On July 28, 2022, the Oklahoma State Board of Education voted to lower the accreditation status of both Tulsa Public Schools and Mustang Public Schools to the status of “accredited with warning.” In both cases, it was because of an alleged violation of Oklahoma’s new (as of 2021) law, HB 1775, originally developed in order to preclude the teaching of “critical race theory” in public schools (although what the law specifically prohibits—enumerated below—is not what critical race theory, a field of legal study developed in law schools, actually says).
I would like to spend a few minutes reflecting on this law and the recent OSBE decisions, with an eye towards the likely future impact of HB 1775 given these decisions—and what implications that has for the state of Oklahoma.
What Does HB 1775 Say?
The crucial section of HB 1775 is the “General Prohibition” section, which begins with these words: “No teacher, administrator or other school employee shall require or make part of any Course offered in a public school the following discriminatory principles.” It then enumerates the prohibited principles as follows:
(1) One race or sex is inherently superior to another race or sex,
(2)
An individual, by virtue of his or her race or sex, is inherently racist,
sexist or oppressive, whether consciously or unconsciously,
(3)
An individual should be discriminated against or receive adverse treatment
solely or partly because of his or her race or sex,
(4)
Members of one race or sex cannot and should not attempt to treat others
without respect to race or sex,
(5)
An individual’s moral character is necessarily determined by his or her race or
sex,
(6)
An individual, by virtue of his or her race or sex, bears responsibility for
actions committed in the past by other members of the same race or sex,
(7)
Any individual should feel discomfort, guilt, anguish or any other form of
psychological distress on account of his or her race or sex, or
(8)
Meritocracy or traits such as a hard work ethic are racist or sexist or were
created by members of a particular race to oppress members of another race.
Many—included Oklahoma Superintendent of Public Instruction, Joy Hofmeister—have commented that the wording of the law is vague, meaning that even if we have the law in front of us it may be less than clear what the law actually prohibits.
One immediate problem of this sort has to do with what it means to “make part of any Course” one or more of the prohibited principles. The charitable part of me would like to assume that the intent here is not to prohibit bringing up these principles for the sake of critical discussion in a classroom, but rather to prohibit endorsing them (and encouraging students to endorse them). But the wording could go either way. And that creates some serious worries.
Consider the first prohibited principle: one race or sex is inherently superior to another. This principle was accepted by many Americans in history and was used to justify the institution of slavery, Jim Crow laws, etc. A history teacher who did not call attention to this racist ideology and how it shaped historical institutions and events would be failing to provide a proper understanding of our history. But to call attention to this ideology, to make it explicit and look at how it shaped American history, would clearly involve making principle (1) “part of” a history course in one obvious meaning of that phrase.
And so, the wording of the law leaves open the possibility that a history teacher could be found guilty of violating the law simply because they are doing a good job of teaching history.
Or take prohibited principle (6): ”An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.”
Suppose a high school history teacher wanted to consider the issue of reparations for the Tulsa Race Massacre. There are lots of interesting and important arguments here. Property ownership is one of the most significant ways that wealth is passed down from one generation to another, and in the Tulsa Race Massacre, Black Wall Street was burned down—and with it, the property of its citizens. We can reasonably infer that the descendants of those who were killed and dispossessed by the massacre would have been financially better off today had white Tulsans not committed brutal murder and destruction, or had the state compensated the victims at the time. In short, past injustices reach into the present, affecting people alive today. Does Oklahoma as a community have an obligation to try to remedy the injustice that current Oklahomans are experiencing because of the misdeeds of people in the past?
Suppose a history teacher decided to explore this question and consider arguments on both sides of it. Let’s suppose no one is arguing that the students in the classroom are guilty of the crime that was committed by people long dead. No one is arguing, absurdly, that they are responsible in that sense of the word. But some are arguing that the current generation has a moral responsibility to remedy existing injustices in our state, and that the crimes of past generations have cast a long shadow into the present, one which means current Black Oklahomans are worse off than they would have been had the massacre never occurred.
If a teacher in Oklahoma leads a discussion on this question, taking seriously arguments of the latter sort, are they then “teaching” principle (6) in violation of HB1775? Or are they only violating it if they dub their students morally blameworthy for crimes committed before they were born (something no thoughtful person would actually claim)?
