South Carolina’s Gag Rule Challenges Black History
By Darius Spearman (africanelements)
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The Heart of the Battle: South Carolina’s “Classroom Gag Rule”
Headlines from South Carolina recently spotlight a significant legal struggle that echoes throughout the nation. The NAACP Legal Defense and Educational Fund, Inc. (LDF) has filed an appeal against South Carolina’s Budget Proviso 1.79, a measure widely known as a “classroom gag rule” (naacpldf.org). This rule has caused considerable disruption in educational settings, leading directly to the cancellation of Advanced Placement African American Studies courses across the state (milwaukeeindependent.com). In addition, it has resulted in the removal of important books by Black authors from school libraries and classrooms (milwaukeeindependent.com).
The LDF, a premier legal organization that has been fighting for racial justice for over 80 years, argues that this law censors honest teaching about race and racism, thereby infringing upon the fundamental right to an inclusive education about Black history and experiences ((naacpldf.org), (naacpldf.org)). Although founded by the NAACP, the LDF has operated as a completely separate and independent organization since 1957, focusing its mission on achieving racial justice and equality through litigation, advocacy, and public education (naacpldf.org). This legal challenge highlights the growing concern among Black communities and educators about the deliberate erasure of Black history and perspectives from public school curricula, leaving students ill-equipped to understand the complex tapestry of American society (milwaukeeindependent.com).
Decoding Critical Race Theory and its Origins
To understand South Carolina’s “classroom gag rule,” it is important to trace its roots to the broader conservative movement against what opponents often mischaracterize as Critical Race Theory (CRT) (milwaukeeindependent.com). Critical Race Theory itself began in the 1970s and 1980s among legal scholars, including influential figures like Derrick Bell, Kimberlé Crenshaw, and Richard Delgado ((temple.edu), (berkeley.edu)). These scholars aimed to understand how race and racism are deeply embedded within U.S. legal systems and policies, even after the significant victories of the Civil Rights Movement (harvard.edu).
The core ideas of CRT include the understanding that race is a social construct, rather than a biological reality, meaning that racial categories are defined by societal agreements and historical power dynamics (wikipedia.org). Furthermore, CRT posits that racism is systemic, indicating it is embedded in institutions and policies, as well as being an individual prejudice (wikipedia.org). Scholars critically examine “colorblind approaches,” which advocate treating all individuals equally without regard to race (wikipedia.org). CRT scholars argue that such approaches can be problematic because they often overlook the persistent effects of historical and systemic racism, effectively perpetuating inequality by failing to address the unique challenges faced by people of color (wikipedia.org). For instance, a colorblind hiring policy might ignore decades of systemic disadvantages that have limited educational and professional opportunities for minority candidates, thereby failing to achieve true equity (wikipedia.org). Derrick Bell, a founder of CRT, contributed the concepts of “interest convergence” and “racial realism,” suggesting that Black progress often aligns with white interests and that racism is a permanent fixture in American society (temple.edu). Kimberlé Crenshaw developed “intersectionality,” which describes how overlapping social identities create distinct experiences of discrimination (berkeley.edu). Richard Delgado emphasized “storytelling” and “narrative” as crucial tools to challenge dominant legal discourses with the experiences of marginalized groups (temple.edu).
The Politicization of an Academic Idea
What began as a specialized academic framework became a prominent political flashpoint around 2020 (milwaukeeindependent.com). This politicization was greatly amplified following the murder of George Floyd in May 2020 and the widespread Black Lives Matter (BLM) protests that followed (washingtonpost.com). These events brought issues of racial injustice and systemic racism to the forefront of public consciousness, leading many to seek deeper explanations and solutions through frameworks like CRT (historynewsnetwork.org). Simultaneously, The 1619 Project, an initiative by The New York Times, aimed to reframe American history by centering the consequences of slavery (milwaukeeindependent.com). Its introduction into educational discourse fueled conservative criticisms that it promoted a divisive or unpatriotic view of American history, frequently conflating it with CRT and intensifying political opposition to these discussions in schools (historynewsnetwork.org).
President Donald Trump’s administration played a crucial role in escalating this backlash, labeling CRT as “un-American” and seeking to ban its influence in federal government agencies and training programs (milwaukeeindependent.com). Conservative figures, notably Christopher Rufo, are credited with strategically bringing the concept to public and political attention (youtube.com). Rufo, a conservative activist and senior fellow at the Manhattan Institute, explicitly aimed to redefine CRT in the public imagination as a divisive and harmful ideology (washingtonpost.com). His efforts included publishing articles, appearing on television, and advising government officials, which contributed to the drafting of legislation aimed at restricting discussions of race and racism in schools and government institutions (washingtonpost.com). Other right-wing advocacy groups, such as Moms for Liberty, also joined this effort, launching a concerted campaign against what they deem inappropriate content or ideologies in schools, further fueling the nationwide wave of “anti-CRT” legislation (washingtonpost.com).
