Justice ReDesigned Podcast

Author’s Note

This essay is part of Justice ReDesigned: Conversations on Justice, a continuing series examining disparate impact, civil rights, human behavior, and the systems through which we attempt to deliver justice.

The series began with my concern over a growing effort in American civil-rights law to narrow disparate-impact analysis and return the focus primarily to proof of intentional discrimination. Supporters describe that approach as a restoration of colorblindness, individual fairness, and merit. I understand the appeal of that argument. But after more than four decades working in and around justice systems, I believe it rests upon an incomplete—and at times dangerously naive—understanding of how discrimination and inequality actually occur.

I did not reach that conclusion from theory alone.

I learned it on the juvenile court bench.

I watched well-intentioned educators, police officers, probation officers, judges, and other professionals administer facially neutral policies that nevertheless produced profoundly unequal outcomes—particularly for Black children. I watched zero-tolerance school policies and other seemingly neutral decision-making structures disproportionately pull children of color into the justice system even when the people administering those systems harbored no discriminatory intent.

And then I witnessed something equally important.

When we changed the systems, the outcomes changed.

Those experiences grounded me in the reality that lies at the heart of disparate impact: discrimination and inequality do not always require malicious people or discriminatory intent. Sometimes good people inherit systems that quietly produce barriers and disparities no one consciously intended.

That is why this series has become a Conversation on Justice.

Throughout these essays and their companion broadcasts, I return to a question that has shaped my career as a judge, reformer, educator, and student of systems:

Are we judging the character of the people...or the character of the system?

Intent matters. Intentional discrimination must never be minimized. But justice cannot afford to stop asking questions merely because no discriminatory state of mind can be proven. It must also ask what our policies produce, whether the barriers they create are justified, and whether better systems could achieve legitimate objectives with less unnecessary harm.

Although each essay can be read independently, together they trace the journey that led me to that conclusion—from children and families I encountered on the bench, to the data that challenged my assumptions, to Griggs v. Duke Power, human behavior, competing visions of equality, and today’s debate over the future of disparate impact.

Underlying all of them is a principle that has come to define Justice ReDesigned:

Compassion rescues people. Courage repairs the road.

I invite you to join this conversation with curiosity, question with humility, follow the evidence wherever it leads, and never be afraid to ask whether the systems we inherited are producing the justice we claim to believe in.

This Episode

This episode is titled “Human Nature Never Read the Constitution,” and it focuses on why good intentions cannot guarantee equal opportunity—and why justice requires better systems.

The Constitution tells us who we ought to be. Human nature reminds us who we actually are.

We like to believe fairness means treating everyone equally. Apply the same rules. Judge people individually. Don’t discriminate.

Those are worthy principles. But what happens when ordinary human behavior quietly undermines the very equality we aspire to achieve?

Human nature never read the Constitution.

We are creatures of habit. We trust what feels familiar. We gravitate toward people who remind us of ourselves. And sometimes, without consciously intending to exclude anyone, we make decisions that favor familiarity over genuine opportunity.

In this episode of Conversations on Justice, I explore why those ordinary human tendencies matter enormously when they become embedded in the institutions that shape our lives.

Consider something as simple as walking into a hotel ballroom before a national conference.

Nobody assigns seats. Nobody announces discriminatory rules. Yet within minutes, judges find judges, police officers find police officers, educators find educators, and people with shared backgrounds naturally gather together.

Nobody necessarily intends to exclude anyone.

It’s simply human nature.

But now imagine those same tendencies operating inside a workplace, school, courtroom, or government agency.

Multiply them by thousands of hiring decisions, promotions, mentoring opportunities, disciplinary actions, and institutional practices.

Then let them operate for decades.

What happens?

Patterns emerge.

Opportunities become unevenly distributed.

And racial disparities can persist even when the people making those decisions genuinely believe they are being fair.

That’s where the Supreme Court’s landmark decision in Griggs v. Duke Power Co. becomes so important.

The genius of disparate-impact analysis is that it does not require us to assume that everyone administering a system harbors discriminatory intentions.

Instead, it asks a different question:

What is the system actually producing?

That question changed the way I approached juvenile justice during my years on the bench.

