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Critical Race Theory, the Dog Whistle

How did CRT become such a hot button issue for the coming 2022 midterms? CRT first came under assault after September 22nd, 2020, when President Trump issued Executive Order 13950, "to combat offensive and anti-American race and sex stereotyping and scapegoating." Executive Order 13950 effectively banned the federal government (as well as federal contractors, subcontractors, and any federal grantees) from diversity and sensitivity training programs on race or gender bias in the workplace. Such programs, the order declared, were a "malign ideology from the fringes of American society [that] threatens to infect core institutions of our country" and were "rooted in the pernicious and false belief that America is an irredeemably racist and sexist country." While CRT itself is only named explicitly in a preceding memo from the White House Office of Management and Budget, the media coverage made clear that a then-obscure academic school of thought called CRT was under attack. Since then, at least 36 states have passed or proposed laws with a similar goal to limit or ban teaching or discussing racism, bias, or the racial history of the United States.

As is all-too-often the case with hot-button issues and catch-all phrases (see “Defund the Police”), "Critical Race Theory" as people talk about it today is widely misunderstood. For instance, in an election poll on the 2021 gubernatorial race in Virginia, 73 percent of registered voters reported that "the debate over teaching Critical Race Theory in schools" was "an important factor" in their vote; 25 percent reported that it was "the single most important factor." What made this sudden rise in the salience of CRT among Virginia voters even more remarkable is the lack of any evidence that it is being taught in Virginia's public schools. This mismatch and apparent attack on a phantom target – a curriculum that is not even being taught – is rife in the current GOP mobilization around CRT, most of which either misunderstands or mischaracterizes CRT. For this reason, it is worth a brief primer on what CRT is and where it comes from.

Critical Race Theory, the Legal Theory

What is this “malign ideology” and where did it come from? CRT is an intellectual movement whose origins date back to the 1970s and 1980s and the writings of a handful of law professors of color who were frustrated with existing legal approaches to race and inequality. The scholars who are usually identified as the pioneers of this movement within the legal academy include Derrick Bell, Kimberlé Williams Crenshaw, Richard Delgado, Patricia Williams, and importantly for this Field Note, several Asian Americans: Mari Matsuda, Neil Gotanda, and Phil Nash. These law faculty saw an intimate connection between who was writing about civil rights and anti-discrimination law at that time and what they concluded about it. Back in the 1970s and 1980s, it was almost exclusively liberal white men who wrote in this field and their writings typically celebrated the triumph of law over injustice. These scholars expected the landmark cases and laws of the Civil Rights era to eradicate segregation and end racial discrimination. Yet by the 1970s and 1980s, it was clear that despite Brown v. Board of Education (1954) and laws like the 1964 Civil Rights Act and the 1965 Voting Right Act, segregation, discrimination, and racial inequality remained persistent features of American life.

To understand why de facto inequality persisted despite de jure equality, the architects of CRT proposed a new framework for understanding law and its relation to equality and justice. This framework borrowed from another movement within the legal academy, critical legal studies, which argued that laws are not neutral or applied formally and universally across all contexts. Rather, the "crits" saw law as political and as functioning generally to uphold the status quo. For critical race theorists, the implication of this perspective is laws are not, and cannot be, color-blind. Critical race theorists thus see race and racism as constructed, both in law and in society, for the benefit of dominant groups in power in a society. As Kimberlé Crenshaw describes it, CRT "is a practice—a way of seeing how the fiction of race has been transformed into concrete racial inequalities."

An extension of this view that law is not neutral is that the basic societal units of law aren’t anonymous individuals in situational contexts. Rather, the inequalities and power relations that generate laws and which laws then produce and reproduce are institutional and structural. As Mari Matsuda puts it, "The problem is not bad people. The problem is a system that reproduces bad outcomes." CRT sees racism and discrimination as everyday phenomena that affect groups and not just individuals, and that operate through institutions. Racism and discrimination are thus theorized as pervasive in American society and not a time-bound anomaly easily rectified by legislating equality and inclusion.

