Read the full transcript of Episode 80 of the NAIS New View EDU podcast, which features legal scholar and author Kenji Yoshino, author of a forthcoming book called How Equality Wins: A New Vision for an Inclusive America, joining 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.
Morva McDonald: The privilege of being one of the co-hosts of the podcast is that I get to talk to really, really incredibly interesting people. And then there are some people where I think to myself, like I’m a kid, “God, I just want to be like that person.” Kenji Yoshino, for me, is that person.
He has been the Chief Justice Earl Warren Professor of Constitutional Law and the Faculty Director of the Meltzer Center at NYU School of Law. He’s currently published in many major academic journals, including the Harvard Law Review, the Stanford Law Review, and the Yale Law Journal. But what’s actually really interesting about Kenji is his ability to move from really formal, academic journals to more kind of popular forums, like The New York Times and The Washington Post. He’s trying to put together theories of law and legal standings with actual practice and strategies.
He is the author of three books. His fourth book was coauthored with David Glasgow, Say the Right Thing: How to Talk About Identity, Diversity, and Justice, was published by Simon & Schuster in February 2023. But most exciting, he also has a new book coming out in 2026, also coauthored with David Glasgow. It’s called How Equality Wins: A New Vision for an Inclusive America. It presents a new approach to DEI in response to political and legal challenges, offering strategies for creating a more just and equitable society.
It’s really exactly what we need right now. Welcome to New View EDU.
Good morning, Kenji. Thanks for joining us here at New View EDU. I'm really excited to talk to you.
One of the things I try to do on the podcast is always, I try to learn a little bit about why people do the work they do. I think often for educators, they have so much purpose about why they're in schools. And it's always good to learn because I'm sure you also have a story, right, about how you came to be somebody really interested in justice and equity in the law. And I'd love to learn a little bit about that.
Kenji Yoshino: Absolutely. So first of all, it's a delight to be with you, and I'm happy to go into a little bit of the biographical roots of why I do what I do.
So it really came about as kind of by accident, because I came into this work mostly thinking about LGBTQ+ rights and the law. So I started law school in 1993, and that was a time where the ice was finally breaking up on at least lesbian, gay, and bisexual rights, the Romer case, which was the first case where the Supreme Court embraced LGBT rights within the Equal Protection Clause as decided in 1996. And I just had a fire in my belly. I just knew that I wanted to be part of this, I couldn't sit on the sidelines and I wanted to be an academic that was really involved in LGBT rights.
And then I ended up writing a book called Covering early on in my career, now about 20 years ago, where I talked about this phenomenon that I found really weird, where I thought, well, it's okay for me to be gay. It's okay for me to say that I'm gay, but it's not okay for me to be too gay. And the experience that I had was when I started at my first institution and someone put a really warm, mentorly arm around me and said, Kenji, you'll do a lot better on the track to getting tenure if you are a homosexual professional than if you're a professional homosexual. I thought what the heck is that about? Because everyone here is incredibly pro-gay.
Morva McDonald: What does that mean exactly, right?
Kenji Yoshino: Yeah, and I think what it meant, at least the way I took it, was just don't write about gay stuff, don't teach about gay stuff, don't be like the gay rights professor, just like teach mainstream constitutional law and essentially act like everybody else because you're the first person who is openly gay who we've ever put on the tenure track. So you'll do a lot better if you assimilate and help us forget that you're gay.
Unfortunately, as I've described, like the whole reason I went into this field was because I wanted to do LGBT rights. So after a little bit of self-reflection and turmoil, I decided I was not going to take this advice, and kept doing what I wanted to do. Got tenure unanimously, happy ending to the story, except for that this kind of notion kept nagging at me of like, what was that?
And that's where I got interested in diversity, equity, and inclusion. Because in my book, I said, this is the remaining work that we need to do. And it's not just about gay people, right? When we're talking about conversion or passing, sexual minorities can do it, religious minorities can do it. But for the most part, people of color, women can't do it, and aren't asked to do it. But when we get to what we call covering, which is downplaying a known outsider identity, everyone is supposed to do it.