Straw-Manning
Setting aside problems of vagueness, there are other serious problems with HB 1775, problems that have the potential to hamper excellence in education and impede efforts to fight racism in Oklahoma. These problems arise because HB 1775 emerged out the 2020 culture wars surrounding racism and so-called “critical race theory” in America—and those culture wars featured a lot of straw-manning of views, straw-manning that continues to cause enormous misunderstanding.
If a law is regulating what people are allowed to say, and if we are in the habit of grossly misunderstanding what people say (especially across the culture-war battle lines), then the law is in serious danger of being used to condemn people who didn’t actually violate the law.
To see what I mean, let’s consider principle (2): “An individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” This principle is worth thinking about with care, because it’s the principle that takes center stage in the complaint against Tulsa Public Schools.
Given its wording, I have no objection as such to prohibiting the teaching of this principle in public schools, since it is clearly false: the idea that people are inherently racist because of their race is nonsense. Simply having certain physiological features, such as pale skin, has zero impact as such on what you believe about human beings and how you act towards other. How we think about and treat people who look different from us is a function of upbringing and life experiences, education and cultural influence—things that might be influenced by our skin color, but only because we live in a society where skin color impacts life experiences.
That I am racist by nature because of my innate “whiteness” is also problematic because it assumes that race is an actual thing, a biological reality that can have actual effects on what a person is like all by itself. But we know now that race is a cultural construct: it has no biological foundation. Instead, human cultures pick out certain physiological traits that in themselves are meaningless and treat them as if they were significant, grouping people into different categories based on these traits, treating them differently because of them, etc. Race is very real in the sense that it impacts people’s lives and experience, but it is a reality created by culture, not by nature.
Principle (2) supposes that race is a “natural kind” rather than a social construct. As such, it conflicts with everything we now understand about race. Teachers should not be in the business of teaching nonsense to kids, not when public tax dollars are paying their salaries.
But I know, based on carefully following recent public discussions around what has been dubbed “critical race theory,” that the nonsense that is principle (2) is being routinely attributed to people who don’t hold it—people who agree that it is nonsense, who would never endorse principle (2), but who are being treated as if they endorsed (2).
In philosophy, we talk about something called “the straw man fallacy.” This is where, instead of critiquing what a person actually thinks or holds, you attribute to them a distortion of their view, some mischaracterization of it that is clearly false. You then show that this view (the one they don’t actually hold) is false, and condemn them for holding it. It’s called the straw man fallacy because what you’ve basically done is set fire to a straw effigy of someone and then behaved as if you set fire to the actual person.
Some people engage in such “straw-manning” on purpose. If you’re really clever (and unprincipled) you can get lots of people on board, condemning someone you don’t like—a political opponent, say—for an absurd view they don’t hold. This is especially easy to do when your targets express their views using technical terms, terms that are not well understood and take some time and effort to explain. The person engaged in straw-manning can then just attach a false meaning to the term. If they do that loudly and persistently enough in public platforms, the target of straw-manning (who is trying to use the term properly to explain their view) will end up routinely misunderstood—and perhaps mocked or scorned or condemned for views they don’t actually hold.
Relatedly, it can be disturbingly easy for unscrupulous pundits to straw-man ideas that emerge out academic research. Often, understanding those ideas requires studying the body of research, something most people don’t have the time or energy or training to do. And so it can be especially easy for an unprincipled pundit with an audience to mischaracterize the target’s views, express horror about those views, and get the audience to be equally horrified. By the time people who understand the research and are good at explaining it realize what is going on, it may be too late. People don’t like to admit they’ve been duped.
The Straw-Manning of Implicit Bias
In the public debates about so-called “critical race theory,” there’s been a lot of straw-manning going on. And one of the victims of that straw-manning is the concept of “implicit bias” and the research surrounding it. The basic idea of implicit bias is this: all of us develop, based on our socialization and life experiences, certain short-cuts for decision-making that we aren’t conscious of, short-cuts that lead us to prefer some things to others based not on a careful examination of the evidence but just kind of…automatically. Given how many decisions we need to make and how much information is out there, a certain level of automation is essential if we’re going to live our lives and not be paralyzed. But the necessity of implicit bias explains why it is a universal feature of the human condition. It doesn’t entail that implicit bias is always unproblematic.
