June 29, 2007

Schools, race, "diversity," and "compelling interest," revisited

I’ve had an interesting exchange with Karl and (yes) Shine in the comment thread to yesterday’s post on the 5-4 SCOTUS ruling that would, on the surface at least, restrict the use of “race” (as a substantive deliminator) in K-12 school settings — an exchange I wish to highlight, because I think it touches on many of the issues that arise from Justice Kennedy’s (to my mind, at least) troubling concurrence.

As I noted in my original post, the problem in Kennedy’s concurrence is that it leaves the door open to circumvention on the issue of when and how race, in the guise of “diversity,” is a “compelling interest” — even though it is careful to restrict the use of race to those situations wherein other remedies are not readily available.

In the university setting, this position — affirmed in Grutter — has proven a cosmetic Band-Aid: admissions officers simply pretend that they are using “race” ONLY as one criterion among many for deciding on candidate selection, and are therefore able to go about their business of promoting “diversity” just as they had before — only now, with the requirement that they are paying lipservice to the Court’s injunction that race can only be considered alongside other criteria.

Yesterday’s ruling — by way of Justice Kennedy’s concurrence — looks to extend Grutter, it seems to me, to K-12; but the problem for those who would hope to get around this ruling in the same way universities have gotten around the earlier strict scrutiny clause, is that K-12 schools don’t use admission selection committees, and in fact their enrollment distribution, racially and ethnically-speaking, is based on an entirely different paradigm (generally, location).

Before going into my back and forth with Karl and shine, however, I’d like to quote from Bob Driscoll, who, as SCOTUSblog notes, “represented Amicii Curiae David Armour, Abigail Thernstrom, and Stephan Thernstrom and served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice from 2001-2003″. He also happens to echo some of my sentiments — while expressing others I find troubling — in the following commentary examining the “practical impact” of the ruling:

[...] the suggestion by Justice Kennedy that race may be used as “one factor” of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant “one factor” while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrence, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.

[my emphasis]

This seems to me about right: though I’m sure, as I said yesterday, clever advocacy groups will come up with legal challenges that press at the weak seems leftover from Kennedy’s concurrence, the likelihood of success is minimized by the injunction, in the majorities ruling, that race be considered only as a last resort.

Still, it is easy to see that, under a different court — and as the dissent made abundantly clear — the latitude left open by Kennedy’s opinion, narrow though it may be, could eventually be widened by a series of rulings meant specifically to rehabilitate the use of race as a “compelling government interest” as defined by liberal Justices who believe the majority essentially reversed the spirit of Brown.

And, frankly, though Kennedy may have struck upon a less obvious political dodge than O’Connor before him, he has nevertheless struck on one, all while maintaining that he is ruling narrowly on the cases before him (and argument that Karl, playing devil’s advocate, will also float — but one I find unpersuasive).

So while I agree with Driscoll that the ruling has the practical effect (at least, in the short term) of making racialized policy far more difficult to realize on the K-12 level — because it nevertheless opens up the prospects for a rehabilitation of racialized policy by arguing that “diversity” is, in fact, a compelling interest, and that the Constitution itself cannot “regrettably” support a “universal” color-blindness (as the plurality expressly noted in can and should), I think Driscoll is far too sanguine about the ruling’s “practical effects.”

He continues:

Second, although the Breyer dissent mouths the words “strict scrutiny,” it is clear that the dissenting Justices would apply some lesser level of scrutiny to “inclusive” governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards’ choice of what research to give credit to — I’m not sure what that means, but its doesn’t seem like strict scrutiny to me if a “compelling” justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government). What is unclear is where Kennedy stands on how one defines a “compelling” interest. While he clearly finds “diversity” a compelling interest, he provides little insight as to whether he agrees with the rationale of the dissent with respect to deference to school boards or simply assumes that “diversity” in education is a compelling interest post-Grutter without reaching the question of what type of evidence must be presented to establish a “compelling” interest.

[my emphases]

And therein lies the nut: Breyer, for the dissenters, clearly indicates that one notion of strict scrutiny for what comes to count as “compelling,” with respect to racially-motived political policy, is really nothing more than a way to choose which social science the Court comes to find fits its own ideas of how society should be racially apportioned, once a challenge to yesterday’s ruling presents them with the option of accepting the rationale.

Meaning that a change in the ideological makeup of the court will lead, almost certainly, to a complete reinterpretation of yesterday’s ruling — thanks specifically to Kennedy’s refusal to reject “diversity” as a compelling interest (a decision he based on nothing but his own personal opinions, so far as I can tell), and thanks, too, to his refusal to allow that Constitution requires a “color-blind” application of the law.

On this last point, I wrote yesterday:

I remain confused as to [the rationale behind Justice Kennedy's] 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 forc[es] a semantic rejection [in his mind] 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.

