Sword & Scales

Winter 2021

Is your color all that matters?

The Pursuit of Housing
The Third Pillar

Are you simply what you look like?

I needn’t remind anyone that there’s a debate going on right now about whether a person’s race, sex, or any other immutable human characteristic automatically categorizes them as oppressor or oppressed. This belief that one’s moral status is set by the group you were born into, rather than by one’s individual choices, character, and abilities, has infected nearly every corner of our lives today, and it has skewed how we talk about our history and each other.

There is a growing movement that focuses solely on what work there is left to do to ensure maximum equality in our society. But this misses all the work we’ve done so far—and just how much progress we’ve made as Americans toward a country where group identity doesn’t matter at all.

Historically, people’s lives and livelihoods have been affected by judgments based on their unchangeable characteristics. That’s unequivocally true. But those characteristics have never mattered less than they do today. And that’s a testament to Enlightenment ideals like individualism and equality before the law, concepts that nourished and sustained our founding, the abolition of slavery, and the civil rights movements.

At Pacific Legal Foundation, we’re an optimistic lot, and we believe in—and defend—equality of freedom for everyone. We oppose government-imposed barriers to opportunity, especially barriers that discriminate based on people’s immutable characteristics. That’s why we’ve been working relentlessly for four decades to ensure that everyone’s constitutional rights as individuals are protected.

That experience has prepared us for this particular moment, in which a movement seems to be growing to supplant individual rights with group entitlements.

At PLF, we advocate for the twin rights of equality and opportunity. In order for humans to flourish and pursue their own happiness, they must be considered equal before the law and their paths unbound by artificial government barriers. Like the pioneers who preceded us in the push for full equality, we recognize that you can’t meaningfully have one without the other.

And while we wish for everyone to be successful, what we don’t advocate for is equal outcomes, routinely referred to now as equity.

In legal terms, equality before the law, not equity, is what’s enshrined in the Constitution. In practical terms, we believe that neither government, nor PLF, nor anyone else is in a position to define what success means for another person. It’s up to each individual to determine their own success and their own paths. And finally, but perhaps most importantly, when government elevates one group over another in the name of equity, that government body (whether it’s a bureaucratic agency or a school) denigrates individuals for the sake of group outcomes. It violates the moral imperative to treat every individual equally. Just ask students deemed the “wrong” minority, athletes deemed the “wrong” sex, or business owners deemed the “wrong” race what it feels like to have their rights violated and their opportunities limited.

There’s little doubt that the issues of group identity and discrimination will bubble up to the U.S. Supreme Court in the coming years. PLF is expanding its capacity on these issues, litigating more cases to ensure the best representation for the principles of liberty and true equality.

For me, this isn’t just a professional pursuit. It’s highly personal. My wife and I are parents of two young boys, and I can’t contemplate a world where their lives are dictated by some random biological or immutable characteristic.

Indeed, their lives—all of our lives—should be free from such encumbrances. Thankfully, PLF can do something about it.

Steven D. Anderson


What the new integrationists fail to see

Joseph G. Lehman

Coleman Hughes

Guest Author

This article, reprinted with permission, originally appeared in City Journal magazine, published by the Manhattan Institute.

A liberal consensus has settled on the view that American schools must be more thoroughly integrated before black and Hispanic students can perform at the level of their white peers. The New York Times editorial board, for instance, recently described the city’s elite high schools as “profoundly segregated,” a state of affairs that calls to mind “the spirit of Jim Crow.” Nikole Hannah-Jones, whose long-form reporting on the subject earned her a MacArthur Genius Grant last year, detailed her experience as a black mother trying to find a school for her daughter in an “intensely segregated” system.

Whether Hannah-Jones and her ilk are right about the existence of segregation depends on what one means by the word. As it was once understood, “segregation” referred to the state-enforced policy of keeping whites and blacks apart; if progressives are worried about this kind of segregation, then they missed the boat by about 60 years. But Hannah-Jones is referring to segregation 2.0, under which—despite the existence of numerous laws and government programs actively promoting racial inclusion in housing and education—people of different ethnic and racial groups still tend to live among one another, for various reasons. Under this new definition, America is hopelessly segregated—but then, so is Manhattan’s Chinatown, so is Brooklyn’s Hasidic-Jewish enclave, and so are most other neighborhoods on earth.

If Americans have clustered along racial lines for the past five decades, free from state coercion, then why do neo-integrationists perceive a problem? The answer lies in one of the most famous rulings in American legal history: “Separate educational facilities are inherently unequal,” decreed Supreme Court Chief Justice Earl Warren in his 1954 verdict in Brown v. Board of Education. If separate is unequal by its very nature, then it doesn’t matter whether blacks and whites have remained clustered by law or by choice; either way, we must integrate before blacks and Hispanics can excel academically.

But Warren’s pronouncement, iconic though it has become, was not true. Yes, separate was unequal. And yes, ending forced segregation was unambiguously the right move. But inequality was not an inherent consequence of racial separation itself. Rather, the inferior performance of black schools was the result of other factors—most black schools received fewer resources, black families were locked out of many sectors of the economy, black parents were less likely to be educated, and so on. Had all these contingent factors been different, there’s no reason to assume that black schools would have underperformed solely because there were no whites around. Separate was not inherently unequal. It was contingently unequal.

Warren’s claim stemmed from a popular misinterpretation of Kenneth Clark’s famous 1939 doll experiment, which found that black students preferred to play with white dolls over black ones. In the minds of many, this study definitively proved that segregation lowered black self-esteem all by itself. But Clark’s study actually found the reverse: even though the South was more segregated, Southern blacks were less likely to choose the white doll than Northern blacks were. Moreover, the most extensive study of American schools ever conducted, the Coleman Report of 1966, found that the positive correlation between racial integration and student performance was “less than, and largely accounted for by, other characteristics of the student body than the racial composition.”

If Warren’s edict were true, then we wouldn’t see all-black schools that perform at the level of all-white or racially mixed schools. But such schools have existed for decades. Dunbar High, an all-black public school in Washington, D.C., outscored two out of three white academic high schools in the city as early as 1899. Neither destitute nor affluent, Dunbar students exceeded the national average on IQ tests, despite the school’s paltry segregation-era funding. As Thomas Sowell quipped, “Dunbar was located within walking distance of the Supreme Court that essentially declared its existence impossible.”

More recently, Success Academy in New York City, a chain of public charter schools that overwhelmingly serves poor black and Latino students, outperformed state averages on standardized tests in 2016. This year, Success middle-schoolers, though enrolled by lottery, were more than twice as likely as black and Latino students citywide to gain acceptance to New York’s elite high schools. The existence of schools like Dunbar and Success may surprise neo-integrationists, but it does not surprise those of us who reject the idea that black kids must sit near white kids in order to learn algebra.

A familiar neo-integrationist argument asserts that poor students do better in wealthy schools than they do in poor schools. Blacks are more likely to be poor than whites; therefore, we must integrate schools so that black kids can reap the benefits of going to school with kids from wealthier families. But this argument only works in a world where “black” is a synonym for “poor.” To the contrary, most black Americans aren’t poor and most poor Americans aren’t black. The same is true of Hispanics. If poverty is the real issue, then why not talk about it directly, instead of using race as a proxy?

Another neo-integrationist argument, heard recently in the debate about New York City’s entrance exam for its elite high schools, is that poor blacks and Hispanics do not, and cannot be expected to, spend time and money preparing for entrance exams. Admitting students based on test scores alone thus puts blacks and Hispanics at an unfair disadvantage. But as with many progressive arguments about education, this one fails to explain the success of Asian-Americans, who are over-represented in elite schools, regardless of socioeconomic status. The New York Times editorial board admits that many of the Asian-American students that populate the city’s elite high schools “come from families that have scrimped on essentials like food to pay for test prep.” Scrimping on necessities may have conferred advantages onto Asian-American kids, but only in the upside-down minds of New York Times editorialists could such gains be called unfair.