Some of these automated preferences a pretty odd—such as the fact that the order in which things are presented to us influences our judgments about them. A bias like that can be harmless if you’re choosing which t-shirt to buy, but it’s more serious when it comes to making judgments about which job candidate had the best interview. Since implicit biases are implicit—that is, unconscious and automatic in their operation, like our breathing—we can miss when a bias that really has no bearing on which candidate is better is influencing our judgment.
But also like breathing, we can make ourselves aware of the operation of our biases. And so we can try to control for them in some way. It may not always be easy to figure out how—we can’t exactly interview all the job candidates simultaneously—but knowing that these biases could be at work will allow us to explore ways to minimize their influence.
Most often, “implicit bias” is used to refer to such unconscious/automated preferences as they relate to classes of people. Shawn Marsh, in addition to offering an accessible overview of the research, offers the following helpful definition of implicit bias in this sense: “Implicit bias is a preference—positive or negative—for a group based on stereotypes or attitudes we hold and that tend to develop early in life. In contrast to explicit bias, whereby we are aware of our biases toward a group, implicit bias operates outside our awareness: we don’t even know it is there.”
As noted above, implicit biases emerge because there’s just too much information and too many choices for us to be able to sit down and figure out the best choice, based on all the available information, every time we have a choice to make. We’d be paralyzed. So our brain is designed to automate a lot of things, shaping our split-second judgments.
The process of forming implicit biases starts very early and is shaped by lots of social forces and personal experiences: who raised you and what they looked like, whether they were loving or abusive, what kinds of people you were surrounded by, who your earliest friends were, who scared you, what stories you were told, what kinds of TV shows you watched, how people in your community talked about or reacted to different sorts of people, etc.
Unfortunately, the automated preferences shaped by these experiences can influence our responses to people of different races and sexes, leading to discriminatory treatment that we aren’t even aware we’re engaging in. Some implicit biases take the form of automated trust or automated fear: if some stranger you meet on the street looks like the caretakers who nurtured you, you are likely to give them the benefit of the doubt automatically, to assume they have your best interests at heart until they prove otherwise. So, if that person pulls out a cell phone, you’ll probably assume it’s a cell phone and be shocked when it’s actually a gun and the person is an evil assassin sent to kill you.
In contrast, if someone doesn't look anything like the friends and family you grew up with, your brain will automatically be more cautious—seeing them more truly as a stranger rather than as a friend you haven’t met yet. And if, by contrast, they look like someone you’ve only ever seen on TV, generally in the role of the gun-slinging gangster, they may pull out a cell phone and you’ll swear it’s a gun.
The point is that our split-second judgments about the people we meet are shaped by our personal history and our socialization. Personal experience and culture shape who we find trustworthy at first sight and who we don’t, who we feel at home with and who we are uncomfortable around, etc. Often, this bias is slight and easily corrected with more information. But even that slight unconscious bias could be the reason the black candidate for the job didn’t give white interviewers the same warm feeling as the white candidate and so didn’t get the job—or the reason why police officers slightly more often mistake cell-phones for guns in the hands of black men than in the hands of white women, leading to tragic outcomes in the former case more often than the latter.
And to the extent that the prevailing culture shapes implicit biases, one could have a society where far more people have these small unconscious biases against black people than white people. And the cumulative effect could be more than small. It could make life significantly harder for black people than white people, all else being equal—even when nobody is consciously being racist.
The evidence suggests that the US is such a country. See, for example, here and here. What does that mean? It means that if people do not investigate their own biases and recognize them and work on mitigating them, and if institutions do not control for them, the cumulative impact of these biases is likely to make it harder for blacks than whites to succeed in life, even if no one is overtly racist. When something like a widespread unconscious bias has such a cumulative effect, it serves as a dimension of what is called “systemic racism”: the social system makes life harder for one race than another, even if no individuals are setting out to do this or are actively supporting it based on racist beliefs, etc.
That implicit bias exists is a well-establish fact about human psychology. That white people raised in the US are, in general, likely to have implicit biases that collectively lead to social patterns that disadvantage blacks, is well-supported by the social-scientific evidence.