So women are told to downplay their childcare responsibilities. Black people are supposed to straighten their hair. I was just listening to The Daily this morning, and it was talking about how Latinx individuals feel like they can't speak Spanish in environments because they're worried that that will flag something about their immigration status, right? Gay people try to tone it down by not engaging in stereotypically gay behavior. People with disabilities downplay the paraphernalia that allows them to function.
I could go on and on and on and I won't here, but like that struck me as really, really important work that we needed to do in equality. But it also struck me as work that the law would never be able to complete on its own because the law is a meat ax. This is the last barrier that we need to overcome before we get to full equality. And that is a work of culture and ultimately the work of diversity, equity and inclusion.
Morva McDonald: It's so interesting because I, in my work actually with heads of school and heads of school of color or heads of school who identify as part of the queer community, you hear this a lot actually, this idea of like, how Black can I be? Can I be my full self? Right? And kind of always a question, right? About what does it mean to be your authentic self at work? And it's related to this issue, right?
And I'm curious about, your book Covering was written 20 years ago. And I'm interested in how you think about that now. How do you think about that phenomenon right now in the current context that we're situated in?
Kenji Yoshino: Exactly. Like I'm not one of these, the world automatically spins forward kinds of people. Like I don't take that kind of wiggish view of history. And I think it's really important to remind ourselves that all of the gains that we have been able to make were made because people made huge sacrifices and devoted their lives towards advancing the ball. So I would tell exactly the same story, Morva, which is to say, you know, until, you know, recently I would have said we've made huge strides with regard to covering.
And one indication of that as a lawyer is to say things that were seen to historically be outside of the purview of the law are now seen to be within the purview of the law. I mentioned African-American individuals being asked to straighten their hair or change their hairstyle. And there's a case called Rogers versus American Airlines, which you might be familiar with, where Renee Rogers is asked to straighten her hair because it seemed to be unprofessional to wear cornrows. And she refuses and she gets terminated and then she sues.
So the good news part of the story is that we now have protections for hair discrimination under the Crown Act, which is legislation that says hair discrimination can, at least in certain circumstances, be recognized as race-based discrimination. So the thing that was seen as completely off the wall is now squarely on the table as something that the law will protect.
But as I also earlier mentioned, in any number of other dimensions, we are traveling backwards very, very quickly.
Morva McDonald: I know that you have a new book called How Equality Wins, a new vision for an inclusive America. And I'm interested in if you can tell me the connection between covering, right, and the book that you've currently written, and then tell us a little bit more about the book, obviously. But I'm always interested in how people's intellectual ideas grow over time.
Kenji Yoshino: So the relationship between the two books is what I'll call like the ceiling and the floor idea, right? Where I used to think about the law as the floor and all the work that I did in Covering, all the work that I did in diversity, equity and inclusion, was building above the floor of the law. Because again, you know, law is way too blunt of an instrument to intervene and help us in the cultural work that is diversity, equity and inclusion.
So people often used to ask me, why is it that as a law professor, you're so interested in DEI? Because diversity, equity, and inclusion, for understandable reasons, even though it grew out of the law, has of late, meaning the past couple decades, been mostly the purview of the social sciences. So this is not really seen as something lawyers should be interested in, because again, we're just dealing with the floor. We're creating the floor of basic equality and dignity and then covering, other DEI issues, build above that floor. I should say, getting rid of covering builds above that floor.
After 2023, everything changed because with the Supreme Court decision in the Students for Fair Admissions case, with which I'm sure everyone in the audience is painfully aware, but this is the June 29th, 2023 decision where the Supreme Court said that race-based affirmative action was illegal as practiced by both public and private universities. But nonetheless, you know, opinion didn't spring from the head of the Supreme Court, you know, pro-thenogenetically, it grew out of an underlying culture.
So that changed everything, Morva, because to like, shuck it down to the bone, 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.
Morva McDonald: It's such a combination of both the law, the politics, the political effects, and a cultural effect, simultaneously. And I have a question that you can't answer, but it's good for the audience to think about, which is, to what extent is that phenomenon having a chilling effect in their own institutions? They're not directly impacted in a legal sense, I don't believe, unless of course they're receiving federal money in some way.
