Yesterday I wrote a post criticizing a New York Times op-ed by David French, Kmele Foster, Thomas Chatterton Williams, and Jason Stanley titled Anti-Critical Race Theory Laws Are Un-American. Reading that post will help you fully understand this post; I’ll summarize the main point of contention but I’m not repeating all my previous arguments here.

I managed to get a response of sorts from most of the authors. While I appreciate the fact that they responded to me, I’m a bit frustrated that not one of them demonstrated that they actually understood the point I made.

Here was my point. I agree with them that much of the language of these laws is vague. But I think they misrepresent the laws in one specific area. In brief, the laws they are criticizing all contain language essentially identical to this language from Texas’s law, which I will edit to remove extraneous bits: “No teacher . . . shall require, or make part of a course the following concepts: . . . (7) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.”

I italicize “should” in the quote, because the op-ed not only never told readers that the word “should” was in the law, but replaced that word with words like “could” or “would.” From the op-ed:

The laws differ in some respects but generally agree on blocking any teaching that would lead students to feel “discomfort, guilt or anguish” . . Any accurate teaching of any country’s history could make some of its citizens feel uncomfortable (or even guilty) about the past.”

(Bold emphasis is mine.) The op-ed takes a law that says teachers can’t teach kids they “should” feel anguish for being white, and pretends that the law says teachers can’t teach kids about topics that “could” cause them anguish. The difference between “would/could” and “should” here is far from trivial. It’s the difference between a) banning teachers from telling kids that they should feel guilt for the color of their skin, and b) banning the teaching of history, like slavery, that could cause kids to feel guilt for what past members of their race have done to another race.

No sane person wants to ban the teaching of important historical truths, however difficult some of those truths may be. A lot of sane people want to ban shaming kids for their skin color. Those are two very, very different things, and the authors of the op-ed have taken a law that says a) and pretended it actually says b).

That’s my problem, and plenty of people on Twitter had no problem understanding it. But most of the responses I got from the authors elided this point. Kmele Foster suggested that I was splitting hairs:

I find it distasteful to promote the idea that kids ought to feel pride/shame on account of race/gender/sexuality/pedigree/nationality…

I don't think passing laws RE that sort of thing is generally advisable.

Could/would/should — not in quotes. Are we not splitting hairs?

— Kmele (@kmele) July 6, 2021

He also made several other arguments, which boiled down to “but the laws are still vague!” None of them really addressed the should/could distinction, even after other Twitter users tried to explain it to him in fairly clear terms:

But that’s the wording at issue and how the use of “should” operates here – prohibiting teaching students that they should feel guilt, not teaching students something that could result in guilt. Whether you think this is insufficient/presents other dangers is a different story.

— Damin Toell (@damintoell) July 6, 2021

Well said, Damin. Jason Stanley was, in my view, also completely nonresponsive to my point:

I understand your general argument and agree with a lot of it. I doubt you'll be any more directly responsive to my *specific* criticism than I think your co-authors have been, but rather than 280'ing it to death, here is my full argument. https://t.co/rxbzhUKppc

— Patterico (@Patterico) July 6, 2021

Do you think a third grade teacher ought to be allowed to teach her students that they should feel a sense of anguish because of the color of their skin? Do you see how that's a different question from: should she be able to teach children concepts that *could* anguish them?

— Patterico (@Patterico) July 6, 2021

No response to that last question.

David French came closest to addressing my points, and it is his arguments that I respond to in the balance of this post. Here’s the meat of his argument:

Moreover, because the text roots the violation in highly subjective feelings, the experience of those feelings will become evidence of a violation. The language we chose is fair and proper, especially given the incredible breadth and imprecision of the language of the statutes.

— David French (@DavidAFrench) July 6, 2021

It's a ban that goes well beyond advocacy or "indoctrination" and veers into education of difficult concepts themselves, and roots it in the feelings of children (and their parents). It's terrible drafting. Just dreadful.

— David French (@DavidAFrench) July 6, 2021

French makes two basic points here, as I understand it, and I will try to summarize those two points in my own words — but fairly, in the hope that he would agree with my characterization of his argument — and then respond to each. Let’s start with his first point.

