By Samuel C. Damren
This is the fourth and final commentary focused on the Teaching Prohibition Laws, or TPLs, enacted in five states in 2021 prohibiting the teaching of discriminatory concepts related to "race or sex." In nearly identical wording, the laws ban eight concepts. Seven of the eight concepts were the subject of previous commentaries.
The eighth concept that educators are prohibited from teaching is "that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual's race or sex."
The second commentary pointed out the minefield created by the TPLs for educators trying to teach race in America.
The third commentary viewed race through the lens of "The 1619 Project." This commentary will continue the focus on race, starting with a question that the eighth prohibited concept begs: How is someone supposed to feel on account of their race?
A permissible "give and take" under the TPLs between teacher and pupil might go something like this. The teacher asks a student to identify his or her race. The student does. Then the teacher asks the student: How do you feel about being a member of your race?
If "good" is the answer then the teacher's follow up is: Why is it good to be a member of your race? And then a series of questions: What makes your race different from other races? If the races are each different from one another, then are some races better than others? If the races are all equal to one another, then how are they different? If the differences are unimportant because the races are all equal, then why do we take note of the differences?
Perhaps, it is better to start with a more fundamental question: What is race and why is it a recognized classification for individuals into groups?
"The 1619 Project" has an answer to that question as it applies to African Americans: Race was used as an instrument of oppression by slave states and the effects and its methodology continue to oppress African Americans and people of color even today. If supporters of the TPLs don't like that answer, history is not on their side, nor is science.
In their recently published book, titled "Racism, Not Race," Joseph Graves and Alan Goodman discuss common misconceptions about race, genetics, and racism. Both authors, well credentialed scientists, have written about the subject for years, but this book is a compendium in question-and-answer form of the issues.
Graves and Goodman dispel any basis for the notion that there is a correlation between genetic variations in individuals and societal designations of race. Instead, in their view, the designation of individuals as belonging to different races is the product of racism. The book is a valuable resource to educators who desire to address race in their teaching curriculum.
From the genetic perspective, the answer to the question how you should feel about being a member of your race is that you should feel nothing, neither comfort nor discomfort. How you do feel about being a member of a particular race, as a result of societal prejudices and favor that surround the designations of race, is an entirely different matter.
The TPLs have not been around long enough to have a track record as to how effective they are as a teaching tool and whether they will do more harm than good. In lieu of an existing track record, let me offer one scenario to contemplate, albeit with a tint of cynicism.
Teacher Bob makes a presentation to his fourth grade class on Robert E. Lee's role in the Civil War and his background. Bob describes the Confederate general as a traitor to his country of origin that as a West Point graduate he swore to defend, a slave overseer who ignored an owner's desire to set his slaves free at a certain date, and as a person that embraced continuing African American slavery under the Confederate banner forever. All this is true.
Student Sarah, 11 years old, is discomforted. Why? She says that it makes her feel that way because Robert E. Lee is a member of the white race and so is she. She now feels anguish, guilt, and psychological distress (maybe she got a little coaching from her parents) about being a member of the white race. She says she is a victim.
Teacher Bob is fired. He sues. All 25 children in Sarah's class are deposed and required to testify at trial as to their level of comfort or discomfort resulting from Teacher Bob's presentation on Robert E. Lee.
Some students thought it was a great presentation and love Teacher Bob. Other children don't like Teacher Bob because he criticized their school work on occasion and they have a hard time separating those negative feelings about him from their reaction to the presentation.
Frederick, the one African American in the class, hates Robert E. Lee and believes all statutes and paintings of him around the country should be torn down.
Sarah's parent are required to testify about whether their beliefs regarding "woke cancel culture" discussed around the dinner table with Sarah are the real reason for Sarah's distress and not Teacher Bob's presentation. Sarah is asked about prior experiences she has had that caused her discomfort, anguish, guilt, and psychological distress.
At the close of the case, the trial judge is asked to grant judgment for Teacher Bob on the basis that no reasonable person would experience distress based on the class presentation. The school board's lawyer objects that it is not the correct standard; rather, the standard is entirely subjective and the only issue is whether Sarah experienced distress. Alternatively, the lawyer argues that the standard should be whether a "reasonable" member of the "white race," age 11, would suffer distress. The judge takes the motion under advisement and decides to hear expert testimony.
Conflicting testimony is offered as to how a reasonable member of the white race, age 11, would react to Teacher Bob's presentation. The school district's expert opines that the presentation, while accurate, was not sufficiently balanced and that General Lee's heroism in the U.S./Mexican War and the love that his troops felt for him should have been part of the presentation to show that he was a good man.
Frederick, the one African American in the class, is recalled as a witness and asked how he would have felt if this more balanced presentation had been included in Teacher Bob's lesson.
Frederick admits that he would have been placed in extreme discomfort and distress (maybe he also got some parental coaching) because of the suggestion that white men who champion slavery are "good" and that black people should be their slaves.
When asked by the school district's lawyer to take judicial notice of the fact that what might cause discomfort to a member of the African American race, might not cause discomfort to a member of the white race and instead provide them with comfort, the trial judge does so.
In chambers, the school district's attorney proposes a possible resolution.
Teacher Bob will be reinstated. In the future, school children will be segregated by race and sex to avoid causing them discomfort in the different ways history has to be taught to different races and sexes. The lawyer states that the TPLs, themselves, create this unavoidable conflict, but segregation solves it. He then notes that as a result of this necessary segregation, Frederick may have to be bused to another school because he is the only African American in the fourth grade class.
After a short pause, the school district's lawyer next intones, "Judge, there is only a small thing you need to do for us. You need to reinstate Plessy v. Ferguson as the law of the land for states that enact TPLs. I am told by a friend of someone on the Supreme Court that it won't be a problem on appeal and they will get to it right after Roe v. Wade is reversed."
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Samuel Damren is a retired Detroit lawyer and author of "What Justice Looks Like."
