Hb 1084: Protect Students First Act

• Publication year: 2022

HB 1084: Protect Students First Act

Rebecca Rhym

rrhym1@student.gsu.edu

Dori Butler

dbutler38@student.gsu.edu

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EDUCATION

General Provisions: Amend Title 20 of the Official Code of Georgia Annotated, Relating to Education, so as to Prevent the Use of and Reliance upon Curricula or Training Programs which Advocate for Certain Concepts, with Exceptions; Provide for Such Exceptions; Require Local Boards of Education, Local School Superintendents, and the Governing Bodies of Charter Schools to Prohibit Discrimination on the Basis of Race; Require that Curricula and Training Programs Shall Encourage Such Employees Not to Judge Others Based on Race; Provide for Statutory Construction; Provide for Complaint Resolution Policies and Procedures; Provide for Promulgation of a Model Policy by the State Board of Education; Provide for Guidance to Schools and Local School Systems by the Department of Education; Provide for a Process by which Certain Individuals Shall Have Access to Certain Records; Provide for Penalties; Prohibit Certain Waivers; Prohibit Basing Certification and Classification of Certain Professional Personnel upon Completion of Training Programs which Advocate for Certain Concepts; Prohibit Certain Performance Standards and the Code of Ethics for Educators to Require Completion of Training Programs which Advocate for Certain Concepts; Provide for Definitions; Provide for a Short Title; Provide for Construction; Provide that No High School that Receives QBE Funds Shall Participate in, Sponsor, or Provide Coaching Staff for Interscholastic Sports Events which are Conducted Under the Authority of, Conducted Under the Rules of, or Scheduled by any Athletic Association unless Such Athletic Association Provides for an Executive Oversight Committee; Provide for the Appointment, Membership, Selection of Officers, Meetings, Duties, and Authorities of Such Executive Oversight Committee; Provide for Reimbursement for Such Executive Oversight Committee; Provide for Noncompliant High Schools to Forfeit QBE Funding; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 20-1-11 (new), 20-2-200 (amended), 20-2-316 (amended),

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20-2-739 (amended), 20-2-984 (amended), 20-2-984.1 (amended)

Bill Number: HB 1084

Act Number: 719

Georgia Laws: 2022 Ga. Laws 136

Effective Date: July 1, 2022

Summary: The Act prohibits local school systems, charter schools, and their employees from teaching or advocating for divisive concepts as defined in the Act. Training programs for teacher certification by the Professional Standards Commission may not advocate for such divisive concepts. The Act also implements a complaint resolution policy for aggrieved parent(s), students, or school employees that allows them to appeal decisions to the State Board of Education, which can ultimately require local school systems to adopt a corrective action plan upon a finding of a violation of the Act. Local school systems that fail to adopt the corrective action plan are subject to suspension of one or more waivers. Finally, the Act requires all high schools receiving Quality Basic Education (QBE) funding for interscholastic sports events to appoint an executive oversight committee. Among the authority and duties of the committee is the power to prohibit transgender females from participating in sports events designated for female students. Violators of this provision are subject to forfeiture of QBE funding.

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History

Divisive Concepts

The terms "critical race theory" and "divisive concepts" are often used interchangeably, but they are distinct theories. Critical race theory is a social theory that originated in the 1980s that studies how race has created various structural social hierarchies.¹ Divisive concepts are the generalizations that simplify the hierarchies into broad statements.² These terms achieved modern notoriety in September 2020 when then President Donald Trump signed Executive Order 13950 (the Order), which prohibited the use of divisive concepts by federal agencies, contractors, and grant recipients.³ The Order defined divisive concepts as follows:

(1) [O]ne race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual's moral character is necessarily determined by his or her race or sex; (7) an

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individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term . . . also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.⁴

The Order defined "race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex."⁵ Finally, the Order defined "race or sex scapegoating" as "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex," and includes "any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."⁶

Five days before issuing the order, then President Trump gave a speech at the White House Conference on American History denouncing critical race theory as "toxic propaganda" and "ideological poison" that would "destroy our country."⁷ Within months of the Order, twenty states introduced similar bills, and as of September 2022, forty-two states had adopted or introduced similar legislation or policies, despite President Joe Biden's revocation of the Order on January 20, 2021.⁸

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Proponents of these bills point to the rise in classroom discussions surrounding race and police brutality after George Floyd's murder in Minneapolis on May 25, 2020, and the resulting nationwide protests.⁹ Classroom discussions about divisive concepts, such as race, sparked a pushback from Conservatives, arguing that asking White students "to reflect on their privilege [was] racist and divisive."¹⁰

Idaho was one of the first states to pass a bill to prohibit teaching divisive concepts.¹¹ The Idaho law is broader than the Order in that it prohibits discrimination on the basis of "sex, race, ethnicity, religion, color, [or] national origin."¹² Its delineation of prohibited acts, however, is narrower, only including provisions on inherent superiority, adverse treatment, and individual responsibility for past acts.¹³ Shortly after Idaho passed its bill, several states across the country, including Florida, Iowa, Kentucky, and Mississippi, followed suit.¹⁴ Similar bills were passed by the legislatures in Kansas, North Carolina, and Wisconsin but were vetoed by the respective states' Governors.¹⁵ Finally, some states have adopted laws pursuant to state executive orders (South Dakota and Virginia) or attorney general opinions (Montana).¹⁶ Regardless, Georgia was one state of many to successfully pass an act prohibiting educators from "espousing personal political beliefs" regarding specified "divisive concepts."¹⁷

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In Georgia, House Bill (HB) 1084 was authored by Representative Will Wade (R-9th), who repeatedly cited a desire to "keep the children of this state at the center of this conversation."¹⁸ The bill's driving force was to protect students from "far, radical ideologies that the media promulgates from . . . the loudest and sometimes the most unthoughtful sides of our parties."¹⁹ Though Senator Bo Hatchett (R-50th) authored and introduced a similar bill—Senate Bill (SB) 377—that passed in the Senate one week after HB 1084 passed in the House, the authors of both bills decided to move forward with only HB 1084.²⁰

Transgender Athlete Bans

In 2019, only two states had prohibited transgender women from competing in women's sports.²¹ In 2021, "[o]ver 75 anti-trans laws were introduced."²² As of October 2022, eighteen states have banned transgender athletes from competing in women's sports.²³ Most states that have passed such legislation have instituted outright bans, naming the respective Acts some variation of "Fairness in Women's Sports."²⁴ Although the Governors of Kentucky, Indiana, and Utah vetoed the bills that reached their desks, the legislatures in all three states overrode the vetoes.²⁵

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Unlike other states' legislatures, the Georgia General Assembly did not institute an outright ban on transgender athletes participating in interscholastic sports.²⁶ Although Senator Marty Harbin (R-16th) introduced SB 435 earlier in the legislative session, which would have done just that, the bill failed in the House after passing the Senate.²⁷ With a last minute amendment introduced by Representative Wade, however, HB 1084 created an executive oversight committee to monitor high school athletic associations.²⁸ The amendment was never debated on the floor, and many lawmakers "didn't have copies of the text and didn't know what they were voting on."²⁹ Senator Hatchett explained that including the trans-athlete provision in HB 1084 allowed athletic associations, including the Georgia High School Association (GHSA), to make determinations about...