of Pupil Rights Amendment) that was originally passed in 1978. This law required public schools who participated in particular federally funded programs to secure the permission of parents before their children could be psychologically or psychiatrically tested or treated.
The Hatch Amendment also gave these same parents the right to examine curricular materials in those federally funded experimental education projects. The passage of this bill at the federal level resulted in copycat laws being introduced across the country, laws that invariably expanded the programs and services that required advance parental approval and expanded rights of parents to examine curricular material.
In Maine, where I volunteered to serve on the Legislative Committee of Superintendent’s Association, my first hearing involved Maine’s version of the Hatch Amendment. The “Hatch Bill” introduced in Maine required that schools inform parents any time any student had any contact with any counselor in school. Passage of this law would have undercut the ability of students to share confidences with counselors and would fly in the face of regulations requiring that school personnel inform the department of human services whenever they had a reason to believe the students were subject to abuse at home.
At the hearing, the meeting room filled to overflowing with congregants from a large Baptist church in Bangor led by a pastor who believed that school counseling services undercut the role of the family. Those in support of the bill spoke first and each speaker’s testimony concluded with boisterous applause. My testimony, one of the few in opposition, was met with stony silence by the audience. Fortunately, the legislators on the panel opposed the bill. It died in committee and did not materialize in the successive years I served on the Legislative Committee.
Maine was hardly the only state to have this experience. “The Hatch Act Comes Alive,” a 1985 article from the New York Times by Edward Fiske, described how Phyllis Schlafly, founder of the ultra-conservative Eagle Forum,seized on Senator Hatch’s bill and the regulations that accompanied it as a way to pressure schools to limit courses on ethics and classroom discussions of controversial topics. Lawsuits opposing controversial programs proliferated based on the public’s misperceptions that were driven by Ms. Schlafly’s relentless promotion of her interpretations of the Reagan administration’s “sloppily drafted” regulations.
And the sloppy wording was not a bug: It was a feature. When language in Florida’s “Don’t Say Gay” law and New Hampshire’s “divisive concepts” bill is vague, and the stakes for violating the law are high, teachers lose their academic freedom. If any remark about an ill-defined topic might result in an investigation by someone from the state who could take away their teaching certificate, teachers are likely to steer clear of that topic. Moreover, vague wording tends to offer opportunities for litigation, litigation that often results in keeping the hot button issues that are presumably the basis for these restrictive laws in the news.
Indeed, the author of the Hatch Amendment valued vagueness. In 1985,Mr. Fiske wrote that Senator Hatch was concerned by the way his legislation was interpreted by both sides, but at the same time was reluctant to address its fundamental problem: a lack of clarity. The Senator opposed “both the ‘overreaction of educational lobby groups’ and overly broad interpretation of the law by conservatives but has thus far resisted supporting either clarifying legislation or changes in the regulations. He said that he prefers to ‘let this all play out a while and maybe get some court cases.’”
As we’ve witnessed in Florida, New Hampshire and states across the county, the issues embedded in the Hatch Amendment are still playing themselves out 37 years later … and there is no end in sight.
Wayne Gersen lives in Etna.