According to The Times, “generations of poverty and racism” render modern-day blacks and Hispanics distinct from Asian-Americans—and thus not usefully compared—even though Asian-Americans have also experienced plenty of racism and poverty. But there is no reason to believe that racism and poverty cause academic apathy to begin with. After emancipation, for instance, newly freed blacks launched a heroic effort to learn how to read and write, increasing the black literacy rate from 5% to 66% in just 50 years. Generations of enslavement led not to academic disinterest but to an intense thirst for knowledge.

The neo-integrationists believe that helping blacks and Hispanics means changing the system until it rewards whatever level of effort blacks and Hispanics are already putting in. But this is like training for a marathon by redefining “marathon” to mean however many miles you can already run—it might seem rewarding in the short term, but it removes the incentive to improve. And the track record of social engineers should make us profoundly skeptical that a top-down effort to determine where millions of individuals educate themselves would go off without a hitch or an unintended consequence. The neo-integrationist agenda offers fake help that would lead to even faker progress, and blacks and Hispanics should reject it roundly.

Coleman Hughes is a writer, podcaster, and opinion columnist who specializes in issues related to race, public policy, and applied ethics. Coleman’s writing has been featured in The New York Times, The Wall Street Journal, National Review, Quillette, City Journal, and The Spectator. He has appeared on many TV shows and podcasts, including Real Time with Bill Maher, Making Sense with Sam Harris, and The Jordan B. Peterson Podcast.

Ward Connerly’s America is a nation of equals

Joseph G. Lehman

Nathaniel Hamilton

Managing Editor
Joseph G. Lehman

Deborah J. La Fetra

Senior Attorney

Calm and collected, Ward Connerly sat before the Senate Judiciary Committee in 1996, where he had been summoned to give testimony in favor of the passage of Proposition 209—a California initiative that would end racial— and sex-based preferences in public schools and government institutions.

In the 1990s, it was an odd sight to see a black man standing in front of lawmakers asking them to reject the notion of racial quotas. But Connerly never made a habit of forming his views based solely on the color of his skin. As a staunch individualist and a believer in the constitutional guarantee of equality before the law, he stood on principle first and asked for no favors because of his race.

“When I pledged allegiance to the flag, Senator, it was engrained in me that the goal of this nation is to become one nation and one people without divisible parts. And that liberty and justice was for all, not with some parenthesis added—white, black—but for all,” he spoke unflinchingly as senators listened.

Connerly believed in the individual-centered civil rights movement for which Dr. Martin Luther King Jr. and other freedom fighters had fought so fervently. He believed that equal, not preferential, treatment was the key to overcoming racism. But over time, the movement he wholeheartedly supported had been distorted, as many were now seeking the latter.

“There are those who say that we must use race to get beyond race. I disagree. The use of race is not inoculating us from the virus of racial hostilities. It is becoming the cause of the infection. And we must cure the problem.”

He continued: “The time has come for us to eliminate government programs and concepts that legitimize treating our citizens differently based on immutable traits.”

Powerful words from a brave man who never yielded or compromised his sense of purpose in pursuit of a worthy goal, even when doing so might have been the easier path.

While many applauded his commitment first to principles, there were also those who believed he was turning his back on the black community. His work in this arena even earned him the title of “the most hated Black man in America,” as one Sacramento news outlet described him. Another newspaper featured political cartoons where Connerly was depicted standing next to Klansmen—his alleged allies.

But his determination to do the right thing started long before he testified in front of Congress that day in 1996, and it would continue long after.

Ward Connerly testifying before Congress in 1996

Born with a “C” on his birth certificate

Connerly’s critics would often try to paint him as a man of great privilege. But his childhood was anything but.

Born in Leesville, Louisiana, in 1939, his birth certificate was branded with a large letter “C”—not for his surname but designating the newborn as “Colored.”

His father left the family when he was only two years old and his mother died two years later of a brain tumor. In 1947, he went to live with his widowed maternal grandmother, also located in Leesville.

While his grandmother tended to the diner and bar she inherited after her husband died, young Connerly worked odd jobs to help her with household expenses.

His grandmother taught him to work hard, to treat every person the way you wanted to be treated, to be fair and honest, and to believe in the good Lord.

When he was a teenager, Ward’s grandmother sent him to live with his aunt and uncle in Washington state to get him out of the South. Eventually, Aunt Vern and Uncle James moved to Sacramento, California.

For any child, moving around can be tough. But he never let his family life impact his present or future. He believed that through hard work, anything was possible, a lesson that was solidified by his Uncle James, who became something of a mentor to the young boy. Despite his uncle’s inability to read or write, he made an honest and decent living as a lumber stacker, and the couple even owned their own home.

James gave Connerly three rules to live by: “My shoes had to be shined, the lawn had to be mowed, and the car had to be clean. He taught me to have pride in myself.”

Understanding all too well the hurdles black men had to face in society, James instilled in him the importance of education. “You’ve got to get an education, they can’t take that away from you,” he always said.

A bit later, when his grandmother relocated to Sacramento, she wanted her grandson to come live with her again. Connerly had grown comfortable in his aunt and uncle’s middle-class lifestyle, where he even was given $5 of spending money every now and then. Life with his grandmother was an economic downgrade. She often couldn’t afford to pay her $35 mortgage, and nightly dinners consisted only of sweet potatoes. Things got so dire, Connerly had to slip cardboard into his shoes to conceal the holes in the soles.

Self-reliance was important to the family. When hardship fell upon them, they turned to their church and not the government. When his grandmother had no choice but to seek government assistance, she did so with great shame.

Connerly had gone from a nice home and an allowance to living on the brink of poverty, but he was committed to rising above his circumstances, and he knew college was the right path to achieving his ends.

In 1962, he earned a degree in political science from Sacramento State College, where he was one of about 50 black students on a campus of 2,000. Active in campus life, he served as student body president and blazed a trail by joining a white fraternity. As Connerly puts it, “If I can make it, anyone can.”

Even during a tumultuous time for race relations in America, his experience in college is where he strengthened his beliefs in the importance of the individual. He never felt like race held him back as a student, and he never felt like he didn’t belong.

But while he may have made it out of the Deep South at an early age, he was the product of decades of racial discrimination. The government’s role in perpetuating racism was not lost on him. But he did not see further government action as the solution. Instead, he focused on bettering himself to make the world a better place—a theme that would continue throughout his entire life.

As he came of age, the civil rights movement was at its height, and he became an admirer of Dr. King. He believed that equality was not to be found by using the tragedies of the past to gain special privileges.

“You can’t un-ring the bell on slavery. All you can do is make sure the next person who walks through the door, white or black, receives equal treatment.”

Getting in the arena

The spark that fueled Connerly’s lifelong work on equality before the law was lit during his college years. He had befriended a fellow student who had moved his wife and children from Iran to study abroad.

His friend had tried desperately to secure housing across the street from campus, but he was repeatedly turned down because of the color of his skin. Unable to find housing for his family, his friend had to commute to campus each day on his motor bike. He was later killed in a traffic accident. Connerly knew that if he had been allowed to live closer to campus, he wouldn’t have been killed.

This devastated Connerly, who took up the cause of housing discrimination in his late friend’s honor. After his friend was killed, he testified before the California legislature arguing for civil rights legislation that would prevent landlords from discriminating against potential tenants because of their race.

He later took a sociology class from a professor named Dr. Record, whom Connerly describes as a “real civil libertarian.” This is where his views on the world really started to take shape. Record never focused on the collective—instead, he believed in the individual.

It was through his guidance that Connerly realized that as badly as he wanted to end discrimination and protect the Fourteenth Amendment’s promise of equal treatment, government could not be the hero. The Constitution promises equal opportunities for people to better their lives through merit, not a guarantee of success because of skin color.

This was the foundation on which he built his political career, and he spent much of his young adult years fighting for equal housing opportunities.

His work on housing caught the attention of Pete Wilson, a California state senator who would later become the mayor of San Diego, a United States senator, and eventually the governor of California. After Wilson became governor, he offered Connerly a position on the University of California Board of Regents. Connerly didn’t really want the position (during his Senate testimony, he would joke that he “would never forgive” Wilson for appointing him to the Regents). By this time, Connerly had a successful consulting firm and a happy life, and joining the Board of Regents was a volunteer position with a lot of stress and little upside.

