Kendi’s Brand of “Anti-Racism” is Unconstitutional

Ibram X. Kendi

by Hans Bader

The Fairfax County Public Schools paid $20,000 to an advocate of racial discrimination against whites, for a 45 minute speech on “anti-racism.” They also are paying bus drivers to drive empty school buses, even as schools operate online. Fairfax County has 1.1 million residents, and runs the largest school system in Virginia.

Its schools told the Daily Wire that Ibram X. Kendi, who advocates discrimination, was invited last month “to speak to school leaders about his book, ‘How to Be an Antiracist,’ as part of the school division’s work to develop a caring culture.”

As the Daily Wire notes, “Under Kendi’s ideology, discriminating against others on the basis of race is a meritorious idea, so long as it is producing racial equity (i.e., anti-racist). Kendi explains this ideology in ‘How to Be an Antiracist,’ his 2019 best-selling book.”

As Kendi puts it, “The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”

Kendi is a radical who advocates totalitarianism, and once wrote an op-ed suggesting that white people are aliens from outer space.

The widespread discrimination Kendi advocates would violate the Constitution, which regards discrimination and other racial classifications as a “last resort,” not as the “only remedy” for racist discrimination. (See Bartlett v. Strickland (2009)).

To the Supreme Court, the remedy for “present discrimination” against minorities is to compensate the victim or punish the discriminator, not to discriminate in the future against whites. Past discrimination is not supposed to be “remedied” by discrimination against whites, except in unusual circumstances — namely, where there is evidence that widespread discrimination was recently committed intentionally by the government, leaving lingering effects. (See, e.g., Richmond v. J.A. Croson Co. (1989)).

But illegal “antiracist” discrimination may soon take place in Virginia’s schools. Fairfax school officials and Virginia’s education secretary recently proposed an end to merit-based admissions to America’s number-one-ranked public high school, Thomas Jefferson High School for Science and Technology. As Asra Nomani and Glenn Miller explain in Quillette, the school is attended by students “mostly from immigrant Asian families, many of whom fled persecution and economic privation.”

School officials are unhappy that very few of its students are black or Hispanic (as opposed to Asian), so they are planning to change its admissions process to alter its racial composition. They have come up with a “proposal to replace the existing race-blind, merit-based TJ admissions system of standardized tests, grade rankings, essays, and teacher recommendations with a process based on random selection from among applicants who have a core class GPA of 3.5 or greater.”

While their proposal is intended to help blacks and Hispanics at the expense of Asians, it appears unlikely to actually do much to help blacks or Hispanics. As Nomani and Miller note:

School officials claim that the new lottery-based proposal would serve to reduce the share of Asian students in the Class of 2024 from 73 percent to 54 percent, while increasing black and Hispanic representation. But TJ’s parents include a number of highly numerate scientists who manage and analyze data professionally. According to their calculations, the share of Asian students will actually be cut by more than half—to 33 percent, and will eventually drop even further. The share of black and Hispanic students would increase only marginally. And, ironically, white students would be the plan’s greatest beneficiaries, increasing from 18 percent to at least 45 percent of the student population.

Deliberately reducing the number of Asians could be unconstitutional. Engineering a different racial mix can violate the Constitution, if it is not done to promote a legitimate and compelling interest. (See Walker v. City of Mesquite (1999).

For example, the Supreme Court ruled that deliberately manipulating electoral district boundaries to exclude a racial group violated the Constitution. (See Gomillion v. Lightfoot (1960)).

Government officials must have the right motive for considering race, and it must be their “actual purpose,” before they are allowed to take race into account. (See, e.g., Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).

School officials are not taking race into account to remedy discrimination at TJ. It doesn’t discriminate in admissions, and has long admitted students based on merit, not race.

Instead, school officials are doing so to achieve proportional representation — to make TJ’s student body reflect the racial composition of the Fairfax County schools as a whole. That is an invalid reason to take race into account, according to the Supreme Court. “Racial balance is not to be achieved for its own sake,” the Supreme Court explained in Freeman v. Pitts (1992).

The fact that Asians tend to have higher grades and test scores than blacks and Hispanics does not show that the school system discriminates against blacks and Hispanics. Nor does the fact that blacks are underrepresented compared to Asians at TJ show that TJ is racist.

As an appeals court explained, the “underrepresentation” of a minority group isn’t the same thing as discrimination, and a school system can’t give preference to minorities unless it “discriminated intentionally” against them in the recent past. (See People Who Care v. Rockford Board of Education (1997)).

“Diversity” may also not be a reason to make race-conscious changes to TJ’s admissions process. It’s not clear whether “diversity” is a reason for using race in K-12 schools, as opposed to colleges. For example, a court ruled that school districts can’t use race in employment decisions to promote “diversity.” (See Taxman v. Board of Education (1996)).

The Supreme Court has said that colleges are allowed to consider race in admissions to promote diversity, due to their institutional “academic freedom.” (See Regents of the University of California v. Bakke (1978)).

But only institutions of higher education — not school districts — possess academic freedom.

Hans Bader is an attorney living in Northern Virginia. This column is republished with permission from Liberty Unyielding.

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25 responses to “Kendi’s Brand of “Anti-Racism” is Unconstitutional

  1. “As an appeals court explained, the “underrepresentation” of a minority group isn’t the same thing as discrimination”

    Mr. Kendi espouses the exact opposite of that. According to him, underrepresentation automatically means discrimination has occurred.

    • Yes, that’s true. Kendi says “When I see racial disparities, I see racism.”