I worked with extraordinary teachers, police officers, probation officers, principals, and judges who genuinely cared about children. Yet our supposedly neutral policies were producing disproportionate outcomes for Black youth.

The problem wasn’t necessarily the character of the people.

It was the character of the system.

In this Conversation, I examine the behavioral science behind affinity bias, homophily, and implicit cognition—and why those ordinary human tendencies challenge the assumption that declaring ourselves colorblind somehow eliminates the influence of race.

We also explore a distinction that has become central to this series:

Good intentions are not evidence of good outcomes.

A racial disparity does not automatically prove discrimination.

But the absence of discriminatory intent does not automatically prove fairness either.

Both conclusions can prevent us from asking the question that matters most:

Why?

I believe deeply in the constitutional aspiration of a society where race no longer determines opportunity. But aspirations alone cannot redesign institutions.

That requires evidence, transparency, validated standards, accountability, and the willingness to examine whether our systems are actually producing the fairness we intend.

And perhaps the most important lesson of my judicial career is this:

Good people need good systems, too.

Recognizing human imperfection is not an indictment of humanity. It is a reason to design institutions that help us become better than our instincts alone might allow.

Because justice was never built upon the assumption that human beings are perfect.

It was built upon the wisdom to recognize our imperfections—and the courage to design systems that account for them.

The Constitution tells us where we should go.

Human nature explains why getting there requires more than good intentions.

It requires Justice ReDesigned.

Join me for Human Nature Never Read the Constitution, another installment in Conversations on Justice, as we explore the relationship between human behavior, constitutional ideals, disparate impact, and the systems that determine whether equal opportunity becomes a reality.

A federal judge ordered the White House to restore the press credentials of CNN, MS NOW, and Politico. Days later, CNN was blocked from joining President Trump’s trip aboard Air Force One—and the television press pool went dark again.

In this episode, I trace the story from Trump’s original ban through Judge Timothy Kelly’s temporary order and the latest fight over access to the president. The order restored White House hard passes; it did not expressly address seats on Air Force One or CNN’s place in the rotating television pool. Does the new exclusion have a separate justification, or is it a way to continue the ban by moving it to another gate?

That question remains unresolved. What is already clear is why independent pool coverage matters to the public—and why the other networks’ response has become an important part of this continuing story.

What does equality actually require?

That everyone be treated by the same rule?

Or that everyone have a genuinely equal opportunity to compete?

In this episode of Conversations on Justice, I explore the tension between those two ideas through the lens of disparate impact law—and through a distinction that may be even more important:

An aspiration tells us where we hope to go. A description tells us where we are.

I have long been drawn to the ideal of a “colorblind” society. The word evokes something deeply hopeful: a nation in which race no longer determines opportunity, dignity, or belonging. It brings to mind the aspirational vision of reconciliation portrayed in Invictus—the idea that societies scarred by division can choose a different future.

But there is a danger in confusing the destination with the present.

If colorblindness is our aspiration, what happens when the law begins behaving as though we have already achieved it?

That question lies at the heart of the debate over disparate impact.

A policy may appear neutral on its face. Everyone may technically be subject to the same rule. But if that rule creates unnecessary barriers unrelated to ability or qualification, should justice concern itself only with equal treatment—or also with equal opportunity?

This is not simply a debate about statistics. It is a debate about how we understand fairness itself.

And in this episode’s Justice ReDesigned Moment, I return to a question that has shaped much of my career:

Are we judging the character of people—or are we examining the character of the systems they created?

Good people can operate within flawed systems. Neutral rules can produce unequal consequences. And institutions committed to justice must be willing to examine both.

Two Visions of Equality is not an argument that one conception of equality must defeat the other. It is an invitation to understand why both arise from serious moral concerns—and why meaningful justice may require us to keep asking both questions.

Because sometimes the most important question is not simply whether everyone was treated the same.

It is whether everyone truly had the same opportunity to begin.

What happens when access to the White House depends on whether the President approves of the reporting?

In this episode of Justice ReDesigned, we examine an extraordinary confrontation between the Trump administration and the American press—and the constitutional principles that govern it.

After journalists and news organizations were excluded from White House access amid criticism of their reporting, the dispute quickly became about much more than press credentials. It raised a fundamental question: Can government officials decide who gets access based on the viewpoint or editorial content of their coverage?

