What Can I Doooooo? with the ACLU: Yasmin Cader on Education Equity

We're talking about affirmative action, curricular censorship, and policing in schools.

Welcome to the fifth installment of our monthly interview series, What Can I Doooooo? with the ACLU. This month, I’m sharing a conversation with Yasmin Cader that happened in front of a live audience of high school students from across the country who gathered in Washington, D.C. to participate in the ACLU’s National Advocacy Institute. (They asked lots of great questions at the end of our conversation, so be sure to stick around for those.) Yasmin Cader is a Deputy Legal Director at the ACLU and the Director of the Trone Center for Justice and Equality, and she’s here to talk about the racial justice issues affecting K-12 students.    

Read all about it in the transcript below, which has been lightly edited for readability. If you’d rather to listen to our full conversation, just press play:

Meet Yasmin Cader

W. Kamau Bell: Our next expert is a Deputy Legal Director at the ACLU and the Director of the Trone Center for Justice and Equality, which encompasses the National Prison Project, the Criminal Law Reform Project, the Racial Justice Program, the Capital Punishment Project, as well as the John Adams Project. This person is busy fighting for racial justice and criminal reform. Please give it up for Yasmin Cader!

So, tell these people who you are, and tell us about your work and how you got into it. 

Yasmin Cader: Okay, I'm Yasmin Cader. Let's see, I grew up in St. Paul, Minnesota. Anybody here from Minnesota? There we go. 

WKB: Your governor might have a new job soon. 

YC: I went to college in this city. I went to Howard University. Anybody going to Howard? All right, H.U.! And then I went to law school. I went to Yale.

WKB: Wow, I've never heard Yale get that loud of an applause before. Not even at Yale. 

YC: Neither have I! But when I was studying political science at Howard and I was looking at the lives of Frederick Douglass and Fannie Lou Hamer and Ella Baker and all of these heroes, I was like, what am I gonna do? What should I do? How do I lift up my community? I wanted to go to law school, but I thought, you know, I wanna do something public-policy oriented. I wanna be like Marian Wright Edelman. I wanna start the Children's Defense Fund. I had big plans. I knew what I wanted to do, but I knew the two things I didn't wanna do, because it was just so cliché. I was like, “Well, I'm not gonna be a civil rights lawyer, and I'm not gonna be a public defender. No, I'm going to do big policy.” And the two things that I have done have been to be a public defender for 23 years and to be a civil rights lawyer, now a civil rights lawyer with the ACLU. So there you go for planning. 

WKB: Yes, yes, yes. So what pulled you into those things if you were like, “I'm determined not to do these things?” How did that happen? 

YC: Well, let me tell you. I was so fortunate to have mentors who really lifted as they climbed for real. And one of them was in Detroit, Michigan. Where are my friends from Detroit? There you go! I clerked for Judge Keith, and my judge, he saw something in me that I might not have seen in myself, and he said, “I need you to think about Thurgood. I need you to think about trying to go to the Civil Rights Division. Let's see, I want you to try it.” And I did. And it was amazing. And I did employment discrimination work. It was wonderful. 

But at the same time, in 1995, I had friends who were at the public defender's service here in DC, in the Superior Court. And I went to see them in court, and what I saw took my breath away. Because what I saw were scores and scores and scores of my people, of Black children and Black adults being lined up going through the front door of that courthouse, not coming out. It became very clear to me that the front line of the civil rights movement where I felt I could be of the most use was in the criminal legal system as a defense lawyer, as a public defender. So that's what drew me there. 

Decriminalizing Student Discipline

WKB: When you say that, I think about a famous Richard Pryor joke where he says, “I went to the courtroom looking for justice, and all I saw was just us.” As I sort of alluded to earlier, when you go to San Quentin, you see way more Black and Brown folks than are represented in the general population. And that's true across the prison system. What do you attribute that to? 

YC: Oh boy. So we got to back up a little bit. I think we need to back up to the concept of racial hierarchy in this country that started with slavery and the systems that entrenched racial hierarchy, and the way in which the criminal legal system has done so. We have the famous analysis from so many different vantage points about, for example, convict leasing that happened after slavery when people were free, ostensibly, but there was this great desire to have their free labor nonetheless. So the criminal legal system was used as a weapon to drag people back into agricultural labor, into mining, and into domestic labor to work again. One part that's often ignored is the convict leasing that happened to women. That happened, too. It kept going, and in every decade, every era, the criminal legal system has been used again to entrench racial hierarchies. 

