David French Once Again Misrepresents a Law Addressing "Critical Race Theory"

I like David French. A lot. But this is becoming something of a pattern.

Above: a good guy, whom I admire, is developing something of a habit of misrepresenting the text of anti-CRT laws.

Once again I find myself criticizing David French for his portrayal of a law banning concepts known in the popular culture (not entirely accurately) as Critical Race Theory.

The last time I criticized French on issues of race, I spent a long time explaining that I am a fan of his, and that I do not wish my criticism to be interpreted as hostile or as part of some kind of an anti-French jihad. I refer you to my previous remarks, in which I said among other things: “I admire David French. . . . [A]ny time I criticize him, I think it’s important to remind people that I have a positive impression of the man.” That is still true. And it is unlikely to change.

That said . . . he has done it again.

On Tuesday of this past week, French published a post titled The Threat From the Anti-Woke Right, which was distributed through Bari Weiss’s newsletter. I opened the link with great interest, since I find the threat from the Woke Left to be far greater than the threat from the Anti-Woke Right, although the latter poses dangers at its extreme end.

But it is not my intent here to take on French’s thesis as a whole. As with his op-ed in the New York Times co-authored by Kmele Foster, Thomas Chatterton Williams, and Jason Stanley, French makes some solid arguments about illiberalism being a feature of the right as well as the left. (I don’t want to get sidetracked by this, but French’s first example, while worrisome, is not really an example of “illiberalism.” Technically, it’s almost the opposite. I think I might do a separate post about this in the future, because it is an interesting concept in its own right, but one far beyond the scope of this missive.)

Here’s where I have a problem with French’s piece. First let me quote him giving the background, which I agree is an example of illiberalism by the Anti-Woke Right:

I live in Williamson County, one of the nation’s most prosperous counties and a bastion of state Republican power. This summer, an activist group called Moms for Liberty filed a formal complaint with the Tennessee Department of Education alleging that four young-elementary books—“Martin Luther King Jr. and the March on Washington,” by Frances E. Ruffin, “Ruby Bridges Goes to School: My True Story,” by Ruby Bridges, “The Story of Ruby Bridges,” by Robert Coles, and “Separate Is Never Equal,” by Duncan Tonatiuh—violated the state’s new, expansive anti-CRT law. 

. . . .

To be clear, the complaint is complaining about photographs and descriptions that depict what life was actually like for black Americans living in the Jim Crow South.

The many problems with  “Ruby Bridges Goes to School,” according to the complaint, include “photographs of a neighborhood sign that reads ‘WE WANT WHITE TENANTS IN OUR WHITE COMMUNITY’ and a smiling white boy holding a sign that says ‘We wont [sic] go to school with Negroes.’” 

The complaint also takes issue with Norman Rockwell’s painting The Problem We All Live With, which depicts Ruby Bridges walking to school with the “n word” in the background and originally appeared, in 1964, in Look, a general-interest magazine published in Des Moines, Iowa. That’s right: They’re complaining about Norman Rockwell.

Here is where French goes off the rails:

Why would parents appeal to a law meant to combat critical race theory to censor deeply troubling but wholly uncontroversial books? Because the law allows them to do just that. It bans any “concept” that  “promot[es] division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.”

This extraordinarily subjective standard permits parents to object whenever their children express anger or discomfort. 

The language I have bolded is not an accurate portrayal of what the law says. The key here is the word “any.” French accurately quotes a portion of the law, but it is the part he does not quote that makes his description misleading.

Follow the link that French provides to the law and you will see that, as French says, section (a) of the relevant provision does indeed include the following language:

(a) An LEA or public charter school shall not include or promote the following concepts as part of a course of instruction or in a curriculum or instructional program, or allow teachers or other employees of the LEA or public charter school to use supplemental instructional materials that include or promote the following concepts:

. . . .

(10) Promoting division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people;

Reading French’s piece, we are told that “any” concept that promotes such division is banned. But French omits a very relevant set of exceptions to the ban:

(b) Notwithstanding subsection (a), this section does not prohibit an LEA or public charter school from including, as part of a course of instruction or in a curriculum or instructional program, or from allowing teachers or other employees of the LEA or public charter school to use supplemental instructional materials that include:

(1) The history of an ethnic group, as described in textbooks and instructional materials adopted in accordance with part 22 of this chapter;

(2) The impartial discussion of controversial aspects of history;

(3) The impartial instruction on the historical oppression of a particular group of people based on race, ethnicity, class, nationality, religion, or geographic region; or

(4) Historical documents relevant to subdivisions (b)(1) - (3) that are permitted under § 49-6-1011.

