A judge on the U.S. 5th Circuit Court of Appeals wrote a stinging opinion against so-called "equity."
Last month, a U.S. 5th Circuit Court decision reinstated part of a lawsuit by a black property owner in Texas who claims that a harbor expansion project “has used coercive means to obtain property in the East End,” which is a historically black neighborhood. In a concurring opinion, Trump-appointed Judge James C. Ho took aim at a basic premise adopted by critical race theory’s advocates.
As a July Washington Examiner editorial observed, some may obscure the discussion of critical race theory, particularly its effect on society. But Judge Ho struck at the heart of the national debate and drew a clear distinction between equality of outcome and equality of opportunity.
He writes, "There's a big difference between prohibiting racial discrimination and endorsing disparate impact theory. ... It's the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. It’s the difference between color blindness and critical race theory."
Judge Ho wrote his opinion at a time when race-neutral policies, which safeguard against discrimination, have come increasingly under fire. As I wrote last month, both the Boston Public Schools and the Fairfax County Public Schools removed their (race-neutral) standardized admissions tests for their specialized secondary schools, resulting in decreased Asian American admissions.
And in 2020, California state lawmakers placed Proposition 16 on the ballot, which would have repealed the well-known anti-discrimination measures in Proposition 209 of 1996. Though the campaign to repeal Proposition 209 failed, it did have the backing of establishment Democratic politicians and received $31 million from liberal donors.
The leading self-proclaimed voice of "anti-racism" himself, Boston University professor Ibram X. Kendi, has repeatedly slammed race-neutral policies. As Kendi argues in How to be an Antiracist, “The most threatening racist movement is not the alt right’s unlikely drive for a White ethnostate but the regular American’s drive for a ‘race-neutral’ one.”
Contrary to that, Judge Ho emphasized the purpose of the Civil Rights Act in his opinion. On race-neutral policies, he said, "Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination — not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes."
Now, “equitable” policies have previously been successfully challenged in the courts. However, Judge Ho’s opinion is notable because it establishes a clear dichotomy between the aspirations of the Civil Rights Act and those of Kendi and his followers, who believe, “The only remedy to racist discrimination is antiracist discrimination.” Ho does so directly by comparing Martin Luther King Jr.’s I Have a Dream speech and Kendi’s How to be an Antiracist.
Judge Ho’s concurrence may be the first step toward equity’s judicial reckoning. As Cornell Law School professor William Jacobson wrote at Legal Insurrection earlier this week, "Those of us attacked for speaking out for equality without regard to skin color will be vindicated, and those demanding race-based outcomes will be shamed."
If more judges view equity as the perverse discrimination it really is, then critical race theory will indeed have its day in court. And it will be exposed for the sham that it is.
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Original Author: Samuel Kim
Original Location: Critical race theory has its day in court