This is a surgically concise review of CRT as a theory about race and law. For our purposes, it is important to note that CRT is a far-reaching set of propositions about the structural roots of bias and discrimination in American society. As a theory, it has kinship with accounts of structural and institutional racism that sociologists, historians, psychologists, and political scientists have researched thoroughly. None of the deep research in this body of scholarship is seriously engaged by opponents of "Critical Race Theory." CRT that is targeted by Republican state legislatures and GOP candidates has very little correspondence to the ideas and arguments embodied in real CRT. The key take-away here is that there are two "critical race theories": one is a theory about the structural sources of racial bias in law and society; the other is a dog whistle, a code word, and a catch-all for every kind of disaffection that can be blamed on America's quest for racial justice.

Critical Race Theory, the AAPI Issue

AAPIs have a stake in the current debate over CRT, in both versions. As a dog whistle, AAPIs should care because the politicization of CRT has the potential to drive a wedge into the AAPI community and also to drive a wedge between AAPIs and other communities of color. As polling regularly shows, one of the top three to four issues that AAPI voters identify as “most important” and that they prioritize when evaluating political candidates and their parties is education. To the extent that 2022 GOP candidates succeed in constructing a fictional enemy residing in public schools they label as “Critical Race Theory,” AAPI voters may come to trust the Republican Party and its candidates as better able to address the kinds of education reform that they support.

Given free rein, the GOP in 2022 would message CRT as a racist theory about race, or as a radical, left-wing ideology out to indoctrinate America's youth, or as "wokeness" gone wrong. These are dog whistles that may resonate with AAPI voters if they go unchecked, posing for AAPIs a false dichotomy in public schools between a politics of representation and educational excellence. We have seen this “race card” used before. It is at the heart of the debates over AAPIs and affirmative action from the ongoing Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina legal challenges to local fights over admissions to selective public high schools like Lowell in San Francisco, Thomas Jefferson in Fairfax, Virginia, and Stuyvesant in New York City.

There are many powerful arguments to refute this false dichotomy, such as essays by Claire Jean Kim here and Jennifer Lee here. While Asian Americans have been solidly Democratic in their voting patterns in recent elections (see Post-Script on the AAPI Vote in 2020), that support cannot be taken for granted, as Tom Edsall’s recent op-ed in the New York Times underscores. Moreover, CRT as a dog whistle is not just a potential wedge to divide AAPI voters, but also a potential weapon in negative campaigns against AAPI candidates. Just this past December, attacks on CRT were instrumental to Bridget Wade’s successful challenge to incumbent Houston Independent School District trustee Anne Sung.

As a theory about the persistence and centrality of bias, AAPIs have a stake in the debate over CRT because institutional and structural bias is part of Asian American history and part of the Asian American experience today. There is good reason why several of the key founders of CRT as an activist movement in the legal academy were Mari Matsuda, Neil Gotanda, and Philip Nash and why AAPI scholars like Robert Chang, Sumi Cho, Mitu Gulati, Lisa Ikemoto, Jerry Kang, Julie Su, Leti Volpp, and Eric Yamamoto continue to push the leading edge of CRT in the legal academy. The reason is that the exclusion and marginalization of AAPIs is not a sideshow or footnote to institutional and structural bias in the United States; it is quite foundational to it.

That is, Asian Americans are at the center of how the United States has come to understand citizenship, national identity, and belonging. The first federal laws excluding a category of potential immigrants to America based on their race and nationality targeted persons of Chinese descent (the Page Act of 1875 and the Chinese Exclusion Act of 1882). A majority of the “racial prerequisite cases” in the late 19th and early 20th century that showed how American courts struggled to limit naturalization by shifting legal definitions of “whiteness” involved Asian American plaintiffs, such as In re Ah Yup (1878), Ozawa v. US (1922) and US v. Thind (1928). Historians like Mae Ngai and Beth Lew-Williams have shown how the efforts to exclude Asians through legal and extra-legal means were pivotal to creating a category of Americans as “alien” and “illegal.” And the forced internment of Japanese Americans by Executive Order 9066 in 1942 and the subsequent case Korematsu v. US (1944) is still taught today in law schools as an archetype of an abuse of constitutional interpretation.