But I think this kind of thing is really what you're talking about. Can you tell me a little bit about, in your own thinking and probably written in the book, how it is that we survive this moment in time?
Kenji Yoshino: Absolutely. I would also like to say that one thing that gets overlooked, and I know you know this, but folks in the audience might not, is that there is a way in which independent schools are directly affected, which is with regard to their employment relationships. If a faculty member wants to create a fellowship for junior faculty on the basis of race, that is going to be just as problematic for that school as it would be for a Fortune 500 company.
But your point is actually the more important one, which is to say, even when you're not legally affected, I hear all the time, because I speak at independent schools all the time, my kids go to an independent school, I'm a product of an independent school, so these are institutions that are near and dear to my heart, I hear all the time, like, yes, of course, we know that a student can have a race-based affinity group and that can be closed in a way that it couldn't be closed if we were Harvard or if we were a public school. So that's actually something that independent schools have to their credit, as some of them have really leaned into saying we have this aperture that other people can't. And so let's drive social change because we're not legally constrained in the way that other institutions are.
But then what they immediately run into is parents who are reading the newspaper or hearing about these lawsuits who come to them and say, all right, I'm not making a legal claim, but I am making a social claim that, you know, this is segregation or this is balkanization and all the arguments that were made in the law are made. So this is the constant, is law a mirror or a motor of society, right? Does it change or is it changed by social mores? And that's a kind of chicken and the egg kind of, does law reflect or reinforce social mores thing, that we won't be able to answer on this podcast, but I agree with you. It's a good question for our listeners to maybe take away and think about.
And as for what the book tries to do, we're very tactical and practical. So this book is arrayed across seven different strategies. The seven strategies of how we get through this are:
First of all, to go on offense. So we've been playing a huge amount of defense. So of course, our initial reaction is to say, here are all the good things that diversity and equity inclusion does. And I think what we haven't done enough of is the kind of oppo research of, what do our opponents really believe? And there was this great expose that was written, now over a year ago by Nick Confessore in The New York Times, where he just got a bunch of emails about how anti-DEI folk talk to each other when nobody else is listening. So this is them talking to each other. And so they say things like, you know, in public, like we believe in merit or we believe in free speech that sound really plausible. We believe in colorblind equality.
But when at least some of them are talking among themselves, they say things like, a healthy society requires patriarchy. I can't believe women want to be lawyers instead of following their calling as mothers, particularly when they're handing over their children to nannies from the third world who don't know anything. You know, I can't believe that, you know, gay people are being respected because they really should belong in jail as more wholesome societies do. So this is really just kind of horrific stuff that I think most Americans would recoil from. So I think that in order for this to be a real fight, we can't just be justifying what we're doing. We have to look at what the other side actually stands for, and then give the people in the middle, which is most of America, the choice between which way they want to go, our side or the other.
The second one is a little bit more self-critical, which is to support and embrace dissent. So one of the tactical errors that I think that we have made as a movement is to say, we have this orthodoxy of values that we believe in, and if you don't believe in that then we're going to exact some penalty on you. So we're not going to debate the merits of it because we're tired of doing that because we've had to do that for years. What we want is real accountability and so we're just going to drop the hammer on you. Like we want real accountability. And I know, you know, language about cancel culture is overblown. Sometimes cancel culture is just consequence culture.
But I think that we have the better ideas. We should not be afraid of debate. In a field of fair debate, our ideas will prevail. And so I really want to invite people to have the patience and the kind of resilience to have that conversation. If we want to speak outside our bubble, we need to actually be able to support dissent and dialogue.
Morva McDonald: From a school perspective, from an educational perspective, right? The two are actually quite related, it seems to me. Because one is on the offensive, like I actually need to really understand what the other side believes, right? Not just says, but actually believes, which requires curiosity, investigation, exploration, right?
And the second point, which is embracing dissent, seems very much to me in line with so much of what schooling, right, has been and can be about, which is like, how do I understand all the sides of an argument? How do I engage and try empathy, right, in order to understand somebody else's perspective, right? And those two things are tightly, in my view, kind of woven and really great, I think, for educators right now to take a hold of as a strategy rather than a philosophy, right?