That is my bold emphasis.

I’ve just quoted a lot of language, so let’s break it down in a simple, easy-to-digest manner:

• French says “the complaint is complaining about photographs and descriptions that depict what life was actually like for black Americans living in the Jim Crow South.”

• French tells his readers that this complaint is made possible because the state law “bans any ‘concept’ that  ‘promot[es] division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class of people.’”

• French neglects to tell readers that the law he cites explicitly allows schools to present “[t]he impartial instruction on the historical oppression of a particular group of people based on race.” That language would allow the schools to use the very photographs and depictions that French claims the law bans.

This, my friends, is a misleading summary of the law by French.

The likely reaction of French and his supporters is to point to the way the text of the law can be abused by people. For example, the carve-out I quote above allows only “impartial instruction” on the historical oppression based on race. Critics of anti-CRT laws could well argue that this creates a loophole big enough to drive a Trump-flag-waving pickup truck caravan through. Why, any parent could drag school administrators off to court for any history lesson about racial oppression by arguing that the lesson their child was taught was not “impartial”! It’s an illiberal recipe for excessive litigation!!

My response to that is: that is a perfectly fine argument. I wish you had quoted the law accurately and then made that argument. But you didn’t. Instead, you misrepresented the law. There’s a distinction between these two arguments:

• ARGUMENT #1: The text of the law bans [insert incomplete and misleading quote from the law].

• ARGUMENT #2: The text of the law on its face bans [insert full and accurate quote from the law]—but based on the language of the law, parents and lawmakers will inevitably abuse it in an illiberal fashion, namely [insert concern about how the law will be misused].

ARGUMENT #2 is the argument that French ought to have made in his criticism of the Anti-Woke Right. But instead he made ARGUMENT #1. And ARGUMENT #1 is misleading.

And this is starting to form a pattern for French. Regular readers of my blog may recall that I wrote a post in July showing how French et al. misrepresented the text of most anti-CRT laws when they said the following:

The laws differ in some respects but generally agree on blocking any teaching that would lead students to feel “discomfort, guilt or anguish” . . Any accurate teaching of any country’s history could make some of its citizens feel uncomfortable (or even guilty) about the past.”

(Again, the bold emphasis is mine.) As I noted in my post, the text of the laws in question does not block teaching that “would” or “could” cause students anguish because of their race, but instead bans any teaching that is designed to teach children that they should feel anguish because of their race. Here is language from the Texas law that is replicated, verbatim or close to it, in most of the anti-CRT laws:

“No teacher . . . shall require, or make part of a course the following concepts: . . . (7) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.”

French initially responded to my criticism of his having misrepresented the law (ARGUMENT #1) by arguing that the law was ripe for abuse (ARGUMENT #2). Specifically, French told me that ”because the text roots the violation in highly subjective feelings, the experience of those feelings will become evidence of a violation.” And indeed, French and Foster have since claimed some level of vindication on this front, when a Texas lawmaker demanded that a state school official and selected school superintendents identify any material in the schools “that might make students feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex.” (My italics.) Aha! say Foster, French, and their supporters. This is just what we warned about! We said the law said “should” . . . but we also pointed out that “should” would, in practice, transmogrify into “would” or even “could” or “might”! Total vindication!

Except that this is not what they actually argued in the op-ed. If they had, I would not have criticized them. In the New York Times op-ed, French, Foster, Williams, and that other guy meant to present a version of ARGUMENT #2: namely, that the application of the law was bound to result in parents citing their kids’ subjective feelings, no matter what the text actually said. But what they actually argued was a version of ARGUMENT #1: namely, a misleading summary of what the text of the law actually said. These are different arguments. And the distinction matters to us lawyers, because (as I argued in a follow-up post in July) it informs how a judge ought to properly rule based on the law’s language.

I am a fan of both French and Foster (and Williams) and I like to think that if they had a chance to do the New York Times op-ed over again, they would be more careful to quote the law accurately, and distinguish between the text of the law and their fears concerning how the laws could be misused. Indeed, I have heard both French and Foster say as much in podcasts recorded since the publication of the op-ed.

But now French has gone and pulled the same move again. Which makes me wonder: has he learned the lesson he should have learned from the furor surrounding his New York Times op-ed? Or not?