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Judd Legum
Dec 6

What is being promoted as an effort to stop Critical Race Theory (CRT) from indoctrinating K-12 students is actually a push to censure truthful information about American history. A new “teacher loyalty” bill introduced in New Hampshire would, among other things, prohibit “teaching that the United States was founded on racism.”

A reporter for WMUR, the ABC affiliate in New Hampshire, asked one of the bill’s sponsors, Representative Erica Layton (R), how a teacher could “address something like the Three-Fifths Compromise in the Constitution which basically invalidated the humanity of enslaved people who were black” if the new legislation became law. The reporter noted that’s a “racist aspect of America’s founding.”

We asked co-sponsor @EricaForDerry how she thinks teachers should approach a subject like the Three-fifths Compromise in the United States Constitution if HB 1255 — which explicitly prohibits teaching that the U.S. was founded on racism — was to become law. #NHPolitics pic.twitter.com/IkQHaAdLdt

— Adam Sexton (@AdamSextonWMUR) December 3, 2021

Layton said that teachers should explain that the 3/5ths compromise was an effort to end slavery, which Layton said was “already on the way out.” The only problem with this solution is that it’s not true.

Scholars agree there is “no evidence the constitutional provision was intended to end slavery,” which persisted for nearly a century after the Constitution was ratified. It conferred additional political power to states with large slave populations. In so doing, it helped entrench the institution of slavery.

The same ahistorical argument was advanced by a lawmaker in Tennessee, Representative Justin Lafferty (R), earlier this year to support legislation banning CRT. The legislation is now law in Tennessee and, as Popular Information reported, is currently being invoked to try to prevent second graders from reading about Martin Luther King Jr.

Layton herself acknowledged her historical “errors” in answering questions from WMUR but continued to defend the bill:

Rep. Layon responds to reaction to her above statement re: how HB 1255 might apply to a subject like the 3/5’s Compromise. #NHPolitics https://t.co/mJ55leKtAU

— Adam Sexton (@AdamSextonWMUR) December 3, 2021

The New Hampshire bill also prohibits “any doctrine or theory promoting a negative account or representation of the founding and history of the United States of America in New Hampshire public schools which does not include the worldwide context of now outdated and discouraged practices.” The primary sponsor of the bill Representative Alicia Lekas (R) told the Concord Monitor that this provision requires teachers to explain away slavery in the United States because it was ubiquitous worldwide:

Slavery was a terrible thing, but a lot of people don’t know slavery happened all over the world, that’s the setting you need to be teaching. If you’re going to teach about the founding of the country you need to teach it in its proper setting so you know what was happening in the rest of the world so you have a better idea of why people did the way they did.

This, again, is ahistorical. Long before slavery was abolished in the United States (1865), it was abolished in other countries, including Spain (1811), Mexico (1829), Britain (1834), and France (1848).

The ACLU of New Hampshire says the bill is “unconstitutional” and “builds on the disturbing trend…of erasing America’s legacy of racism and slavery.”

Teachers attempting to comply with the bill, should it become law, will be in a bind. If a teacher discusses the “worldwide context” of slavery on one day, can they discuss slavery in the United States without mentioning this context the next day? What about assigning a text that references slavery in the United States without including the “worldwide context”?

These are not trivial matters. According to the legislation, teachers who violate these provisions “shall be considered a violation of the New Hampshire code of ethics and code of conduct for educational professionals” and will be subject to “disciplinary sanctions.”

The opaque nature of the restrictions is really the point. The legislation is designed to chill honest discussion of American history in the classroom.

Putting teachers on a tightrope

The new bill builds on legislation that was enacted in New Hampshire over the summer prohibiting instruction on “divisive concepts.” The primary sponsor of that legislation, Representative Keith Ammon (R), is also a sponsor of the new “Teacher Loyalty” bill.

The law signed by Governor Chris Sununu (R) in June is more limited. It prohibits teaching “that one identified group” is “inherently racist, sexist, or oppressive.” In doing so, it likely bans discussion of “white privilege” and related concepts. The language in the bill is based on an executive order issued by Trump which banned the use of federal funds to support instruction on “divisive concepts.”

Such concepts are not currently part of New Hampshire’s K-12 curriculum. The New Hampshire Department of Education says the law does not prohibit “the teaching of historical subjects” or “the historical existence of ideas.”

Teachers in New Hampshire, however, are concerned about the difficulty in threading this needle. Teachers told New Hampshire Public Radio that “students are always making connections to current events” and “making sense of the past by talking about the present.” A teacher does not necessarily have the ability to prevent a discussion on historic discrimination from touching on the ways white privilege operates in society today.

Such a discussion could lead to a complaint filed against the teacher with the New Hampshire Commission for Human Rights or the New Hampshire Office of the Attorney General. A teacher found in violation of the law may face “disciplinary sanction by the state board of education.”

A dark money push

The push for anti-CRT legislation in New Hampshire is not happening in a vacuum. PEN America, a non-profit devoted to freedom of expression, has identified “54 separate bills” introduced in 24 states “intended to restrict teaching and training in K-12 schools, higher education, and state agencies and institutions.” PEN America describes these bills as “educational gag orders.” Ten of these bills have already become law.

Last week, a constellation of dark money groups released a public letter calling for more legislation in 2022.

This year, ten states passed legislation to reject CRT. In 2022, state lawmakers should continue to protect teachers and students from bigotry and consider proposals that reject the application of CRT in K-12 schools…

The letter called on states to pass laws banning “any idea that violates the Civil Rights Act of 1964.” The Civil Rights Act of 1964, of course, does not ban ideas. It bans actual discrimination based on race, color, religion, sex, and national origin. Court rulings extended these protections to sexual orientation and gender identity. The anti-CRT movement is misrepresenting the meaning of the Civil Rights Act of 1964 to suggest it bans certain kinds of discussions about racism and discrimination.

According to the signatories of the letter, “America should be defined as a nation that offers freedom and opportunity for everyone, regardless of the color of their skin.” In other words, teachers should be required to define America as a place where racism and discrimination are no longer a salient factor in people’s lives.

The letter was released by the Heritage Foundation and signed by representatives from the Manhattan Institute, the Claremont Institute, Parents Defending Education, the Goldwater Institute, and Independent Women’s Voice. One thing these institutions all have in common is that they do not disclose their donors.