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Proponents of GOP state laws restricting classroom discussion of race sometimes fall back on a seductive-sounding line of defense: These directives, they proclaim, allow for the “impartial” discussion of difficult historical topics, merely restricting teachers from foisting “biased” views of history on kids to protect them from “woke indoctrination.”

This argument advances the premise that a purely “impartial” version of history is hovering out in the ether that most reasonable people will agree upon once it’s located. But this idea is deeply flawed. An outbreak of resistance to anti-woke hysteria in Tennessee shows how.

This week, a group of teachers <a href="https://tnea.org/_data/media/825/tea-prohibited-concepts-lawsuit-filing-july-26.pdf" target="_blank">filed a lawsuit</a> seeking to invalidate Tennessee’s law limiting the teaching of race and gender. The statute, <a href="https://www.tennessean.com/story/news/education/2021/05/25/tennessee-critical-race-theory-governor-signs-bill-restricting-how-race-and-bias-can-taught-schools/7427131002/" target="_blank">signed by</a> Republican Gov. Bill Lee in 2021, is absurdly vague: It prohibits pedagogy that includes allegedly divisive concepts without defining what that means, leaving teachers fearful that even neutral mentions of such concepts could violate the law.

The <a href="https://tnea.org/_data/media/825/tea-prohibited-concepts-lawsuit-filing-july-26.pdf" target="_blank">lawsuit</a> claims that the Tennessee law violates the 14th Amendment, which <a href="https://www.law.cornell.edu/wex/vagueness_doctrine#:~:text=Vagueness%20doctrine%20rests%20on%20the,arbitrary%20enforcement%20of%20the%20laws." target="_blank">requires laws to issue</a> clear, explicit commands. Because of the law’s fuzziness, teachers are left feeling like potential outlaws whenever they voice an idea that a parent might deem unacceptable.

“It’s this thing hanging over you all the time,” said Rebecca Dickenson, an elementary school librarian in east Tennessee and a plaintiff in the lawsuit, which is <a href="https://tnea.org/tennessee-teachers-file-lawsuit" target=_blank>spearheaded</a><a href="https://tnea.org/tennessee-teachers-file-lawsuit" target=_blank> by</a> the Tennessee Education Association. Dickenson said her colleagues wonder whether the state values their profession: “Do they want teachers, or not?”

The concepts that teachers must not “include” or “promote” in K-12 education are also preposterously vague. Among them are the notion that an individual should feel “discomfort” or “guilt” solely due to her race and the idea that one race is superior to another. The promotion of “division,” whatever that means, is also banned.

Defenders of the law note that it offers an exception for “impartial” discussion of the historical oppression of one group by another and of other “controversial” historical facts. This, they argue, will prevent the whitewashing of history.

In response, the lawsuit takes a novel tack developed by the law firms behind the lawsuit, including <a href="https://www.washingtonpost.com/nation/2023/01/11/new-york-lawyers-democratic/" target=_blank>the Free and Fair Litigation Group</a>. It attacks the underlying idea that the exception for “impartial” discussions — another word the statute doesn’t define — has real significance.

That’s because topics such as slavery and Jim Crow laws inherently require a teacher to “include” discussion of seemingly prohibited concepts of racial superiority. Yet there’s no single and obvious way to teach those topics that everyone would agree is “impartial,” either. That puts teachers in a quandary created by the state.

If a teacher chooses to emphasize the brutally violent nature of slavery, for instance, a parent could say that choice<b> </b>of emphasis needlessly inspired guilt. Parents can complain that a teacher’s decision to merely <i>select </i>particularly uncomfortable historical facts for discussion is itself biased and made students uncomfortable or promoted division.

Faced with that possibility — and the fact that a parental complaint could mean months of bureaucratic penalties — teachers might reasonably avoid mentioning certain historical facts or controversial figures entirely. TEA’s complaint argues that something like this is already happening:

In Tipton County, for example, one school has replaced an annual field trip to the National Civil Rights Museum in Memphis with a trip to a baseball game. In Shelby County, a choir director fears that his decades-long practice of teaching his students to sing and understand the history behind spirituals sung by enslaved people will be perceived as “divisive” or otherwise violative of the ban.

“A lot of teachers just packed up their books and took them home,” teacher and plaintiff Kathryn Vaughn told me.

Erik Schelzig

The folly of all this was recently illustrated by the law’s sponsor, state Rep. John Ragan, a Republican who <a href="https://thehill.com/homenews/551587-tennessee-gop-advance-bill-opposed-to-teaching-of-critical-race-theory/" target="_blank">has raged</a> that woke “seditious charlatans” are destroying our country. Pressed during a debate on how slavery might be taught impartially, Ragan equivocated, acknowledging slavery was abhorrent but counseling against including “personal opinion.”

And when Ragan was asked what “balance” in a discussion of the Holocaust or 9/11 might look like, he inexplicably suggested it might entail saying the perpetrators of those events were created “in the image and likeness of God,” just like everybody else.

All this goes to a deeper problem with laws like Tennessee’s, many of which have similarly flawed exception provisions as <a href="https://pen.org/report/educational-gag-orders/" target=_blank>documented by PEN America</a>. To show how, James Grossman, the executive director of the American Historical Association, posits a question for the Tennessee law’s drafters.

“Can I teach that in the state of Tennessee, for over a hundred years the textbooks said one race is superior to another?” Grossman asked. “It’s true.”

Concepts that purportedly cannot be “included” in lessons, Grossman added, were “part of Tennessee’s history.” Yet even presenting facts about that history “impartially” could subject teachers to challenge from parents who see the choice of material as overly provocative.

“All teachers choose what is important,” Grossman said. “It is utterly impossible to teach in a situation where every decision can be questioned by an uninformed parent with the force of law behind it.”

Declaring that teachers can discuss these topics impartially will do nothing to mitigate the chilling effect these laws are having, because this is, after all, what they’re designed to do in the first place. It’s an open question whether these Tennessee teachers will succeed, but they’ve already exposed an ugly truth embedded in the foundations of this law and many others like it.

An Uncivil War: Taking Back Our Democracy in an Age of Trumpian Disinformation and Thunderdome Politics

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Greg Sargent was a columnist. He joined The Washington Post in 2010, after stints at Talking Points Memo, New York Magazine and the New York Observer.

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