But as many friends are, Wilson was persuasive and convinced Connerly to take the role. It was a decision that would change Connerly’s life—and California forever.

Fighting discrimination, no matter what

In the late 1980s and early ’90s, equity in college admissions had become a focal point across the country, especially in California. When Connerly joined the UC Board of Regents, he began visiting campuses and analyzing admissions data to learn more about how the schools were operating and what he could help improve. What he found went well beyond simple bureaucratic fixes. Connerly discovered that administrators across every school in the University of California system were racially engineering the student body to ensure they had the “right” number of students of every race—and the ethnicity at the bottom was Asian-Americans.

The campaign to end discrimination in California’s public institutions was met with a fierce opposition.

When he went to the Board of Regents with his concerns, he didn’t realize how much he had rocked the boat. As Connerly describes it, “When I discussed this discrimination with faculty members and the UC administration, basically they said, ‘We just have to build diversity. We have to celebrate our diversity. If we didn’t do that, Berkeley would be all Asian.’”

That wasn’t acceptable to Connerly, though, so he introduced two resolutions to the school’s governance policies that would end all racial profiling in college admissions. Most of the other Board of Regents members were scared of Connerly’s resolutions. None of them wanted to be branded racist. Some even went to Wilson asking that Connerly be silenced. But Wilson supported his friend, and Connerly stayed on the Board and the resolutions passed.

Now it was time to end discrimination at a state level.

Connerly and Wilson both believed that discrimination was wrong and had no place in state laws or policies. So Connerly started campaigning for an amendment to the California Constitution that would ban any discrimination based on race, sex, or any other immutable characteristics.

The fight for Proposition 209 had begun.

This was when he first found himself in the crosshairs as a target of criticism from the civil rights establishment, media, and other defenders of the status quo.

“I started really getting the heat from the ‘black community,’ of which I am a member by reason of my societal designation,” he says. “But I don’t pretend to represent anybody—black, white, purple, whatever. And so I was an outsider. And I’d be sitting in a meeting, in an airport or someplace, and I’d be recognized and viewed with contempt. And bullet holes, BBs I’m sure, were shot through the glass at my office. It was a tough time, because I was branded as a traitor—someone who was hurting black people.”

Rev. Jesse Jackson attacked him, denouncing him as a “house slave” and a “puppet to the white man.” Likewise, Al Sharpton cast his own stones at Connerly, asserting that he was not a true civil rights defender.

“I don’t care how much you pride yourself on being an individual, you always wonder about whether you’re doing the right thing or not,” Connerly says. “You can’t avoid that. Those were some of the most difficult months of my life, because I had to examine my own strength of character. How willing would I be to stand up against what I knew was happening?”

Emotionally taxing as this may have been, he remembered the advice one of his mentors had given him when he first got involved in politics.

“Mr. Connerly, consult your knower. There are certain things that you will do in life, and you won’t be able to rationalize it intellectually. But you just know that you should do it. You just know.”

Leading up to his 1996 Senate testimony, he had gone up against a well-funded campaign to defeat Prop 209 led by the state Democratic political machine; liberal advocacy groups; teachers’ unions and other organized labor organizations; the civil rights establishment; and the entertainment and media industries.

But he always consulted his “knower” and pressed on. Connerly travelled around California to spread the word on Prop 209 and tried to elevate it above the typical political fray of Republican vs. Democrat—after all, equality before the law should be a bipartisan goal.

Finally, after months of discussion, debate, and campaigns on both sides all over the state, Proposition 209 passed with a decisive 55% of the vote.

While his critics cried wolf about the “inevitability” of Proposition 209 harming minorities, data regarding college admissions has shown the opposite result.

The University of California’s own research has found “no evidence that yield rates fell for minorities relative to other students after Proposition 209, even after controlling for changes in student characteristics and changes in the set of UC schools to which students were admitted. In fact, our analysis suggests Proposition 209 had a modest ‘warming effect.’”

Even though he often felt like he was standing alone, he knew that supporting Proposition 209 was the right thing to do, and history has validated his beliefs.

But the fight wasn’t over yet.

The fight continues

Despite the incredible impact Prop 209 had in California, activists throughout the years have tried to challenge it in court. Pacific Legal Foundation worked with Ward Connerly to defend Prop 209 in multiple cases. Then in 2020, many of the same activists who opposed Prop 209 in the ’90s sought to reverse it with Proposition 16.

When Prop 16 made it on the ballot, Connerly got another call from his old friend, Pete Wilson. Wilson told Connerly how Prop 16 was putting everything they fought for with Prop 209 at risk, so once again Connerly campaigned all across California against discrimination and for race-neutral laws and policies. Discrimination, Connerly once again explained, no matter how supposedly well-intended, is wrong.

2020 Election Results for Prop 16

Californians overwhelmingly rejected Prop 16 and voted to keep Prop 209. Over 57% of voters supported Prop 209 during the repeal attempt.

Fortunately, Californians listened, as voters said “no” to Proposition 16 and supported true equality. 

Connerly’s entire political career had led him to this moment. For decades, he had focused on the broader conception of civil rights that places primacy on individual liberty, rather than on preferences for designated groups. And last year, he came out of the fight victorious.

But Connerly’s push for equality does not end with race. He applies that broad equality principle consistently—it led him to become a supporter of equal benefits for domestic partners regardless of sexual orientation, a position that placed him at odds with some of his conservative allies. As always, he stands for principles first.

Now 82, Connerly’s life is a case study in how to stand up against injustice. It takes an unwavering belief in the individual, dedication to the constitutional guarantee of equality before the law, and—above all—the guts to stand up for what’s right in the face of great opposition.

While the struggle for equality is never-ending, we can look to Ward Connerly as a true hero of the modern civil rights movement.

PLF’s cases chart a path forward for equality under the law

Joseph G. Lehman

Chris Kieser


The Declaration of Independence famously declared the universal principle that “all men are created equal.” As a nation, we solidified that principle in the Fourteenth Amendment, guaranteeing all persons the “equal protection of the laws.”

After experiencing the horrors of slavery and Jim Crow, Americans broadly came to understand the importance of requiring the government to treat people as individuals, not simply members of groups.

But this notion that the government should not distribute benefits and burdens based on arbitrary characteristics—and particularly on race—has been increasingly under attack in recent years, with more and more people advocating for race-based policies.

Perhaps the most visible examples of this have been in K-12 education.

Public specialized and magnet schools are known for their rigorous admissions policies that accept only the students who have shown they can handle the advanced curricula these institutions offer. These high standards are precisely why these schools are so attractive to parents and students in the first place.

But activists and policymakers have targeted these institutions, demanding they change their admissions policies to make the student body reflect the racial balance of the school districts.

Changing admissions policies to favor certain races over others is a blatant violation of equality before the law. This is why Pacific Legal Foundation is involved in several high-profile fights over admissions at some of the nation’s best STEM high schools.

We currently represent the Coalition for TJ, a group of parents, students, alumni, and community members who are challenging the Fairfax County School Board’s changes to the admissions criteria at Virginia’s Thomas Jefferson High School for Science and Technology (TJ).

TJ is ranked the top school in the nation, and it earned that reputation in part for its difficult admissions process and high-level math and science offerings. But the school board and its appointed superintendent set out to change that process because they did not like that Asian-Americans earned over 70% of the seats at TJ, while other races were “underrepresented.”

To remedy this, they replaced the longstanding admissions exam with what the board refers to as a “holistic” approach that intentionally disadvantages students from the middle schools that had the most successful Asian-American applicants.

The results have been stark—since the new admissions policy went into effect, the number of Asian-American students accepted already has declined from 73% of the incoming freshman class to 54%.

In New York City, Mayor Bill de Blasio and Education Chancellor Richard Carranza took up the same cause in 2018.

The city’s Specialized High Schools offer unparalleled opportunity for public school students in the city and have educated more than a dozen Nobel laureates. But as a whole, the eight specialized schools have a majority Asian-American student body, while New York City public schools are just 16% Asian-American.