We trace the legal framework from the D.C. Circuit’s landmark decision in Sherrill v. Knight, which placed constitutional limits on arbitrary White House press-pass decisions, to Island Trees School District v. Pico and the broader First Amendment prohibition against government suppressing ideas simply because officials disapprove of them.

We then go deeper into the constitutional philosophy behind freedom of speech and press. Drawing upon the work of Alexander Meiklejohn and Justice Hugo Black, we explore the argument that political speech is not merely an individual right—it is part of the machinery of democratic self-government. Citizens cannot meaningfully govern themselves if government controls the information they are permitted to receive.

The episode also examines the administration’s invocation of “fake news” and asks where criticism of inaccurate reporting ends and the law of defamation begins. That brings us to New York Times Co. v. Sullivan and the demanding actual-malice standard governing defamation claims involving public officials.

And at the center of it all is one revealing statement:

“I don’t have to let them into my—into the people’s house.”

That correction—from “my” to “the people’s”—captures the constitutional issue at the heart of this episode.

Because the White House does not belong to a president.

It belongs to the people.

And in a constitutional democracy, a free and independent press serves as one of the principal ways the people see, hear, question, and scrutinize those who exercise power in their name.

Justice ReDesigned looks beyond the headlines to examine the law, the institutions, and the constitutional architecture that make democratic accountability possible.

There was a time in America when racial discrimination didn’t require an investigation.

The sign told you.

WHITES ONLY.

The employment policy told you.

Black workers could work here. White workers could work there. Certain jobs and opportunities were simply unavailable to Black Americans.

The discrimination didn’t hide.

It announced itself.

Then came the Civil Rights Act of 1964.

The signs began coming down. Explicit racial discrimination became illegal. America had taken an enormous step toward fulfilling its promise of equal opportunity.

But something else happened.

The signs came down. Some of the barriers stayed.

And they learned a new language:

Neutrality.

In this episode of Conversations on Justice, I return to the Supreme Court’s landmark 1971 decision in Griggs v. Duke Power Co. to examine one of the most important—and increasingly contested—insights in American civil-rights law.

Before Title VII, Duke Power openly segregated its workforce, confining Black employees to its lowest-paying department. After Title VII prohibited racial discrimination, the company imposed new requirements for certain transfers and promotions: a high school diploma and aptitude tests.

The new rules didn’t mention race.

Everyone faced the same requirements.

On paper, the system looked perfectly neutral.

But Black employees continued to be disproportionately excluded from opportunities previously denied to them.

So the Supreme Court asked the question that changed everything:

What do these requirements actually have to do with performing the job?

That question matters because Griggs was never simply about statistical differences. And it was not an instruction to lower standards.

Quite the opposite.

If a test predicts successful job performance, keep it.

If a credential is genuinely necessary, require it.

But if we’re going to exclude qualified people because they failed a supposedly merit-based standard, shouldn’t we first determine whether that standard actually measures merit?

Neutral doesn’t necessarily mean necessary.

And that’s where the story becomes larger than Griggs.

Throughout my career in juvenile justice, I encountered teachers, police officers, principals, probation officers, and judges who genuinely cared about children and wanted fair outcomes.

Yet facially neutral systems were producing racially disparate results.

That forced me to confront a question that has become central to Justice ReDesigned:

Are we judging the character of the people—or the character of the system?

Sometimes good people inherit old barriers.

They administer policies they didn’t create.

They follow practices they believe are fair.

And the system continues producing outcomes nobody currently administering it consciously intended.

That doesn’t mean every disparity proves discrimination.

It doesn’t mean good intentions are meaningless.

And it certainly doesn’t mean every neutral policy is illegitimate.

It means we should be willing to look.

Measure.

Ask why.

Determine whether the barrier serves a legitimate purpose.

Keep what works.

Redesign what doesn’t.

Because discrimination does not necessarily disappear when discriminatory language disappears.

Sometimes...

it simply learns to speak the language of neutrality.

And that leaves us with the question at the heart of this episode:

The signs came down. But did all the barriers?

