White Injury and Innocence: On the Legal Future of Antiracism Education

*Professor of Law, University of North Carolina School of Law. This Article benefitted from thoughtful feedback from Tristin Greene, Yuvraj Joshi, Holning Lau, Eric Mueller, Shaun Ossei-Owusu, and Erika Wilson, students in Dean Onwuachi-Willig’s Spring 2022 Critical Race Theory course at Boston University, and all participants at the UNC School of Law internal paper workshop. Thank you, also, to Elisabeth Baldwin and Elisa Sturkie for their excellent research assistance, and to the editors of the Virginia Law Review, especially Holly Chaisson and Caroline Hardie, for thoughtful feedback and edits.Show More

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not. The vulnerability of antiracism education to constitutional censure is the most recent illustration of how far antidiscrimination law has gone not in undercutting, but further entrenching, racial hierarchy in the United States. The legislative, litigation, and curricular wars surrounding antiracism education also remind us that race is significant for reasons that go beyond materiality. Rather, legal and social discourse about racism shapes notions of racial injury and ultimately impedes efforts to respond to even the material consequences of enduring racial inequality. Tracking and analyzing the anti-antiracism legislation and lawsuits provides those who are willing to follow it a map both to where antidiscrimination law must be changed, and to where antiracism education is most needed.

Introduction

In June of 2021, a student testified before his school board in Lakeville, Minnesota. In what surely was stirring testimony coming from a child so young, nine-year-old N.W. stated:

I do not judge people by the color of their skin, I don’t really care what color their hair, skin, or eyes is [sic]. I judge by the way they treat me . . . I do not care or look at the color of skin, but you make me think of it. I have Asian, Mexican, white, Chinese, black [sic] friends and I don’t care . . . They are just my friends. You have lied to me and I am very disappointed in all of you.¹ 1.Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original).Show More

The “lies” to which N.W. referred purportedly came from antiracism initiatives adopted in Independent School District 194 and included an “Inclusive Poster Series” which approved the statement “At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement this statement represents.”² 2.Id. at 1.Show More In the lawsuit parents and students brought challenging these initiatives, plaintiffs focused on the district’s efforts to “instruct[] children as young as fifth grade that structural racism dominates” American society.³ 3.Id. at 3.Show More

The Lakeville testimony and accompanying lawsuit are but one flashpoint in a larger movement challenging antiracism (also referred to as “anti-racist”) teachings and curricular initiatives in schools across the country. Although antiracism education has a long history, in the wake of George Floyd’s murder in the summer of 2020, its teachings attracted intense attention and elicited renewed commitments among educators to teach more explicitly about the function, operation, and harm of racism in the United States. Opposition to antiracism education, however, eventually became a political rallying cry for conservative politicians and policymakers. Reframing the teachings as the deployment of critical race theory (“CRT”) in K–12 curricula, pundits and politicians sounded alarms regarding this sort of education, prompting censure, even, by former President Donald Trump in the fall of 2020.⁴ 4.Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times (Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM].Show More

That critical race theory is a graduate-level, methodological interrogation of race not taught at the primary and secondary level is of no consequence.⁵ 5.Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001).Show More The phrase “critical race theory” has become shorthand for education that teaches students about structural or institutional racism, prompts children to consider their social identities, or makes explicit commitments to educational equity—the essential work of antiracism education. And through legislation, parent advocacy, and litigation, antiracism education is under attack.

Observers might be tempted to dismiss the attacks as a temporary political strategy, and indeed, there are suggestions that politicians understand these attacks to be useful for energizing voters. Nevertheless, the scope of the challenges, as well as the issues they raise in litigation, compel parents, policymakers, and legal scholars to consider the nature of antiracist education and the social and legal responses to its inclusion in K–12 education.

Fully considering antiracism education reveals it to be both less and more threatening than supposed. Less because at its core are basic lessons about race and individual responses to injustice that should not conflict with a social⁶ 6.Jennifer L. Hochschild & Nathan Scovronick, The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens).Show More and jurisprudential⁷ 7.See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”).Show More understanding of schools as sites for cultivating citizenship and instilling the practices of democracy. Antiracism education, however, is also more threatening because it attempts to reveal and interrogate racial hierarchies—a problem for those who either deny those hierarchies or believe them to be justified. Further, to the extent that antiracism education explicitly names whites as beneficiaries of racism, it is also a frontal assault on “innocent” white racial identity—a commitment which is implicit throughout equal protection jurisprudence,⁸ 8.See infra notes 203–08 and accompanying text.Show More and is now made explicit in the vociferous challenges to antiracism education.

Ultimately, the reaction to antiracism education illustrates just how deeply invested Americans are, wittingly and unwittingly, in white supremacy, how disorienting it can feel to individuals to destabilize racial hierarchy, and how far antidiscrimination law has gone not in undercutting, but in further entrenching, these attitudes and norms. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not.

Litigation challenges are still developing. Some lawsuits will ultimately be dismissed on account of pleading defects, while other suits may be resolved on freedom of expression grounds. Nevertheless, closely examining the antidiscrimination legal framework within which challenges to antiracism education will play out presents an opportunity not only to reconsider those frameworks, but to think more broadly about the nature of race, particularly as it operates in school settings.