And it was to that point that Karl responded with an interesting argument on behalf of Kennedy’s thinking:

[...] on the very narrow point that “it is regrettable to say, it cannot be a universal constitutional principle,” [Justic Kennedy] 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.

Karl’s comment addressed several points of tension I’d highlighted as (to my way of thinking) problematic with the decision, and placed them in a reasonable, tangible light.

Still, I remain unconvinced, for reasons I then spelled out:

n 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.

Karl’s follow-up comment is here, but it essentially finds common ground with my concerns.

But Karl’s wasn’t the only concern raised over my analysis. Shine, not surprisingly, chose to advance the “liberal” side, and in so doing, made some points that are certainly worth addressing. He begins by quoting from Karl

“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.”

— before adding,

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.

Snark aside, the point is one that I’ve long had to grapple with in my discussions over race in general, and over the politics and policies of race as a social strategy in particular.

Assuming, for the sake of argument, that it is our goal, as a country and a society, to minimize the impact of racism and marginalize those who are, in fact, racist, what is the best way to go about accomplishing that goal?

Too often, those who criticize people like me who find race-based affirmative action, for example, problematic, do so by suggesting that my desire to end such (failed) social projects is that I am hoping to use bourgeois concepts like “merit” and “fairness” to provide advantages to those who, the argument goes, are at a social advantage based on the color of their skin.

But this argument seems entirely reductive, and in fact, it has the effect of lumping together the very disparate situations of individual “representatives” of particular “races” into a kind of artificial hierarchy — in the process, rejecting individualism for a kind of easy group-based pigeonholing that presumes to suggest that we can, simply by looking at the color of one’s skin, determine how close (to use a race car analogy, for my mouthbreathing redneck readers) that person is to the poll position.

In short, criticism of the critics of race-based policy initiatives oftentimes refuse to acknowledge that the goals are ostensibly the same, whereas the difference arises when the discussion turns to the best way to combat the problem. That is, strategy is the true point of contention — and yet those who are hoping to maintain the post-Bakke status quo will seldom acknoweldge that simple fact, preferring instead to “bully” across their own strategy initiatives by suggesting that those who disagree are closet racists.

And that is precisely the tack shine takes. In response to his initial assertion (by way of Steven Colbert) that “if you don’t see race, you don’t see racism,” I wrote:

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.

Again, this was a response that dealt with strategy. To the assertion that if we don’t see race, we won’t see racism, I responded that, in my view, it is the foregrounding of race that in fact gives rise to the desire (and social necessity, given that legislation is contingent upon a perceived need) to locate and highlight “racism,” however dubious that it.

Further, it is the political and legal foregrounding of race that has the further effect of, not surprisingly, keeping “race” foregrounded as a social issue.

Which is why, from a strategy standpoint, I find it appropriate to demystify race (by pointing out the bad science behind it); and then to advocate for social policy that refuses to consider race in any way that can be construed as either ameliorative or coercive (both of which “remedies” to “racial division” have been attempted and have been found wanting, if you can believe the hard data accumulated by researchers like the Thernstroms) — the effect being to eventually minimize the impact of racial politics, and take away the political clout of those who traffic in racial grievance, the practical effect of which is that they must constantly find instances of racial tension and stoke them.

In response, shine writes:

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.

[my emphasis]

That last bit, of course, was a veiled suggestion that critics of a particular strategy are refusing to acknowledge that race is an issue — that we would rather ignore the problem than help solve it. And the subtext of such an argument is that we don’t care about racial disparity — that we are, in fact, racially insensitive, if not downright hostile to racial justice.

Which is, of course, utter self-serving nonsense. Shine would have us believe that, because race consciousness exists, government policy (which is largely responsible for keeping race consciousness in the social forefront, ironically enough) must reflect this race consciousness — a circular argument disguised as a justification for the status quo that has landed us where we are, and which, if permitted, will keep us here perpetually.

And it is my view that in order to change the culture of race, you must first change the culture of thinking about race — something that can’t be accomplished if we continue to argue that our beliefs on race must always reflect the general social beliefs on race. Or, to put it more forcefully, it is rather silly to argue that bad policy based on a faulty strategy must necessarily continue because, as a result of that faulty strategy, that bad policy has been reinforced, in turn has giving rise to an entrenched culture of misguided thinking that we must now respect simply for its entrenchedness.

Besides, as Karl notes in a follow-up comment:

[..] 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.

Clearly, yesterday’s ruling goes a long way toward narrowing, in the short term, some instances of racial politics.

But Kennedy’s concurrence — insofar as it has holding and it rejected the plurality’s insistence that the Constitution be color-blind, and that racial diversity is not a compelling government interest (at least, not based on any scientific consensus I’m aware of) — leaves the door open for future challenges (which will be largely semantic and potentially broadly interpreted), and so actually strayed from representing the kind of narrow, case-specific ruling upon which a conservative Justice like Kennedy prides himself.