States with Anti-CRT Legislation (2023-2024)
Approximately 18 U.S. states have enacted legislation or policies restricting the teaching of race and racism, representing about 36% of all states ((edweek.org), (edweek.org)).
A Nationwide Wave of Restrictions
Beginning in 2021, Republican lawmakers and conservative advocacy groups launched a coordinated effort to introduce “anti-CRT” or “divisive concepts” legislation across the United States (milwaukeeindependent.com). The first wave of such laws passed in Oklahoma, Tennessee, and Texas in May 2021 (milwaukeeindependent.com). Since then, approximately 18 states have passed legislation or taken other state-level actions to restrict how race and racism can be taught in public schools and universities, often targeting concepts associated with Critical Race Theory ((edweek.org), (edweek.org)). This figure represents roughly 36% of the 50 U.S. states, indicating a significant and widespread movement ((edweek.org), (edweek.org)). Furthermore, many other states have introduced similar bills or policies that did not pass, underscoring a broader push to influence curriculum content nationwide (edweek.org).
These laws typically feature similar language, prohibiting instruction that suggests an individual is inherently racist or sexist by virtue of their race or sex, bears responsibility for past actions committed by other members of their race or sex, or should experience psychological distress on account of their race or sex (milwaukeeindependent.com). A common characteristic of these legislative efforts is their often vague and undefined criteria, which creates a “chilling effect” on educators (milwaukeeindependent.com). The “chilling effect” is a legal and sociological term describing a situation where a law discourages the legitimate exercise of a legal right due to fear of repercussions (milwaukeeindependent.com). In education, it manifests as self-censorship and proactive curriculum limitation by teachers, administrators, and librarians to avoid potential legal challenges, disciplinary action, or public backlash (milwaukeeindependent.com). For example, a teacher might avoid assigning books that discuss historical racism or social justice themes, even if academically appropriate, out of concern that doing so could violate a vaguely worded anti-CRT law or provoke complaints from parents (milwaukeeindependent.com). This fear leads to a reduction in the breadth and depth of educational topics, ultimately harming students’ access to diverse perspectives (milwaukeeindependent.com). While direct job losses solely due to teaching CRT concepts are less common, the restrictive environment contributes to teacher burnout and resignations, as educators feel constrained in their ability to teach comprehensive and inclusive curricula (milwaukeeindependent.com).
South Carolina’s Proviso 1.79: Specifics and Consequences
South Carolina’s Budget Proviso 1.79, officially known as the “Prohibition Against Teaching Divisive Concepts” or similar phrasing within legislative documents, stands as a stark example of this national trend ((milwaukeeindependent.com), (herechapin.com)). It has been annually reauthorized since 2021, meaning it must be re-approved by the state legislature each year as part of the annual state budget process, rather than being a permanent law (milwaukeeindependent.com). This annual vote implies the proviso’s longevity is uncertain and subject to yearly legislative debate and political shifts (milwaukeeindependent.com). It provides a recurring opportunity for both opponents to lobby for its repeal or amendment and for supporters to ensure its continuation or expansion (milwaukeeindependent.com).
The proviso specifically prohibits the use of state funding for instruction, training, or pedagogical tools that address certain topics related to racial and gender inequalities (milwaukeeindependent.com). The prohibited concepts mirror those found in other “anti-CRT” laws, including assertions that an individual is inherently racist, sexist, or oppressive due to their race or sex, should be discriminated against because of their race or sex, or bears responsibility or psychological distress for historical actions of their racial or gender group (milwaukeeindependent.com). It also bans teaching that meritocracy or a strong work ethic are inherently racist or sexist, or were created to oppress other races (milwaukeeindependent.com). The impact has been immediate and significant: the statewide cancellation of the Advanced Placement African American Studies course code (milwaukeeindependent.com). In addition, the proviso has been used to justify the removal of books by Black authors from school libraries, notably Ibram X. Kendi’s “Stamped: Racism, Anti-Racism, and You” (milwaukeeindependent.com). Kendi’s book, co-authored with Jason Reynolds, explores the history of racist and anti-racist ideas in the United States, arguing that individuals are either perpetuating racist ideas or actively working against them (britannica.com). It is targeted because its explicit focus on systemic racism and calls for active anti-racism are characterized by critics as promoting “divisive concepts” or “white guilt,” which are prohibited under such legislative provisions (milwaukeeindependent.com). Critics also target “culturally responsive curriculums,” an approach that values and incorporates students’ diverse cultural backgrounds into learning (thescea.org). Opponents mistakenly conflate this approach with CRT, viewing its focus on culture and equity as divisive (thescea.org).