Racial equality work is sometimes critiqued as excessively invested in psychic harm, language, and symbols,⁹ 9.See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”).Show More instead of more properly focused on the material sources and consequences of racial inequality. Epitomized by the writing of a scholar like Cedric Johnson, the critique maintains that antiracism education and racial affinity movements, despite having brought the marginalization of Black civilians to the forefront of public consciousness, have moved the United States no closer to “concrete, substantive reform.”¹⁰ 10.Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7].Show More As Johnson insists, what is needed instead is a “popular, anti-capitalist politics, rooted in situated class experiences.”¹¹ 11.Id.Show More In the context of public education, this critique might demand equalized resources rather than diversity training.

To be sure, the ways in which material inequality informs racial inequality is key to realizing substantive equality for all Americans. That disparities in wealth and income make Black Americans vulnerable to heightened rates of incarceration,¹² 12.Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group).Show More abusive policing,¹³ 13.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”).Show More more dangerous neighborhoods,¹⁴ 14.See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status).Show More and inferior health and social services¹⁵ 15.See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes).Show More is well-documented. In education, public school financing, anchored in local tax bases themselves shaped by residential segregation, housing discrimination, redlining, and blockbusting, continues to limit the tax pool from which majority-minority schools can draw. A 2019 study, for example, found that non-white school districts received $23 billion less in funding than did white schools, and that for every student enrolled, non-white school districts received $2,226 less than did white districts.¹⁶ 16.$23 Billion, EdBuild 4, app. A (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL].Show More Accordingly, there have long¹⁷ 17.See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents).Show More been warranted calls for the redistribution of resources as a solution to the education gap, particularly in the wake of a failed integration project and the resegregation of American public schools by race.¹⁸ 18.Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods).Show More

Nevertheless, the curricular wars surrounding antiracism education remind us that the ideology of race still functions in less concrete, but no less powerful, ways. Race and racial disparities are more than just material, more than new classroom supplies and equitable teacher salaries. Rather, race is also about psychic harm. Part of that psychic harm is certainly in the story that material inequalities tell: that children of color deserve less because they are valued less. But harm also stems from the national mythologies we construct about race, and the ways in which those mythologies dictate our responses to inequality, legal and otherwise. Our national story about the end of racism as the result of a victorious civil rights movement has impeded efforts to engage institutional bias and systemic oppression. Our national story about innocent white identity has obstructed efforts to interrogate racial hierarchy and adopt solutions necessary to dismantle racial stratification.

Our mythologies about race have also set baselines for the conception of racial harm. Indeed, the ways in which society collectively understands the nature of racial injury will dictate the very remedies we choose to address racialized material disparities if we choose to do so at all. The narrative regarding racial injury dictated by antidiscrimination law tells Americans that the harm of homogenous classrooms for whites is a compelling interest justifying race-conscious remedies, but societal discrimination leveled against Black students is not. Exclusion from elite education in the absence of race-conscious admissions policies is not an equal protection violation, but the de minimis¹⁹ 19.See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action).Show More harm to “innocent” whites from affirmative action is. The repeated and consistent exposure of Black students to racial epithets in required reading is not a harm recognized by equal protection.²⁰ 20.See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection).Show More But, as illustrated by the emerging round of legal opposition to antiracism education, teaching students about how whites benefit from whiteness in a racialized society is a cognizable harm because it might make students “feel bad.”

These asymmetric narratives regarding injury are central to maintaining racial hierarchy. Accordingly, it is no surprise that politicians and parents are so heavily invested in the outcome, for nothing less than racial status is at stake in the battle for what we teach young people about race. Though dismissal of all anti-antiracism education legislation and lawsuits is possible, the opportunity that current antidiscrimination law provides plaintiffs to present antiracism education as racist education is a reminder of the symbolic import of race, a red flag regarding inversions in racial injury, and a troubling sign of equality jurisprudence’s instability.

Part I considers the form and function of antiracism education, considering its basic tenets, documenting its rise in prominence, and noting the critiques antiracist education prompts. Part II engages the legal responses to antiracism education, from legislation intended to undermine it to lawsuits that challenge it as an affront to civil rights and equality. Given both conceptual and instrumental differences between antiracism education and the multicultural education curricula that came before it, antiracism education is particularly vulnerable to attack under current antidiscrimination norms and doctrine. Part III considers the ways in which antidiscrimination law creates, protects, and increasingly centers “innocent” white racial identity and closes with a reminder of the importance of K–12 schools as sites for understanding race and racial subordination in the United States.

1. Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original). ↑
2. Id. at 1. ↑
3. Id. at 3. ↑
4. Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times
   

   (

   Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM]. ↑

5. Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001). ↑
6. Jennifer L. Hochschild & Nathan Scovronick
   

   ,

   The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens). ↑

7. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”). ↑
8. See infra notes 203–08 and accompanying text. ↑
9. See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”). ↑
10. Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7]. ↑
11. Id. ↑
12. Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group). ↑
13. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”). ↑
14. See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status). ↑
15. See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes). ↑

16. $23 Billion, EdBuild

    4,

    app. A

    (

    2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL]. ↑

17. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents). ↑
18. Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods). ↑
19. See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action). ↑

20. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection). ↑