June 28, 2007

Grutter Politics?

Over at SCOTUSblog, Tom Goldstein has a balanced take on today’s Supreme Court combined decision in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (Judge Roberts writes for the 5-4 majority).

From what I can glean from the excerpts I’ve read of Justice Kennedy’s concurrence, his opinion — representing the controlling vote (on Parts III-B and IV (?); Mark’s Rule is difficult to interpret here, after Grutter) — lays claim to a more “nuanced” view of the desirability of racial “diversity” that will serve to keep alive its use as a compelling interest in some narrow cases (despite, I should add, recent research that shows the use of “diversity” in social engineering schemes has had a decidedly unhealthy social impact).

This is, from my perspective, an unfortunate lean toward the liberal side of the bench, whose blistering dissents are filled with precisely the kind of emotionalism one expects from Justices fighting against what the Roberts wing clearly sees as a rather clear Constitutional issue.

And in fact, Kennedy, on at least two crucial points, breaks with the plurality: first, he denies that the Constitution demands a “color-blindness”; and second, he accepts the premise that there is, in fact, a governmental interest in school diversity, an opinion he bases on…what, precisely, I’m not sure.

Still, his concurrence may not give those hoping for a substantial degree of wiggle room on behalf of “diversity” initiatives the kind of play they believe — at least, if you accept Goldstein’s analysis:

One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.

— which, for my tastes, is too close to the language used by Powell in Bakke, a view later affirmed in Grutter and Gratz, thanks in large part to Justice O’Connor, who ruled as if she were trying to affect a social compromise rather than interpret the law.

Continues Goldstein:

Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the plurality’s failure to “acknowledge that the school districts have identified a compelling interest here”); id. at 17 (“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.”).

Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the “parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factor”); id. at 8 (acknowledging Justice Harlan’s dissenting view in Plessy that “[o]ur Constitution is color-blind,” but concluding that “it is regrettable to say, it cannot be a universal constitutional principle”).

Again, I’m not sure why this “cannot be a universal constitutional principle,” legally speaking — unless it is Justice Kennedy’s position that the law, clearly interpreted, doesn’t enforce the “right” kind of social admixture, and could lead to a legal form of self-selected segregation.

I’m eager to read Thomas on this point, his being the most libertarian voice on the Court.

Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. Op. at 9 (“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.”); id. at 10 (these programs are unconstitutional because “the schools could have achieved their stated ends through different means”); id. at 16 (in the case of “de facto discrimination,” “[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here”); id. at 18 (“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.”).

[emphases mine]

On these two points, Kennedy keeps his conditions (blissfully) narrow; still, by not siding with the plurality, he leaves the door open to clever arguments and institutional gambits that can (and most certainly will) be crafted to test the latitude of the restrictions. Too, should the Court swing back to a liberal majority, there is a good chance that the crack left open by Justice will be casually widened, until we’re right back to where we began after Bakke.

I may be wrong here, but this, it seems to me, is the tragedy of Kennedy’s concurrence.

Back to Goldstein, who shares some of my own concerns:

Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. [...]

[...] “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race” (id.), as distinct from “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications” (id. at 9). These approaches can be employed “with candor and with confidence that a constitutional violation does not occur.” Id.

Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.

Justice Kennedy thus states that schools may employ not only the “facially race-neutral means” discussed above but “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,” an “approach [that] would be informed by Grutter.” Op. at 10. Such a system would “consider[] race as only one factor among many,” whereas the Seattle program “relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings; distance from schools; and race.” Id. at 12. “If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.” Id. at 12-13. Justice Kennedy continues: “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.” Id. at 18. See also id. (rejecting “[c]rude measures of that sort”).

The ambiguity exists in Justice Kennedy’s statements that such approaches may be employed “if necessary” and that Grutter would have “some application.” The better view, I think, is that Justice Kennedy would still require as a “first option” the various efforts at increasing diversity (such as school siting) that do not involve the express use of race as a factor in widespread school assignment. If those programs do not succeed or can be reliably shown to be unlikely to succeed standing alone, districts can consider race as one factor among many that look to students as individuals rather than just members of racial groups. Only if that effort fails may the government turn to programs like those in Seattle and Louisville.