“PART OF A COURSE”

First, French places special emphasis on the aspect of the law that bans making any of the concepts “part of a course.” Such vague language bans any discussion of the topic, whether it’s advocacy or criticism.

I find French’s emphasis on the “part of a course” language to be a pretty good argument. It’s just not the argument that he made in the op-ed. The op-ed does not discuss the “part of a course” language in the statute. The op-ed does not argue that, due to the “part of a course” language, a teacher who opposes making kids feel uncomfortable because of their race is not allowed to express that opposition in the classroom. You can read the op-ed as many times as you like; that argument isn’t there. And that matters, because this particular argument is quite distinct from the argument the op-ed actually makes: namely, that teachers can’t teach slavery etc. because it “could” make kids uncomfortable. The two arguments are logically distinct. They have different stakes and different possible responses. And, quite significantly, there is a fix in the works for the argument French made on Twitter. As Stanley Kurtz explains in National Review:

Texas House Bill 3979 initially passed the House. After it reached the Senate, a key fix was made. The original House version held that the various illiberal concepts listed (e.g., collective guilt by race or sex) should not be made “part of a course.” This phrasing could potentially prevent even discussion of the various concepts, which would indeed run afoul of our culture of free expression, despite being legally permissible. In contrast, my model legislation merely says that teachers should not teach the various illiberal concepts in such a way as to inculcate them. Anything can be discussed. The core concepts of critical race theory, however, should not be presented as worthy of assent and belief. In other words, students should not be indoctrinated with CRT.

I advocated for tweaking the House version along these lines early on. And in fact, when Texas House Bill 3979 moved to the Senate, the switch to “inculcate” was made. That change speaks to yet another concern of Foster, French, Stanley, and Williams. With the new language, the Texas bill would not bar any teaching that leads to student “discomfort, guilt, or anguish,” an excessively subjective standard. On the contrary, the law would simply prevent teaching students that they ought to feel guilt or anguish on account of their race or sex. Arguably, the current language already does this. Yet the addition of “inculcate” would make that clearer still. The problem is that the technical fixes of the Senate version were lost due to an unrelated procedural challenge in the final days of the session. At that point, the Senate bill was struck down by the parliamentarian. That meant the only way to pass a law before the session ended was to adopt the House version and leave the fixes for a special legislative session, which is now on tap.

What on Earth is wrong with a law that prevents teachers from “inculcating” children in the belief that one ought to (“should”) feel distress because of the color of one’s skin? I think it is far more illiberal to allow teachers to indoctrinate children with such a poisonous (and, yes, un-American) sentiment than it is to prevent teachers from engaging in the indoctrination of children in such ugly beliefs. As for the notion that this amounts to the institution of “speech codes,” Kurtz drives home the point that French and the other authors minimize: legislative authority over K-12 curricula is far greater than authority over university teaching, for good reason:

This brings us to an issue that Foster, French, Stanley, and Williams gloss over far too quickly. The authors act as though the authority of states over the content of K–12 education is a minor legal technicality. It is not. K–12 teachers do not have the academic freedom that college teachers do, and for a profoundly important reason. Primary and secondary students in public schools are a captive audience. Teachers cannot and must not be allowed to impose their personal politics on children and families legally compelled to use the public-school system (or shoulder significant financial burdens), especially when that involves outrageous and illiberal assaults on our most cherished principles.

With the revision that Kurtz says is coming, it will be even more clear that the legislature intends merely to prevent teachers from indoctrinating students in poisonous concepts, not to prevent teachers from merely discussing them.

USING FEELINGS AS EVIDENCE

This brings me to French’s second point: that “the text roots the violation in highly subjective feelings” and therefore “the experience of those feelings will become evidence of a violation.” Again, I will try to state this in my own words in a way that French would hopefully agree is a good-faith and largely accurate restatement.

Namely, I understand French to be saying that the law, by making explicit reference to kids’ feelings — like discomfort, guilt, or anguish — thereby sets up a scenario where parents can march into court and use their kids’ alleged anguish as evidence of bad teaching. This means that any uncomfortable subject that could cause such negative feelings could end up being banned. Therefore Patterico’s emphasis on the word “should” is misplaced because this overinclusiveness and reliance on standardless subjective feelings means almost any teaching “could” run afoul of the law.

