SMU Law Review Forum

The "Divisive Concepts" Laws and Americans of Asian Descent

Ilhyung Lee, University of Missouri-ColumbiaFollow

Abstract

In the past year, a number of states have enacted laws that prohibit public schools from teaching certain lessons about race. The main target of these laws appears to be “critical race theory,” once a theory advanced in legal academia that has now become a “catchall term” for discussions of race and racism. The states mean business and seek to enforce their new or proposed laws by prohibiting state funding for teaching the banned content, withholding funding to local educational agencies or schools in violation, subjecting offending teachers to disciplinary action, and allowing those aggrieved to bring an action at law or equity. More of these anti-critical race theory laws appear to be coming, as there are bills pending in more than a dozen states with provisions virtually identical to those in already-enacted statutes. Commentators have expressed alarm, describing the laws as “content- and viewpoint-based state censorship,” an infringement “on the right of faculty to teach and of students to learn,” and “an attack on democracy.”

A closer examination of these laws is in order. My own view is that some of the provisions in these laws are actually commendable, reflecting societal acknowledgment of the problem of racism and a commitment toward racial equality and justice. But about other provisions and their practical application, I raise several questions, concerns, and doubts. Examining the anti-critical race theory laws as a whole, I ask whether they might ultimately advance the much-maligned theory’s standing and legitimacy. With this background in place, I devote the rest of the discussion to the impact of these laws on Americans neither White nor Black, but of Asian descent. Questions arise in this setting too, making the new laws even more dubious. I also seize the opportunity to ask whether legislatures, while at work on education legislation, might consider including the Asian American experience in the school curriculum, especially given these divisive and polarizing times.