Published: March 15, 2022
The attack on Critical Race Theory (CRT) is here to stay, at least for a while. To be honest, when Republican pols first began using the term around 2020, it felt like a trial balloon that would surely be short-lived. After all, the very few Americans who knew about CRT back then were probably professors and lawyers and what they knew about it was that CRT was an esoteric, marginalized legal theory. The stuff that law professors might get excited about, but practically no one else. Yet, as Glenn Youngkin showed in Virginia’s gubernatorial race last November, Republican candidates and strategists may just be onto something. The assault on CRT now appears to be one of the main weapons in the messaging arsenal that Republicans will deploy to woo and win voters in the 2022 midterms.
This installment of Notes from the Field thus shares some background and some thoughts on CRT and how it may relate to Asian American and Pacific Islander (AAPI) engagement in 2022. I first review how we got here – both the recent politicization of CRT as a campaign issue and the origins of CRT as a legal movement in the academy. There are two “critical race theories” in play here and at the end of the day, the role that CRT plays in 2022 will depend on how it is defined and understood. “Critical Race Theory” as Republican candidates and campaigns aim to define it is a dog-whistle and a Hermione Granger grab bag for all sorts of discontents and resentment. Critical Race Theory as a considered and coherent perspective on the role of race in American law, society, and politics, however, is something that AAPI voters should relate to and have a stake in.
Taeku Lee
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.”
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Taeku Lee has conducted survey research for over two decades, with a particular expertise on AAPI public opinion and political participation. His related experience includes roles as co-Principal Investigator of the National Asian American Surveys (2008, 2012, and 2016) and Managing Director of Asian American Decisions (2012-2020). He currently serves on the U.S. Census Bureau’s National Advisory Committee and has served on the Board of Overseers of the American National Election Studies (twice) and the Board of Overseers of the General Social Survey. Lee is George Johnson Professor of Law and Professor of Political Science at the University of California, Berkeley.