Someone might sum up these well-supported claims by making the following implicit-bias claim: “In general, white Americans are likely to harbor unconscious or implicit racial biases that disadvantage black people or, in other words, contribute to systemic racism.”
In saying this, is the person saying that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously”?
Implicit bias is an established fact of human psychology, but “inherent racism”—which I assume means racism as a matter of one’s very nature—does not exist. Implicit biases are acquired, not “inherent.” No one has them “by virtue of their race or sex.” We have them by virtue of our lived experience and social environment. My race and sex will surely influence my lived experience and social environment, and hence which implicit biases I have. But nobody is born racist just by virtue of their race. Those who say white Americans are likely to harbor implicit racial biases that disadvantage black people are not claiming otherwise.
So, the implicit bias claim above is very different from prohibited principle (2).
But teachers and trainers and scholars who have made the implicit bias claim above, based on their understanding of the research, have routinely been mischaracterized, accused of asserting the prohibited principle (2) as well as some of the others, such as (5). These accusations are often repeated again and again, loudly, by pundits who benefit from doing so. And since the general public is not always very familiar with the exact meaning of terms like “implicit racial bias” and “systemic racism,” it is easy for pundits who don’t care about truth but only about silencing and discrediting their political opponents to shut down discussions of implicit racial bias and how to overcome it by straw-manning the people who are trying to lay out the problem and identify solutions.
And so, when I first saw HB 1775, my immediate worry was that the law would be used to penalize those who are doing this kind of work—the work of calling attention to the way implicit biases generate systemic racism even when people consciously reject racism; the work of trying to raise consciousness about this problem and promote solutions, thereby helping promote greater racial equity in Oklahoma.
Bias Education and Defensiveness
Some social problems can only be fixed when people are willing to introspect honestly—when they are prepared to be vulnerable enough to see how they might be part of the problem, and thereby see how they can work to be part of the solution. Implicit bias education is aimed at inspiring that kind of honesty and vulnerability, but for that very reason it can also inspire defensiveness.
Few of us want to admit that we are part of a problem that hurts people. We might feel guilty about it. And in our defensiveness, we might be motivated to embrace mischaracterizations of those whose words are the occasion for our discomfort. We might be inclined to too-quickly believe uncharitable accounts about the trainer’s or teacher’s intentions—accounts that free us from the responsibility that comes with admitting we contribute to such a problem. We might blame the messenger for making us feel guilty, instead of seeing the messenger as inviting us to take responsibility for making our society a better place, starting with ourselves: looking for ways we can shake off harmful social programming and help others do likewise.
The point here is this: predictably, those doing the work of teaching implicit bias are going to sometimes be accused of trying to make people feel guilty or uncomfortable for being white. The teachers aren’t actually trying to do that, but because the insights they have to share hit home, exposing ways we might be unwittingly contributing to a serious social problem, they sometimes inspire feelings of discomfort and guilt. And so, when I looked at HB 1775, I am immediately struck by principle (7): “Any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.”
Of course, implicit bias teachers/trainers are not out to tell people they should feel guilty for being white. First of all, you don’t have implicit bias because you’re white. Everyone has implicit biases because that is part of human nature. The precise biases you have are not a function of your race but a function of your social environment and life experiences. Your race will influence those things, because people of different races have different social experiences. But a white person in one culture may have very different implicit biases than a white person in another.
Second, implicit bias isn’t something you should feel guilty about, because implicit bias is something you are unaware of and that is wired into you by social and environmental conditioning. It’s not something you have consciously chosen out of bad motives. It’s more like catching a cold: something in your environment is responsible, not you. The trainer is trying to make you aware that you’ve been affected in this way, not to make you feel guilty about something you didn’t choose. Awareness means you can choose to make helpful changes. More often than not, feeling guilty just leads to wallowing or hiding from the thing that makes us feel guilty.
The response implicit bias trainers are hoping for is not guilt but something more practical. Again, the cold analogy is helpful. If I find out I have a cold, it doesn’t make sense to feel guilty. What makes sense is to treat the symptoms, take steps to promote recovery, and try not to spread the cold.