Posted by Jeff G. @ 11:39am
98 comments | Trackback

Comments (98)

  1. “Shine would have us believe that, because race consciousness exists, government policy (which is largely responsible for keeping race consciousness in the social forefront, ironically enough) must reflect this race consciousness — a circular argument disguised as a justification for the status quo that has landed us where we are, and which, if permitted, will keep us here perpetually.”

    Because race consciousness exists, government policy must take into account that race consciousness. It does so when it, for example, declares that a woolworth lunch counter can’t discriminate on the basis of race. It does so when it declares that a state can’t pass racially discrriminatory laws that on their face are race neutral.

    It also does so when it decides to set aside contracts for minority owned businesses. The problem you have isn’t with taking it into account. The problem is with how.

  2. No. It is taking into account that the Constitution protects against discrimination on the basis of any number of factors, one of which is race.

    Go back and review the distinction Kennedy himself draws between the kind of race-consciousness that is only incidentally “about” race, and the kind of race consciousness that is, in fact, discriminatory and, if one buys my argument, promotes continued race consciousness.

  3. I’m particulary interested in this case because it points directly to the Anglo/Franco tensions here in Canada which continue to tear us apart. Living in Canada’s capital and “standing astride” the Ottawa River is an interesting exercise. Your arguments are so apt.

  4. Re: the main post

    Noticing that the door is open to further creative lawyering is not necessarily the same as opening the door to further creative lawyering. Publicly theorizing about it in an opinion, a la Kennedy, however, may well be considered mischief-making. However, it’s more troublesome for what it says about Kennedy, as the creative lawyers would have come up with a Gretter-esque response for K-12 on their own.

    Re: Shine’s response

    Congress telling a business that is discriminating on the basis of race that they cannt do so is fundamentally different from any lesser authority saying that they are going to discriminate on the basis of race in awarding contracts, even in the absence of any provable past discrimination. The first is righting a wrong; the second is the “two wrongs make a right” theory.

    If that’s tough to grasp, just reword your own argument:

    Because race consciousness racism exists, government policy must take into account that race consciousnessbe racist.

  5. Well said, Jeff (and Karl).

  6. Though not well-spelt, on my part.

  7. Again, Shine does not understand the difference between a race-neutral law, which says that NO race will be discriminated against and a racist law, which states that some contracts will be set aside and awarded based on race.

    How that distinction is lost is strange. Let’s take this out of the race arena. Say that there was a law that stated that no business can discriminate against anyone based upon the size of their feet in making hiring decisions. That is a neutral law, it does not favor any foot size, it just says that foot-size cannot be used as a criteria in employment decisions. In other words, the law does not benefit any foot-size to the detriment of any other foot size.

    Now, imagine the government also had a law that said that the government will set aside 1/3 of all government contracts and award those contracts only to people that have size 16 feet. That law is not neutral, in that it treats people with different foot sizes differently. In other words, it favors people with a size 16 foot to the detriment of people with smaller feet.

    Thus, anti-discrimination laws are actually neutral, as they treat everyone the same, while affirmative-action type laws are not neutral in that they favor one group over other groups.

  8. “Congress telling a business that is discriminating on the basis of race that they cannt do so is fundamentally different from any lesser authority saying that they are going to discriminate on the basis of race in awarding contracts, even in the absence of any provable past discrimination.”

    I understand that they are different. I also believe they are both seeing race, and taking race consciousness into account. There’s bad race consciousness, and there’s good ones. There’s bad ways to react to race consciousness, and good ways. Statements like “so long as we see race there will be racism” have a subtext that the problem is the person crying racism. So we bring that subtext out, and realize that it is not so.

  9. “Again, Shine does not understand the difference between a race-neutral law, which says that NO race will be discriminated against and a racist law, which states that some contracts will be set aside and awarded based on race.”

    I understand they are different. They are different ways of responding to race cosnciousness. Different ways of setting policy based on it.

  10. I think that Shine is getting caught up in the difference between having a color blind society, which does not seem likely in the near future, and color-blind laws, which is possible and, I believe, the right and constitutional policy.

    The question is how do we move toward a “color-blind society”. I think Jeff is correct in stating that making the law color blind is the biggest first step we can take, as that will eliminate the racial-identity political groups, which only serve to stir up racial animosity and victim mentalities.

  11. I understand they are different. They are different ways of responding to race cosnciousness. Different ways of setting policy based on it.

    then why do all of your comments contradict this understanding? Do you agree that anti-discrimination laws are race-neutral?

  12. shine

    They are different ways of responding to race cosnciousness.

    Good, recognizing the problem is the first step to dealing with it.

