Available October 28, 2025
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In this time of rapidly evolving law and opinion around terms like diversity, equity, and inclusion, what is the work of school leaders who believe in building stronger, more connected, more inclusive communities? Legal scholar and author Kenji Yoshino is the author of a forthcoming book called How Equality Wins: A New Vision for an Inclusive America. He joins host Morva McDonald to talk about the legal precedents of the past, the shifting culture of the present, and the strategies that can secure the future of equitable practice.
Beginning with his work on “covering,” which explored the ways in which people felt pressured to downplay marginalized or stigmatized identities to fit into schools and workplaces, Kenji traces the roots of his interest in specializing in equity and justice. Describing the law as a “meat ax,” he talks about how the dominant culture works hand-in-hand with law to shape both our perceptions and our legal realities. He explains how different precedents have brought equity and inclusion more firmly into the legal sphere, and he pinpoints the one key Supreme Court decision that, in his view, changed the law from the “floor” above which all diversity, equity, and inclusion work could be built, to the “ceiling” that was dropped on top of the work, limiting forward progress.
However, Kenji says, there are tactical, practical strategies that can be used to advance the key ideals of inclusion and remain within the working boundaries of current law. He shares the seven strategies outlined in the new book: going on offense; embracing dissent; welcoming new groups; leveling the playing field; embracing the universal; reclaiming merit; and highlighting the risks of retreat. He describes each in detail, giving clear and actionable examples of what these strategies might look like in practice.
For example, Kenji says, going on offense means taking the time to truly understand the ideas and arguments behind the opposition to DEI work, and rather than being reactive or defensive about our own positions, to unveil those arguments and have a real debate on the merits. In order to do so, we need to be able to embrace dissent, which he cautions can be difficult in a culture where ideological purity leads to “canceling” those who don’t seem to fall exactly in step with our views. We can’t be afraid to have the conversation, Kenji says, and to display the patience and fortitude to have it many times, in many places, and with people who don’t fully agree with us. He encourages a return to true debate, where an opponent can be viewed not as an enemy, but as “a friend on the other side.”
That embrace of varying perspectives can also help lead us to welcoming new groups or practicing extension. Kenji offers examples such as extending our DEI lens to include religious groups, veterans, or people of lower socioeconomic status, who might not have been traditionally included but have distinct equity needs. He also encourages us not to throw out the idea of inclusion for traditionally dominant groups, giving the framing of thinking about how certain risk factors for men and boys, such as a higher rate of suicide, might be related to equity and inclusion concerns. “If we really care about diversity, equity, and inclusion,” he says, “we have to care about it for everyone.”
He goes on to describe the difference between “lifting” strategies and “leveling” strategies, with examples of how classroom management and hiring practices might be modified to help level the playing field without running afoul of legal restrictions, as well as how to reframe efforts that might be based around affinity groups or identities to embrace universal design aspects without eliminating their effectiveness. Although much is lost in having to create these new, less specific models, Kenji says, there is still value and momentum possible as we rethink them.
Ultimately, in the face of so many overwhelming challenges and considerations surrounding this work, Kenji argues that we need to look at not only the risks of pursuing equity and justice, but the risks of retreating from these values. Rather than asking ourselves how we can modify our work in reaction to rapidly changing conditions, Kenji says leaders must instead ask themselves, “In five years’ time, who will I want to have been in this moment?” Leaning into our core values and leading with steady intent will help us move toward the future of inclusion.
Key Questions
Some of the key questions Morva and Kenji explore in this episode include:
- Twenty years ago, you wrote about the phenomenon of “covering,” or downplaying a marginalized identity to fit into the workplace or other areas of society. Where do you see covering fitting into our culture now, and how does that lead us to your latest book, How Equality Wins?
- You’ve identified seven different strategies to help advocates of inclusion and justice survive this very polarized moment. What are those strategies, and how might they play out in the life of an independent school?
- What is the difference between a lifting strategy and a leveling strategy? Looking at the legal and cultural landscapes right now, how might we best think about an approach to equity work?
- What are the risks of retreat from equity and inclusion work? What do schools and leaders need to consider as they respond to ongoing shifts?
Episode Highlights
- “Law changed from being the floor over which we built to being the ceiling that was being dropped on the entire enterprise of diversity, equity, and inclusion. And what I mean by that is that the Supreme Court gave us such a clear window into how it was thinking about race and gender, that it really endangered the entire project of diversity, equity, and inclusion as it was traditionally conceived.”
- “I think lawyers are actually terrible at lots of things, but we're actually rather good at saying, yes, we disagree, but you're not my enemy, right? You're my debate opponent, and you're actually my friend on the other side. And so let's actually behave as if, let's carry ourselves in that way and let the best ideas win.” (17:05)
- “I think that the younger generation has a greater understanding not of who they are, but, or not just of who they are, but also the skills that are going to be needed for us to survive, much less thrive, in a multicultural society that is much more global, much more diverse. And so the capacity to speak across difference, to work across difference, to bond across difference is going to be a critical skill for us going forward. And that's the set of skills that are embodied within DEI.” (40:40)
- “So the question I always ask is like, it's really easy to get caught up in the heat of the moment and to get blown back and forth as the pendulum swings back and forth, right? But rather than doing that, like just sit in your values and think five years from now, who will I want to have been in this moment when everyone was telling me, like, cave, or do this, or do that? Like, what is the kind of values-based decision that I can make here that will make me proud of myself five years from now, rather than proud of myself tomorrow or proud of myself next week?” (42:32)
Resource List
- Find Kenji’s books here.
- Read more of Kenji’s scholarly publications.
- Watch Kenji’s TEDx Talk, My Friend on the Other Side.
- Delve into this Catalyst report on the risks of retreat.
- Read Kenji’s op-ed on corporate America and DEI.
- Check out the Meltzer Center’s tracker for legal cases.
Full Transcript
- Read the full transcript here.
Related Episodes
- Episode 77: Dignity-Affirming Leadership in Schools
- Episode 66: School in a Time of Hope and Cynicism
- Episode 64: Pluralism in Education
- Episode 62: Wisdom Road
- Episode 37: The Dignity Lens in Education
- Episode 30: How Equity and Well-being Work Together in Schools
- Episode 17: The Opportunities and Obligations of Citizenship in K-12 Education
- Episode 7: Schools for Diversity and Designing Inclusive Futures
About Our Guest
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and the director of the Meltzer Center for Diversity, Inclusion and Belonging. A graduate of Harvard, Oxford, and Yale Law School, he specializes in constitutional law and antidiscrimination law. He received tenure at Yale Law School, where he served as deputy dean before moving to NYU.
Yoshino has been published in major academic journals, including the Harvard Law Review, the Stanford Law Review, and the Yale Law Journal. He has also written for more popular forums, including The New York Times and The Washington Post. Yoshino is the author of three books. His fourth book (co-authored with David Glasgow), Say the Right Thing: How to Talk About Identity, Diversity, and Justice, was published by Simon & Schuster in February 2023.
Yoshino has served as president of the Harvard Board of Overseers. He currently serves on the board of the Brennan Center for Justice, the NAACP Legal Defense Fund, and Meta’s oversight board. He also serves on advisory boards for diversity and inclusion for Morgan Stanley and Charter Communications. He has won numerous awards for his teaching and scholarship, including the American Bar Association’s Silver Gavel Award, the Peck Medal in Jurisprudence, and NYU’s Distinguished Teaching Award. He lives in Manhattan with his husband, two children, and a Great Dane.