Kenji Yoshino: Exactly. I totally agree with that. So if I can make a brief plug, I actually just gave a TEDx talk called My Friend on the Other Side, where I say in the Supreme Court, like the litigants, even when billions of dollars or fundamental rights are at stake, refer to their opponents as my friend on the other side. I think we've lost a little bit of that in our culture of saying, if you disagree with me, then you're the enemy and all the debate is over.
Morva McDonald: We have nothing. We have nothing.
Kenji Yoshino: Yeah, whereas 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.
The third strategy is to welcome new groups. And so this is three different kinds of extension. Like one is the claims of extension themselves, which is, these groups are not protected under civil rights law. Let's make sure that we extend solicitude to them, even though civil rights law has ignored them. So first gen individuals, people of low socioeconomic status, veterans, none of these groups are protected by civil rights law. But I think all of them have a really strong claim to be within the diversity, equity, and inclusion pantheon.
Another one is claims of enforcement. Religion comes to mind here, which is, we have a constitution that protects religion. We have Title VII of the Civil Rights Act, which regulates employment relationship that protects religion. But for a long time, religion was sidelined and was seen as kind of the third rail within at least corporate America and law firms with regard to their DEI initiatives.
And the final one, which may be the most controversial one, is claims of symmetry, which is to make sure that we don't assume that simply because a group is dominant, that they're dominant in every single respect. So here, we think about gender, for example, in the book. And I, of course, will say that it is a travesty that, for example, only 10% of the Fortune 500 CEOs are women right now. There is longstanding patriarchy and a history of discrimination against women. I can believe that. And I can also believe that if, you know, men are committing suicide at higher rates than women, that that is something that we need to explore under a DEI rubric. For our listeners, it also means that if Richard Reeves is right, and we can debate whether he's right or not, in his book Of Boys and Men, that educational outcomes are poorer for boys than they are for girls in, you know, JK through 12th grade, than these certain subjects, then we should actually be focusing on that and trying to solve the problem.
If we really care about diversity, equity, inclusion, we have to care about it for everyone. So if there's like a problem, then we have to kind of take the superhero mentality of I'm going to fix the problem, the inequity, the bias, wherever it is, rather than say, that's the dominant group and so therefore I'm not going to listen to it.
Morva McDonald: I really appreciate this strategy, and the notion of the claims of symmetry seem really important, particularly in a moment where I think we need to be able to build more solidarity in ways that are not, we have to agree on everything all of the time, or we can't be in solidarity with one another. But it seems like a particularly challenging thing to achieve, right? Because as we feel the press of the ceiling, as you've suggested, right, we have a tendency in general to think that there's only a certain part of the pie, right? There's only so much, right, to go around. And so when you're thinking about that problem, how do you think about confronting that? How do you address that really, that tension?
Kenji Yoshino: That's a wonderful question. And this is actually the, you've put your finger on what kept us up at night about this chapter and why it took so long to write, relative to the other chapters in the book. Because we thought like, not everything is zero sum, let me start there. So we have to look for the opportunities where we've just been snookered into thinking that if I get something, other people don't get it. And thinking about instances where a rising tide can lift all boats and will lift the boats at our lower starting point more than boats that aren't, right?
So, you know, the classic, you know, effect is the curb cut effect that, you know, it's been much documented, right? Where you create a curb cut for people with motor disabilities, but then that actually helps so many other people that you weren't intending to help. But, you know, people with luggage, you know, people who use skateboards, you people who are runners, you know, bicyclists, exactly, right? And so we're looking for those win-wins.
But all that said, I'm going to sound like a Pollyanna if I say everything is like that. Because there are some things that are zero sum. Chief Justice Roberts in the SFFA case, writing for the majority, says, college admissions is zero sum. If one person gets in, another person doesn't get that spot. And so don't tell me everyone can win here. This is zero sum. And that's one of the reasons why he ruled in the way that he did. So I want to totally acknowledge that some things are zero sum, and then that means that we have to have what I call the pain Olympics or the pain-off, right? Which is to say who's in and who's out with regard to a particular decision that we're making with finite resources and attention. And I hope this doesn't sound like a punt, because I really think that the deepest answer here, I think the reason this has been so hard for us to answer is because the only way through this is by muddling through.
