By Samuel C. Damren
The first commentary in this series discussed recently enacted laws prohibiting the teaching of certain concepts in schools. These Teaching Prohibition Laws, or TPLs, in Iowa, New Hampshire, Oklahoma, Tennessee and Texas incorporated shared wording that described several concepts. The commentary criticized the draftsmanship and also questioned the purpose in enacting TPLs if teaching the prohibited concepts (for example, that "one race is inherently superior to another race") was not actually occurring.
This commentary will examine concepts not barred by the TPLs and that by implication are still permissible to teach.
In four of the TPLs, the states prohibit teaching the concept that "an individual should be discriminated against or receive adverse treatment because of the individual's race or sex." Although Texas did not include "or sex" in its statutory ban, restricting this prohibition and others to only "race" or "race or sex" raises the question why the prohibited concepts were not more expansive.
What about expanding the class of prohibited concepts to include discrimination or adverse treatment because of sexual orientation or religion? After all, we all know that members of these groups the LGBT community and Muslims are known targets of persecution. What if the class was expanded even further to include nationality or country of family origin, inter-racial marriage, same-sex marriage, immigrants, foreigners, physical disabilities and limitations, and persons with cognitive impairments, to name only a few.
It's a fair question. If, as claimed by supporters, the TPLs were enacted to prohibit teaching divisive concepts, then isn't the exclusion from the prohibitions of similar divisive classifications also divisive?
The TPLs are examples of "dog whistle" politics. On their face, they identify classifications of individuals or groups who should not be persecuted "because of." The "dog whistle" message of the TPLs is that by their omission of other classifications, the TPLs make clear that it is permissible to persecute persons and groups "because of" membership in the omitted classifications.
In the Trump era, much of American politics changed from striving to create unity based on shared ideals to politicians seeking consensus with their partisans as to who in the American populace should be legally protected from persecution and who should not. If the TPLs are any indication, this expression of so-called American values will be central in 2022 mid-term campaigns.
The bans in the TPLs do not prohibit teaching American history. As a result, it should still be permissible for educators in the five states to teach about the America where racist and sexist concepts were enshrined in law and widely practiced as part of the fabric of American life. In order to teach this history effectively, educators must explain why so many people and institutions in that past wrongly believed that the prohibited concepts were appropriate and even beneficial.
However, by banning "teaching" about the prohibited concepts or "making [them] part of a course of instruction," there will be problems in implementation. For example, will teachers be prohibited by the TPLs from teaching, at least as applies to the prohibited concepts, that history is a guide to the present and future?
Will law makers assert that because the prohibited concepts are so dangerous to impressionable young minds that discussions about the continuing existence and present-day justifications for the prohibited concepts should only occur on social media, through internet searches, discussions in social groups, or at other similar "safe" venues instead of at schools?
How does an educator "teach" that a prohibited concept is wrong without discussing why some individuals think it is right in present-day? Does this type of "teaching" violate the prohibition in the TPLs against "making [a prohibited concept] part of a course of instruction?" Will educators be similarly prohibited from teaching that the effects of prior racist and sexist practices can extend into the future even so far as to impact the present day?
Good luck to educators navigating this mine field.
Are some law makers of the view that because, in their estimation, so few of their state residents currently harbor and practice these prejudices that they no longer have significant impact? When it comes to state employees, Iowa and New Hampshire seem to be embracing this view even though it contradicts the "raison d'etre" for the TPLs.
The list of prohibited concepts in Iowa and New Hampshire include a prohibition on teaching that the respective state "is fundamentally racist or sexist."
Apparently, Oklahoma, Tennessee and Texas were not comfortable making this pronouncement about their states. Perhaps because it is not true, or perhaps because those three states recognize that the effects of past racist and sexist ideology and practices can have repercussions for decades and shape government institutions for even longer.
Or, maybe Oklahoma, Tennessee and Texas recognize that laws restricting criticism of government are an afront to democracy. Totalitarian governments pass these types of laws. For example, current laws in Russia prohibit anyone from asserting that the "special military operation" in Ukraine is "war," an "invasion" or otherwise "discrediting" Russia's use of its military in that region.
Tennessee is alone among the five states prohibiting its educators from teaching that "all Americans are not endowed by their Creator with certain unalienable rights." This provision, as did the Tennessee law prohibiting the teaching of evolution at issue in the Scopes Monkey Trial, introduces religious beliefs into the classroom. It has a devious design.
A requirement "not" to teach that the "Creator" did "not" do something is a backdoor attempt to permit or require Tennessee educators to teach that a Creator exists and that all Americans are endowed by that Creator with certain rights.
Tennessee does not prohibit educators from discussing the Declaration of Independence where the words "endowed by their Creator with unalienable rights" appear. In the text of the Declaration, the phrase applies to "men" and was not restricted to "Americans."
To provide further historical accuracy, a Tennessee educator would also be obliged to note that the phrase did not apply to, and was not intended to apply to, men, women or children of African descent who were slaves in the newly proclaimed United States of America.
This gets us to the "1619 Project," which is the subject of the next commentary.
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Samuel Damren is a retired Detroit lawyer and author of "What Justice Looks Like."
