I HAVE great respect for UNH law professor John Greabe but I strongly disagree with his recent op-ed claiming that the new divisive concepts law will “chill” teaching about civil rights. His hypotheticals do not support his position.

First, he posits a teacher who refrains from asking a student to articulate an argument in favor of affirmative action, concerned doing so would run afoul of the section of the statute that says: “No pupil in any public school in this state shall be taught, instructed, inculcated or compelled to express belief in, or support for [the concept] that an individual should be discriminated against solely or partly because of his or her race.”

Professor Greabe concedes he doesn’t believe the statute prohibits the lesson but suggests that some teachers could still be constrained.

A well-established principle of statutory construction is that the meaning of words may be derived from nearby words with which they are associated. Here the words with which “instructed” and “support for” are associated include “inculcated” and “compelled to express belief in.” The clear intent is to prohibit indoctrination of students by teaching them that they should believe in discrimination against persons based on their race, sex, etc.

But that is not what our hypothetical teacher’s lesson would do. Although affirmative action does involve race-based discrimination, instructing a student to articulate an argument in support of it does not suggest that affirmative action is a good or bad idea or that the student must support it. The lesson teaches the student about the concept, not to discriminate.

To construe the statute in the manner Professor Greabe suggests is like saying a teacher who has a student recite threatening words for a school play can be charged as an accomplice to criminal threatening. Neither scenario is a realistic threat to teachers.

Professor Greabe’s second hypothetical demonstrates why the divisive concepts statute is necessary.

He writes: “A civics teacher observes, correctly, that the death penalty is imposed in this country in a racially discriminatory manner.” He then posits a student “misunderstanding” this statement to mean that the teacher is saying White jurors in capital cases vote against Black defendants because they are inherently racist, opening the teacher to being disciplined under the new statute.

It is obvious from his use of the word “correctly” that the professor believes the proposition he recites is an undisputed matter of fact. However, it actually is just his view of a hotly disputed issue that both the New Hampshire and U.S. Supreme Courts have rejected — the proposition that the death penalty is unconstitutional because it inherently operates in a fashion that discriminates against Blacks. Professor Greabe is entitled to disagree with the court decisions, but a teacher should not be allowed to present this view to impressionable young students without telling them the whole story.

Under Professor Greabe’s reasoning, it would be proper for a teacher to ask a student, “True or False? The death penalty is imposed in this country in a racially discriminatory manner.” And to then score the answer “False” as incorrect.

Deliberate conduct is what discrimination is all about: it is unlawful to discriminate against someone because of his or her race. The divisive concepts statute simply complements traditional civil rights statutes by prohibiting governmental agents from teaching or advocating that discrimination of this kind is OK.

Proponents of progressive dogmas, including critical race theory, push the notion that discrimination does not require racial animus, but merely a showing that some activity results in members of one group incurring an advantage or disadvantage disproportional to another group, regardless of cause. The theory seeks to equate correlation with causation. This theory is mostly what underlies the claims that our country is “systemically racist.”

For example, disparate impact proponents are content to base claims of systemic racism by police on the fact that police encounters with Blacks are disproportionately high compared to Whites. Usually ignored in these claims is the inconvenient fact that Blacks — and in particular young Black men — commit crimes at higher rates than Whites.

The divisive concepts statute does not discourage teaching about subjects such as affirmative action, implicit bias, or the sad fact that pockets of racist attitudes and behavior still exist in our country, including among law enforcement. It merely requires that teachers provide accurate and complete information. The statute specifically states that none of its prohibitions “shall be construed to prohibit discussing, as part of a larger course of academic instruction, the historical existence of the [divisive] ideas and subjects identified [in the statute].” Guidance recently issued by the state Department of Justice, Department of Education and the Human Rights Commission is to the same effect.

Rep. Robert J. Lynn, R-Windham, is a retired chief justice of the New Hampshire Supreme Court.

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