And then . . . and then we have Richard Nixon, and we have the beginning of the war on drugs, which was and is a war on Black people. 

WKB: Yes. Yes. How many of you have seen Avery DuVernay's 13th? The doc on Netflix? I would highly recommend it if you haven't seen it. Check it out, because it talks about how, in the ‘70s, the United States prison population, which had tracked with prison populations around the world, spikes as they start to lock up Black and Brown people because of the war on drugs. I think we imprison a higher percentage of our population than any other country? 

YC: By far. By far, yeah. Two million people in prison. Four million people on some type of connection, be it probation, parole, or supervised release. 

WKB: And I know from living in California that there are people in prison who then get offered jobs to literally fight California wildfires – which should be a good, high-paying union job, and they're paid cents – cents! – to fight wildfires. 

YC: We have people fighting fires. We have people working in the fields. We have people cleaning up after other people. We have all the forms of labor that are happening that are unpaid. 

WKB: And then the further inequity – when those people who have learned how to fight fires in the prison system come out, they can't actually get hired to fight fires outside. 

YC: Well now, there is one person who has a convicted felony who seems to be doing well in this country . . .

Big laugh from the audience.

YC: But we have a lot of people who have served their time, who come out and are deprived of their rights to vote. They are deprived of their opportunity to work. They are deprived of their opportunity to take care of their families. They are deprived of their opportunity to live in public housing. It is a cyclical system designed to keep people down. But we're fighting it every day.

WKB: Yeah, and the guy you're talking about is trying to get a job so he can live in public housing again. (The White House is public housing.) 

WKB: So let's talk about some of the work you've done specifically related to students. Somebody asked me about my experience in school, and I’ll tell you about one of my most defining memories of being in school. I was in eighth grade going to a Catholic school in Alabama. There were two Black kids in my class, me and this other Black girl. One day I was standing in the classroom, and the teacher's like, “You're always standing. Every time I see you, you're standing.” And I went, “Well, he's standing. She's standing.” I pointed to all these kids who were standing, who were all white kids, and the teacher grabbed me. I never had been grabbed by a teacher like that before. I could see the fire in her eyes over the fact that I had called her out. I could see her policing me. I didn’t have those words at the time, but I could see her hyper-focusing on my Blackness, my Black boy-ness, over the white people around her who were doing the same thing.

You've done a lot of work about how schools will often over-enforce – doing the same thing that happens in the prison system. They’ll over-focus on the Black and Brown kids and will then punish them for doing things that, when white kids do them, we call it hijinks. 

YC: That's right. And I want to tell two stories about that. The first is when I was a public defender, I represented children, and I represented kids in this city in particular. And because there was such an extraordinary police presence in the schools, things that are normal child behavior became criminalized. I once had a client, a child who was charged with assault with a deadly weapon, ketchup for getting in a food fight. I'm not kidding. 

WKB: Assault with a deadly weapon –

YC:  Ketchup. And it’s funny – but not.

WKB: No no no. 

YC: And that's just one case. That’s just the tip of the iceberg. Normal adolescent behavior was criminalized, often because of the police in the schools. But there's more. In South Carolina, there was a law called “disturbing the schools,” and what this law did was criminalize adolescent behavior. So if you were boisterous, if you were obnoxious, if you were disorderly, if you interfered or loitered about, that was seen as a criminal offense. Children were dragged out of the classroom. And who do you think was dragged out more? 

WKB: Black kids. 

YC: Four times as much as their white counterparts. So there was a very, very famous incident. And I'm going to give a trigger warning, because this is painful to remember. But I want you to remember, if you can, with me. Do you remember the video of the little girl sitting in her desk at school, and the police officer flipping her over in that desk? Do all remember that? Well, I don't want you to have to, but trust me –  

WKB: That's from, probably, pre-pandemic? It's from a while ago. 

YC: Yes, pre-pandemic. And it was one of those viral videos about the failures of policing. Well, the little girl – and I say that lovingly. She was in high school, but I'm an auntie and a mama. So the little girl who videotaped it got prosecuted under this law for disturbing the schools because she witnessed and spoke up against this horrible treatment. That's where we came in. We said, not on our dime, no ma'am. We came in. We investigated that case. We filed a lawsuit against that law and said, “This law is unconstitutional. This law is void for vagueness.” It is too vague. What is boisterous behavior? 