South Carolina Proviso 1.79 Legal Challenge Timeline
The NAACP LDF filed its lawsuit in February 2023, faced dismissal in September 2023, and appealed to the Fourth Circuit in November 2023 ((naacpldf.org), (naacpldf.org), (naacpldf.org)).
The Legal Battle and its Stakes
In response to these pervasive restrictions, the LDF, alongside the South Carolina State Conference of the NAACP, local educators, students, and author Ibram X. Kendi, filed a federal lawsuit challenging Budget Proviso 1.79 in February 2023 (naacpldf.org). The LDF and the South Carolina State Conference of the NAACP are legally separate entities, yet they share a common heritage and goals related to racial justice (naacpldf.org). This collaboration allows them to leverage both the LDF’s extensive legal expertise and the NAACP’s grassroots organizing and advocacy power (naacpldf.org). The plaintiffs argue that the proviso is racially discriminatory, unconstitutionally vague, and restricts the fundamental right to an honest and inclusive education about Black history and experiences (naacpldf.org). Their demands include the reinstatement of the AP African American Studies course code, the return of banned books to classrooms and libraries, and protection for teachers and librarians from censorship and fear of reprisal (naacpldf.org).
However, in September 2023, the U.S. District Court for the District of South Carolina dismissed the lawsuit (naacpldf.org). This federal trial court, where cases are initially filed and tried, asserted that the lawsuit “lacked legal merit” and “failed to demonstrate concrete harm” ((naacpldf.org), (wikipedia.org)). When a case “lacked legal merit,” it means the claims presented in the lawsuit did not have a sound legal basis or meet the necessary legal standards to proceed (wikipedia.org). Furthermore, “failed to demonstrate concrete harm” means the plaintiffs did not provide sufficient specific, tangible evidence of how the law directly and personally harmed them or their educational environment in a way that could be legally proven and remedied by the court, rather than speculating about potential future harms (wikipedia.org). The court suggested such matters should be resolved through the democratic process rather than the federal courts (naacpldf.org). When a court suggests an issue be “resolved through the democratic process,” it implies the resolution should come through legislative action, public debate, and electoral decisions, such as citizens advocating for legislative repeal or electing sympathetic officials (wikipedia.org). This approach reflects judicial restraint and the separation of powers, where policy matters are deferred to the legislative branch, which is directly accountable to the people, unless there is a clear constitutional violation (wikipedia.org).
Despite this initial setback, the LDF remains resolute. In November 2023, they filed an appeal with the Fourth Circuit Court of Appeals, reaffirming their unwavering commitment to challenging the discriminatory law (naacpldf.org). The Fourth Circuit Court of Appeals reviews decisions from federal district courts in several states, including South Carolina, to determine if legal errors occurred in the lower court’s proceedings (wikipedia.org). The legal battle over South Carolina’s Budget Proviso 1.79 is a microcosm of a larger national struggle over the narrative of American history and the role of race in society (milwaukeeindependent.com). The LDF’s appeal underscores the ongoing fight to protect the right of students to learn and teachers to educate without fear of censorship, highlighting the critical importance of defending comprehensive and honest education about race, racism, and Black history (milwaukeeindependent.com). Such an education is essential not only for preparing students for their futures but also for enabling their active and informed participation in a democratic society (milwaukeeindependent.com).
Core Tenets of Critical Race Theory
- Race as a Social Construct: Categories of race are not based on biological differences but on social agreements and historical power dynamics.
- Systemic Racism: Racism is embedded within U.S. legal systems and policies, not merely individual prejudice.
- Critique of Colorblindness: “Colorblind” approaches can perpetuate inequality by ignoring the persistent effects of historical and systemic racism.
Critical Race Theory explores how race and racism are embedded in U.S. legal systems, asserting that race is a social construct and racism is systemic ((wikipedia.org), (temple.edu)).
About the Author
Darius Spearman is a professor of Black Studies at San Diego City College, where he has been teaching for over 20 years. He is the founder of African Elements, a media platform dedicated to providing educational resources on the history and culture of the African diaspora. Through his work, Spearman aims to empower and educate by bringing historical context to contemporary issues affecting the Black community.