This is When Neutrality Learned to Discriminate, another Conversation on Justice about people, systems, merit—and why justice sometimes requires us to look beyond intent and examine what our institutions are actually producing.

A Late-Breaking Conversation on Justice

When does removing a barrier to opportunity become an unlawful preference?

That question has suddenly moved from legal theory to an active national policy debate.

The Trump administration has proposed a new Treasury/IRS rule that could threaten the federal tax-exempt status of private schools and colleges that provide admissions preferences, scholarships, financial assistance, or other benefits based on race, color, or national or ethnic origin.

The administration says the principle is straightforward: help disadvantaged students—but don’t select them for assistance because of race.

That’s a serious argument.

And I think it deserves a serious response.

In this late-breaking episode of Conversations on Justice, I interrupt our planned series on disparate impact because this proposal puts almost everything we’ve been discussing into real time: merit, colorblindness, equal treatment, Griggs v. Duke Power, and the difference between using race to make a decision and examining race to understand whether a supposedly neutral system is actually working.

Treasury expressly allows schools to assist disadvantaged students using race-neutral factors such as income, geography, first-generation status, individual hardship, military-family status, and academic achievement.

Fine.

Let’s try it.

But then let’s do something else.

Measure what happens.

Do those race-neutral tools actually expand opportunity?

Do they reach poor students?

Rural students?

First-generation students?

Students from historically disadvantaged communities?

And if substantial racial disparities remain, are institutions still permitted to look at those numbers and ask:

Why?

That’s where I believe the debate becomes much more difficult.

There is an enormous difference between:

choosing someone because of race

and

examining racial outcomes to determine whether a neutral system is working fairly.

The first can be discrimination.

The second is inquiry.

Yet if those two ideas become legally indistinguishable, we risk solving colorblindness by becoming data-blind.

And you cannot diagnose a disparity you’ve forbidden yourself to see.

This episode also asks a larger question about merit.

If two equally talented students earn admission to college, but only one can afford to attend, financial assistance doesn’t manufacture intelligence.

It doesn’t lower the academic standard.

It removes a financial barrier.

Sometimes removing a barrier is what finally allows merit to matter.

And that principle extends beyond race.

The poor white student growing up in rural Appalachia matters too.

So does the first-generation student.

The child attending an under-resourced school.

The student whose ZIP code gave them fewer opportunities but no less potential.

Different circumstances.

Same question:

Are we measuring ability—or are we allowing barriers unrelated to ability to determine who gets through the door?

I support the aspiration of a colorblind society.

But colorblindness should never require blindness to evidence.

We can reject racial favoritism without rejecting racial inquiry.

We can pursue race-neutral solutions while still measuring whether they work.

And we can believe deeply in merit while recognizing that opportunity does not create merit.

Sometimes...

it simply opens the door and lets merit walk through.

This is When Opportunity Becomes a Preference, a late-breaking Conversation on Justice about race, class, merit—and who gets through the door.

What if a law designed to protect merit is now being challenged in the name of restoring merit?

That’s the puzzle at the center of this special Conversation on Justice.

In our last episode, The Reality of the Numbers, I argued that statistics are not verdicts. A racial disparity does not automatically prove discrimination. Numbers tell us where to look.

But what happens when the law begins making it harder to look?

In June 2026, the Department of Justice issued a memorandum challenging the traditional disparate-impact framework associated with Griggs v. Duke Power Co. DOJ raises a serious concern: if employers respond to racial disparities simply by manipulating outcomes to achieve preferred racial numbers, a law intended to prevent discrimination can itself pressure employers toward race-conscious decision-making.

I don’t dismiss that concern.

If disparate impact required racial quotas, discarded legitimate qualifications, or choosing one person over another because of skin color, I would have a problem with it too.

But that isn’t the only possible response to a racial disparity.

Suppose an employment test disproportionately excludes qualified Black applicants.

One response is:

“We need more Black employees. Change the results.”

But another is:

“Does this test actually predict who will perform the job well?”

Those are fundamentally different questions.

The first focuses on race.

The second focuses on merit.

And that is what I believe gets lost in the current debate.

Griggs didn’t tell employers to lower their standards.

It told them to validate them.

It didn’t require employers to hire unqualified people.