Mari Matsuda poses the dilemma AAPI voters will face in 2022 with brutal honesty in a prescient 1990 address to the Asian Law Caucus, openly asking if AAPIs will be a “racial bourgeoisie” between whites and blacks. Matsuda writes, “If white, historically, is the top of the racial hierarchy in America, and black, historically, is at the bottom, will yellow assume the place of the racial middle? The role of the racial middle is a critical one. It can reinforce white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough. Conversely, the middle can dismantle white supremacy if it refuses to be the middle, if it refuses to buy into racial hierarchy, if it refuses to abandon communities of Black and Brown people, choosing instead to form alliances with them.”

Critical Race Theory and the Polls

What do polls tell us about where Americans stand on the attack on CRT and the debate it has spurred on teaching about race in schools? The first thing to say is that a very solid majority of the American public values and supports teaching our racial history. A recent CBS/YouGov poll (fielded Feb. 15-18, 2022), for instance, found that 68 percent of Americans agree that "teaching students about the history of race in America makes them understand what others went through." Seventy-six percent say that schools should "be allowed to teach about ideas and historical events that might make some students uncomfortable." And an overwhelming majority reject the idea that "some books should be banned from schools" if they include "depictions of slavery" (87 percent) or discussions of race" (87 percent), "political ideas you disagree with" (85 percent), or "criticism of people and events in US history" (83 percent).

Are AAPIs part of this broad support for the teaching about race? The CBS/YouGov poll disaggregates results by race for whites, African Americans and Latinx respondents, but not AAPIs (presumably because the sample size does not allow it). There are two other recent polls that include some break-outs for AAPIs. They come to a very similar conclusion about broad support.

A U-Mass Amherst/WCVB poll fielded an online poll Dec. 14-20, 2021 with a representative sample of adult Americans and tabs that disaggregate results by race including Asian Americans. When asked, "How much should public schools teach about racial inequality" 62 percent of the American public say "some" or "a lot." For Asian Americans, that figure is 82 percent. Respondents were also asked, “Do you believe students should learn the following in public middle or high schools? ... Racism is an enduring part of American society.” Fifty-eight percent of the American public say "definitely" or "probably" and again for Asian Americans that figure is even higher at 65 percent. Interestingly, the U-Mass Amherst/WCVB poll also shows the extent to which CRT has become a dog whistle that reaches some ears and not others. Asked, “How much have you read, seen, or heard about Critical Race Theory?” only 18 percent of the Asian American sample reported having heard “a lot” about CRT, while twice that number (37 percent) of whites reported the same.

The other poll is a February 2022 survey of registered voters in Minnesota commissioned by the Coalition of Asian American Leaders (CAAL). While this sample is geographically limited, the results are consistent with the previous surveys. The CAAL poll, in particular, zeroed in on what Minnesotans think about teaching ethnic studies. Respondents were asked, “Do you support or oppose including ethnic studies, which teaches students about all of the different racial and ethnic identities in Minnesota and their histories, in Minnesota’s public school curriculum?” Sixty-seven percent of all respondents strongly or somewhat supported teaching ethnic studies. Among AAPIs in Minnesota, that figure was 82 percent.

Respondents were also read a series of statements and then asked whether the statements were a convincing (or unconvincing) reason to support (or oppose) teaching ethnic studies in Minnesota public schools. On the positive end, respondents were given the statement, “Teaching students about communities other than their own in ethnic studies is a great way to reduce racism and inequality.” Thirty-nine percent of all Minnesotans found this statement very convincing. By comparison, 60 percent of AAPIs in Minnesota agreed that this was a very convincing reason to support teaching ethnic studies. On the negative end, respondents were given statements like “Ethnic studies teaches minorities that they are victims and fosters hostility toward white people” and “Ethnic studies courses are indoctrinating students with anti-American ideas.” Thirty-five percent and 31 percent of all Minnesotans in the survey found these very convincing reasons to oppose teaching ethnic studies. AAPIs, by contrast, were far less persuaded, with only 19 percent and 18 percent finding these statements to be very convincing reasons. AAPIs in Minnesota, moreover, reject the false dichotomy between teaching about race and educational excellence. Only 16 percent agreed that the statement “Focusing too much on politicized subjects like ethnic studies is threatening the quality of our children’s education” was a very convincing reason to oppose ethnic studies.

