House Bill 1218 by Rep. Mark Lowery (R-Maumelle) earns the dubious distinction of being one of the worst pieces of legislation at the Arkansas Capitol this year. This modern-day-book-burning law would cut funding for any public schools and universities that did their job of making students think about hard things.
Specifically, HB 1218 would prohibit any public funding of schools, colleges and universities that “allow” classes, activities, or events that “promote” social justice for a race, gender, religion or class.
If our legislators are willing to put partisanship aside and vote based on reason and logic, this bill should quickly and easily fail in committee. Here’s why:
HB 1218 is unconstitutional. The bill prohibits teachers from “promoting” social justice but allows them to do exactly the opposite. They could disparage, discourage or criticize the concept of racial justice or gender equality, but they could not present these ideas as positive or valuable. While I am sure that many of the bill’s sponsors would approve of this outcome, it is not constitutionally acceptable in a society that values and protects the free expression of ideas.
In Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the Supreme Court explained:
When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
Here, the legislation is aimed at silencing a specific ideology or opinion and promoting a competing ideology or opinion. Excuse the pun, but that is textbook viewpoint discrimination.
It would be foolish for our state to pass legislation that it knows is unconstitutional. If this bill becomes law, school districts, colleges and universities will be forced to allocate funds to seek judicial relief, meaning that Arkansas taxpayers would be paying for both sides of a protracted and expensive court battle. Are our lawmakers really willing to waste so much of our time and money to pass a blatantly unconstitutional bill just so they can score a few political points with their base?
Come on, Arkansas, we have more common sense than that, right?
HB 1218 is unnecessary. The bill’s sponsors argue that we must act now to prevent schools from indoctrinating children with left-wing propaganda. While I completely disagree that “promoting social justice” is an inherently bad or dangerous idea, this bill should fail for a far simpler reason: We don’t need it. Local school boards are a much more effective way to supervise and regulate what is taught in our public schools. For generations, local control of public education has been a cornerstone of our democracy. Local school boards, which are much closer to the voters and much more familiar with the day-to-day workings of our schools, are already capable of handling difficult and controversial issues at a local level.
Lowery has repeatedly cited an activity called a “privilege walk” as an example of why this new state law is necessary. Assuming for a moment that this activity is actually occurring in Arkansas schools (a proposition for which Lowery has provided no evidence), Lowery has failed to demonstrate that local school boards are unable or unwilling to listen to their constituents’ concerns on this issue. In fact, he hasn’t even claimed that he tried to address this so-called problem by first talking to the teacher(s) involved, the principal, the superintendent and the school board before asking his colleagues to pass a sweeping piece of legislation that will drastically change Arkansas education law.
HB 1218 is unpopular. One week ago, I created a tool that allows people to quickly and easily email all the members of the House Education Committee and Governor Hutchinson. This tool is not a form letter; it simply provides a blank box for each person to write their own message about why they are asking their lawmakers to vote NO on the bill. To date, more than 1,500 people have used the tool to express their opposition to HB 1218. In addition, numerous representatives and senators have publicly acknowledged that they are receiving an overwhelming number of calls and emails in opposition to Lowery’s bill. As a Little Rock School Board member, I can confirm that this is an issue that many of my constituents have reached out to me about. While I understand that the bill’s sponsors are appealing to their base and that some voters do agree with the bill, the avalanche of constituent calls and emails opposing it should give everyone pause.
HB 1218 would cost taxpayers millions of dollars. Whether it is an intended outcome or not, the practical effect of this bill would be to require school districts, colleges and universities across the state to completely revamp their curricula, purchase new textbooks and academic programs, and retrain their teachers on a massive scale. Let me be clear, our public schools and institutions of higher education are not currently devoting all of our resources to promoting social justice, but we would still have to respond to this bill with expensive and time-consuming changes simply because the bill is written so broadly. It would outlaw materials and lessons that almost all Arkansans would consider noncontroversial and perfectly appropriate.
For example, my 7-year-old daughter’s literacy curriculum, which our district recently adopted in response to statewide legislation regarding the science of reading, contains a unit on the Civil Rights Movement. The other day, I watched as her teacher, via Zoom, read Brad Meltzer’s best-selling children’s book, “I Am Martin Luther King Jr.,” to the class, and with anger and frustration I realized that even a children’s picture book about Dr. King would likely be banned under this proposed law. In the book, Meltzer quotes Dr. King’s famous speeches, discusses specific examples of racism, and illustrates to young readers that “the surest way to change the world is to stand together.” That sure sounds like social justice to me.