It required them to make sure their definition of “qualified” actually identifies qualification.

Griggs didn’t eliminate merit. It interrogated merit.

In this episode, I examine how DOJ’s new approach changes that inquiry—and why the difference may be far more consequential than it first appears.

A standard can be traditional without predicting performance.

It can be convenient without measuring ability.

It can sound perfectly rational while unnecessarily excluding qualified people.

And when nobody remembers why a requirement exists, yet everyone assumes those who fail it are “less qualified,” we may not be protecting merit at all.

We may be protecting false merit.

I’ve seen this movie before.

In juvenile justice, zero-tolerance policies were facially neutral. Teachers wanted safe classrooms. Police officers wanted to protect children. Judges wanted fair outcomes.

Yet Black children were entering the system at disproportionately high rates.

Had we required proof that someone intended to discriminate before examining the system, we would have missed the problem entirely.

Instead, the numbers made us ask:

Why?

We investigated.

We redesigned the system.

Arrests declined.

Court referrals declined.

Graduation increased.

We didn’t establish racial quotas.

We didn’t tell police officers to treat Black children differently.

We didn’t lower standards.

We improved the system.

That experience taught me the distinction at the heart of this episode:

Choosing somebody because of race is not the same thing as investigating race.

One can be discrimination.

The other is inquiry.

And inquiry is what Griggs gave us.

Colorblindness remains a worthy aspiration. But colorblindness should never require us to become blind to evidence.

Because perhaps the real choice before us isn’t:

Merit versus equality.

Perhaps it’s:

Real merit versus inherited assumptions about merit.

And perhaps Griggs, far from being an attack on merit, was one of the strongest defenses of merit the Supreme Court ever gave us.

The numbers don’t tell us who is guilty.

They tell us where to look.

And justice should never be afraid...

to look.

Numbers can be absolutely accurate—and still fool the hell out of you.

I know because it happened to me.

Years ago, a doctoral student asked to study our juvenile detention reform initiative. I welcomed the research because I thought I already knew what she would find.

School referrals were plummeting. Detention admissions were falling. Commitments to state custody were declining. Graduation rates were improving. And the reductions among Black youth were dramatic.

I thought we had essentially eliminated the racial disparity.

Then she ran the numbers.

We hadn’t.

My response was:

“Now...that’s interesting.”

In this episode of Conversations on Justice, I share what happened next—and why that experience permanently changed the way I use data, think about racial disparities, and understand justice reform.

The numbers did not tell us our reforms had failed. Thousands of children were avoiding unnecessary detention and remaining connected to school. Those were real victories.

But I wanted the shutout.

The no-hitter.

Hell, I wanted the perfect game.

We won the game. We just hadn’t pitched a perfect one.

So instead of arguing with the evidence, we asked the question that has driven so much of my career:

Why?

That question led us beyond the courtroom—to poverty, housing instability, food insecurity, transportation, health needs, and the conditions children and families confront long before they ever meet a police officer, probation officer, or judge.

It also taught me an important lesson about statistics:

I don’t believe numbers. I interrogate them.

Numbers can reveal patterns. They can show disparities. They can tell us something changed.

But numbers cannot tell us who is guilty.

They cannot tell us what someone intended.

And they cannot, standing alone, tell us why something happened.

Numbers are evidence, not verdicts.

That distinction becomes especially important in today’s debate over disparate impact.

If an employer removes an unnecessary barrier and suddenly more qualified Black, Latino, female, or previously excluded applicants successfully compete for the same number of jobs, the composition of those hired may change. Some people who would have been hired under the old system may no longer be hired.

But that mathematical change does not, by itself, prove “reverse discrimination.”

Sometimes something much simpler happened:

The competition got broader.

More qualified people got through the door.

Sometimes that’s what expanded opportunity looks like when you put it on a spreadsheet.

But intellectual honesty cuts both ways. A racial disparity does not automatically prove discrimination either.

The number is the beginning of the investigation.

Not the end of it.

Ultimately, this episode is about something we desperately need more of in our conversations about race and justice:

Humility.

The humility to follow evidence even when it takes us somewhere we weren’t expecting to go.

The humility to admit that our understanding may be incomplete.

And the courage to ask a better question when the numbers refuse to give us the answer we wanted.

