Discomfort Is Still Legal

Educators in states that are adopting legislation against critical race theory are worried that they’ll become criminals by teaching about racism. Their fears would subside, however, if they examine the laws themselves—instead of relying on flawed interpretations that keep spewing from pinnacles of American journalism. Many of the errors, furthermore, have been promulgated by widely celebrated academics such as Jonathan Zimmerman, Kimberlé Crenshaw and Patricia Williams.

As Zimmerman lamented in The Hill, an Oklahoma community college canceled a summer 2021 course on race and ethnicity, “fearing that it might violate the state’s new measure barring instruction that creates discomfort.” The Oklahoma statute, however, says nothing about whether instruction “creates” discomfort. It instead prohibits teaching that someone “should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”

Learning about the horrors of slavery, massacres, lynching, the Trail of Tears and comparable evils should certainly bring discomfort. What the Oklahoma law proscribes, though, is old-fashioned bigotry: teaching that certain people “should” feel “psychological distress” because of their race or sex. In a March Washington Monthly column, Zimmerman similarly distorts Florida’s individual freedom legislation (also known as the “Stop Woke Act”), asserting that it bans “instruction that causes students to feel ‘discomfort’ over historical events committed by persons of their race”; in an April New Republic article, a New York Times opinion editor proceeds to conclude that the law would “surely” prohibit teaching about slavery and many other evils. But what the recently signed Florida law actually forbids teachers from conveying is, again, quite different: that an individual “must feel … psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.”

I do not hunt for such misinterpretations. But I regularly stumble upon them, particularly in The Washington Post, starting with a July 2021 opinion article by Kimberlé Crenshaw. According to Crenshaw, new legislation in Texas would prohibit teachers from exploring the state’s history of enslavement “if any student should ‘feel discomfort, guilt, [or] anguish … on account of the individual’s race or sex.’” Like the above-quoted Oklahoma law, however, the Texas law merely prohibits teaching that “an individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race or sex” (see Section 4.B.vii here). Crenshaw, by focusing instead on the unpredictable psychological effects that “any student” might experience, greatly augments the proscription’s scope. Similarly, Patricia Williams, writing in The Nation, adds that “nearly all versions” of the anti-CRT laws ban instruction “in which ‘any individual should feel discomfort,’” etc., because of their race or sex.

The 30-plus states that have proposed or enacted such laws generally draw upon a common template that echoes former president Trump’s Executive Order 13950 (promulgated in September 2020 but immediately rescinded by the Biden administration). That order barred federal agencies and contractors from “inculcat[ing]” nine “divisive concepts” associated with “stereotyping” or “scapegoating” based on race or sex. One of the nine banned concepts, needless to say, is that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” This widespread wording is routinely distorted via harsh criticisms that focus on the feelings that instruction might trigger. The New York Times contributed three essays that echoed this distortion, starting in July: two (here and here) mischaracterized Tennessee’s law, while one mischaracterized Florida’s. On March 22, eight months after it initially blundered, the Times issued the first of its three corrections.

The revising process for the Florida bill, which was signed into law by Governor Ron DeSantis April 22, contributed to the confusion. An earlier version of the bill supplemented Trump’s above-quoted language with this plank about the “principles of individual freedom” that should guide instruction: “A person should not be made to feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race” (see lines 453–55 and 469–71 within the Jan. 11 bill text here). Fortunately, the final version does not address the emotions an individual may end up feeling. Without any contribution from the new state laws, of course, various professors—e.g., Jason Kilborn, Greg Patton, Ilya Shapiro, Sandra Sellers and David Batson—have recently been fired or suspended for bringing distress to African American students.

I too would condemn a policy that prohibited instruction about racism if that instruction happens to create discomfort. I have serious reservations, moreover, about every anti-CRT law I have examined. Like the above-quoted critics—and others whom this journal has consulted—I worry about frivolous lawsuits and about the educational explorations the laws may discourage; many seem to prohibit teachers from even exposing students to the proscribed “concepts,” e.g., that individuals “cannot and should not attempt to treat others without respect to race or sex.” This was the fifth—and the most confusingly worded—“divisive concept” in Trump’s executive order. Section 10b of the order, however, provided a pedagogical boost: “Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts … in an objective manner and without endorsement.” The Florida law includes a similar accommodation.

There has been at least one development that would justify the warnings Zimmerman et al. have issued about “distress.” In late October, Matt Krause, a Texas state representative (and a Republican), sent an intrusive letter to the Texas Education Agency about school libraries. The letter not only cast aspersions on about 850 potentially controversial books, whose authors include Henry Louis Gates Jr., Margaret Atwood, Claudia Rankine, Ta-Nehisi Coates, Ibram X. Kendi, Isabel Wilkerson, Anna Quindlen, William Styron, Amnesty International and Senator Amy Klobuchar. It also asked if the libraries contained “any other books or content” that “might make students feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex.” The “might” is especially worrisome.

According to Dana Milbank’s delightful March 11 skewering of the “GOP–Fox News echo chamber,” Democrats “don’t have an equivalent of Fox News, which repeats the propaganda du jour in multiple ‘reports’ throughout the day.” Regarding the above-discussed state laws, however, The Washington Post and other prestigious venues have regularly stooped to providing Democratic talking points. Granted, the text of the statutes can be difficult to locate, many are visually intimidating and the revisions are hard to track.

The ongoing misinterpretations are aggravating polarization by demonizing Republicans—and discrediting the “mainstream media.” And although Zimmerman argues that “the greatest threat to free speech right now” is coming from Republican state legislatures, he joins many Republicans (and Democrats like me) in regretting that American universities aren’t “more solicitous of dissenting or offensive speech.” Even Aristotle conceded that “learning is accompanied by pain.”

Although teachers should be encouraged to illuminate the horrors of racism, pundits should be discouraged from distorting hot-button issues. If professors don’t go all in for accuracy, what can we expect from journalists and politicians? It would be tragic, finally, if errors in influential media outlets spurred educators to cancel valuable courses or to whitewash their discussions of U.S. racism and its shameful history.