By Samuel Damren
There is once again political controversy in America over what should be taught in schools and what teachers should be prohibited from teaching.
In 2021, five states — Iowa, New Hampshire, Oklahoma, Tennessee and Texas — enacted laws prohibiting schools and educators from teaching specified racist and sexist concepts. These laws incorporate nearly identical wording to identify certain prohibited concepts. Teaching Prohibition Laws (or TPLs) have been passed in three other states and like-minded bills are pending elsewhere. This commentary, the first in a series, will focus on shared wording in some of the laws.
Supporters of TPLs assert that such legislation prevents the promotion of allegedly slanted histories of racism in America, the so-called “Critical Race Theory,” as well as the New York Times “1619 Project” in school curricula. The addition of sexist concepts to the list of prohibited concepts was apparently an attempt to gain bonus points with some constituents.
Among the specified prohibited concepts are the following:
• “one race or sex is inherently superior to another race or sex”
• “an individual, by virtue of the individual’s race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously”
• “an individual should be discriminated against or receive adverse treatment solely or partly because of the individual’s race or sex”
• “an individual’s moral character is necessarily determined by the individual’s race or sex”
Like the rash of voter suppression laws passed to address non-existent voter fraud in the 2020 election, these prohibitions appear to be solutions to problems that don’t exist.
For example, in 2021 it would be shocking if any educators in any school in the United States were teaching, or threatening to teach, the concept that “one race is inherently superior to another.”
But maybe I am wrong about that. As a result, just as I am interested in learning the names of voters who cast fraudulent votes in 2020 that made a difference in the winner of any election (but have yet to learn of one such instance), I and no doubt many Americans would like to know the names of educators in Iowa, New Hampshire, Oklahoma, Tennessee, and Texas who recently taught, or were threatening to teach, the concept that “one race is inherently superior to another.”
I would also like to understand why local school districts were unable to deal with the issue and why state mandates were required to effectively address the problem.
Notwithstanding whether there was an actual need for this legislation, some of the TPLs also suffer from serious errors in draftsmanship or maybe worse.
For example, in four of these states, the prohibition on teaching that “an individual should be discriminated against because of race or sex” contains the phrase “solely or partly.” That phrase, however, is noticeably absent from the prohibition in the TPLs in those states dealing with “moral character.” As a result, if consistently interpreted, the sections dealing with “moral character” in those TPLs do not prohibit educators from teaching that an individual’s moral character may be “partly” determined by race or sex, but only that it is “necessarily determined by race or sex.”
If the four states did not intend to leave that option open, the TPLs need to be corrected. If the legislators and governors of those states actually believe that a person’s “moral character” may be “partly” determined by a person’s race or sex, I and other Americans would be interested in hearing their thoughts on the subject.
The Texas prohibition on teaching that “an individual should be discriminated against or receive adverse treatment solely or partly because of the individual’s race” omits the reference to “or sex” that was contained in the TPLs of the other four states. Thus, Texas educators remain free to teach that an individual “should be discriminated against … solely or partly because of the individual’s sex.”
This might be an oversight, but if not corrected should come as no surprise. The Texas statehouse has a well-documented reputation and history of sexual harassment and misogynous behavior by male legislators. They probably did learn it at school.
Except for Tennessee, the other four TPLs contain a prohibition on teaching that “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.” I have no idea what that means. Double negatives are bad anywhere. This provision contains a triple negative (a prohibition, a “cannot and should not” and a “without”) plus missing words whatever they might be.
Clearly, the lobbyist that came up with the provisions of the TPLs analyzed in this commentary should hire a new drafter. Ultimately, the responsibility for this work product rests with legislators and governors. They, together with those who urged its passage, are responsible for either poor draftsmanship or what might in some instances be fairly regarded as malevolent nuance.
Tennessee caught the problem with the triple negative, but the Volunteer State knows the perils associated with prohibiting educators from teaching specified concepts better than any other state.
Tennessee, after all, is home to the infamous “Scopes Monkey Trial” where a school teacher once was prosecuted for teaching evolution. More on this and other troubling aspects of the TPLs in the next commentary.
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Samuel Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”
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