So I take as instructive what the United States Supreme Court has done, not in the last opinion that I've been talking about, but in actually the decades before that, where the Supreme Court has a doctrine under its equal protection clause called heightened scrutiny. And it just means like this particular classification has been so troubling and nettlesome in the way that it's been used in the past that we're going to give it heightened scrutiny. We're not just going to rubber stamp it. We're going to look really closely at it. And by and large, that means we're going to invalidate whatever the classification is.
So, you know, if you're saying people are restricted in whom they can marry on the basis of race or later on the basis of sex, you know, those would both be examples of heightened scrutiny being applied. So for a long time, the Supreme Court tried to do this by a formula. And I think that's what we all wish existed, right? To say like, here's a formula, here's like a math equation for which groups are in and which groups are out. And it said, the group has to have suffered a history of discrimination, be politically powerless, be marked by an obvious immutable distinguishing characteristic and have a characteristic that has no bearing in its ability to contribute to society. So those four characteristics, I'm like, okay, as characteristics go, that's actually not a bad test.
But you really quickly get into these really hard questions, right? Because if I were thinking about like, who's disadvantaged in America, I would actually want to add some other factors. Like is this person prone to public or private violence? Or is this person socioeconomically advantaged? Or what is the health and longevity of this population? So there's a litany of other factors I would want to consider.
So those debates became sort of just a complete morass, Morva, and so finally what the Supreme Court said in 1985, an opinion called Cleveland versus Cleveland Living Center was let's just shut it all down. So ultimately what the Supreme Court said was we can't create a formula, nor can we say we're not going to, we're going to stop the business of letting people in for protection altogether, because that just means like, if you didn't get in before a period in time, first in time is first in right, and there's this like temporal cutoff, and then no other group can ever be recognized for the rest of history, and that can't be right either.
So what the court has been left to do is to just muddle through, right? And I think that that's really the best that we can do. And it sounds, I'm always a little bit on defensive about it, because I think people, it sounds like such like a mealy mouth answer to say, to your very good question of how do we deal with this when our resources are limited, to say, you just got to muddle through it with dialogue and with resilience and not treat the canon as being fixed for all time. But I do think that really is the only pathway forward as exemplified by what I know of what the United States Supreme Court itself has done in exactly this domain.
Morva McDonald: I think we've talked about three of the seven strategies so far, Kenji. So can you highlight the rest of them for us?
Kenji Yoshino: Absolutely. So the fourth one is to level the playing field. And what we mean by this is to move from lifting strategies to leveling strategies. So let me first begin by describing the difference.
So a lifting strategy says, here is a historically marginalized group that has been subordinated for a long time. We're going to engage in targeted uplift of that group so that we can give it that ramp up to the level playing field, whereas a leveling strategy would just focus on the playing field itself and to make sure that it was level.
For a long time, both of these strategies were available to us. But what the Supreme Court's opinion does is that it makes the lifting strategy much more legally risky. And I mourn that. Like, I don't want to say at a normative level that I have any critique of lifting strategy. But I do, I am a realist, and so I'm saying let's move over from the lifting strategies to the leveling strategy.
So what might a leveling strategy sound like? A leveling strategy is, well, if you have a symphony orchestra as we did in the 1970s in a study, and they realized that only five percent of the symphony orchestra were women. What is a lifting strategy? A lifting strategy would have been a form of action. Like women get extra points, right? After all the points have been aggregated for musical ability and the like. They didn't adopt that strategy. They adopted a leveling strategy, where they said, everyone's going to audition behind a screen, because what we think is going on here is that judges are harboring unconscious biases against women. And once they implemented the screen, the number of women jumped up from 5% to 35% over the period of the study, which ended in 2016.
So this is seen as like a huge success story, because it didn't actually put a thumb on the scale for anybody. It just removed the bias for anyone who was auditioning. So it's a classic leveling strategy. If the mantra behind lifting is, here is a subordinated group, let's lift it up, the mantra for the leveling strategy is talent is everywhere, opportunity is not, DEI is what closes the gap.
So increasingly we're going to need to find leveling strategies.