[my emphasis]

Essentially, this is a “conservative” punt insofar as it refuses to decide the issue, but instead tries to have it both ways: race can only be one factor, and it must be a factor of last resort; still, race can remain a factor [Hans Bader echoes this concern] given that the Constitution does not demand color-blindness as a “universal principle” (Kennedy calls this “regrettable,” and I remain confused as to his thinking here, unless he is combining “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race” with “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications” — which, while “distinct,” is still nevertheless a question of “race,” and forcing a semantic rejection of the would-be “universal principle” of color blindness), and given that Kennedy asserts that the project of “diversity” is itself a compelling governmental interest.

Again, recent research seems to militate against such an assertion — and Peter Wood’s lengthy analysis of the “diversity” movement clearly shows, in my estimation, just how illiberal is the entire project, based, as it is, on a shallow and cosmetic view of diversity as superficial integration — a view that tracks more with the analogy of the crayon box than of the melting pot.

****
More: Lyle Denniston analyzes the thinking behind Justice Kennedy’s oft-seemingly third-way conservatism; Orin Kerr with an summary for Volokh, followed by an interesting discussion in the comments.

****
update: This bit from Bader’s piece bears highlighting, given that it shows how today’s ruling, thanks to Kennedy’s concurrence, muddies the legal waters a bit in some areas (while cleaning them up a bit in others):

The Supreme Court’s decision today makes clear its Croson line of cases only authorizes the use of race to remedy past intentional discrimination. The Court’s opinion describes its decisions as involving the “compelling interest in remedying the effects of past intentional discrimination.” Similarly, the Chief Justice’s plurality opinion notes that “our precedents recognize the compelling interest in remedying past intentional discrimination,” and Justice Kennedy’s concurrence describes the Croson line of cases as involving an interest in “remedying the effects of past intentional discrimination.”

These statements wash away the foundations of cases like Stuart v. Roche that assume that Croson allows unintentional discrimination – such as a mere prima facie case of disparate impact [ed - is that Powell again? I can't remember] – to support the use of race. That helps resolve a circuit split, and clarify the law outside the educational context.

But in the educational context itself, Justice Kennedy actually creates more confusion through his ambiguous concurrence.

Justice Kennedy’s concurrence recognized that the use of race in Seattle and Louisville did not remedy intentional discrimination, as thus was subject to tougher scrutiny than a remedial use of race would be, both in terms of whether a compelling interest in using race was demonstrated, and whether the use of race was narrowly tailored.

But his concurrence simultaneously opened the door to possible non-remedial use of race by some school systems in the future, suggesting that in a future case, race might be used in a more “nuanced” way by a school system seeking to use race as one of many factors to promote a non-remedial goal like “diversity” or preventing “racial isolation,” if achieving those goals first proves impossible through race-neutral means.

Like I said. Punt.

Posted by Jeff G. @ 2:42pm
35 comments | Trackback

Comments (35)

  1. Thanks for your analysis. You could have been a lawyer, but happily you are not.

  2. Yes, where would we be without “nuance”? How could Kennedy show his face at Georgetown soirees if he weren’t pomaded with “nuance”?

    Meanwhile, Rosie O’Donnell still gives fat pig-ugly dykes everywhere a bad name.

  3. 3rd and punt again, as usual. So much for the new face of the Roberts SCOTUS.

  4. I’m curious … how does SCOTUS now, in current terms … define “race”?

  5. I haven’t pored over the opinions yet, and it would not be the first time Kennedy has gotten something wrong. However, on the very narrow point that “it is regrettable to say, it cannot be a universal constitutional principle,” he may only be saying that there are (unfortunately) some cases where gov’t can or must take race into account. For example, if a race riot breaks out in a prison, the warden likely can segregate prisoners by race. More likely, Kennedy is suggesting that gov’t can require race-conscious remedies where there is a proven record of racial discrimination. Such is far different from the “diversity” rationale embraced in the Michigan cases, about which Kennedy is apparently being ambiguous.

    And whatever doctrinal beefs I might have with Kennedy, I would add this. One conservative approach to judging is to focus narrowly on the case before you, not saying more than you need to say to decide the case, and trying to avoid broad (and often activist) policy pronouncements. OTOH, the Supremes generally take cases to render opinions that will have that broader impact. And even conservatives now expect this. To that extent, (ostensibly) conservative Supreme Court Justices always have to deal with a certain tension in their duties.

  6. Pingback: Is Lady Justice Colorblind? « Michael P.F. van der Galiën

  7. “For example, if a race riot breaks out in a prison, the warden likely can segregate prisoners by race. More likely, Kennedy is suggesting that gov’t can require race-conscious remedies where there is a proven record of racial discrimination. Such is far different from the “diversity” rationale embraced in the Michigan cases, about which Kennedy is apparently being ambiguous.”