Because sometimes the first thing justice requires us to redesign...

is our own thinking.

And remember:

The best evidence doesn’t end the conversation.

It begins it.

What happens when everyone in a system is trying to do the right thing—and the system still produces the wrong result?

Shortly after I became a juvenile court judge in 1999, a thirteen-year-old boy was brought into my courtroom from detention.

His wrists were handcuffed. His ankles were chained.

As I began explaining his constitutional rights, he raised his cuffed hands, began to cry, and called out:

“I want to go home with Mommy.”

I had to recess the hearing.

Not because he lost his composure.

Because I lost mine.

What I learned afterward changed the course of my career. This child was a special education student whose individualized education plan specifically warned school personnel not to startle him because he might react reflexively. A substitute teacher, unaware of the warning, approached him from behind. He reacted. The incident became an arrest. The arrest became detention. And detention put a frightened thirteen-year-old child in chains before a judge.

No one involved wanted that outcome.

The teacher wasn’t a bad person. Neither was the police officer. The detention staff weren’t bad people. And yet the system had failed this child.

Then the numbers revealed something even more troubling: children being swept into this system were not randomly distributed. Black children—especially Black boys—were being suspended, expelled, referred to police, and arrested at rates far exceeding their white classmates.

That forced me to ask the question that would shape the rest of my career:

Are we judging the character of the people—or the character of the system?

In this episode of Conversations on Justice, I explore why good intentions are not evidence of good outcomes, how zero-tolerance policies transformed ordinary adolescent misconduct into criminal justice events, and why searching for individual villains can prevent us from seeing something far more consequential: a broken system capable of turning the good intentions of decent people into outcomes none of them ever wanted.

I also share how that realization led us to stop asking simply what should happen to a child after entering my courtroom and start asking a much more important question:

Why does this child need to be in my courtroom at all?

That question eventually helped give birth to the School Justice Partnership. We returned routine discipline to educators, reserved law enforcement for genuine threats to public safety, created alternatives to arrest, and measured what happened.

School arrests dropped dramatically. Court referrals fell. Graduation rates increased. And many of the children who benefited were Black children who had been disproportionately pulled into the old system.

We didn’t replace the teachers.

We didn’t replace the police officers.

We didn’t replace the judges.

We didn’t replace the children.

We changed the system.

And when we changed the system, the outcomes changed.

That experience taught me a lesson I have carried throughout my career:

Good people working inside broken systems can make broken decisions. Not because they’re bad people. Because that’s what broken systems do.

This episode is ultimately not an indictment of the people who work within our institutions. It is a challenge to all of us who care about justice:

When good people consistently produce outcomes nobody claims to want, perhaps we should stop asking “Who’s the bad person?”

And start asking:

“What’s broken?”

Because compassion matters.

Good intentions matter.

But justice requires something more.

Justice requires the courage to redesign the systems that defeat those good intentions.

Government can enforce the law—and still get the outcome wrong.

In this episode of Justice ReDesigned, I examine what happens when immigration enforcement becomes so focused on arrests and deportations that it stops measuring the consequences left behind.

The issue is especially troubling when those consequences fall on military families. Service members have been forced to take leave, deployments have been delayed, spouses and parents have been detained or deported, and families have lost the support systems that make military service possible.

But this episode goes beyond immigration. It asks a larger justice question: What happens when one government policy undermines another national interest?

We look at the role of discretion in law enforcement, the promises made to military families, the effect on military readiness and recruitment, the economic consequences of labor shortages, and the danger of measuring government success by numbers rather than outcomes.

The argument is not that immigration law should not be enforced. It is that enforcement requires judgment. Limited resources should be directed toward genuine threats to public safety, while government remains capable of recognizing context, family ties, military service, length of residence, and the real-world consequences of removal.

At the heart of the episode is a simple principle:

Discretion is not the enemy of enforcement. Discretion is what prevents enforcement from defeating its own purpose.

Because justice should not be measured simply by how many people the government arrests, detains, or deports.

The better question is:

Did the policy make us safer? Did it strengthen our military? Did it protect our economy? Did it preserve trust in our institutions?

In other words—

What happens next?

Judge Steven Teske (Ret.)