      Which is a silly and erroneous claim for Kendi to make. The NBA is mostly black, but that’s not due to racism. Hispanics live longer than non-Hispanic whites, but that isn’t due to racism, either. Indian-Americans make more than any other ethnic group, but that isn’t due to racism in their favor by the white majority. Japanese-Americans have more assets than Caucasians, even though America never discriminated in their favor — it put them in internment camps during World War II, wiping out their businesses and depriving them of farm income.

      • Only African Americans were enslaved for generations then discriminated against as a race for generations.

        No other group had to use separate water coolers or bathrooms.

        need to be truthful about the history at the start ……

  2. Wonder if Mr. Kendi thinks discrimination is occurring in the NBA and NFL? Or is that just merit?

    • not entirely – more like a plantation mentality:

      NFL Owners Have a Problem With Coaches of Color
      League policy requires teams to interview minority candidates for top jobs, but one rule doesn’t make up for deep-seated prejudice.

      N.B.A.’s Head Coaching Diversity Under Scrutiny as Vacancies Loom
      Steve Nash, who is white, landed a head coaching job this week despite his inexperience, renewing discussions about how few posts are filled by Black people in a league where most players are Black.

      • You didn’t really respond to my post, so you’re saying in THIS case there needs to be no concern about the out of proportion black representation in pro sports, but there should be concerns in all other fields. BTW, where can I get one of those “plantation” jobs that pays millions per year?

    • PF – you beat me to it.

      I would suggest that the school system and Virginia’s SecEd apply the same system it wants for TJ to all FCPS [and Virginia] school sport teams…. then we’ll see how parents and others really feel about such programs.

      • white coaches, black players, what’s wrong with this picture?

        it’s amazing to me that you guys don’t get this:


        • “…what’s wrong with this picture?”

          Is it that #15 is looking at something on the court instead of paying attention to the coach?

          No, wait, I’ve got it: The guy at the top right is a vampire…

        • What are you looking at? Number 11 looks white to me. So do the three players wearing warm-up (two standing and one bending over). The two guys in suits are white. I guess you assume they are both coaches although the guy in the back could be a security guard for all I know.

  3. Baconator with extra cheese

    I agree with Larry. It should be all white players and Black coaches. Right?
    Or should there be all asian players and white coaches? Or Latinx players and asian female coaches? Or trangendered aleutian players and Maori coaches? I got it , 2 transgendered poly asian female players, 1 black male gay player, 1 non-binary white player, 1 hispanic cis female coach, 1 white intersexed coach, and 1 cis balck female coach with natural hair. Is that the right proportion?

    • or perhaps some semblance of demographic balance?

      No… that would be BAD….. right?

      ya’ll might need something…not sure what…….training is no good… so what else?

      • I’m not the one hiring “too many” white coaches. And why should I get all worked up about possibly racist behavior by the old, liberal, uber-rich white guys who make up the predominant demographic of professional sports team owners? I don’t care about them and I don’t care what they do.

        I fact, the NBA and NFL could disappear altogether and it would not affect my life in any way – except maybe the sports channels would show a little more motorcycle racing on tv.

      • Larrythe G wrote- ” perhaps some semblance of demographic balance?”
        You mean more white or asian players? NO…

      • Baconator with extra cheese

        Did you get worked up during the 90s when almost everyone of Georgetown’s basketball team was black with a Black head coach? I would guess the basketball team came bo where close to matching the demographics of Georgetown.
        Or UVAs football team matching the demographic. For God’s sake my high school football team had all but 2 black coaches, a black trainer, and 5 white players. The school was about 55% white.
        The picture shows 4 white players and 3 black players… if you want it to meet demograhics you need one less black player and two more hispanic players.

      • Still not following you. Your asking for “demographic balance” and yet African Americans make up 13.4% of the population, and hold 7 of the 30 NBA head coaching jobs. That is 23.3% of all head coaching jobs in the NBA. White coaches hold 70% of the positions while white people make up 63.4% of the population. Hispanics make up 18% of our population. So the solution is clearly firing two white head coaches and three black head coaches and replacing them all five new Hispanic coaches to get your demographic balance. What a great suggestion you have made, Larry.

    • …and one fat bald guy over the age of 40.

  4. James Wyatt Whitehead V

    I didn’t know that Kendi attended Stonewall Jackson Senior High School in Manassas. My alma mater. I hope he is happy now. Named changed to Unity Reed High School. The school board is so dumb. The nickname is now “U R HIGH”. Which is a fitting nickname based on what I remember from the mid 1980s.

  5. ““U R HIGH”

    Nice! And I’ll bet it took the students about 0.005 seconds to latch onto that, too.

  6. Of course Kendi’s brand of racism is unconstitutional. As we saw during the pandemic Democratic politicians have little use for the US Constitution. Comrade diBlasio shut down Jewish funerals but protected BLM protests. Freedom of religion and assembly are not for everybody – just those diBlasio deems worthy.

    A crisis is coming to this country and it will be more about bullets than ballots.

    • We shall see Mr. DJ. To have a civil war one must declare the existence of two governments and the means to sustain separate governments. I don’t think this is possible. Anarchy is the likely road. Anarchy can only sustain itself for limited periods of time. Anarchy eventually runs out of fuel. But today is different. Anarchy could sustain itself via underground funding. Sort of like Hezbollah. But even Hezbollah has a head and it can be cut off.

  7. Braband ran the Lynchburg system into the gutter, opening doors for himself to head to Fairfax. We still haven’t recovered and he is up to the same old stupidity.

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