    There is also the very extreme view of the likes of stephen colbert, which is that if you don’t see race, you don’t see racism. Even in Jena, Louisiana.

  8. In your example, Karl, the question is, are you segregating the population BY race BECAUSE of the racial nature of the riot — which would simply be reacting to what IS, and doing what needs to be done to end it REGARDLESS of whether or not the fight had been between blacks and whites, say, or some rival gangs? Because then race would be incidental from the perspective of the corrections institutioninmates’ views about race and racial animus are responsible for the actions the prison has to take, even while those actions are “color blind” in the sense that the prison would have separated whatever warring factions happen to exist — even preemptively, if they got wind of a problem beforehand — regardless of why the tensions between them exist, and regardless of the races involved.

    That would not, then, it seems to me, be running afoul of a color blind Constitution — and would fit into the category “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race,” wherein race is no different than, say, gang color or tattoo.

    I also agree with you about narrowly interpreting the case. But it seems to me that Roberts said it well. The best way to end racial discrimination is to end racial discrimination. And I think the Constitution clearly calls for that. So even to decide the case narrowly is to apply that principle. Kennedy, on the other hand, unnecessarily broadened the case by appealing, in his ruling, to potential future cases where he could conceive of reasons why a school might “need” to use race in a way that would help them reach the “compelling governmental interest” of diversity.

    There, it seems to me, is the overshoot.

    Interested in hearing your reply (not being a lawyer myself, I can only go so far). But I’ll probably elevate this exchange to a post when I get back from my morning walk.

    Even though the original post didn’t seem to generate much interest.

    Also, I want to look at Breyer’s lengthy dissent, and Thomas’lengthy rebuttal.

    Interesting how the law sees “race” and “diversity”, to echo Diana’s question above.

  9. Shine —

    That’s actually not an unfair point. The opposite, however — and the position I’ve been arguing since grad school — is that so long as you see race, you’ll continue to find racism, and that the proximate cause for most race consciousness these days is continued race consciousness, in the form of government set asides, identity politics, “celebrating the differences,” and multicultural dogma.

    It is a fair argument, I think, to assert that racism will always exist — but it will be far less pernicious and far less extensive when the culture at large isn’t divided by race on any kind of (coerced/ “remedial”) institutional level.

    The libertarian side of me finds no problems with self-segregation in theory; in practice, I have more of a problem with forced “diversity” — particularly where diversity is defined so superficially.

    I’ll add your (or Colbert’s (ironicly serious, despite itself)) concern to my post.

  10. Frankly, I would love to hear the rationale behind the idea that preventing “racial isolation” is a goal for which exists a “compelling state interest.”

    I think part of the ‘problem’ of these sorts of threads not having mcuh in the way of replies is that none of the PW commentariat can manage even a slight disagreement with your eloquence on the topic.

  11. The opposite, however — and the position I’ve been arguing since grad school — is that so long as you see race, you’ll continue to find racism

    Years ago I had an aunt and uncle — Catholics — who moved to Utah because of my uncle’s job with the federal government. They had apparently heard about how Mormons are prejudiced against non-Mormons, especially Catholics, so they arrived prepared to see anti-Catholic prejudice everywhere.

    Lo and behold, they did! The fact most of their direct interactions with the locals were friendly and positive didn’t change the way they talked about the experience of being Catholics in Utah.

    I’m a non-Southerner living in the South. Although I developed a bit of a drawl while growing up, any lifelong Southerner knows I’m not one of them. If I’d come here expecting to be the object of anti-Yankee prejudice, I’m sure I’d have found ways to see it everywhere.

    As it is, on those occasions that someone here acts like a jerk toward me, I don’t see any reason to give a $#!t why they’re acting like a jerk. A jerk is a jerk is a jackass is a damnfool. If they’re acting that way because they don’t like my accent, or my aunt’s religion, or the color of somebody else’s skin, doesn’t validate their jerkiness or say anything particularly profound about the society that spawned them.

    To paraphrase a popular book the jackasses we shall always have among us.

  12. Predictably, the Democrat candidates fell all over themselves last night, trying to be the one most in favor of government sanctioned racial discrimination. And, predictably (and sadly) the mostly black audience at Howard University ate it up…

  13. Does anyone see why elections are still important?

  14. “is that so long as you see race, you’ll continue to find racism”

    You need to at least see race to find racism. And no matter how much one closes one’s eye to race, there’s always the possibility that another wont. So the racism will still be there. Even while some of us think they are enlightened by putting their heads in the sand.

