Book Review, April 2021 RIBJ, RIBJ, 69 RI Bar J., No. 5, Pg. 13

• Author: By Ibram X. Kendi
• Position: Vol. 69 5 Pg. 13

BOOK REVIEW-How to Be An Anti-Racist

No. Vol. 69 No. 5 Pg. 13

Rhode Island Bar Journal

April, 2021

Samuel D. Zurier, Esq. Providence

By Ibram X. Kendi

Over the past few years, video recordings of the deaths of Black Americans at the hands of the police, the burgeoning Black Lives Matter movement, and the 1619 Project combined to support a growing national consensus to address racial injustice. The May 26, 2020 murder of George Floyd produced a tidal wave of protests across the racial divide, leading so far to such changes as the removal of Confederate monuments in the South and the removal of “Providence Plantations” from our State’s official name last November after voters had overwhelmingly rejected a similar proposal in 2010.

These events spurred many of us to learn more about the issue of racial injustice by reading such books as Professor Ibram X. Kendi’s How To Be An Anti-Racist (2019). The volume really is two books in one, combining a personal memoir with a doctrinal statement of policy principles. Most readers will focus on the first book, in which Professor Kendi’s candid and compelling stories encourage readers (including this one) to reflect on their own experiences and gain insight concerning their unconscious biases. At the same time, the policy principles presented in the second book, which are the subject of this review, raise difficult questions for attorneys, highlighting the gaps in our country’s realization of the ideal of equal justice under law (as reflected in the Supreme Court’s jurisprudence) and offering a controversial way to fill these gaps.

More specifically, Professor Kendi’s policy principles push back on a view of the nation’s history many of us learned in law school and celebrate each Martin Luther King Day, namely that the civil rights era validated a national value of justice and equality, starting a long march towards those goals that continues to this day, albeit at a frustratingly slow pace. Professor Kendi’s argument essentially rejects that gauzy vision, proposing a starker alternative.

To understand Professor Kendi’s argument, this article will begin with a brief overview of three lines of Supreme Court equal protection cases (in the areas of public education, affirmative action in public university admissions, and voting rights) in which the early promise of the civil rights era was weakened over time by court decisions that limited remedies to cases of intentional discrimination, and which restricted the use of racial criteria in fashioning remedies, causing racial inequities to remain or worsen.^[1]It will then describe how Professor Kendi’s doctrinal framework essentially flips the status quo around, placing the burden of proof on those who seek to justify any policy or action that does not have a favorable impact on reducing racial disparities. This article will conclude with some suggestions for lessons our legal community can take from Professor Kendi’s argument.

I. The Civil Rights Era And Its Aftermath

A. Public School Integration

For many historians, the civil rights era began with the Brown v. Boardof Education decision in 1954, in which the Supreme Court declared that “in the field of public education the doctrine of ‘separate but equal’ has no place.”^[2]The Browncourt presented a new standard of equal protection in public schools, stating: In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.^[3]At first, the Court allowed local communities to develop their own compliance plans to implement the new rights “with all deliberate speed.”^[4]When local communities failed to act on their own, the Supreme Court upheld comprehensive court orders, stating that a school board must take “whatever steps might be necessary to convert to a unitary system in which discrimination is eliminated root and branch,” and that it must “come forward with a plan that promises realistically to work, and promises realistically to work now.” ^[5]

The Supreme Court’s initial position of strong support shifted during the 1970s as the Warren Court gave way to the Burger, Rehnquist and Roberts Courts. In the Swanndecision of 1971,^[6]the Court placed limits on court-ordered busing, stating: Absent a constitutional violation there would b e no basis for judicially ordering assignment of students on a racial basis… All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes.^[7]

Two years later, in Keyes v. School District No. 1, Denver, Colorado,^[8]the Supreme Court held that Denver’s student assignment plan, which was proven discriminatory in some neighborhoods, should be presumed discriminatory as a whole absent proof to the contrary.^[9]While Keyesmarked some progress in the battle against school segregation, the majority chose not to adopt a stronger standard proposed in Justice Powell’s concurring opinion, which viewed racial imbalances in school populations as a proper subject for judicial relief regardless of whether they resulted from explicit policies (de jure segregation) or from other factors (de facto segregation).^[10]

The Burger Court’s focus on de jure discrimination left it powerless to address the issue of suburban “white flight” in its 1974 Milliken v. Bradleymajority decision, which Justice Marshall criticized in his dissent as being “more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution’s guarantee of equal justice than it is the product of neutral principles of law.”^[11]Millikenmarked a major retreat in the Court’s efforts to integrate schools, as it limited remedies to cases where there was explicit proof of intentional discrimination leading to segregation, closing the courthouse door to other cases of segregation that may have resulted from other sources, such as housing discrimination.^[12]

In its 2007 Parents Involved in Community Schools v. Seattle School District No. 1decision^[13]the Supreme Court went even further, holding that two school districts’ voluntary integration plans were themselves discriminatory and unconstitutional. In his plurality opinion, Chief Justice Roberts described the key holding of Brown v. Board of Educationas being that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”^[14]In dissent, Justice Breyer warned that The last half century has witnessed great strides towards racial equality, but we have not yet realized the promise of Brown. [Chief Justice Roberts’s]...