In the last few years, academia has utterly embraced the concept of “equity” as articulated by Ibram X. Kendi; i.e., that if a particular identity group is statistically under- or over-represented in anything, the reason for the imbalance is indisputably systemic discrimination, and thus positive discrimination to correct the imbalance is not only proper but mandatory. Indeed, many universities now require students and faculty to undergo indoctrination in this fallacious tripe and to pledge allegiance to it as a condition of admission/employment. Questioning the wisdom, effectiveness, or legality of “equity” usually results in the cancel culture mobs coming after you, as my friends Dorian Abbot and Gordon Klein can attest.
As a lawyer and longtime student of constitutional law, one of the most disturbing things about academia’s adoption of the Kendian “equity” concept as official policy is that it is so clearly illegal. As Judge James Ho of the United States Court of Appeals for the Fifth Circuit has pointed out, decades of settled Supreme Court law establish that discrimination for the “right” reasons is still illegal, especially in the employment context. State law often goes further, such as by prohibiting political discrimination in employment matters. Even where the law allows universities some flexibility (such as in admissions), it does not countenance deliberate discrimination against protected classes, which is what DEI supporters typically demand. Nevertheless, as exemplified by the University of Texas’ feckless President Jay Hartzell, universities are openly adopting DEI programs despite the fact that their stated reasons for doing so squarely violate the law.
Why do they do it? In many cases (such as, in my opinion, that of President Hartzell), it is due to cowardice: administrators are simply afraid of offending the wokesters on campus and would rather meekly surrender to their demands than risk being branded a racist/white supremacist/bigot/etc. In other cases (e.g., adoption of such policies by law schools), those involved know that their actions are illegal (or at least very questionable), but they disagree with the current state of the law and hope to change the law by defying it. And, of course, there is the inherent problem in academia of “whaddaya gonna do about it?” Administrators know that their actions can only be challenged through litigation, which is very expensive and lengthy, and which any potential plaintiff knows will likely result in them being blackballed in academia.
Nevertheless, just as fundamental economic realities exist regardless of contrary wishful thinking, those who have adopted the Kendian concept of “equity” as official policy are learning that the law is not so easily ignored. An excellent example of this occurred last week in the case of Coalition for TJ v. Fairfax County School Board, where a federal court entered a summary judgment declaring such a Kendian program flatly illegal.
The case arose out of a new admissions program for Thomas Jefferson High School for Science and Technology (“TJ”), a highly regarded public high school in affluent Northern Virginia, a suburb of Washington, D.C.. Historically, admission to TJ has been extremely competitive, with applicants having to satisfy certain minimum requirements (such as a minimum core GPA of 3.0 and scores above certain thresholds on three standardized tests) to be eligible to apply for admission. As with many other STEM-focused programs, this merit-based admission process resulted in large numbers of Asian-American students at TJ: the 2020-21 class was 71.79% Asian-American, 18.34% white, 3.05% Hispanic, and 1.77% Black, whereas the overall student population of the area was 36.8% white, 27.1% Hispanic, 19.8% Asian-American, and 10% Black.