    So we have real problems if officialdom tries to enforce a race blindness, or to blind itself to the race consciousness that is out there. So we would end up with ridiculous results such as prohibiting the census bureau from collecting data on race. I think this happens in some european countries. Or with prohibiting facial discrimination, and yet also the prosecution of as applied discrimination — because noticing that requires that we ‘see’ race.

  15. Precisely, Attila. Every time I hear, say, social cons threatening to sit out an election, I try to remind them that they should cast a vote for someone who will appoint Constitutionalists to the bench — even if they have no other reason to cast a vote.

    In the long term, court rulings do far more to affect cultural movement than do executive or legislative maneuvering.

    And Breyer nearly melted down in his dissent, so concerned is he that the “living constitution” has decided that it likes to live in a nice, quite, conservative neighborhood — where it isn’t asked to do a lot of work it was never intended to do.

  16. I don’t get your point, Shine. I noted in my response to you that racism will always likely exist. But what gives it its social force is that race is a contentious issue — and it need not (and should not, from a Constitutional perspective) remain contentious.

    My argument is that this concerted effort to keep race in the forefront of calls for social justice is having the opposite effect of stoking racial animus — and that the proper thing to do is to WORK to make race the non-issue that it (biologically-speaking) is.

    Labeling such a strategy toward taking the starch out of racial politics “putting your head in the sand” is part of the problem — and is frankly just a veiled accusation that those who don’t accept your strategy for trying to heal the racial divide (if indeed that is what you’re after) are closet racists looking for a way to justify their racism and keep their place in society by pulling the ladder out from under the oppressed racial groups. You demonize those who offer alternative strategies to the ones that, since Bakke, have caused racial backlash and led to an era of identity politics based around race and ethnicity — while embracing a status quo that has done nothing by keep whatever racial animus exists on a large, institutional scale, permanently ongoing.

    You need to change the culture of racial thinking in order to change the culture of race.

    And your point about the census bureau is a red herring: racial classification (per racial constructionists) is self-determined anyway. When race is a social construct — the argument given for the promotion of the racial project even after the science fails — proponents have no right, then, to turn around and complain that a census in which people can choose (or not) to define themselves by race, is somehow problematic.

    You can’t have it both ways.

    If, however, the social constructionist argument is reduced to what it is — a thinly-veiled feint to essentialism — then we are right back to the kind of racial categorization that you believe the census needs, which is just another way of re-dividing people by race.

    Of course, the red herring part of your argument is that, as Kennedy notes (and as I noted in the prison segregation sample above), the reasoning behind racial categorization in those cases is more like book-keeping, and is not, properly understood, an issue of race so much as it is an issue of accounting in order to track certain trends.

    That race consciousness is “out there” is a fact promoted by the race consciousness that we continue to allow in law. And just because a bunch of people have a bad understanding of race doesn’t mean we need to continue racialist projects that promote those bad understandings.

    I point you to the Phipps case, in which a woman was determined to be Black because her parents mistakenly believed her to be Black, based on outmoded definitions, and identified her as such on her birth certificate. It mattered not to the court that the woman herself believed herself white, or had lived as “white”.

    I’ve written on this before here, so if you do a search for Phipps something will likely turn up.

  17. “But what gives it its social force is that race is a contentious issue — and it need not (and should not, from a Constitutional perspective) remain contentious.”

    My point is that its not a bad thing that the constitution isn’t race blind, because society isnt. And from a constitutional perspective, it should try to address how contentious race is in society. Because there are certain uses of race that we should not tolerate, that we should find to be infringements on a constitutional level.

    “And your point about the census bureau is a red herring: racial classification (per racial constructionists) is self-determined anyway.”

    It doesn’t matter if it is self determined or not. I can see a strict enforcement on race neutrality forcing the census bureau or any other government entity from noticing race, self reported or not. And that is a ridiculous thing. I just use it so say that enforcing color blindness may not be so smart.

    “That race consciousness is “out there” is a fact promoted by the race consciousness that we continue to allow in law.”

    Its also promoted by, you know, when people engage in racism. Even the illegal kind.

  18. Nuance, ya’ll. It’s a progressive thing, you wouldn’t understand.

  19. Probably a little off topic, but if you’re ever in Louisville take a peek at the Real Estate section and count how many ads contain the words “Oldham County Schools”. Hint: Louisville is Jefferson County.