Likewise, while I’m not responsible for having the implicit biases I have, I am responsible for how I respond to discovering my implicit biases. While I shouldn’t feel guilty about having a bias, there might be a reason to feel guilty about attacking the messenger and rebuffing the message with a knee-jerk response of “You’re just trying to make me feel guilty for being white!” That kind of distortion of what is happening may make me feel better in the moment: if they’re just out to get me, then I don’t have to do anything about my implicit bias. I’m off the hook! Whew. But I’ve gotten myself off the hook by attributing false motives to the teacher who’s trying to help me discover ways to improve myself.
That's something that, if I did it, I should maybe feel guilty about.
False Accusations and the Chilling
Effect of HB 1775
HB 1775, however, enables this defensive response to go a step further: once I’ve shaken off the message and the responsibility it brings by blaming the teacher for the bad feelings I have about it—once I’ve falsely accused the teacher of trying to make me feel bad just because I’m white—there’s now a law that says it’s illegal for them to do this thing (the thing they’re not actually doing but which I have accused them of doing in order to defend my ego). And so, in addition to storming away from the training or the class, fuming because the message challenged me in ways I don’t want to be challenged, I can take the further step of striking back.
Legally.
I can file a complaint that accuses the trainer or teacher of violating HB 1775.
In short, it is entirely predictable that those who teach and train about implicit bias, while not in fact guilty of teaching principle (7), will occasionally inspire defensive responses that lead to them being falsely accused of (7). And if decision-makers assessing whether the law has been broken have been primed to misunderstand the relevant ideas by our culture wars’ straw-manning pundits—or if they are psychologically prone to feel defensive themselves—then you can easily see how the law might end up shutting down important work whose aim is to make our society a less racist place.
It doesn’t even have to actually happen for the law to have a chilling effect on these important discussion. It is enough if it looks like it happened. And this brings me back to the recent decisions made by the Oklahoma State Board of Education, in a vote of 4-2, to slap two Oklahoma school districts with warning and threats to their accreditation based on supposed violations of HB 1775.
In the case of Tulsa Public Schools, this penalty was based on a supposed violation of HB 1775 that took place during a required bias training for Tulsa schools staff. It was the result of a complaint by a single teacher who attended this training. Now maybe there really was a violation. Maybe the trainer completely misunderstood implicit bias, and said something like the following: “All white people have implicit bias just because they are white. Their race alone makes them inherently biased against black people. White people are born that way!”
But it strikes me as highly unlikely that someone chosen to lead a training on this issue for a school district would so radically misunderstand the concept of implicit bias. And I’ve also seen sound explanations of implicit bias routinely mischaracterized as statements like the one above. And so I find myself immediately suspicious of the claim that any of the prohibited principles in HB 1775 were actually taught.
And here’s the problem: the grounds for reaching the decision that HB 1775 was violated haven’t been made public. The thing that might allay my suspicion—a transcript of the recording of the training, or copies of the recording itself, showing that the trainer was not misunderstood or mischaracterized or uncharitably interpreted but really was saying that people are innately racist just because of their race and should feel guilty for being white—are not available.
The person who lodged the complaint against Tulsa Public Schools claimed that in the training, she was made to feel guilty about past wrongs by white people and that she and others were told that white people “are implicitly racially biased by nature.” But were the words “by nature” actually spoken, or was that the accuser’s take-away, their own misunderstanding? Again, since implicit bias is a matter of social conditioning—nurture, not nature—it seems unlikely that anyone leading a training on the topic would make such a claim.
Apparently, there is audio recording of the training. It was reviewed by a team investigating the complaint. But not only has it not been made available to the public; it appears to have not been made available to all the board members who were supposed to vote on the matter. In fact, one board member who voted against the downgrade—Carlisha Williams Bradley—complained that she had not been given theopportunity to review the audio for herself.
That said, part or all of the transcript of the audio was presumably made available, since during the meeting Bradley pointed out that OSDE general counsel Brad Clark “had to make an inference based on the audio that never explicitly said that an individual by virtue of his race or her race or sex is inherently racist, sexist or oppressive. None of these things were ever said.”
So, we have the public testimony of one board member who presumably has seen a transcript of the most relevant parts of the training audio—and according to that public testimony, the prohibited principles were never asserted. Instead, the judgment that HB 1775 was violated was based on an inference or an interpretation.