Summing Up on Critical Race Theory

These numbers should not be surprising to observers of opinion polls on AAPIs. As an electorate, AAPIs are broadly progressive in their views on politics and race. The 2020 Asian American Election Eve poll, for instance, found that 72 percent of AAPIs agreed that “The Black Lives Matter movement is addressing important issues.” Eighty percent agreed that “The rise of violent white supremacists is a major threat to our country.” Many AAPIs, moreover, see a clear difference between the two parties on race. The 2020 Asian American Voter Survey asked its respondents whether Democratic or Republican party “is doing a better job” on “racism and racial discrimination.” Forty-nine percent saw the Democrats as better; only 18 percent saw the Republicans as better; 26 percent saw no difference between the parties and 14 percent responded “don’t know.”

While the nearly 3-to-1 advantage to the Democratic party is seemingly formidable, we cannot ignore the 40 percent of AAPI registered voters in this pre-election poll who are potentially moveable. Therein, perhaps lies the threat from the current attack against CRT to divide the AAPI electorate and pull voters to favor GOP candidates in 2022. A very public, politicized battle is looming between the two CRTs in the midterms – the dog whistle or the legal theory. Which of these versions of CRT wins will depend at least in part on whether AAPIs will fight to remember their history in America and refuse to be used. As Lucille Clifton put it so eloquently, “they ask me to remember but they want me to remember their memories and i keep on remembering mine.”

Turnout

The first highlight to the 2020 election is the remarkable increase in turnout for AAPIs. In an election with remarkably high turnout overall and across all groups, the turnout for Asian Americans was extraordinary.

• Overall, turnout for citizens of voting age increased from 60% in 2016 to 67% in 2020 according to the Census Bureau's Current Population Survey Voter and Registration Supplement (CPS) estimates. The 67% mark is the highest since 1900.

• For Asian Americans, 59% of citizens of voting age voted in 2020, the highest rate in a national election since these data were available for Asian Americans. This figure represents a 10% increase in turnout from 2016. By comparison, Latinx turnout between 2016 and 2020 increased 6%, white turnout also increased by 6%, and African American turnout increased 3%.

• This increase in Asian American turnout in 2020 continues steady gains in turnout over several presidential election cycles. Since 2004—the election prior to Obama's vaunted ground game—Asian American turnout has increased 14%, from 45% to 59%. For Latinx over that period, turnout increased 7%; for whites, it increased 4% and for African Americans, it increased 3%. 

• Analysis of CPS data by AAPI-Data finds increases in turnout were especially high among some AAPI subgroups: Korean American turnout increased 15% between 2020 and 2016; Pacific Islander turnout increased 14% over that same stretch of time; and Chinese American turnout jumped up 13%. AAPI-Data also finds turnout increases were higher among young voters aged 18 to 34 (increasing from 41% in 2016 to 56% in 2020) and for AAPI women (increasing from 48% in 2016 to 61% in 2020).

• Catalist's analysis of turnout estimated total number of votes cast by race. Comparing turnout in 2016 and 2020 this way, AAPI turnout increased by an even larger margin of 39%, compared to increases in votes cast for Latinx of 31%, and 14% for African Americans.¹ 

• TargetSmart analysis of voter files estimated an even more massive increase of 47% in the number of votes cast by AAPIs in 2020 compared to 2016. In select battleground states, TargetSmart also finds impressive increases in the number of AAPI votes cast: 85% increase in Georgia, 71% in Texas, 66% in Nevada, 58% in Arizona, 52% in North Carolina, 42% in Michigan, and 36% in Florida.