So, structuring your interviews so that you ask all the same questions in the same order of all candidates, rather than having the open-ended living room conversation, has been known to reduce bias significantly. Engaging in bias audits to make sure that you yourself are not engaged in biased activity. I did one of these myself, when I tried to figure out whether I was calling on male students more than I was calling on female students in my constitutional law classroom, discovered to much chagrin that I was. And so now I have just a printed out randomized list before I walk into the class so that I can call down the list and treat people fairly.
Morva McDonald: The analogy in a kindergarten classroom is having the names of your kids on a popsicle stick, right? And randomly pulling them out, essentially.
Kenji Yoshino: Exactly. Yeah, exactly. And that removes not just gender bias, but it also removes, this person's name is really hard for me to pronounce, so I'm going to leave them to the very end of the semester because I'm worried that I'm going to screw up. Why should that student be disadvantaged because of that? Or individuals who I can just tell by their body language are more shy or more introverted. So I'm not going to call on them on that. The correct response to that, as I'm sure many of our listeners would agree, is to say to that person, I want engagement. I don't want participation. That's what I say to my students. So if there's a more comfortable way for you to interact with me, then write to me. Write me an email or come talk to me after class. So maybe getting called on in class is not the optimal way for you to contribute. But that's a very different kind of strategy than saying, I'm going to avoid this person altogether because I'm getting the vibe that they're uncomfortable engaging.
And so the popsicle stick idea is exactly the equivalent of what I'm doing in my law school, Socratic classroom. So I think that one's fairly intuitive. The next one, I think, I hope is also intuitive, which is: Embrace the universal. So strategy five is to say, again, these sort of group-based remedies are, at least with regard to protected groups, now quite legally risky. So if I were to say, let's talk about the faculty now, because we're, you know, where you're legally bound as independent schools is in Title VII and employment relationship. So let's say your faculty says, we want to have a retreat just for people of color, because we want to engage in a little bit of defensive separatism. If you're going to ask us, why don't the white male professors or teachers get a retreat? The answer is this whole school is a retreat for you. And so we need to have this retreat where we can talk about our concerns, and we'd prefer it to be closed.
But unfortunately to those individuals, our best legal advice is please don't do that. You can't do that, because the court has said, anything that looks like segregation or exclusion on the basis of race or gender, even if done for the best of reasons, is going to be legally suspect and potentially invalid. So what's an alternative strategy? The alternative strategy is to shift from what we call cohorts to content. So instead of having the restriction travel with who can attend, that's what we call a cohort-based restriction, have the restriction be about content.
So a restriction based on content would be, we're having this retreat, anyone is welcome to attend. But by the way, the retreat is about, in terms of its theme, the advancement of people of color in an independent school. So you could be a white male and attend this conference as an ally, and you might learn a lot and be incredibly helpful. You might actually feel like you didn't have psychological standing to go before and take up somebody's spot. Now you're invited to go, but that means that you have to go and learn and commit to helping your colleagues who are people of color advance within the profession. But that is perfectly legal, because you've now allowed everyone to apply and attend, but you've just restricted it according to the theme.
Morva McDonald: This is a tremendous cultural shift, I think, in education, particularly in more progressive independent schools, is the cultural shift from thinking about people's identity as the entry, right? So the content, right, as the way into something and that that's helping you basically be selective in some way.
Kenji Yoshino: And I'm so glad that you said that, because I am going to quickly here, because, and being a little bit too polyannaish about all the great things that we get by opening up these programs. I always say to people I'm advising on this that they should be really careful not to do what I just did, to give all the positives, but also to mourn what's been lost and to say, I actually want to empathize with the loss, because as you say, it's a big cultural change. Because if you ask individuals why they needed the retreat, it's usually because they feel like they have a lived experience that's not represented in the mainstream of the organization. And they need the safe space, the brave space to talk to other individuals who have shared that lived experience.
Morva McDonald: Yeah, it just as, as leaders in school, it's this balance of being able to say, I recognize this as a really valuable thing that we were able to do and we're no longer able to do it. And now we have to do this other thing. And both things can be true, right? But it's really important as leaders to be able to manage that reality, essentially. So I appreciate that.