The mayor and chancellor sought to abolish the admissions exam and adopt a geographic quota system that would ensure the Specialized High Schools look like the city. To achieve their desired racial balance, they were willing to deprive hundreds of high-achieving students—disproportionately Asian-Americans—of the opportunity to receive a world-class STEM education.

Fortunately, the state legislature blocked the administration’s plan. But PLF is still in court fighting for Asian-American students disadvantaged by de Blasio’s unilateral move to restrict access to a program designed to help poor students gain admission.

Similar scenes are unfolding across the nation as school districts abandon a colorblind pursuit of excellence in favor of their concept of equity.

The belief that all individuals should be treated equally has been replaced by proposals that assume any policy that does not lead to racial balance is discriminatory.

Replacing equality with these increasingly popular “equitable” solutions only creates discrimination, and its victims are often members of groups that have seen more than their share of discrimination throughout history.

More than a century after the Chinese Exclusion Act, many school officials see Asian-American success in admissions as a threat to equity. Asian-American children are therefore the collateral damage of the officials’ attempts to engineer racial balance. Racial discrimination, even in an effort to right real or perceived wrongs, is not a victimless exercise.

This pivot away from equality before the law isn’t limited to education.

PLF client Scott Wynn is a lifelong farmer who grows sweet potatoes and corn and raises cattle at Wynn Farms in Jennings, Florida. Like many farmers, he was hit hard by the COVID-19 pandemic.

Steep drops in beef prices and too little help and supplies to grow sweet potatoes meant less income. Worse still, nearly all the money he brought in went toward repaying his federal farm loan.

But when Congress included a farm loan forgiveness provision in the COVID-19-driven American Rescue Plan Act of 2021, Scott was ineligible—because he is white.

The law treats all minority farmers as “socially disadvantaged” and entitles them to total loan forgiveness, regardless of their individual circumstances. White farmers, like Scott, are excluded, regardless of their personal circumstances or the effect the pandemic had on their farms.

Likewise, when the pandemic began and businesses were forced to shut down, Etienne Hardre had to close his barbershop in Colorado Springs, Colorado. He has operated at reduced capacity since.

He worked tirelessly to find relief programs and grants that would allow him to keep his business afloat and provide for the livelihood of his family and employees. But when Governor Jared Polis signed legislation to provide $4 million in relief to small businesses in December of 2020, Hardre’s race rendered him ineligible.

Although the law was subsequently amended, it still gives preference to minority-owned businesses in distributing COVID relief.

The solution to past discrimination is to end discrimination, not to perpetuate it. But laws such as these do just that by prioritizing group identity over individual circumstances.

A person’s skin color is irrelevant to the question of whether he needs pandemic relief to keep his business afloat. And by choosing to elevate race above all else, the government violates the Constitution’s guarantee to treat us all equally—as individuals—before the law.

Fortunately, voters, even in the progressive bastion of California, may have hit their limit. Recently, proponents of equity pushed a ballot measure to repeal the state’s Proposition 209, which prohibited California from discriminating on the basis of race in education and contracting, because they said repealing 209 was necessary to “right previous wrongs.”

Nearly 60% of Californians rejected the proposal, preferring to require state institutions—including the world-renowned University of California system—to make decisions based on individual merit rather than group identity.

To invert a quote from psychologist Carl Jung, the darker the shadow, the brighter the light. The ideological shift away from individualism should not be met with fear, apathy, or hopelessness.

Across the country, parents are fighting back against what they see as indoctrination and injustice directed at their children. Business owners are asserting their rights to be treated equally without regard to their race. And people of all backgrounds continue to fight for the bedrock principle that, as Justice Antonin Scalia once wrote, “[i]n the eyes of the government, we are just one race here. It is American.”

Pacific Legal Foundation is there to help them in that fight.

A dangerous deviation: From equality to equity

Joseph G. Lehman

Brittany Hunter

Editorial Writer
Joseph G. Lehman

Joshua Thompson

Director of Legal Operations

When biology professor Bret Weinstein was threatened and harassed at Evergreen State College for his opinions about diversity and inclusion on campus, he felt like he was living in some sort of dystopian nightmare. “The chief of our college police department told me she could not protect me on campus,” Weinstein wrote in The Wall Street Journal. “Protestors were searching cars for an unspecified individual—likely me—and her officers had been told to stand down, against her judgment, by the college president.”

The debacle started when Professor Weinstein questioned changes to the campus’ planned “Day of Absence.” Traditionally, the Day of Absence, based on the play of the same name, had been a day when students and professors of color would stay home to show what the campus would look like without their contributions to the school. However, in 2017, the purpose of the day was flipped on its head. It was decided that all white professors and students should stay home as a show of remorse and restitution to the black and minority student body and faculty.

Previously, participation had been voluntary. But that year there was a show of force. Organizers explained that anyone unwilling to leave campus for the day was exacerbating the systemic racism they believed was present in every single white person on campus.

This concerned Weinstein, who didn’t think it was right to ask students and faculty to leave campus for a day because of their skin color.

In a letter to his colleagues, Weinstein voiced his concerns:

“There is a huge difference between a group or coalition deciding to voluntarily absent themselves from a shared space in order to highlight their vital and underappreciated roles (the theme of the Douglas Turner Ward play Day of Absence, as well as the recent Women’s Day walkout), and a group encouraging another group to go away. The first is a forceful call to consciousness which is, of course, crippling to the logic of oppression. The second is a show of force, and an act of oppression in and of itself.”

Declaring his intent to protest the event, he wrote, “I will be on campus on the Day of Absence. I would encourage others to put phenotype aside and reject this new formulation, whether they have ‘registered’ for it or not. On a college campus, one’s right to speak—or to be—must never be based on skin color.”

Weinstein was quickly labeled a racist and the student body mobilized against him in a militant, frightening way.

Video footage captured on smartphones shows Weinstein being surrounded and cornered outside his classroom by Evergreen students. They refused to listen to him, shouting him down every time he tried to speak and drowning him out with a group chant: “Hey-hey, ho-ho, these racist teachers have got to go.”

Curtis Martin's land in Vale, Oregon
Curtis Martin's land in Vale, Oregon

Students at Evergreen State College harassed Professor Weinstein and faculty during the “Day of Absence” protests.

The students did not stop with Weinstein. The Day of Absence incident sparked a larger movement on campus that reached a boiling point when students hijacked a faculty meeting, held professors and administrators hostage in a room, and issued a list of demands. Those demands included that Evergreen create an Equity Center, give mandatory “anti-oppression” trainings to all staff, and suspend Weinstein without pay. Students barricaded the building and formed a human wall outside to prevent police officers from entering. When Evergreen President George Bridges told protestors he had to use the restroom, they insisted that two protestors escort him.

Meanwhile, students who dared defend Weinstein were called racist, threatened, and chased off campus.

What happened at Evergreen in 2017 was unfortunately a portent of what’s happening now: Across the country, the debate around race and discrimination has grown toxic. It has turned college students against professors, employees against employers, and school boards against parents. On one side are the growing number of activists who have become convinced that race-blind policies perpetuate systemic racism and who are pushing instead for policies, laws, and attitudes that categorize individuals by race. On the other side are people like Bret Weinstein, who recently told the Israeli newspaper Haaretz that the law should be colorblind. “When you walk into a courtroom, your race cannot matter,” he said. “The law has to be indifferent to these things. And our colleges need to be indifferent to these things as well, like all of the structures that make civilization function. But the trend is going rapidly in the opposite direction, putting race as the most important thing about you. It’s absolutely frightening. It’s very short-sighted and it will result in a catastrophe.”

While there are many reasons for this concerning trend, one contributor is the controversial academic framework known as critical race theory. But while critical race theory has become a powerful academic and philosophical movement in recent years, many laws, policies, and actions have been incorrectly lumped under the critical race theory label, which confuses the debate and has turned the discussion more political. The only way to effectively fight for equality before the law is to know what critical race theory is and isn’t, and know the difference between true equality and equity.

