Two laws passed by the 87th Legislature (one during the regular session and one during the second special session) affect how teachers can teach civics and history and discuss current, controversial subjects with their students. These new education laws—House Bill (HB) 3979, which went into effect Sept. 1, and Senate Bill (SB) 3, which will supersede HB 3979 Dec. 2—commonly (and somewhat controversially) are referred to as the “critical race theory” (CRT) bills. Beyond prohibitions on concepts that have come to be associated with CRT in today’s political climate, however, these two bills have several significant, far-reaching provisions. 

Curriculum-wise, the two bills direct the State Board of Education (SBOE) to add certain topics to the Texas Essential Knowledge and Skills (TEKS) for civics classes. Because this is a directive to the SBOE and any changes must go through the SBOE rule-making process, this is not anything teachers need to worry about right now. SB 3 also establishes an eventual civics training program for administrators and civics teachers to be developed by the Texas Education Agency no later than the 2025-26 school year.   

The other three provisions of HB 3979 and SB 3 are, however, of immediate concern.   

Prohibition on class credit for student advocacy  

Starting with the most straightforward provision, HB 3979—which is, again, effective through Dec. 2, 2021, approximately two weeks after the publication of this issue of ATPE News—prohibits a teacher from assigning, requiring, or giving class credit or extra credit for the common practice in government or social studies classes of having students write letters to legislators or other government officials. SB 3 largely eliminates this prohibition, as long as the teacher does not influence the student’s position. Effective Dec. 2,  

SB 3 provides: “Nothing in this section may be construed as prohibiting a teacher employed by a school district or open-enrollment charter school from directing a classroom activity that involves students communicating with an elected official so long as the district, school, or teacher does not influence the content of a student’s communication.” 

Both bills prohibit a teacher from assigning or giving credit for a student’s “… participation in any internship, practicum, or similar activity including social or public policy advocacy.” SB 3 does carve out an exception for “… community charitable projects, such as building community gardens, volunteering at local food banks, or other service projects.” So, now and in the future, no assignment or credit is permitted for a student’s involvement in a social interest group with a political purpose, but after Dec. 2, it is likely acceptable if the organization does not have an overtly political or advocacy purpose. Of course, teachers should always consult with their administration prior to setting up credit for such a program, just to be on the safe side.    

Description of how a teacher must discuss controversial topics in class   

A teacher’s discussion of controversial topics with students was an area of great concern under HB 3979. The bill states a teacher “… cannot be compelled to discuss a particular current event or widely debated and currently controversial issue of public policy or social affairs.” But a teacher who chooses to discuss such a topic “… shall, to the best of the teacher’s ability, strive to explore the topic from diverse and contending perspectives without giving deference to any one perspective.” This means the teacher is supposed to present all sides equally, without taking a particular side. As many have pointed out, this can lead to serious potential issues. For instance, the events of Jan. 6 are certainly an area of controversy. HB 3979 arguably requires teachers to give equal deference to the proposition that a civil war is needed to bring the US to where it should be—that is one perspective.  

Fortunately, SB 3 improved the legal requirement on teachers related to discussion of controversial topics. SB 3 continues HB 3979’s provision that a teacher “… cannot be compelled to discuss a particular current event or widely debated and currently controversial issue of public policy or social affairs.” But it significantly changes the requirement for what a teacher must do if they choose to discuss a controversial topic, stating that a teacher who chooses to discuss such a topic “… shall explore that topic objectively and in a manner free from political bias …” 

The simple requirement that a teacher be “objective” and free from “political bias” largely eliminates the HB 3979 requirement that a teacher give equal weight to all sides in any controversy. For instance, it is clear a biology teacher would not need to give “equal deference” to evolution and creationism, as was arguably required by HB 3979. Teachers should still be aware of their community standards, as what is simply “truth” in one community can be viewed as “political bias” in another. 

In October, in a widely publicized instance, a North Texas administrator was recorded advising educators that if they had a book related to the Holocaust in their classroom library, they had to include a book offering “opposing views.” The idea of teaching “opposing views” to the Holocaust was, of course, widely decried as horrific. And it is important to note that HB 3979 is silent on the topic of classroom libraries. This incident, however, was a grave reminder of the dangers of bills like HB 3979, which clearly have many unintended consequences as educators attempt to follow them.   

Prohibition on teaching “critical race theory”   

Neither HB 3979 nor SB 3 include the term “critical race theory” (CRT)—and many academics and legislators who opposed these bills argue that CRT is a complex theory that has been distilled into something it is not. Regardless of how you do define CRT, both HB 3979 and SB 3 prohibit certain activities that have come to be commonly associated with the idea in current discourse. Both laws state a teacher cannot require or make a part of any course the concepts that:   

• One race is inherently superior to another.  
• An individual is, based on their race or sex, inherently superior.  
• An individual, based on race or sex, is consciously or unconsciously racist, sexist, or oppressive. 
• An individual should be discriminated against, based on their race or sex.  
• An individual because of their race or sex bears responsibility for actions committed in the past. 
• Meritocracy or appreciation of work ethic were concepts created to oppress others.  
• Slavery is anything other than a deviation from American ideals. 

Both laws also prohibit any teaching that would require a knowledge of the 1619 Project, a controversial initiative that proposed the foundation of the United States began with the introduction of slavery.  

There is one difference between SB 3 and HB 3979. HB 3979 included a prohibition on any instruction that “… an individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race or sex.” This is not included in SB 3. Although certainly no one should feel bad because of their race, it might be supposed this was simply too subjective of a standard. 

Prohibition on disciplining students for discussing such concepts  

Teachers should also know that both laws prohibit disciplining a student for discussing these concepts in a reasonable manner.  

As you can see, these laws go beyond civics classes and even beyond history and government classes. The requirements established by both laws apply to all teachers and educators, regardless of their subject/specialty. Fortunately, the changes the Legislature did make to the law in SB 3 are helpful to teachers and should make it easier for them to negotiate the real-world situations in which they find themselves. Finally, these new laws are a reminder that communicating with your lawmakers about the practical impact of their actions is always worthwhile, and ATPE members may log in to Advocacy Central at atpe.org/advocacy-central to easily reach out to their legislators.   
 

The legal information provided here is accurate as of the date of publication. It is provided here is for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.