Kenji Yoshino: And people are much more able to hear the positives if you actually sit in your discomfort and go through the negatives, rather than doing the toxic positivity thing of this is all just puppies and rainbows and we're going to accomplish all the same things. We're not going to accomplish all the same things. But this is a way to like, accomplish some of the same things, right, even when we have a very hostile environment.
So six, this is where it might get a little bit hot for me. So keep me honest here, Morva. But six is to reclaim merit. So one of the things that constantly gets said about diversity, equity, and inclusion is that it's anti-meritocratic. So this is what we get dunked on all the time, totally unfairly, from our opponents, where planes crash in the sky. We have this national tragedy and it's blamed on DEI. Wildfires course through California, it's blamed on DEI, you know, bridge falls down, it's blamed on DEI. And it's utterly shocking. But I also think that we need to embrace merit.
And so David and I, my co-author and I, delved really deeply into the merit literature. And we basically found three reasons why progressives, people of color, people who are invested in DEI, have qualms about merit. And the first one is obviously that it's very, very subjective. So if you say to a bunch of white parents, what do you think the best criterion is for getting into college? They'll say GPA and test scores, because those are the only objective measures and that's that. But that's if they are anchored on thinking that they're competing against Black or Latino individuals. If you say, actually, let me just add a fact to you, which is that all the people that you're competing against are Asian, then the white parents immediately flip to the other foot. This is a Frank Sampson study, where they say, what really matters is leadership and personality and EQ as well as IQ and blah, blah, blah, blah.
So a definition of merit that changes according to what group you're competing against is not an objective measure of merit. And I think that that's one of the things that gives us real qualms about merit. A second thing is that merit is often unearned. Whether we're talking about the socioeconomic privileges that we've had growing up that allow some people to access tutoring and enrichment programs and the like, or not, makes a huge difference. You can even drill down, as Mike Sandel has done, this wonderful book on merit to genetic entitlements. Do you or I deserve the genetic entitlements that we have with regard to intelligence or what have you?
The other thing is that particularly as a DEI community, oftentimes merit seems to create this us-them dynamic, and ironically can be quite divisive. It's often we're told that we're being divisive as DEI people, because we're distinguishing people by cohort, but merit itself can be quite divisive because it stops us from thinking about the basic dignity that we all deserve as human beings, right? And so it starts to say, here is this kind of privileged group that's won the contest of merit and they are allowed to be inattentive to inequality for the rest of their lives. And then the people who have not won out in that tournament are treated as second class citizens or losers, quote unquote, for the rest of their lives as well. So really, really weighty criticisms for reasons that are too deep to go into here. So I want to honor the objections.
We think that all of those can be overcome and that there is a more nuanced, sensitive, compassionate version of merit that we can use in order to kind of mend merit rather than to end it. But we really do, we really will die on the hill of saying whichever side gets to claim merit is going to win this argument. Because if we surrender as a pro-DEI side the idea of merit, that really prevents among many other things us calling out the other side for all of the things that they do that are non-meritorious.
So this is actually not a political thing. I hope I would do this against my own party as well. If we're talking about legacy admissions, or if we're talking about donor admissions to universities, I don't think those are meritorious either. How can I possibly argue against all of those non-merit-based decisions that are being made in our society if I, in the name of DEI, have given up the idea of merit altogether? So our sixth strategy is to reclaim the concept of merit.
And then last but not least, thank you for sticking with me, everyone here, is to highlight the risks of retreat. So there's anti-DEI legal and social risks, but then there are pro-DEI legal and social risks of retreating from DEI. So the legal risks of retreating from DEI are, if you actually retreat from all your DEI policies with regard to your faculty, I think you're going to be in for a world of pain, because a vast super majority of cases that are filed under Title VII are still from traditional plaintiffs, meaning people of color, women, LGBTQ plus individuals, rather than from cisgender or heterosexual white men. So if you ask any general counsel, I will bet you kind of dollars to doughnuts that they will say, if you ask them where are the majority of these discrimination suits coming from, they will say traditional plaintiffs like people of color.