What is critical race theory?

According to The New York Times, “Critical race theorists reject the philosophy of ‘colorblindness.’ They acknowledge the stark racial disparities that have persisted in the United States despite decades of civil rights reforms, and they raise structural questions about how racist hierarchies are enforced, even among people with good intentions.”

In the past couple of years, media and governments alike have made race the focal point of reporting and policy discussions. But critical race theory has driven academic and philosophical debates in universities for several decades.

Critical race theory was born out of an earlier movement called critical theory.

On its website, the University of California, Berkeley explains that critical theory “is often associated with the Frankfurt School, a group of intellectuals who, starting in the 1920s, developed critiques of modern capitalist society, fascism, and the new global dispensations that followed in the aftermath of World War II; in doing so, the Frankfurt School constructed modes of social theory distinct from established forms of philosophy.” Then, in the 1980s, “a group of historians and scholars shifted the emphasis of critical theory to race rather than class.”

James Lindsay is co-author of the bestselling book Cynical Theories: How Activist Scholarship Made Everything about Race, Gender, and Identity―and Why This Harms Everybody. In an interview with Pacific Legal Foundation, he explained that critical race theory “proceeds from a number of assumptions: that racism is the fundamental organizing principle of society and that it was created by white people to be imposed upon people of color so that they could disenfranchise minorities and control them through a kind of soft power.”

Derrick Bell, a professor at Harvard Law, could be described as the father of critical race theory. Bell didn’t believe that the hard-won victories of the civil rights movement—chief among them, equality under the law—had sufficiently helped black Americans. In his 2004 book, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform, Bell writes, “Success for the black person requires effective functioning achieved with the knowledge that his or her work will not be recognized or rewarded to the same degree as a white person doing the same thing.”

“Professor Bell had a very pessimistic view of what was going on in post-civil rights America,” Lindsay explained.

Bell wanted minority communities to recognize their constant oppression by white people in power who, he argued, have always and will always exploit minorities—even if they are unaware that they are doing so.

He set the stage for critical race theory, passing the torch to his law student Kimberlé Crenshaw, who helped the movement progress.

Crenshaw believed that oppressive social systems could never be remedied without explicitly acknowledging race in our laws and society. As she argued in the magazine The Baffler, “It’s important to fasten onto this point clearly: colorblindness not only undermines law and social policy that rely on race-conscious analysis, but also soothes anxiety about the stubborn endurance of the structures of white dominance.”

Critical race theory posits that working toward a “post-racial” society where race is no longer a determining factor of a person’s life is an unachievable goal. As Crenshaw explains: “The term [post-racial] worked both to de-historicize race in American society and, perversely enough, to reframe the idea of racism as something that was very much the opposite of the lived experience of race in America. Under this inside-out account of our racial history, a post-racial America was, by definition, a racially egalitarian America, no longer measured by forward-looking assessments of how far we have come, but by congratulatory declarations that we have arrived.”  

Christopher Rufo, senior fellow at the Manhattan Institute, argued in The Wall Street Journal that “critical race theory isn’t an exercise in promoting racial sensitivity or understanding history. It’s a radical ideology that seeks to use race as a means of moral, social and political revolution. The left-leaning media has sought to portray it as a ‘lens’ for examining the history of racism in the U.S., but this soft framing obscures the nature of the theory, which maintains that America is an irredeemably racist nation and that the constitutional principles of freedom and equality are mere ‘camouflages,’ in the words of scholar William F. Tate IV, for white supremacy.”

The rise of race-focused policies

In the past five to 10 years, the debate around the best ways to fight (and eventually end) discrimination has shifted away from race-blind, non-discriminatory laws and policies toward race-focused policies.

Robin DiAngelo, author of the book White Fragility, has said many times that the question we need to ask ourselves is not, is racism occurring? But rather, how is racism manifesting itself in any and every situation?

DiAngelo believes that white people can combat racism only by acknowledging and confronting their privilege and inherent racism. Even then, white people cannot fully be removed of guilt, because the privilege can never fully be erased. For activists like DiAngelo, your identity is reduced to your race, and nothing else matters—a sentiment we can see in the debacle at Evergreen.

But many of these ideas aren’t isolated to college campuses. All across the country, public and private K-12 schools are implementing more race-focused policies when it comes to school admissions and curricula.

Pacific Legal Foundation is currently representing Coalition for TJ, a group of students, alumni, parents, and community members who are challenging the new admissions policy at Thomas Jefferson High School for Science and Technology (TJ).

TJ is a Governor’s School, similar to a charter school and known for its rigorous and advanced curriculum that pushes students to be their best. Ranked the top high school in the country, TJ’s admissions test ensures that the students admitted are capable of handling the course load.

In 2020, the Fairfax County School Board voted to change the school’s admissions process from a race-neutral admissions test that granted automatic admission to those who passed, to a “holistic” approach that considered students’ elementary/middle school, neighborhood, and family income level, among other factors. While the school board sold the plan as a way to increase diversity in the already-diverse school, that meant ensuring that fewer Asian and more black and Hispanic students were admitted.

Coalition for TJ is suing on the grounds that the new policies are a violation of the constitutional guarantee of equality before the law.

The Fairfax County School Board has not tried to hide the anti-Asian intentions of the policy change. Superintendent Scott Brabrand even stated publicly that Asian-Americans were “over-represented” at TJ, and the school’s own principal repeatedly complained that TJ’s majority Asian-American student demographics weren’t like the rest of the school district.

Since the new admissions standards went into effect, the Asian-American student body has decreased by about 20%.

Or take Hartford, Connecticut, where a racial quota was implemented to engineer racial integration in public magnet schools. To make sure these schools were “properly” integrated, the state mandated that each school had to enroll a minimum of 25% white students. The result was a cap of 75% black and Hispanic students.

Because the community where these magnet schools were located was predominantly black, the schools had a hard time fulfilling their quota for white students. Rather than fill the empty seats with black and Hispanic children, the schools were required to turn away deserving black and Hispanic children, lest their enrollment upset the 25% mandate.

One black Hartford student had been at the top of the waitlist three times, but because of the new quota rules, he was never admitted to one of these life-changing schools.

LaShawn Robinson, her son, and other PLF clients at a press conference in Hartford

As for Bret Weinstein, the mob did not stop coming for him. The situation at Evergreen eventually became untenable: Police called Weinstein and his wife Heather Heying, who also taught at the school, and told them their safety was in jeopardy—not only on campus, but at their home as well.

Fearing for their well-being, the couple resigned from their posts and sued the school for its failure to protect its faculty. Ultimately, Evergreen agreed to pay the couple about $500,000 each in addition to $50,000 of their legal fees.

But the pair had to leave the jobs they loved.

Individuals matter

The rallying cry of the civil rights movement is that every person in America should have an equal opportunity to learn, work, prosper, and live how they choose, regardless of the color of their skin. While that dream has not yet been perfectly realized, we must acknowledge the incredible progress that has been made in the past 10, 50, and 100 years.

Acknowledging progress does not mean surrendering to the status quo, and admitting that discrimination still exists does not mean ignoring the promise of the American dream. As a country, we have committed to atoning for the sins of the past by elevating everyone toward a better future. We should fulfill that commitment by ensuring no one is treated differently—or given any less opportunity—because of their race. 

Thomas Jefferson High School becomes an arena for the battle between parents and policy

Joseph G. Lehman

Joseph Kast

Creative Manager
Joseph G. Lehman

Erin Wilcox


The large auditorium was mostly empty when the Fairfax County School Board held its public hearing in May. Schools had been closed for much of the school year and Fairfax’s indoor mask mandate was still in effect. Seven board members sat six feet apart at a thin crescent table.

Standing opposite them was a mother named Asra Q. Nomani, whose son was a student at Thomas Jefferson High School for Science and Technology. Asra was wearing her mask, but it could not hide her frustration.