CPS, Catalist, and TargetSmart all use different methodologies to derive their estimates of turnout, each with their strengths and notable limitations. Yet they all clearly point to the same conclusion about what happened with the AAPI vote in 2020. By any measure, turnout was unprecedented. This is far from concluding "mission accomplished" on AAPI civic and political engagement. Firstly, even with the remarkable increases in turnout rate and turnout numbers, AAPIs still "underparticipate": 59% of eligible AAPIs voted in 2020 compared to 67% nationally. Furthermore, the same engine that helps to drive this increase in turnout—rapid growth in the AAPI population, coupled to their high proportion of who are foreign-born—will also continue to expand the denominator. With each election, the numbers of newly naturalized AAPIs will grow and with that growth, so too will the numbers of AAPIs eligible to vote who have not yet registered and voted. 

Vote Choice

On vote choice, the headline on AAPIs for the last several election cycles has been the same. Asian Americans, who a little over a generation ago were more or less split in their partisanship, have become solidly Democratic in their vote choice. And as they have become solid Democrats as their numbers have grown, AAPIs have been recast in elections from a previous role as potential swing voters to a new role as the margin of difference and key partner in a progressive multiracial coalition. Did this headline change in 2020? If not, where did AAPIs play a key role in the 2020 elections?

Such questions, important as they are, continue to be tough to answer comprehensively because the data available to answer them continue to be unavailable, incomplete, or otherwise limited. In 2020, these constraints were further magnified by the methodological challenges of calculating reliable and representative estimates of the AAPI vote in the context of a global pandemic and given the increasingly high rates of voting absentee and by mail for Asian Americans. Yet in one sense, notwithstanding these limitations, all the available evidence points in one direction: namely, that AAPIs continue to turn out and vote solidly behind Democratic candidates. 

• Pre-election polls showed Asian Americans favoring Joe Biden over Donald Trump by a nearly 2-to-1 margin, 54% to 30%. They also favored Democratic candidates for the U.S. House of Representatives to Republican candidates by nearly the same margin, 53% to 28%. 

• The Election Eve poll, a long-standing project sponsored by the AAPI Civic Engagement Fund (among other organizations), found a 68% to 28% margin in the presidential race between Biden and Trump and a 66% to 29% margin in congressional House races.

• Mainstream media exit polls also estimated a solid margin for Biden over Trump by a margin of 61% to 34%. In House races, that margin was an even larger 68% to 32%. 

• In the most recent major academic survey on the 2020 election, the Collaborative Multiracial Post-Election Survey (CMPS) finds that 68% of Asian American reported voting for Biden and 26% for Trump. The CMPS margin favoring Democratic House candidates to Republican ones was a similarly one-sided 67% to 29% difference. 

• Finally, Catalist estimates also found strong support for Biden among Asian American voters in 2020 at 67%.

This story of Asian Americans continuing to be a solidly Democratic electorate, however, was not the headline about AAPIs in the 2020 election. Most of that attention was consumed by the question of whether 2020 signaled the erosion of Democratic support among voters of color. Chiefly, this curiosity burned around whether Latinx voters were being pulled into Donald Trump's orbit, but AAPI voters were drawn into that narrative as well. 

• The Election Eve poll, for instance, estimated the Asian American Democratic vote share in presidential elections at 73% in 2012 and 75% in 2016 prior to the 68% figure for 2020. 

• The National Election Pool exit polls for mainstream media outlets also finds a downward trend from a highwater mark of 73% in 2012 to 65% in 2016 and 63% in 2020. 

