State Bans on ‘Divisive Concepts’ in Public Higher Education: Implications for Population Health

As of April 2024, approximately 250 local, state, and federal governmental entities have introduced bills, executive orders, and other policies that restrict the content of teaching and trainings related to race and sex in public schools. While most of the enacted laws focus on K-12 settings, several states have extended prohibitions to public institutions of higher education. Currently, 10 Republican-majority state legislatures have passed bills constraining the use of specified “divisive concepts” in teaching and mandatory trainings for students, faculty, and staff in public higher education settings (see Table). In their current law-making sessions, several other states also are considering divisive concepts and related anti-diversity bills that would affect higher education. 

In most states, divisive concepts laws prohibit classroom teaching and mandatory trainings that require or compel people to accept or “personally affirm” named concepts as factual rather than ideological. However, some legislation appears to prohibit even the discussion of named divisive concepts in required coursework and trainings in public colleges and universities. Furthermore, in 4 states, the prohibitions against divisive concepts extend to all public employees, including those in government agencies.

This legislative intrusion into how public institutions attempt to teach about social inequality—including by race and sex—is alarming for multiple reasons related to the public good. Particularly concerning is the potential impact of these policies on the education and effectiveness of population health professionals. Population health is the science of understanding and practice of addressing patterns of and disparities in health, illness, and injury within populations including by socioeconomic status, race, ethnicity, sex, gender, geography, and other social factors. Research has firmly established that achieving improvements in population health outcomes requires reducing social inequality and disparities in health-related risks, exposures, and outcomes by social factors. Anyone pursuing an education or career related to health must understand the multi-level drivers or determinants of social patterns in health and why significant health inequities still persist in the United States despite great advances in biomedical science and health care. Divisive concepts laws hinder public education in myriad disciplines and professional fields related to population health, including the social sciences, public health sciences, public policy, law, social work, medicine, nursing, health care administration, and more.  

Thus far, state statutes affecting higher education have defined divisive concepts in sets ranging from 2 to 16 offending concepts. Some of the concepts are red herrings that appear to stem from knee-jerk fears of reverse discrimination and deep misunderstandings of what is actually being taught on college campuses, including the tenets of critical race theory. For example, the following divisive concepts are banned in all 10 states with laws affecting higher education:

One race or sex is inherently superior or inferior to another race or sex.

That individuals should be adversely treated on the basis of their sex, race, ethnicity, religion, or national origin.

Nonetheless, many of the specified divisive concepts are related to models and frameworks that are common in the social sciences and have a strong grounding in historical facts and research evidence. Targeted as “divisive” in some states is the perspective that both individual and community-level advantages/privileges and disadvantages are patterned or “structured” by race, ethnicity, sex, gender, and other social factors. In addition, some prohibited concepts are related to models of structural disadvantage or systemic racism/sexism that elucidate how discriminatory laws and practices from the past can remain embodied in institutions, social systems, policy, and law. Examples include:   

A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.  (Florida, North Dakota, Tennessee)

That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist.  (Iowa)

Although Florida’s STOP WOKE Act, with its 8 divisive concepts, is currently enjoined in public higher educational settings, the legislature recently passed a new law (SB 266) prohibiting courses that teach “identity politics” or “theories of systemic racism, sexism, oppression, and privilege” in the state university system’s undergraduate core curriculum (Table). 

There is a deep conceptual and empirical evidence base in support of the relationship between socially-structured disadvantage (including poverty) and health care/health status outcomes, along with evidence that institutional and structural discrimination do exist and have negative effects on health. It is ironic that divisive concept laws themselves are excellent examples of structural racism and sexism: using the power of law to restrict within public institutions evidence-based and historically accurate teaching, training, and research regarding institutional, social system, and policy drivers of racial and sex-based inequality.  

As another example, 6 states (Alabama, Florida, Iowa, North Dakota, South Dakota, Tennessee) define critiques of meritocracy as prohibitively divisive:

Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. 

This restricts sophisticated teaching about the limitations of meritocracy as an approach to equality in society, including teaching about the evidence that “hard work,” while important, cannot overcome the fact that many educational and economic opportunities, resources, and advantages are not equally available to everyone.

A final example is that 6 states (Alabama, Florida, Iowa, New Hampshire, Oklahoma, Tennessee) include a divisive concept related to unconscious bias in their law, such as:

A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

There is clear and convincing research evidence regarding the phenomenon of unconscious bias and related issues of stereotyping and statistical discrimination. Admittedly, there is mixed evidence regarding the effectiveness of unconscious bias trainings in addressing biases that may exist within individuals when they are making decisions (e.g., employment-related decisions regarding hiring/promotion or clinician decisions in health care provision.) Nonetheless, legally labeling the phenomenon of unconscious bias as a divisive concept ignores scientific evidence that it does exist and is one important way in which racism and sexism implicitly function in society. 

There are many serious concerns regarding this type of legislative intrusion into the teaching, curricula, and programs offered at public institutions, particularly for the large number of higher education degree programs and trainings related to population health and health inequities. Our main concerns are that divisive concept laws:

• Restrict the ways in which myriad disciplines approach the understanding of the causes, consequences, and potential interventions addressing the facts of social inequality of all types, including health inequality.
• Ignore the fact that racism and sexism are produced and replicated beyond interpersonal acts of discrimination, working at multiple levels in society. 
• Are failing to prepare students for the real work of multiple fields in both the private and public sectors where understanding causes, consequences, and potential solutions to complex social problems is fundamental.
• Could jeopardize the quality and even accreditation of many degree programs in public institutions because of the “dumbing down” or elimination of key required curricular components.   

Divisive concept laws are hindering teaching and training in dozens of schools/colleges of public health, social work, medicine, nursing, public policy, law, environmental studies, and urban planning, not to mention hundreds of degree programs in the social sciences and humanities. These laws ignore the reality that adequately preparing people for work related to the physical and mental health of individuals and communities must include the irrefutable fact that social inequality by race, ethnicity, sex, and other social factors exists and permeates society in myriad ways at multiple levels, including in ways that have negative effects on health and health care.

While some may believe that divisive concepts laws are written poorly, lack clarity, and thus have no teeth, concerns about chilling effects cannot be underestimated. When the divisive concepts are vague and what may/may not be taught about them is unclear, many professors, staff, and general counsel offices are going to err on the side of caution. Several laws require reporting systems for people to tattle on perceived offenders, and the stakes are high. While reported offenders will not suffer individual consequences, the threatened penalty is the withholding or restricting of funds in state budget allocations to the educational institution.

Divisive concepts legislation is part of a broader state policy playbook being advocated “to reverse the illiberal takeover of higher education.” Given the ways in which these laws are written, it remains possible to teach about prohibited concepts in several states if students are not required to agree with the concept. And, with nods to academic freedom, these laws do not explicitly restrict research on structural drivers of social and racial inequality in general and health disparities specifically. Nonetheless, the chilling effects of these types of laws on crucial research, along with teaching, are likely to be profound. 

The outcry from the population health community needs to be loud and clear: the concepts of structural determinants of health, systemic sexism and racism, structural advantage/disadvantage, unconscious bias, and limitations in meritocracies are not “woke ideologies,” but rather evidence-based concepts that are fundamental to understanding both achievements and ongoing challenges in population health and well-being. It is essential for the health of the nation that health care and social service providers, public health professionals, policy analysts, and public servants understand that health is produced from “cells to society” and that the health workforce is equipped to create new ways of improving population health through upstream institutional, community-based, and public policy reforms.

Table: Enacted State Legislation Regarding Divisive Concepts in Higher Education As April 1, 2024

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