And can you all indulge me? I have to tell you what the court said, because this doesn't happen every day. This is really fun. The court that ruled in our favor said that, based solely on the dictionary definitions of the statutory terms, disorderly and boisterous, it is hard to escape the conclusion that any person passing a schoolyard during recess is likely witnessing a large-scale crime scene, right? I mean, imagine the shade from that judge. It was so beautiful, the shade. But the thing that was also so beautiful about this case, and it just gives me life, is that it didn't end there. We took that victory, and we traveled across the state line to North Carolina, and we did a report about the same thing happening there. The same over-criminalization, the same vague laws, the same pernicious and just wrong-headed view of our children. 

WKB: I remember that clip, and I remember the thing that was frustrating at the time is that there was no context for what I saw. Because the clip is like 10 seconds long, you just don't know what happened next. And I remember the frustration of being like, “what are police in schools?!” Talk about the problem of police in schools and this myth that kids will be safer if there's police in school. 

YC: So what we have in this country is this phenomenon of policing in our communities, but also in our schools, as you've noted. And what we don't have are counselors. What we don't have are social workers. What we don't have are coaches. What we don't have is enough resources for art. What we don't have, what we don't have, what we don't have . . .  And the irony with these police in schools is that, sometimes, those individuals are trying to fill the void. So it's complicated. It's complicated because it's wrong, and it's unfair, and they are not trained. 

I grew up with police in my schools. I grew up walking through metal detectors. How many people have that reality here? 

Many students raise their hands.

I want you to close your eyes for just a second. I want you to reflect about what it feels like to be in the hallway, to be studying your chemistry or reading your literature, and then you see someone that could be armed? What is that message is it sending to you about the expectations that we have for you? Are we thinking of you as a scholar, as a leader? Are we thinking of you as a threat? This is not just my opinion. This comes from social scientists, from those who have studied this phenomenon. When we treat our children like they are a threat, the expectations we’re giving them are so low. It is so very low, and it is just so wrong, and it is just so inaccurate. What we need to do is have our movement together. The people who are the most important are those who are living the experience, and that is you right now, today. We need to say, what do we deserve? What do I deserve? What do you want from me? I know it can't be this. Let's link arms together. And let's advocate. Let's advocate for what we deserve and need. 

WKB: Yeah, when I think about police in school, I think about that quote – I don't know who said it — “When all you have is a hammer, everything looks like a nail.” And police, like you said, they're not social workers, they're not counselors, they're not mental health professionals. They have a very limited toolkit for how to solve problems. 

YC: And we haven't talked about the impact on students with disabilities. 

WKB: There we go. 

YC: And don't be at the intersection of race and disability. Don't be at the intersection of race and poverty and disability, right? It is making people invisible. And it is deepening our misunderstanding of the complexity and the beauty and the diversity of all the ways that people can be. Alllllll the ways that people can be.

WKB: I just want to let you talk. I don't have any questions. I'm just enjoying having a good seat. 

Fighting Classroom Censorship in the Courts and in Conversations

WKB: Let's talk about anti-CRT and anti-DEI efforts.

YC: That's right. The war on education, the war on information, the war on inclusion. How about that? 

WKB: The war on Black people with intelligence.

YC: Right. Absolutely. Absolutely.

WKB: So there was a case against classroom censorship efforts on K through 12 and university students. Can you talk about that? 

YC: Yep, there's a couple of them. So do you all remember hearing these CRT bans popping up? Or the Woke Act? Where are my friends from Florida? The Anti-Woke Act? So these popped up in state laws. They popped up in curriculum disputes. Anybody ever heard of Moms for Liberty? 

WKB: Moms for Scandal, if I remember correctly. . .

YC: There’s this perception that we can't teach divisive concepts. It is divisive to talk about structural racism. It is divisive to talk about gender inequity. Instead, we should be talking about our real history that doesn't involve any of these divisive concepts. Now, what I'm saying, is it clear, is it concrete, or is it confusing and vague? Vague. And that means it's unconstitutional. And it is also discriminatory. So we took on these challenges. We took them on in New Hampshire. We took them on in Florida. Fortunately, thus far, we've been victorious.

One thing that we all can link arms and tap on that really does give me life is those founding principles of our Constitution. If you look at it the right way, and you read that document to be the living document that it is, you can't do this. This is just a violation of our rights to free speech. It is a violation of our equal protection. It is a violation of our constitutional rights, period. So we were able to challenge these policies. We were able to get them either partially taken down or taken down in total, but there was more. 