While the bill claims to allow the “accurate” teaching of history, I just cannot figure out how teachers are supposed to teach about things like the Civil Rights Movement without promoting social justice? This bill is far too vague to provide real guidance. Unfortunately, in order to avoid a devastating loss of state funding, most schools would likely err on the side of caution and end up heavily censoring their curricula and materials in order to comply with the law. That censorship would be both academically harmful and extremely expensive.
HB 1218 would hinder college recruitment, further the “brain drain” out of Arkansas, and negatively impact economic development. You know that unfortunate but pervasive stereotype of Arkansans as being backward, dumb (or at least uneducated), bigoted and lazy? This bill would do more to perpetuate that offensive and inaccurate depiction of our state than anything since the nation was shocked and angered by images of white mobs taunting and threatening nine Black children who were attempting to enter Little Rock Central High School in 1957.
Arkansas’s public-relations problem has significant economic impacts on our state. As the Encyclopedia of Arkansas illustrates in its fascinating analysis of “Arkansas’s Image,” no new industrial projects opened in Pulaski County for at least a full year after the integration crisis, and prominent national leaders like Winthrop Rockefeller withdrew from roles focused on recruiting new businesses to Arkansas. Today, the state of Arkansas, local municipalities and our colleges and universities all spend a lot of money trying to rehabilitate the backwoods redneck image that so many people still unfortunately associate with our state. With this single piece of small-minded legislation, Lowery and his colleagues could undo much of that work.
Today, virtually all of our colleges and universities offer courses, programs or activities related to racial justice, women’s rights, LGBTQ equality and other topics that would be prohibited under this bill. To be clear, no one is requiring Arkansas students to sign up for these classes or participate in these campus activities, but if the legislature prohibits these programs, it will significantly hinder our state’s ability to retain top students and compete on a national stage. How do you teach social work, public health, political science or even law without touching on issues of inequality, income disparity, political agency and discrimination? Passing HB 1218 would almost certainly mean that Arkansas loses ground in the competitive world of higher education.
HB 1218 is morally offensive. Last but certainly not least, HB 1218 is a bad bill because it is simply and fundamentally wrong. It is bad public policy for the state to try to promote “unity” by silencing and punishing people who advocate for change. The theory behind this bill is that “activists” who promote social justice are simply stirring the pot and sowing division rather than working toward solutions to real and urgent problems. This worldview ignores the tangible evidence of inequity all around us in favor of establishing an artificial, forced sort of “unity” that explicitly and unabashedly perpetuates the status quo — disparities, discrimination and all.
Finally, while I am much more concerned about the concrete impacts this legislation would have across the state than I am about the specific motivations and intentions of its lead sponsor, I must also mention the deeply unsettling statements that Lowery has given about this bill. In an interview with reporter Marine Glisovic, Lowery specified that the intention behind the bill is, “so that students . . . are not subjected to humiliation” by activities aimed at illustrating privilege or inequality. This approach prioritizes the feelings of white children above all else. Are our children so delicate that our lawmakers must go to such extremes and do great harm to our state just so that white children never have to feel the least bit uncomfortable? Weren’t many of the same lawmakers who back this bill recently critical of liberal “snowflakes” who demand “safe spaces” on our college and university campuses? Sadly, when minority students seek out a learning environment free from harassment and discrimination, they are ridiculed as overly sensitive “snowflakes,” but when privileged white students are allegedly “humiliated” by having to discuss difficult and controversial issues like race, gender, and income inequality, our leaders rush to change state law to protect their feelings.
Under this bill, Arkansas public schools may very well be prohibited from assigning classic pieces of literature by Black authors like Zora Neal Hurston and Ralph Ellison because these books arguably “promote social justice” based on race, but Black children who feel uncomfortable reading the antiquated and offensive racial language in classics like “Huckleberry Finn” would just have to suck it up and persevere in the name of academic integrity.
All due respect, Rep. Lowery, but who’s the “snowflake” now?
Ali Noland is an attorney, mother and member of the Little Rock School District Board of Education. This piece reflects her own personal views, and not those of the school board or LRSD.
