The Character of Law: A Normative Critique of Social-Emotional Learning Laws

This Note examines a widespread but barely acknowledged phenomenon within education law: the recent enactment, in all fifty states, of statutes and standards regarding students’ social and emotional learning within public schools. Despite significant empirical evidence that curricular and disciplinary interventions targeting students’ social and emotional skills are effective at building these skills and, in turn, enhancing students’ academic and long-term outcomes, this Note argues that social and emotional learning should not be legislated. Drawing on James Scott’s seminal critique of processes of state rationalization and Jal Mehta’s application of this critique to education policy, this Note shows that the push to enact, implement, and enforce social-emotional learning laws should be questioned and, where possible, reversed: first, because it is counterproductive; and second, because it infringes upon longstanding constitutional protections of parental rights and familial autonomy. Recognizing that the repeal of these laws is unlikely, however, the Note also provides recommendations for how their enforcement may be cabined so as to minimize harmful legal and social effects.

More broadly, this Note is a case study of the fluid boundaries between law and policy, providing a preliminary theoretical framework to understand the relationship between the two and a set of critical analytics for determining when one is preferable to the other.