So if you retreat and cut and run from all your DEI policies, those are your first line of defense in any litigation to say, look at all the policies we have in place. Look at all the programs we have in place to create an inclusive environment for everyone, right? And so if you withdraw from that, that's a real risk. For independent schools, probably the bigger risk is actually the social risk, right? Because the social risk of retreating leads to things like what happened to Target, right? So Target retreated from a lot of its DEI policies. For a while, we were all talking about the Dylan Mulvaney boycott, right, from the right. Now we're all talking about or beginning to talk about the last boycott of Target, because Target has sort of cut and run from its DEI policies and reneged on a lot of its earlier commitments. So let's be careful about that.
Two other risks. I mean, one might be less relevant for our listeners, but the international landscape is really unchanged, right? In the sense that just because the U.S. has retreated, doesn't mean the rest of the world has retreated. So if you're a multinational company or you're a global network university like NYU, that matters. Because if I lower everything down to the lowest common denominator of let's not do any DEI, I could actually be violating laws in other jurisdictions. Australia now has a law that requires gender parity efforts. And so if you're a multinational company with offices around the world, you really need to engage in a much more holistic international one.
And then if that's not particularly relevant for independent schools, the one that's super relevant, even more relevant than anything else, than for other organizations, is the generational divide. So I think often it's said the country's divided basically down the middle, like 50-50 on whether it's pro or anti-DEI. That is fair, I suppose, right? But that 50% that's for DEI is not generationally neutral. It tends to be people who are younger, right, who are pro-DEI and people who are older, like my age or above, who tend to be anti-DEI.
So I'm atypical of my generation, but if you actually look at the students who are under your care and who you're growing and teaching, I'm sure you already know this as independent school professionals, but they're all kind of like unionized as a generation. Gen Z, Gen Alpha, Gen Y are all unionized as generations around a commitment to DEI, and they're not going to grow out of it, because we've been waiting for Gen Y to grow out of it. And Gen Y is now in their 40s and they haven't grown out of it. And so we know which way the wind is blowing on this. Without saying, again, without falling into the wiggish trap of like, we just need to wait and the new generation will take the reins of power and things will get better. I think what they're saying is not, what I'm saying is not that this will automatically happen, but rather that the younger generation just understands how diverse the world actually is.
But 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.
Morva McDonald: It's something that you're suggesting to me, Kenji, is something that I think is really important for people to think about, which is there's a current immediate problem that people are managing and negotiating in their space. Like schools are in very polarized contexts and very polarized communities sometimes. And that's an immediate problem that leaders have to navigate, right? And at the same time, they have to hold a long-term view about what kids need and where we're headed globally, actually.
Kenji Yoshino: Exactly.
Morva McDonald: And so the challenge as any leader is to be able to navigate that space, both the urgency of the short-term moment without losing sight of the value of the long-term promise, essentially.
Kenji Yoshino: Yeah, thank you for putting that better than I could have. That's wonderful. And just as a riff off of that, Morva, what I would say is the question that I often ask leaders, that I would pose to the leaders who are listening in today, is not like what should you do tomorrow, but rather who will you wish you had been five years from now?
So flash forward five years from now. Look back on this moment. What history tells us is five years from now, or in some reasonable time frame, I'm not talking like 50 years, but in some reasonable time frame, like five years, the pendulum will swing back towards the middle.
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?
Morva McDonald: I think it's both, I love that you brought this to the values question, right? As principle and guidance for what we do and how we behave, particularly as people who care about kids and are responsible for them, right? And responsible to some extent for how they can access their future. So I think that's grounding and I think many educators will find that grounding in a moment that is also really, really difficult.
I've so appreciated, Kenji, this conversation with you. I think that the seven strategies that you outlined, I also really appreciate that in the conversation that like, at some point we can't only think about theory. Theory is really important, right? It is a way of considering the world and understanding the world. And we have to build this strategy right now, right? To continue to live out our values as you suggested. And I so appreciate that guidance and I very, very much look forward to reading the entire book and having a better understanding of all the really deep thought that you've put into these topics and considerations. So thank you for the time today, Kenji.
Kenji Yoshino: The thanks are all mine, Morva. This was such a delightful conversation. Thank you.