“The principal at our high school told us that our mostly minority students and parents had to check their privileges,” Asra, an Indian immigrant, told the board. Then she started to point to board members and call them out by name: “You”—she pointed to a woman—“told us that we were toxic.” Another woman, Asra said, had suggested that families of Thomas Jefferson students were racist. And, most importantly: “Every single one of you voted to remove the merit-based, race-blind admissions test.”

Meanwhile, she said, “Our students were told that if they do salsa dancing it amounts to cultural appropriation, and that they needed to check their racism. And that is our mostly minority, mostly Asian students.”

She was just getting started on her long list of complaints when she was brusquely cut off: “Your time is up ma’am! Your time is EXPIRED. Next speaker.”

The anger in the chair’s voice betrayed the real issue. Asra wasn’t merely running long on her allotted three minutes. She was revealing controversial school board actions many parents weren’t aware of, and the viral clip that emerged would set off a national movement.

Asra got in one last shot as the chair belittled her. “Yes, you continue to shut us down, because that’s what you love to do.”

Parents like Asra Nomani are treated like criminals when they push back against activist school boards. In September, the National School Boards Association sent a letter to President Biden suggesting such parents should be considered domestic terrorists under federal law.

But for Asra, what’s at stake is too important to keep quiet.

An Indian immigrant who came to the U.S. when she was four years old, Asra is a self-described patriot. Her family immigrated here because the United States expressly promises to treat its citizens as individuals, not as groups. Her transition from sprawling Mumbai (population 12,500,000) to tiny Morgantown, West Virginia (population 30,000) could not have been easy, especially as a young Muslim.

But Asra is an indomitable spirit, and when she fights, she fights to win. She eventually earned a master’s degree in international studies from American University and went on to become a reporter for The Wall Street Journal, a professor at Georgetown University, and the author of two books. At Georgetown she was co-director of the Pearl Project, an investigation into the kidnapping and murder of Daniel Pearl, Asra’s friend and colleague from The Wall Street Journal who was executed by Pakistani terrorists in 2002.

Asra Nomani at a prayer service

Over the years Asra has appeared on television many times—including Real Time with Bill Maher—to discuss her work advocating for the rights of Muslim women. (In 2004 she drafted “The Islamic Bill of Rights for Women in the Mosque.”) Up until last fall, most people would probably describe Asra as a liberal feminist Muslim, pushing for reform within her faith.

But a lot’s happened since last fall.

Asra’s son is now a senior at Thomas Jefferson High School for Science and Technology, which is currently ranked the #1 public high school in the country. Called TJ by Virginia locals, the school’s student body is diverse: Only about 18% of the student body is white. Until last year, getting into TJ was a straightforward process. Admittance was based on passing an extremely rigorous test. Once you pass, you’re in—and it’s free to attend. But passing the test requires an immense dedication on the part of both prospective students and parents.

“As a single mother, I have huddled over the dining room table with my son since his earliest days, helping with homework and imbuing in him my parents’ values of education and hard work,” Asra says. She encouraged her son to study hard for the TJ admissions test and recalls many nights when she went to bed long before her son, who studied late into the evening, only to be up again early the next day to continue pushing himself on his math skills.

The work paid off, and her son was accepted. Asra’s son has flourished at the school, where gifted students are able to push themselves far beyond what they could achieve in a normal math or science classroom.

“Every TJ student, like my son, worked exceptionally hard to gain a spot to TJ and maintained that rigor to achieve,” Asra says.

But the race-blind admissions process that allowed Asra’s son to flourish at TJ may be permanently retired. Despite TJ’s #1 ranking in the nation, and despite the fact that 80% of TJ’s students are from minority backgrounds, the Fairfax County School Board and superintendent decided to overhaul TJ’s admissions process in the name of equity. During a September 2020 session with the school board, Superintendent Dr. Scott Brabrand said TJ “should reflect the diversity of Fairfax County Public Schools, the community, and of Northern Virginia.” Instead of a race-blind admissions test, they decided students should be admitted to TJ through a complex new “merit lottery” process. Black, Hispanic, and white enrollment was projected to significantly increase under the new process—while Asian-American enrollment would be significantly cut.

It’s hard to say what precisely inspired FCPS to upend admissions standards at the best public high school in the country. But the timing of the decision coincided with a visit from Dr. Ibram Kendi, one of the country’s leading proponents of “antiracism.” On August 6, 2020, Dr. Kendi gave a one-hour antiracism lecture, via Zoom, to Fairfax County administrators, principals, and teachers.

Because Fairfax parents were not invited to the lecture, it’s hard to know exactly what Kendi discussed. But his #1 New York Times bestselling book How To Be An Antiracist provides plenty of clues. In the book, Kendi argues there is no such thing as being “not racist.”

“One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an antiracist,” Kendi writes. “There is no in-between safe space of ‘not racist.’ The claim of ‘not racist’ neutrality is a mask for racism.” In fact, Kendi argues, “the only way to remedy past discrimination is present discrimination.” As for standardized testing, Kendi says: “The use of standardized tests to measure aptitude and intelligence is one of the most effective racist policies ever devised to degrade black minds and legally exclude black bodies.”

For his time and wisdom, FCPS paid Kendi $20,000 in taxpayer money. In parents’ money. If that isn’t enraging enough, FCPS also bought $24,000 worth of Kendi’s books, so that every kindergartener in Fairfax could have a copy of Kendi’s children’s book, Antiracist Baby. In all, Kendi earned tens of thousands of dollars for telling FCPS staff that they’re racists.

A month later, FCPS announced that they would be changing the admissions process at TJ. The test would be tossed. In its place, admissions would be determined by a “holistic process” that allows the school to take race into account. FCPS branded this as an effort to bring more diversity to TJ.

Asra, however, called it what it is: racial engineering.

“It was clear that the new standards were aimed at a particular result: dramatically reducing the number of qualified Asian-American students admitted to TJ,” Asra argued in The Washington Post. Not only were the new standards “designed to actively discriminate against Asian-American students,” she wrote, “but [they] would also end up watering down the school’s long-standing commitment to achievement through hard work and merit.”

In an email to parents and students, TJ’s principal, Dr. Ann Bonitatibus, seemed to acknowledge that the admissions changes were an attempt to balance the racial makeup of the school. She explained that while TJ is a “rich tapestry of heritages,” it does not “reflect the racial composition in [Fairfax County Public Schools].” She called on TJ parents and students to play a role in “evaluating the racial equity at our school, dismantling a long-held symbol of racism, and embracing curricula to better prepare TJ graduates for a truly diverse and culturally responsive world.”

Asra and a group of other parents, many of them immigrants, formed the Coalition for TJ in response. The Coalition represents some 5,000 parents, students, alumni, staff, and community members who want to reinstate TJ’s race-blind, merit-based admissions. Despite FCPS’ talk of diversity, equity, and the other familiar buzzwords from the antiracist movement, the families in the Coalition say the new admissions process is discriminatory. Asian-Americans are the only demographic group that has dropped at TJ under the new admissions process: from 73% last year down to 54% this year—which, of course, was the whole point.

“These families never could have imagined they would face such injustice in America,” Asra says.

Enrollments for all other racial groups went up, as desired. But that includes white students, who increased in enrollment by 43%. How that effect is uprooting “white supremacy culture” at TJ remains unclear.

There is a simple brilliance to the meritocratic admissions policy that TJ upended in favor of blatant discrimination. The test is blind. You have to work hard, study, and get good grades. There are no “legacy” admissions at TJ. You can’t bribe your child’s way in, and a family’s wealth, stature, or clout don’t play any role in who gets into TJ. Contra Kendi, there was nothing more equal or fair than how TJ’s admissions used to work.

Parents and students protesting the changes to TJ’s admissions process

Asian-American families don’t have to dig deep to show that the admissions change is rooted in bias against Asian students. Legislators and administrators are on the record accusing Asian-American families of cheating to pass the old test. Virginia State Delegate Mark Keam implied that Asian parents were using “unethical” means to “push their kids into” TJ when their parents are “not even going to stay in America.” A retired FCPS teacher testified at a public hearing that Asian-American parents are “ravenous” in preparing their children to get into TJ, and implied that they break immigration laws to get into the country—an insulting and baseless claim. Virginia’s education secretary compared prepping for TJ’s admissions test to using performance-enhancing drugs. One board member derisively referred to TJ students “who have been [in] test prep since second grade.” Several school board members are on the record complaining about “the culture” of the majority-Asian student body at TJ. One asserted, without evidence, that it was not a “healthy” culture.

