The Education Trust in Tennessee Issues Statement on Recent TDOE Emergency Rules Regarding “Prohibited Concepts in Instruction”

From opposing the hurried passage of HB580 and SB623 in the final days of the 2021 legislative session and the subsequent signature into law as Public Chapter 493 by Governor Lee in late May to the submission of public comment in response to the draft rules released by the Tennessee Department of Education (the Department) this summer, the Education Trust in Tennessee has closely followed and remained engaged on how this harmful policy and its implementation effectively promotes historical censorship and could negatively impact our state’s LEAs, schools, educators, and students. 

Upon our review of the corresponding emergency rules recently released by the Department, effective November 8, 2021, through May 7, 2022, we are pleased that the Department added language to Section .04(c) as urged in our public comment to prohibit retaliation against those filing an appeal within the complaint and investigation process. However, we believe the rules still fall short of providing ample guidance and clarity to educators and LEA staff on what can and cannot be taught within our state’s classrooms, a dangerous omission given the vague and convoluted language governing the prohibited concepts and related exemptions described in Sections (1) and (2) of 0520-12-04-.03. Further, extending the eligible complaint period from 30 days to 45 days unnecessarily broadens the window of time for accusations to be made, adding more than an additional two weeks for complainants to potentially forget the specific details of an alleged violation or be otherwise influenced by outside parties. Finally, the emergency rules’ revisions of Section .08 (7), the new, percentage-based penalty structure for violations of the policy, are redesigned in a manner that presents serious equity concerns. The enforceable penalty language as revised would unfairly withhold significantly more of the desperately-needed funds from our state’s larger, more diverse LEAs, a move that could widen existing inequities and disparities amongst student groups within Tennessee’s public education system.

The Education Trust in Tennessee remains deeply alarmed by the dangers of Public Chapter 493, the legislation underlying this rule. The lack of clarity around implementation, onerous investigative and enforcement processes, and significant funding penalties included in the accompanying emergency rules only exacerbate the level of potential harm for our students and educators, especially students and educators of color. We believe these punitive actions are not conducive to the success of Tennessee’s LEAs, schools, educators, and most importantly, our students. While we express our disappointment with the final rules’ language, we also express our renewed commitment to diligently monitoring the implementation, enforcement, and community impact of this policy. We plan to remain engaged with the Department during this critical inaugural phase alongside our concerned advocacy partners, educators, parents, and students across the state. As important lessons are learned during this first school year of enforcement toward the goal of establishing final rules by May 2022, it is our hope that the Department will keep transparency, clarity, and equity top of mind, and ensure that diverse stakeholder engagement and community input on the effects of this policy are central components in developing further rule language or taking any additional action.