We don't always win in the court, but we win in other ways. Because when we're bringing these lawsuits, we're centering the people who are our clients. We're empowering them. We're making sure that we bring advocacy efforts around the lawsuits. So we're going into the legislatures. We're also organizing in the streets. We are building movements. We are bringing people power to the mix. To me, that's what's so encouraging about this.

In these two cases that I talked about, we won in the court as well, but, to me, it's winning in the streets. 

WKB: We have to remember that, with the work that activists, the good lawyers, ACLU does, even if you don't win in the court, there can be cultural changes. Culture and politics do this sort of dance. My friend, Favianna Rodriguez, says that culture leads political change. Prop 8, for example, happened in California. That was the amendment to make marriage equality legal in California. It failed, marriage equality was not legal in California. But then all this culture came forward – Shonda Rhimes on Grey's Anatomy, Ellen DeGeneres every day on television just showing openly gay people in relationships and marriages. It felt like, at some point, the rest of America was like, “Okay, fine.” That then gets it to the Supreme Court. And then I remember the day I woke up and it just was legal –  I see you two plotting – 

YC: Well because we have one of the architects of that winning victory sitting right in front of me!  

WKB: I thank you. Thank you. And I just want to say that even if you all aren't lawyers, know that by living your lives and putting out culture and putting out art and putting out conversations in the world, you're actually helping the legal work. 

YC: That's right. And the other thing that I want to push us all on is bridging gaps, working across, finding people who might not agree with us, and persuading them. And that's hard. 

In the context of this anti-CRT work, one of the things we found is conversations work. You had the parents who were saying, “These concepts are divisive,” and then you had the other parents who are like, “This is my history. You don't want to learn about all of our history?” There are studies where they took these parents away from everybody else, put them in contexts where they were just having conversations – small group conversations – and guess what they found?

People agreed a lot more than they thought they did, because the parents basically came to the consensus that, “I'm not here to shame your child and tell your child that it's their responsibility for the sins of generations past. I don't want to do that. I want your child to be part of the progress for the future.” And then the other parents were like, “Well, I don't want to get rid of Black History Month. I wanna know about our complexity too.” People are so much more aligned than we are led to believe. When we engage in the art of persuasion, we can make magic happen. 

WKB: Thank you. We're talking about CRT, and that concept gets thrown around so much in the mainstream media echo chamber that it gets disconnected from people like Professor Kimberlé Crenshaw, who actually is one of the founders of the field of study of CRT. So let's just also shout out Kimberlé Crenshaw.

YC: My shero. 

WKB: Also the person who came up with the idea of intersectionality! It seems like there's a Nobel Peace Prize in there somewhere. 

Affirmative Action + Powerful Pivots

WKB: So, affirmative action. . .  

YC: Well, I want to first say this. I graduated from college in 1989 and I went straight to law school. I would not have gone to my law school had it not been for affirmative action. I say that very proudly. Affirmative action opened doors for people to have opportunity. Those people who had opportunity were my classmates who had the benefit of learning from me.

Audience cheers.

So last summer, the Supreme Court, in a case called Students for Fair Admissions (SFFA) vs. Harvard and North Carolina, came down with a ruling saying that those two schools’ affirmative action programs could no longer stand, that they were unconstitutional. And in those programs, race was one of many factors taken into account in terms of giving people an opportunity to be admitted to school. Now, we knew it was coming. We saw it. It had been leading up to it for a long time, but it doesn't mean it didn't hurt. 

Back when they struck down affirmative action in California, two things happened. Applications from Black and Latino students went way down. People gave up. They were like, “Well, affirmative action is gone. I'm not going to have a chance.” And a lot of the institutions said, “Well, there's nothing we can do.” We at the ACLU said, “We are not going to let that happen. We are not going to have messages about this loss somehow discourage people from applying.” So in addition to our work in the courts, we also work a lot on communication strategy. And what we did was we worked with other people in coalition and we made sure that the messages that came out were ones that wouldn't do that. They were what we call goal framing messages and they go like this. 

When we give Black and Latino students opportunity and freedom, they excel. They excel in STEM, they excel in the humanities, they excel in all of the arts. And now the Supreme Court has come in saying that we're going to strike down this affirmative action, and they've done what they've done. But regardless of what the court says, what we know is that by joining arms together and working hard to open minds and hearts, we are going to continue to thrive and open up new ways for inclusion. That's how the message went. And guess what? All of our data is showing that we didn't have nearly the depression in applications that we were scared about. 

