David French, Kmele Foster, and Thomas Chatterton Williams Misrepresent a Key Aspect of the Laws Banning Critical Race Theory
I am a big fan of David French, Kmele Foster, and Thomas Chatterton Williams. Today, those gentlemen, in addition to someone named Jason Stanley (with whom I am unfamiliar) have a piece in the New York Times titled Anti-Critical Race Theory Laws Are Un-American.
They make some good points in the piece, and I have been dubious about the laws due to the imprecision of some of the language they contain. For example, French, Foster, Williams, and Stanley identify this flaw in the Tennessee law:
Because these laws often aim to protecting the feelings of hypothetical children, they are dangerously imprecise. State governments exercise a high degree of lawful control over K-12 curriculum. But broad, vague laws violate due process and fundamental fairness because they don’t give the teachers fair warning of what’s prohibited. For example, the Tennessee statute prohibits a public school from including in a course of instruction any “concept” that promotes “division between, or resentment of” a “creed.” Would a teacher be violating the law if they express the opinion that the creeds of Stalinism or Nazism were evil?
I think the Tennessee lawmakers intended the use of the word “creed” to apply to religious beliefs, but it has another definition and is ambiguous. Here, the authors make a good point, and this is but one example of many.
That said, I think French, Foster, Williams, and Stanley run off the rails when they talk about the laws’ provisions relating to making children feel guilty for being white. Here is what they say:
The laws differ in some respects but generally agree on blocking any teaching that would lead students to feel “discomfort, guilt or anguish” because of one’s race or ancestry, as well as restricting teaching that subsequent generations have any kind of historical responsibility for actions of previous generations. They attempt various carve outs for the “impartial teaching” of the history of oppression of groups. But it’s hard to see how these attempts are at all consistent with demands to avoid discomfort. These measures would, by way of comparison, make Germany’s uncompromising and successful approach to teaching about the Holocaust illegal, as part of its goal is to infuse them with some sense of the weight of the past, and (famously) lead many German students to feel “anguish” about their ancestry.
Indeed, the very act of learning history in a free and multiethnic society is inescapably fraught. Any accurate teaching of any country’s history could make some of its citizens feel uncomfortable (or even guilty) about the past. To deny this necessary consequence of education is, to quote W.E.B. Du Bois, to transform “history into propaganda.”
(Italics are theirs. Bold emphasis is mine.)
If French, Foster, Williams, and Stanley were accurately characterizing the laws, I would be in agreement with them here. Our kids simply must be taught the history of slavery and Jim Crow, just like German kids need to be taught about the Holocaust. No sane person disagrees. And an accurate account of that history of governmental oppression of one race no doubt “could” and likely “would” cause many kids to feel anguish. Banning laws that “could” or “would” cause kids such anguish cannot possibly stand.
Here’s the thing, though: that’s not what the laws say. Instead, they make a very important distinction by banning teachers from teaching kids that individuals “should” (not could, not would, but should) feel anguish on account of their race or sex. In other words, the laws target the project of some anti-racists to make white people feel guilty simply because of the color of their skin.
Here is the relevant language from Texas’s law, for example:
No teacher, administrator, or other employee in any state agency, school district, campus, open-enrollment charter school, or school administration shall shall [sic] require, or make part of a course the following concepts: (1) one race or sex is inherently superior to another race or sex; (2) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (3) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (4) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (5) an individual’s moral character is necessarily determined by his or her race or sex; (6) an 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; (7) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (8) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a members [sic] of a particular race to oppress members of another race.
All emphasis there is mine.
It is an uncomfortable fact that many so-called “anti-racists” want all white people, including kids, to believe that they should feel guilt simply due to the color of their skin. The extraordinarily famous and wealthy “anti-racist” author Robin DiAngelo tells white people that all white people are racist. All over the country, radical (and mostly white) progressives are leading other white people in struggle sessions where whites confess their guilt for the heinous sin of being clothed in white skin.
Is this rampant insanity spreading to the classroom? There are hints of it happening in the places you would expect, but it hardly seems to be an epidemic, especially in the red states where these laws are being passed. That said, crazy anecdotes are not difficult to find. You can understand why people who oppose this kind of nonsense don’t want it taught to their kids.
Such poisonous teaching is quite different from teaching subjects (like slavery) that could or even would make kids feel anguish at what members of their race have done. But the purpose of teaching kids about slavery and Jim Crow is to provide kids with an accurate picture of history . . . not to shame them for having the same white skin that (most) oppressors from the past also had. In my judgment, absolutely nothing positive comes from a program of instruction that intends as one of its goals to make children feel shame or anguish because of their skin color. As far as I know, German teachers are not trying to make German kids feel bad for the offense of being German. If they are, that’s wrong and should not happen.
What about the free speech angle? As a matter of pure constitutional law, lawmakers have greater authority to dictate K-12 curricula than to dictate the content of university instruction, which has much stronger free-speech protections. The authors implicitly recognize this, without openly admitting it, in this passage:
Other laws appear to potentially ban even expression as benign as support for affirmative action, but it’s far from clear. In fact, shortly after Texas passed its purported ban on critical race theory, the Texas Public Policy Foundation, a conservative think tank, published a list of words and concepts that help “identify critical race theory in the classroom.” The list included terms such as “social justice,” “colonialism” and “identity.” Applying these same standards to colleges or private institutions would be flatly unconstitutional.
Placing to one side whether affirmative action is “benign” — which depends heavily on what that term is used to mean — this passage implicitly acknowledges that certain rules that would not fly as applied to university professors can pass constitutional muster when applied to K-12 curricula.
Ultimately, I am disappointed by this piece — and not just because it inaccurately characterizes an important provision of the laws it purports to critique. I am also disappointed because I would actually like to know how French, Foster, and Williams feel about the actual concept banned by these laws: teaching children that they should feel anguish because they are white. That would be interesting to read. Unfortunately, I was deprived of that far more interesting discussion, in favor of an easy-to-defend opinion (hey, sometimes you gotta teach kids things that bother them!) that derives its convincing force in part from strawmanning the laws.
That’s disappointing. I have put my criticisms in a thread on Twitter. So far, no response from any of them.
As I have said before: I am not a big supporter of these laws in general, for some of the reasons discussed in the piece. The laws do indeed run a danger of being overinclusive (see the Tennessee law’s ban on criticism of any “creed”). But any criticism of the laws has to be accurate about what the laws actually say, or the criticism loses credibility. That’s what happened today. I hope the authors will address this point and clarify it for readers who were confused by their misleading description of the laws in question.