Do I have that about right, David?

Here’s the problem: I believe this argument rests entirely on the rhetorical move that French and his co-authors made to conflate the word “should” with the words “could” or “would.” If you believe, as the op-ed authors (inaccurately) state, that the law bans “blocking any teaching that would lead students to feel ‘discomfort, guilt or anguish’” then of course the fact that students did experience such negative feelings would be directly relevant to the case.

But instead imagine a courtroom where the judge understands the law to be banning teaching kids that they ought to experience negative feelings for being white (or black, or whatever) — something that Kurtz’s proposed legislation would make clear. In that case, the question is all about the teacher’s intent. Now imagine two scenarios:

• 1. A teacher walks into a classroom and tells Susie that all white people are racist, and that Susie, being white, should recognize her white privilege and apologize to her classmates for it. Susie does so and is not particularly traumatized by the event, as her woke parents have been telling her the same things for years.

• 2. A teacher tells Johnny that in the United States, slavery used to be legal, and in fact, the Supreme Court of the United States once ruled that black people were not allowed to be citizens. Johnny, who is white, feels terrible and starts crying. Johnny says he can’t believe that people — people with the same color skin as he has — were so awful to black people. He says it makes him feel ashamed to be white. The teacher tells Johnny it’s not Johnny’s fault, and that no human being should ever feel ashamed because of the color of their skin — but that kids should know the true history of the country.

The teacher in scenario #1 violated the Texas law. It does not matter whether Susie or anyone else experienced negative feelings as a result. The teacher’s intent was to humiliate a child based solely on the color of her skin. Nobody should want a teacher teaching such things.

The teacher in scenario #2 did not violate the Texas law — at least, assuming that Kurtz’s fix discussed above is implemented. The teacher in no way tried to inculcate Johnny in the belief that he should feel shame for being white. That is an emotion that Johnny experienced on his own. Indeed, the teacher taught Johnny that this emotion was unnecessary.

Now, until Kurtz’s fix is made, the teacher in scenario #2 arguably did violate Texas law, for reasons that French described on Twitter but did not say a word about in the New York Times. Namely, by telling Johnny that “no human being should ever feel ashamed because of the color of their skin” the teacher arguably made “part of a course” the “concept” that an individual “should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race” — even though the teacher only made this concept part of the course in order to criticize it. This is why I think French’s argument to me on Twitter was valid — but if Kurtz is right, that flaw will soon be fixed by the Texas legislature. (The fact that it has to be fixed illustrates the dangers of writing sloppy laws on these topics.)

But let’s get back to the relevance of little Johnny’s feelings of anguish. Isn’t it clear that they are logically irrelevant to the teacher’s intent in Scenario #2? Isn’t it clear that Susie’s lack of anguish in Scenario #1 is equally irrelevant to that teacher’s intent?

This is why I think that French’s focus on “feelings” is a red herring. As long as judges interpret the word “should” to be “ought to” rather than “could” (as in: “how dare you teach my child that he ought to feel ashamed for being black [or white]!”), the feelings experienced by children would be relevant only to the extent that they tell you something about the teacher’s intent — which in most cases, they won’t. The only way to argue that feelings will be relevant evidence is to make the rhetorical move the op-ed makes: namely, ignoring the law’s actual language, and pretending that the law targets anything that might upset children.

IN CONCLUSION

I want to again repeat that I don’t think French, Foster, Williams, or Stanley intend to mislead anyone. I think they are making arguments in good faith. I have followed the careers of the first three for a considerable period of time, and I respect them. I am frustrated that they are seemingly brushing off my criticism — but then, how often do people pen a New York Times op-ed and then immediately concede that they messed up the analysis in part of it?

My objection here is that, as to this specific provision, the authors put their considerable credibility behind a leftist critique of the law that is misleading. We have read everywhere that the laws in question could ban teaching the country’s history of discrimination, slavery, and Jim Crow because it might make current students feel bad. That’s the argument that the authors echo and it’s not what the law says.

I wish they would acknowledge that.