But there's more. In addition to the message, it's about the pivot. You're gonna close this door, we're gonna open this door over here. And what the closing of that door opened for us was this analysis – It's not just about going to these elite schools. That's not the only way to make a path. There's so many universities that never had issues or even needed affirmative action to have diversity. There's a lot of places to learn! But guess what? They're underfunded. Community colleges are underfunded. Major universities, public universities are underfunded. So let's put our energy towards that. Let's put our energy towards opening doors for just more people generally. 

So that's one pivot. There are other pivots too. Let's be creative. There is a high school in Virginia called Thomas Jefferson High School. Anybody from Virginia? There you go, you heard of TJ, right? One of the best, highest ranked schools in the country. Well guess what they did? Those parents and those administrators, they got together and they said, “We're not going to have a school that is all white. We wanna have a school that is open to more people. So let's get rid of the standardized test. Let's knock down this fee. Let's have an essay where people can really talk about themselves. And let's not just have a couple of feeder schools. We want a percentage of people from every single eligible middle school to come to our high school. We want to do this because we want to have and celebrate diversity.” 

And guess what? They got sued. Because the SFFA said, you all are just trying to do an end run around the rule of affirmative action. You're calling it something else, but you're trying to do an end run. They took it up and asked the Supreme Court to listen to it. The Supreme Court declined. 

WKB: This Supreme Court? 

YC: This Supreme Court. For now. But I'll take it. I'll take it for now, because if then they strike that down, we'll pivot to something else. They're not going to take us down.

What Can I Doooooo?

WKB: As you know, our big question is WHAT CAN I DOOOOOO? What can these people do in here? 

YC: There's so much. First of all, not to age myself, but I do believe that children are the future. 

WKB: That's a classic. 

YC: I mean, you are it. I have a 17-year-old and I have a 14-year-old, and you are it. You're going to lead us out of this. So first and foremost, you're here. Thank you. Thank you. Thank you. The next thing is, you can organize now. You have to fill your cup. Okay, you have to take care of yourself. You have to align with people who see the world like you. But when your cup is filled and when you are feeling strong . . .

(1) I want you to reach out to somebody who might not agree with you on everything and have those closed-circle conversations. They're not easy. It takes work, but you would be surprised. You would be surprised at the progress you can make. 

(2) And then finally, you can take a pledge on our website about inclusive education.

America: Thumbs Up, Down, or Middle?

WKB: So, America? Thumbs up? Thumbs down –

YC:  I'm up. I'm up. Let me tell you why. I'm up! 

WKB: This may be the first time I've had somebody say that. 

YC: I'm up because I know we have the foundation, because we have principles that if we are interpreting our living constitution, and we have that potential to do so, we have those principles. But the second reason that my thumbs are up is because I believe in you. I believe in you, I believe in me, and I believe in our power. It is just insurmountable. I'm not worried. 

WKB: All right. If you ain't worried, I'll be slightly less worried. We are the ones we've been waiting for, as the poem says. 

Click the link below to listen to the AMAZING Q&A we did with the students in attendance that day. Seriously. Click the link. You don’t want to miss it.

You’re With Me

Some updates before you go:

September Office Hours: Special Guest HARI KONDABOLU!

Paid subscribers, save the date! On Tuesday September 24th from 11 - 12pm PT / 2pm - 3pm ET we’re meeting on Zoom and we’ll be joined by my friend and longtime collaborator, the brilliant comedian Hari Kondabolu. As you might know, we had a podcast together called Politically Re-Active. We thought it might be fun to get the band back together and react to some politics. If you aren’t already a paid subscriber, you can upgrade to get the zoom link and join our conversation:

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Let’s Look Out for Students in Ohio

Because J.D. Vance is doing everything he can to make their lives more difficult.

Two schools in Dayton, OH (near Springfield) don’t have the supplies they need in their school clinics. Mrs. Gantz, from Kemp Pre-Kindergarten - 6 School, explains:

I work for an inner city school district, serving low-income families. Many of our students are refugees or immigrants. Your help will give me an opportunity to help them during their transition to the United States. Almost every student lives in poverty and many don’t receive proper healthcare. My goal is to help them stay as healthy as possible so they can receive the education they are entitled to.

All donations on these DonorsChoose projects are currently doubled, so it won’t take much to close them out!