Asra and her peers in the Coalition for TJ were ready for a fight. Changing TJ’s admissions policy for the purpose of enrolling fewer Asians is anathema to the core American principle of equality under the law—a principle that was fought for during the Civil Rights movement, and which attracted many Asian immigrants to America in the first place.

“My father saw [America] as a land of opportunity and plenty—apart from the Old World’s discrimination and unfair trade-offs,” Asra says. “He was delighted to see his grandson transcend inequities of race, nationality, and religion and succeed and thrive on his own merits.”

The Fourteenth Amendment prohibits public schools from discriminating against a group on the basis of race. So the Coalition for TJ partnered with Pacific Legal Foundation to sue the school board in federal court.

FCPS’ attorneys attempted to get the case thrown out, but the judge was not having it. “Everybody knows the policy is not race-neutral, and that it’s designed to affect the racial composition of the school,” U.S. District Court Judge Claude Hilton said. “You can say all sorts of beautiful things while you’re doing others.” He allowed Coalition for TJ’s case to go forward, and it is in litigation now.

That doesn’t mean Asra is done fighting. For her, the admissions change is the tip of the iceberg with what’s happening at Fairfax County Public Schools. Like many other parents across the country, Asra is upset by school curricula, texts, and policies that seem to teach children that the color of their skin is more important than their work ethic or the strength of their character.

Asra doesn’t think that worldview is going to be helpful for her son’s intellectual development, and many parents across the U.S. agree. Throughout spring and summer 2021, countless videos of parents confronting their school boards at hearings went viral. And in video after video, the reception from board members was to treat them like they’ve treated Asra—cut their mic, ignore, move on.

On September 30, the national fight between parents and school boards escalated with the National School Boards Association’s letter to President Biden, which demanded that he take action on supposed widespread “malice, violence, and threats” by parents across the country, noting that “these heinous actions could be the equivalent to a form of domestic terrorism[.]” While the letter does not use the word “parents,” the target was clear—and the association later apologized, acknowledging there was “no justification for some of the language included in the letter.”

Asra was apoplectic when she found out about the letter, writing that “the association of parents to ‘domestic terrorism’ by the National School Boards Association is not only a slap in the face to sincere parents, but it is—tragically—a cruel insult to victims of terrorism around the world.”

But the real focus for Asra and other families is now the legal fight against the Fairfax County School Board, which continues, thanks to PLF’s pro bono representation. At a press conference announcing the case, TJ parents and students stood with PLF attorneys and explained what’s at stake.

“The authorities are stirring up hate against Asian-Americans,” one parent said. “TJ was painted as a school for privileged families,” another said, “despite the fact that the majority of TJ families are immigrants who came to the U.S. with very little in their hands and pockets. But the one thing in common for them was that they all worked hard.”

One PLF attorney did not mince words. “The Coalition for TJ is not going to stand for this kind of discrimination against Asian-American students,” she said, “and they are here to fight for equal protection for their children.” 

The Inconvenient Minority

Joseph G. Lehman

Kenny Xu

Guest Author

Historically, there has been a popular image of Asian-Americans that is best described as “nerdy” and “academic.” Think Audrey Hepburn’s oversized-glasses-wearing-heavily-accented-nerdy neighbor in Breakfast at Tiffany’s or the socially awkward Long Duk Dong in Sixteen Candles who is criticized for his foreignness. This stereotype reflects the also-familiar trope that Asian-Americans are overachieving and intelligent. The result of this confluence in perceptions is that people are able to dismiss Asian-American academic achievement as a product of “tasteless” and “sterile” tutoring and grade-grubbing, implying that they are not truly “excellent.”

While pop culture is slowly becoming more accepting of Asian-Americans, evidenced in new movies like Crazy Rich Asians and Shang-Chi, one institution has remained stubborn in its perception of them. Ivy League schools are still clinging to these outdated stereotypes about Asian-Americans, and weaponizing the images against them in the admissions process. Look at the Students for Fair Admissions v. Harvard court case, for example: Harvard has a strict quota on Asian students and allows their admissions process to be racially biased in order to maintain their ideal numbers of enrollees. Asian-Americans—who make up nearly 50% of all American SAT scores higher than 1500—have made up 20% or less of Harvard’s student body uniformly between 1995 and 2015. 

In justification of these actions, Harvard claims that Asian-American applicants rank lower on personality scores and are therefore not the ideal Harvard candidates. Asian-Americans rank lowest of all the races on Harvard’s “personal” score, even though they rank highest of all the races in Harvard’s corresponding alumni interviews. A paradox? No, deliberate ignorance. 

In my latest book, An Inconvenient Minority, I show how Harvard’s admissions officers, who never interact firsthand with their applicants, nevertheless attack Asian personalities as being “robotic,” “social outcasts,” and “test-taking robots with no personality.” I show the human consequences of the back-breaking stereotyping of a group of people who study many hours per day more than the average American and work extremely hard to get into college, often to see the fruits of their efforts rot under the gaze of diversity-obsessed admissions officers who see “too many Asians” at their schools. The average Asian-American has to score vastly higher on the SAT to have the same chance of admission as a black person, and higher than a white person to gain an equal chance. 

According to Harvard, Asian-Americans are still most accurately represented in films steeped in what were obvious caricatures written in the ’70s and ’80s. Evidently the years of implicit bias training these admissions officers undergo to screen applicants have had the reverse effect as intended on Asian admissions to the university. Or perhaps they have had the exact effect intended. Perhaps the purpose of implicit bias training and diversity, equity, and inclusion is in fact to exclude populations that school administrators don’t want more of. 

I’ve seen the intentional typecasting of Asian-American achievement firsthand. Growing up, I did not fit into Hollywood’s traditional description of my culture or race. I do not speak Mandarin, did not attend an Ivy League school, and was not raised in a “typical” Asian household. My mom and dad made an effort to get me integrated in society. Both my church and alma mater are predominantly white, I listen to country music, and I love football. I always felt a little out of place, never quite belonging to either group included in the Asian-American camp.

Once, in college, my hall counselor challenged us to introduce ourselves using three objects that related to our “cultural heritage.” In an act of subversion of the entire exercise, I brought my prized Redskins cap, a paper target I had previously shot at a shooting range, and my pocket Constitution—signaling my fealty to the country in which I was born and had lived my entire life—my “culture.” Ignoring my hall counselor’s jeers, I informed my peers how much football meant to me, how I had met some of the friendliest people I had ever encountered at the gun range, and how I was grateful to live in the United States. These three things were a part of me, made me who I was.

At this point, the counselor apparently had had enough. She berated my presentation, claiming that minority values and American values are contradictory and that assuming otherwise was nothing more than ignorant. I disagreed, of course, explaining how I, an Asian-American, believed in American principles as much as any one of my white peers. In response, she simply stated that many people consider Asian-Americans to be in fact white.

The term in critical race theory is called “white-adjacent.” These are not meant to be compliments, but denigrations of Asian-Americans as kiss-ups to the white man. 

I was not necessarily surprised by her attack, which really says a lot about race narratives in our country. I challenged her perception of Asian-Americans, which was probably based on unrealistic stereotypes, and instead of recognizing that all people are different regardless of race, she wrote me off as “white.” I inconvenienced her assumption that my race should be the most important thing about me, and instead of accepting the reality of different presentations even within races, she rejected that I was a “sincere” part of my race in the first place. 

For all the virtue-signaling that progressive people do concerning uplifting and supporting minorities, it all falls by the wayside when a minority decides he will stop playing the roles they want minorities to play. This is unfortunate, of course, but is also so deeply ingrained in our culture that I am no longer surprised by it.  

