Is there a way to build bridges between school boards, driven to create racial equity, and communities that see such agendas as overreach, failing to focus on academic skills, and intrusions on private conscience?
Here, in Poway, there is an opportunity to build a bridge that surmounts these accusations, and return to our better selves. But, first, we must work through a confrontation between equity and matters of conscience and educational overreach.
The Poway Unified School District’s board of trustees passed a resolution last year to fight racism and systemic inequity. A plan was published and then taken down for a review by an equity advisory committee composed of board members, staff, parents and students.
This is an opportunity to revisit the plan and consider how to build bridges within the district and out to the community.
An important starting point is California’s passing of Assembly Bill 101 that requires all high school graduates to complete a course in ethnic studies. The legislators, aware of attempts to misconstrue the law by some school boards, included guardrails ─ to avoid bigotry against protected classes and individuals. This also avoided the antisemitism in earlier drafts.
Similar to the California legislature including guardrails in ethnic studies, Poway’s equity advisory committee should take a similar approach to including guardrails to what it frames as equity and fighting racism.
Poway Unified’s Racial Equity and Inclusion Plan, which is being revised, sets an objective to “create a code or pledge for students to sign acknowledging expectations and committing to be anti-racist.” What does the district mean by anti-racist?
Poway, like many communities across the United States has a history of conflict as well as cooperation. Some of this conflict can be seen in news reports of racial incidents. These were not caused by the school district, but reflected in student behavior and likely broader cultural attitudes.
Would a code or pledge that committed students, and likely staff and teachers, to being anti-racist make the community better? Or would it, however well-meaning, trigger constitutional violations?
Being an anti-racist could mean:
- Not being racist (that’s how I see myself — I am not a racist — the normally understood definition)
- Always challenging suspected racism (having a constant agenda in mind and being race-conscious)
- Requiring acts of present and future discrimination, following Ibram Kendi (How to Be an Antiracist, a book featured on the PUSD website).
Kendi justifies discrimination on the basis of equity and a way to overcome racism: “If discrimination is creating equity, then it is antiracist …The only remedy to racist discrimination is antiracist discrimination.”
That sounds odd since we know that discrimination is unlawful unless sanctioned by legislation or the courts.
Similarly, the Poway board and its equity advisory committee are not a legislature, nor a court.
If they follow Kendi’s advice, then their calls to be anti-racist may actually advocate unlawful discrimination, rationalized by the semantics of equity. This is precisely where an equity guardrail is needed.
The logic of the recent appellate case of Vitolo v. Guzman shows how an equitable policy flags unconstitutionality concerns.
In Vitolo, the Small Business Administration wanted to correct systemic societal inequities affecting women and minorities. They were advanced to the front of the line to receive federal funds. That relief was held to be unconstitutional because the relief was not narrowly tailored, the SBA did not specify the inequitable conduct, nor did it show it was the cause of the injury.
In the same way, the Poway school district would need to show that its pledge or code was justified as narrowly tailored policy to correct the racism, show the specific racist conduct that the school itself engaged in, and that the racism was not the result of the wider community but of the school itself. Without that showing, the antiracist code or pledge would likely be unconstitutional as a way to prevent racism in the Poway school district.
Perhaps the Poway school district would state that it does not mean a Kendi-type of anti-racism — to use discrimination to fight discrimination. The district might argue that it only intends to create a moral climate against racism.
But, that, too, would be unconstitutional ─ as infringing on one’s private beliefs.
The Foundation for Individual Rights in Education, known as FIRE, has been a leading advocate for individual conscience in educational institutions.
Its guiding light in this discussion is West Virginia State Board of Education v. Barnette (1943). The case concerning the Pledge of Allegiance has become broadly interpreted to view state action for control of the opinions of its citizens as pernicious.
FIRE’s perspective sees “requiring students to say a ‘diversity pledge’” as likely to be held unconstitutional. Likewise “when a campus diversity trainer tells an 18-year-old rural freshman that she must eradicate latent racism or heterosexism from her attitudes.”
While FIRE’s examples are set in a higher educational setting, it is likely that such actions would be even of greater concern for K-12 public school students.
In either case, the Poway board and its equity advisory committee have no legal authority to impose beliefs on students.
Instead of an anti-racist pledge or code, the district should advocate that its students act respectfully towards one another. This revision to its equity plan can replace a legal overreach with a bridge ─ one directed to its students, and in the same way, its staff and teachers, and another out to the wider community.
These bridges would serve as an important guardrail to equity overreach.
Joe Nalven is a former associate director of the Institute for Regional Studies of the Californias at San Diego State University.