    Disclaimer: If I had no kids, or could afford private schools, I’d move to Louisville in a heartbeat. I worked there for 10 years, it’s a great place. I did live in an Oldham County subdivision for a while, but I’m not a subdivision type-guy, so I moved back to Indiana and raised the average IQ in both states.

  20. Shine,

    Its also promoted by, you know, when people engage in racism. Even the illegal kind.

    Which is why there are no serious calls to get rid of anti-discrimination laws. There is a big difference between allowing people to sue their employer b/c they were discriminated against on the basis of race, and giving BENEFITS to people, or treating people different from one another under the law, because of race.

    Conservatives are arguing for the government to be color-blind in the sense that it will not use race to set policy, or treat people differently, whether for good or bad motives. Conservatives aren’t arguing to allow racial discrimination, which is where you keep wanting to take the argument. So you are fighting against a straw-man.

    Thus, when gov’t is not doling out goodies on the basis of race, there will be less identity politics as various identity groups won’t be competing for the government goodies. That, in itself, will do more to heal racial divides in this country than anything being proposed by any liberal.

  21. Did anyone watch the arguments in the Louisville case? It was a while ago, but the last thing I remember before falling asleep was Scalia wondering why African Americans were held in such low regard that a school that had 80% African American enrollment was suspect, but a school with 80% whites was not.

  22. Jeff,

    Sorry I didn’t get back yesterday (though you apparently made do with a jug of wine, some s’mores and Bo). I think your response to me has it just about right. The only point I was making was that Kennedy may have been making a similar point — that the principle is fine, but courts must also deal with what “IS” in a case — even while creating more ambiguity himself by offering a narrow rationale and leaving the door open to what we might see as mischief (but which he might not, or at least does not want to commit to decisively either way at the moment). To see the prison example as you and I might is not to say that a lawyer cannot argue that segregating the prisoners by race is, on its face, racial discrimination.

    Perhaps I should mention that part of the reason for my first comment was that I think Tman probably spoke for many in referring to the decision (as narrowed by Kennedy’s opinion) as a “punt.” That may be entirely correct from a particular perspective. But stare decisis is itself a rule that promotes conservativism in the form of incremental change as a general rule (even if more capital-C conservatives, libertarians and classical liberals outside the legal system are looking more at the result). Indeed, I imagine that most non-lawyers do not consider, for example, that lawyers like Thurgood Marshall spent years and years bringing cases undermining the “separate but equal” doctrine to pave the way for Brown v. Bd. of Ed. As bold a stroke as Brown was in the real world at the time, it was less so in legal doctrine due to the incrementalism of past decades of litigation.

    That being said, the “diversity” rule of the Michigan cases should be easier to reverse than “separate but equal,” as it is still a relatively new rationale for legal racial discrimination. In practice, we have taken a half-step away from it because Alito replaced O’Connor. Other Justices who helped create it and are still on the court have to overcome the general human predisposition to believe that a considered decision they made was right.

  23. “There is a big difference between allowing people to sue their employer b/c they were discriminated against on the basis of race, and giving BENEFITS to people, or treating people different from one another under the law, because of race.”

    I know. But under both cases, the law is not being color blind.

    “Conservatives are arguing for the government to be color-blind in the sense that it will not use race to set policy, or treat people differently, whether for good or bad motives.”

    I think its fine to sometimes set policy on the basis of race. For example, if we decide that black children are underperforming in school, or that black people are makign less money than white people, then we could set policies that look to fix these things.

  24. BTW, if you want to spot exactly where shine’s argument collapses, it is here:

    My point is that its not a bad thing that the constitution isn’t race blind, because society isnt. And from a constitutional perspective, it should try to address how contentious race is in society. Because there are certain uses of race that we should not tolerate, that we should find to be infringements on a constitutional level.

    The Fourteenth Amendment, however, provides for the equal protection of the laws. Shine’s wish that it be otherwise is just that — a wish. And that’s why race might be taken into account by a court in a particular case or controversy where what “IS” might require it as an appropriate remedy, but the 14th Amendment is certainly not license for public or private bodies to engage in racial discrimination themselves because they believe others are doing the same. The only real caveat is that Congress may “enforce” the 14th Amendment by “appropriate legislation” — a clause sufficiently problematic that Congress chose to base the 1964 Civil Rights Act on the Commerce Clause instead.

  25. Shine,

    “There is a big difference between allowing people to sue their employer b/c they were discriminated against on the basis of race, and giving BENEFITS to people, or treating people different from one another under the law, because of race.”

    I know. But under both cases, the law is not being color blind.