After graduating college, I became increasingly interested in conservative politics—a turn, I admit, caused by the very real concern for my fellow Asian-Americans due to the way Ivy League universities like Harvard seem to treat them like trash. As this interest grew, I found that the feelings of ostracization I had felt in my younger years followed me into this new interest. A 2016 study conducted by the National Asian American Survey found that 41% of Asian-Americans identify as Democrats while only 16% consider themselves to be Republicans. Frequently people assume that I vote Democrat or hate the orange man. Once again, I found myself contradicting the way the world perceived my race.

Adhering to strict stereotypes and rejecting any “abnormalities” robs us of truly appreciating the depth of different cultures. Being Asian doesn’t imply homogeneousness, just as being white doesn’t imply homogeneousness. Race doesn’t dictate beliefs or opinions or anything beyond our physical appearances.

Progressives tend to ignore this fact.

But that is the thing: Being Asian-American can mean whatever I want it to mean. I am not limited to Hollywood’s portrayal of me, nor am I confined by assumptions or traditions or stereotypes. I am proud of my Chinese heritage, of my parents’ willingness to immigrate to the United States so that I could have a better life. But that does not contradict my love of things deemed “white” or “American.” The two are not mutually exclusive. Being different from my cultural and racial peers does not separate me from them; instead, it shows depth. All of us are not the same, indistinguishable from one to another. We have different opinions, different perspectives, different experiences. And that is a good thing. We should not want, nor be expected, to be the same. 

Our culture, our race, our background—these are just parts of us. In reality, we are made up of so much more; we are made up of things that actually matter. It is progressives who obsess over race who tend to pigeonhole us and try to control the way we present ourselves, which is the epitome of ignorance.

Maybe it is time to remember this. Maybe it is time to embrace our differences. You would not think the left needs to hear this, but not all Asian-Americans are the same. Some of them like football and guns and think America is the greatest nation in the world.

Kenny Xu is the president of Color Us United, an advocacy group for a race-blind America and author of the new book An Inconvenient Minority.

Not equality of outcome, but equal enjoyment of liberty

Joseph G. Lehman

Anastasia Boden

Senior Attorney

In the past few decades as the country has evolved toward equality, moves from universities like crafting admissions policies to admit only so many students of one race or shaping a company boardroom based on the sex of its members would’ve been thought reprehensible. But now, doling out benefits and burdens on the basis of immutable characteristics and group membership is actively encouraged, faddish even.

Compared to the policies of the past, today’s race-crafting is done with good intentions. In fact, proponents argue that their policies are intended to correct for pernicious policies of old. But the solution to past or present historical wrongs is not more race-preferencing—it’s opportunity. The more we tear down arbitrary, state-imposed barriers, the better we can allow people to lift themselves up and transform their communities.

Too often the government tries to help certain groups, rather than just getting out of the way. Take California, which has recently purported to champion equality for women by enacting a mandatory “woman quota” for the boards of publicly held corporations. This broad, perpetual quota applies to corporate boards across every industry in the entire state of California, regardless of whether they have any history of discrimination, irrespective of female representation at a given company, and notwithstanding current hiring patterns. The irony is that prior to going into effect, women were securing 40% of board seats annually. Now the government takes credit for the number of women being hired, relegating these women to “quota hires” in the process. Perhaps worse, in an attempt to justify its law in court, the state has relied on stereotypes about women, saying women are more likely to follow rules, keep corporations in compliance, allow less corporate debt, and act with a certain leadership style that they suggest benefits women—despite the reality that the Supreme Court has repeatedly repudiated basing laws on stereotypes about women.

In trying to help women, California has ignored all the ways in which women are already excelling in the corporate world and the means by which the government’s own policies are holding women back.

At the onset of the COVID pandemic, female-led companies were among the first to step up with marvelous innovations. The female-led Nurx and Everlywell, for example, were early to develop at-home COVID-19 tests. Woman-headed AVA, a telehealth startup that also makes wearable devices that track the temperature of women seeking to get pregnant, quickly began working with researchers to pivot its hardware to detect COVID-19 infection. And it was two women, Melissa Hanesworth and Tara Engel, who came up with the idea of retooling Pernod Ricard’s distilleries to produce industrial quantities of hand sanitizer. 

Yet when these women stepped up, it was the government, not misogyny or discrimination, that hampered their endeavors from taking off. When Nurx CEO Varsha Rao and Everlywell CEO Julia Cheek developed the desperately needed at-home COVID-19 tests, instead of working with the companies to expedite safely getting the tests to the public, the FDA swiftly shut them down because they hadn’t yet gone through the normal onerous approval process that can take years to complete (obviously time the world didn’t have during a global pandemic). And instead of government regulators embracing telehealth companies, like AVA, as easy and efficient ways to safely get people healthcare during a pandemic, strict telehealth laws overly burdened and sometimes outright banned telehealth. Only until recently, even Medicare and Medicaid reimbursement rules for telehealth were extremely strict.

Arbitrary laws stand as a barrier to women succeeding. Rather than engaging in paternalistic attempts to help them by doling out benefits on the basis of sex, like California’s quota for corporate boardrooms, governments would help women more by simply getting out of their way.

The Fourteenth Amendment promises not just equality of treatment, but equal enjoyment of liberty—particularly the liberty to earn a living. Civil rights leaders throughout history have recognized the tie between equality and economic opportunity.

Frederick Douglass, for example, called the “right to work the most precious liberty that man possesses.” Later, when talking about how the government should act with regard to freed blacks, he said, “Do nothing with us! Your doing with us has already played the mischief with us… All I ask is, give him a chance to stand on his own legs! If you will only untie his hands, and give him a chance, I think he will live.”

When the Supreme Court later eviscerated the guarantees of the Fourteenth Amendment in the Slaughterhouse cases, Justice Stephen Field objected that “no privilege was more fully recognized… than that every free [person]… was entitled to pursue his happiness by following any of the known established trades and occupations, subject only to such restraints as equally affected all others.”

Opportunity is central to civil rights. Equality requires the ability to work, earn, and use the fruits of those labors as one sees fit.

Yet the term “equality” has been hijacked by those who seek equality of outcome. Under this worldview, the government must affirmatively engage in unequal treatment on the basis of race to ensure equal numbers. Civil rights leaders throughout history have understood equality as meaning something different: equality of liberty. This requires that the government not only treat us equally without regard to race or sex, but give each of us equal liberty to stand on one’s own two feet and pursue our own version of happiness.

The problem with preferencing some people based on race or sex necessarily entails burdening others solely because of their own skin color or sex—which is inherently illegitimate. And to the extent barriers exist that burden certain populations, preferences don’t remove them. They paper over them. They are sloppy tools for undoing injustice and often create a permanent state interest in balancing workplaces, schools, or government contracts for the preferences’ own sake. Where the state seeks balance rather than equality, it elevates group membership over individual consideration, even though the former is entirely arbitrary and out of our control.

What’s the solution? Tearing down barriers that keep people back—and allowing all people to flourish.

Give people the ability to work. Give them the ability to change their communities. Give them the opportunity to flourish, given their unique talents, interests, and proclivities. The solution to racism and discrimination is not more group-based treatment trying to engineer equal outcomes—it’s giving people their constitutional right to pursue happiness. Only then will civil rights truly be realized.

PLF celebrates the extraordinary generosity of The Quarter Century Club

Pacific Legal Foundation is honored to recognize our new class of donors who, as of 2021, have supported PLF for 25 consecutive years. They join 206 donors who are already Quarter Century Club members. This extraordinary commitment to our mission of defending liberty and justice for all deserves our deepest gratitude. Thank you!

Dr. Allen L. Appell

Mr. and Mrs. R. Allan Baker

Mr. Robert D. Barclay

Mr. and Mrs. Douglas H. Bathey

Mrs. Patricia F. Bennie

Mr. David Bundsen

Mr. Randall E. Greer

Mr. Shawn C. Larsen

Mr. and Mrs. H. Ralph Snyder, Jr.

Mr. Kenneth H. Stahl

Vecellio Group, Inc., Mr. and Mrs. Leo Vecellio, Jr.

Let’s Keep the Courtroom Victories Coming!

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