• Perhaps the most consequential change comes from Way to Win's analysis of TargetSmart's voter file data, which finds a shift in favor of voting Republican rather than Democratic between 2020 and 2016 in all ten of the battleground states for which partisanship could be modeled. According to this analysis, a majority of Asian Americans voted Democrat in only six of those ten battlegrounds.² 

Thus, there is some support for the idea of eroding support. But it is still unclear how much to make of this. For one thing, other data sources, like Catalist find almost no such evidence. Rather, Catalist finds the Asian American support for Democratic presidential candidates has held pretty steady over the same three election seasons: an estimated 67% of AAPIs voted for Biden in 2020, 68% for Clinton in 2016; and 66% for Obama in 2012. On a similar register, Pew Research Center's American Trends Panel finds, based on validated votes, that 72% of Asian Americans voted for Biden. According to Pew's numbers, that figure backs up the 73% of Asian Americans who voted for Democratic House candidates in 2018 and exceeds their estimates that 66% of Asian Americans voted for Hilary Clinton in 2016. 

For another, even if the Democratic vote share declined, say, from 75% in 2016 to 68% in 2020, that decline has to be reckoned in the context of the overall boom in turnout. TargetSmart estimates that 4.07 million AAPIs voted in 2020, or 1.28 million more than their estimates that 2.79 million AAPIs voted in 2016. Combine the Eve poll's 68% and 75% figures with these turnout numbers, and an estimated 2.77 million AAPIs voted Democratic in 2020, compared to an estimated 2.09 million who did so in 2016. In short, even if there was a dip in Democratic support in 2020, the bigger story is the massive increase in turnout. Where elections were close and AAPIs made up a significant and growing share of the electorate—like Georgia's 7th congressional district—this turnout story is what made AAPIs the margin of victory. 

The Story Behind the Numbers: Issues and Organizing

In this last section, let's turn then to the story of turnout in 2020. The first thing to remember is that the remarkable mobilization of Asian American voters in 2020 did not happen overnight, as the earlier figures on turnout noted. That mobilization can be seen in the findings from the 2016 and 2020 Eve polls:

• In 2016, only 42% of AAPI voters reported being contacted by a campaign, a political party, or a non-partisan organization about registering to vote and turning out to vote. In 2020, that number jumped up to 51%. And in select races, like the Georgia 7th congressional district race, fully 68% of AAPI voters were contacted. 

• Non-partisan outreach played an especially big role in 2020. In the 2016 Eve poll, 27% of AAPI voters who were contacted about vote registration and turnout said they were contacted by non-partisan, community-based organizations. In 2020, that figure nearly doubled, jumping up to 47%. Again, that non-partisan outreach was even greater in Georgia's 7th, with 63% of AAPI voters who were contacted reporting that the contact was from non-partisan organizations. 

• The 2020 Eve poll also asked AAPI voters in Georgia's 7th about whether they received any communication from specific organizations. Thirty-four percent said they received something from Asian American Advocacy Fund, 32% from Asian Americans Advancing Justice-Atlanta, and 27% from New Georgia Project.³ 

• Between 56% and 58% of AAPI voters receiving contact from non-partisan Asian American or racial justice organizations reported that the communications were "very informative." By contrast, only 41% and 42% of those receiving contact from the Republican or Democratic party found partisan communications very informative.

Polls in 2020 also found that AAPIs were highly motivated to vote by issues they cared about and by the twin threats of COVID-19 and the Trump Administration. Here are just a few findings from the 2020 Eve poll:

• On the issues, an overwhelming majority of Asian American voters in 2020 took liberal positions, such as favoring universal access to health care (89%), favoring a national mask mandate (86%), demanding accountability for police violence (85%), supporting a Green New Deal (85%), opposing family separation at the US-Mexico border (81%), supporting a pathway to citizenship for undocumented Americans (81%), and taking a pro-choice stance on abortion (75%).

• On Donald Trump and COVID-19, 72% of AAPI voters said that the ex-President either "does not care" or "is hostile" to AAPIs; 58% felt that racism and discrimination against AAPIs had increased during the Trump Administration; and 80% saw white supremacism as a "major threat" to the United States. In addition, 67% of AAPI voters believed that Trump mismanaged the COVID crisis and 85% said that AAPIs were wrongly scapegoated for COVID-19.⁴ A Politico / Morning Consult poll this fall found that 71% of AAPIs continue to blame Trump for anti-AAPI discrimination.