    No, that is not true. The “law” is color blind when it states that noone can be discriminated against based on race (whether white/black/hispanic/asian). THus, if you can prove you were discriminated against based on your race, regardless of which race it is, you can seek redress in court. That IS colorblind.

    Setting aside benefits based on race, meanwhile, is discriminating on the basis of race, regardless of the motives behind it.

    “Conservatives are arguing for the government to be color-blind in the sense that it will not use race to set policy, or treat people differently, whether for good or bad motives.”

    I think its fine to sometimes set policy on the basis of race. For example, if we decide that black children are underperforming in school, or that black people are makign less money than white people, then we could set policies that look to fix these things.

    that’s fine to believe. I disagree, and think the constitution does as well. However, those are the type of arguments we can have without calling each other racist or implying we are racist or seeking to allow discrimination. That is exactly my point.

  26. “The Fourteenth Amendment, however, provides for the equal protection of the laws. Shine’s wish that it be otherwise is just that — a wish.”

    My wish is that equal protection includes on the basis of race, as the 14th amendment does. So that makes the constitution not color blind. It certainly notices race. Where do you get the idea that I don’t want equal protection? I’ve been arguing that equal protection requires us to notice race!

    “The “law” is color blind when it states that noone can be discriminated against based on race (whether white/black/hispanic/asian).”

    How does a prosecutor, or other enforcer, or judge, detect whether there has been racial discrimination without noticing race? In order for us to be equally protected along some basis, that basis has to be recognized in law. In this case, race.

  27. Are you blonde, shine?

  28. Shine,

    “The “law” is color blind when it states that noone can be discriminated against based on race (whether white/black/hispanic/asian).”

    How does a prosecutor, or other enforcer, or judge, detect whether there has been racial discrimination without noticing race? In order for us to be equally protected along some basis, that basis has to be recognized in law. In this case, race.

    I will try to explain this so you understand it. The law is colorblind in that it does not protect any one race over any other race. All races are treated equally in the sense that it is against the law to discriminate on anyone (in certain situations, such as employment) based upon race. Now, obviously the person brining suit has to state that they are of a particular race, and that the person who discrimated against them did so b/c of this race.

    The law, however, is colorblind in the sense that it does not protect one race above another race (i.e., it protects all races equally against discrimination). Someone can sue for being discriminated against because they are white, just as well as someone can sue because they are discriminated against because they are black. The law makes no distinction.

    Now, what we are arguing against is laws that specicically make a distinction based on race, and treat people differently based on race – i.e., give a certain benefit to members of one race that are not available to members of another race – such as hiring somneone because he/she is black, not because of his/her qualifications. Or the government deciding which school to send a child to based entirely on his/her race. These are situations where the government, throught the law, actually discriminates by making decisions based entirely on race – i.e., placing one race above another.

    It is these types of laws that lead to racial identity politics as members of each identity group seek to gain the most benefits from government.

  29. Pingback: Schools, race, "diversity," and "compelling interest," revisited

  30. Follow-up post here, for those interested.

  31. “The law, however, is colorblind in the sense that it does not protect one race above another race (i.e., it protects all races equally against discrimination).”

    I get it. I just don’t agree that this is accurately described as “blind” specially when we had jeff up above saying that so long as we see race, we will see racism. Thats not quite the blindness we want.

  32. I get it. I just don’t agree that this is accurately described as “blind” specially when we had jeff up above saying that so long as we see race, we will see racism. Thats not quite the blindness we want.

    You get it? So far I have not seen that. My argument is that we don’t want laws that benefit one race over another. I pointed out that you were arguing a strawman, as anti-discrimination laws are race-neutral (perhaps a better term than “color blind”) and would not be effected by getting rid of all discriminatory laws that benefit one race over another.

    You came back with the argument that anti-discrimination laws and affirmative-action (i.e. laws that specifically discriminate based on race) type laws were the same thing, and were not “color-blind” or as I have now termed it, “race-neutral”. I pointed out that you are incorrect on that point.

    So, are you now conceding my point, that getting rid of racially discriminatory laws (such as assigning students to a school based on race) will not mean ignoring racism?

  33. “You came back with the argument that anti-discrimination laws and affirmative-action (i.e. laws that specifically discriminate based on race) type laws were the same thing, and were not “color-blind” or as I have now termed it, “race-neutral”. I pointed out that you are incorrect on that point.”

    They’re not the same thing. But they both require us to see race. Differently. But we still have to see it.

  34. That’s incoherent, shine.

  35. Pingback: Provocateurism, 7

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