This is not comforting for anyone who is working in or for Oklahoma’s public schools and who cares about racial bias education. Given how our culture wars have led to straw-manning of people’s views and arguments, especially in relation to implicit racial bias, and given how defensiveness can lead to misrepresentations, we find ourselves in a social climate in which people are routinely accused, mistakenly or wrongly, of saying things prohibited by HB 1775. And now, school districts in Oklahoma have been penalized for violating HB 1775 based not on anything that was actually said in clear violation of HB 1775, but based on an inference.
In a social climate so littered with straw-manning and defensive misrepresentation, such inferences are always suspect, because they are so unreliable. How, then, can anyone working in the public school system have any confidence, based on the results of the Oklahoma State Board of Education meeting, that they will not incur penalties for violating HB 1775 even when they take pains not to do so? How can they be sure that if they take up the important conversations about reducing racial bias in our culture, they won’t have their words misinterpreted to mean things that, according to HB 1775, one is not legally permitted to say as a teacher or trainer in Oklahoma’s public schools?
In short, given the recent OSBE decisions, I cannot see how HB 1775 can have any effect other than a chilling one: keeping important research and information out of the hands of teachers who could use it to promote greater inclusivity and fairness in their classrooms, and keeping high school teachers from having some really important conversations with their students (out of fear that they’ll lose their jobs based on a straw-man mangling of their words).
Racism is bad. We need tools to fight it. Among those tools are challenging conversations about implicit bias in our high school classrooms, and training for teachers aimed at helping them avoid unintended bias in their interactions with a diversity of students. When HB 1775 is combined with the recent OSBE decision, the effect is to make our schools and teachers afraid to take up these crucial tools.
And our state will be the worse for it.
Based on all of this, I can only conclude that either HB 1775 should be rescinded, or new and more exacting guidance on its use be issued that prohibits penalizing schools, school districts, teachers, or trainers for contestable interpretations of what they said or meant to say.
Addendum--Added 8/19/22
Originally, OSBE spokespersons indicated that while the slides for the Tulsa Public Schools training did not violate HB 1775, elaborations found on the audio did. Since then, there has been a revelation:the Tulsa World has reviewed the audio and found it to be identical to the slides. Despite this revelation, OSBE stands by their ruling because, apparently, the impact of the words on the slides being read aloud gave them the impression that the spirit of the law had been violated. And that justified a legal penalty.
So, are we to infer from this that someone's tone of voice can change whether they are found to be in violation of HB 1775, and hence whether a school district will be legally penalized or a teacher fired?
This revelation drives home further the fact that the trainer did not in fact say anything explicitly prohibited by HB 1775. Instead, the judgment that a violation occurred is based on some perceived meaning beyond what was explicitly said--and/or some "spirit" of the law beyond what is explicitly prohibited.
The former option is that the trainer meant something by their words that's not only different from what they actually said but opposed to what they actually said. Recall that OSBE took the trainer to be violating the rule against saying that people are inherently racist because of their race. But implicit bias is a matter of nurture not nature (hence, implicit bias is not inherent), and implicit bias research understands biases to derive from personal experience and socialization, not because of their race. An implicit bias trainer knows this, and so it seems highly implausible to claim that the trainer meant to say what HB 1775 explicitly prohibits, even if they didn't explicitly say it.
The more plausible interpretation of the OSBE decision, then turns on their explicit invocation of the "spirit" of HB 1775--something that the law prohibits even if it doesn't come right out and say so. But what do they take this "spirit" to be?
The trainer presented research findings about bias that--while true and important to disseminate if we want a more equitable society, and while not in violation of anything that HB 1775 explicitly prohibits-- are uncomfortable truths: truths that many don't like to hear, because it means they might be unconsciously contributing to racial inequity even if they don't mean to be, and even if they denounce racism.
Is OSBE saying here that they take the law to mean it's illegal for any teacher or trainer in Oklahoma schools to say anything about race that, even if true and not included in the list of prohibited "principles", makes someone uncomfortable? Because if that is what they take the law to mean, they are treating it as prohibiting way more than what it says it prohibits--probably ruling out any effort in public schools to share research that could help reduce racial inequity (since such research is sure to make someone uncomfortable).