    The first is morally correct, the second is not.

    Brown v BoE struck down government law based on assigning children to schools based on race.

    The Dems last night in their hysterical denunciations of SCOTUS’s obvious upholding of Brown demonstrated that they support the government law assigning children to schools based on race.

    Ironic that not one of them then condemned the setting of the debate…at Howard Univ., one exclusively melanin-enriched.

    And the Dems of pallor demonstrated their own “white man’s burden” guilt in their pandering to the melanin-enriched audience, never once taking their audience seriously, not one mention of national security but tons of how its whitey’s fault about AIDS in the black community.

  13. “I think Jeff is correct in stating that making the law color blind is the biggest first step we can take, as that will eliminate the racial-identity political groups, which only serve to stir up racial animosity and victim mentalities.”

    Not really. Because race neutral anti-discrimination laws will still have to be enforced. And racial identity groups will be lobbying for that enforcement.

    “Do you agree that anti-discrimination laws are race-neutral?”

    Anti discrimination laws don’t facially support one race over another. But they still require us to see race, and there will still be different attitudes about how aggressively they should be enforced and when.

  14. “Brown v BoE struck down government law based on assigning children to schools based on race. ”

    Thats not really the holding in Brown. This is:

    “We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

    You could make the argument that race-based assignments are a form of “segregation” even if they are done to balance the population. But I donn’t know if that was the intent behind the brown court when it talked about segregation.

  15. I admire your patience (Jeff, Karl, Great Banana, Darleen, etal).

  16. There’s bad race consciousness, and there’s good ones. There’s bad ways to react to race consciousness, and good ways.

    Shine is just begging for a Godwin’s Law-breaker. But the example of Patrick Chavis ought to do for now.

  17. shine

    My twin grandsons have one 2nd generation Irish grandparent, one 1st generation Italian grandparent, one 2nd generation Mexican parent and one mutt grandparent (me).

    What “race” are they?

    “Race” is an insidious, collectivist immoral construct. “Race balancing” has NO place in a Constitutional republic based on the tenet that power is centered in the individual.

    You are free to associate as you like, you are NOT free (or should not be free) to demand the government use its force to assign people to institutions based on “race.” If you disagree, then why stop with schools? The vast majority of people want to send their kids to good schools next to them and local schools reflect local demographics. Shouldn’t the government then compel states to set up programs by which people are allowed to purchase homes or rent apartments based on the “balance” they bring to the neighborhood?

  18. shine

    Thats not really the holding in Brown.

    What are you jibbering about? “separate but equal” was the “defense” the BoE used for its assigning children to specific schools by race. Brown abolished that practice.

    In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race.

    Denying permission for a child to a public school according to race was made illegal. You keep wanting to make it about “racial balance.”

  19. May I jump in here with a different tack? I propose that the issue with racist policy must first split the two sectors: If Woolworth’s wants to discriminate, so be it; the markets will sort it out. That private entity may paint it’s nose red, dance on it’s head, and close lunch counters to blacks if it feels like it.

    That said — and not to promote such things, rather to make the upcoming point — government has no such right, but far more importantly, government has no such right being in places where it must, as the requirement of that particular involvement, make such social value judgements.

    In other words, not only has government no constitutional principle being involved in dictating the the private sector it’s values, but neither can it by extension of those same principles be itself involved in areas where similar values must be weighed. Bingo, race returns to the realm of private discourse and personal responsibility. I merely stop patronizing Woolworth’s.

    If you detect a certain Libertarian ethic emerging here, you’re getting warmer — legislating morality is itself immoral and it should nauseate right thinkers because such right thinking, unlike today’s leftism, assumes you are as much able to put your moral house in order as I. Shine’s argument therefore falls away because government-mandated race policy, either external or internal, is itself wrong — end racial discrimination by endind racial discrimination. And please spare me the society’s best interest slippery slope.

    So my question is this: Would not these issues of eternally defining racism and where then to employ it or it’s ostensible social counterbalance vanish if government weren’t involved in race management in the first place? Seems so obvious as to be silly…

  20. In other words, what Darleen said at 3:31… ;o)

  21. “Denying permission for a child to a public school according to race was made illegal.”

    Segregation according to race was made illegal. Not the consideration of race. Just because you don’t bold it doesn’t mean its not there, move your (b) tags over a word or two and you make my point.

    “What “race” are they?”

    I don’t care. But if someone were to discriminate against them on the basis of race, we should notice that and not allow it.

  22. ““What “race” are they?”

    I don’t care.”

    Uh-uh, no blinders allowed, dude. Now what race are they?

  23. “Uh-uh, no blinders allowed, dude. Now what race are they?”

    I think you’re missing out where the blinders come off in the case I make for enforcement of anti-discrimination laws. They come off when we notice racial discrimination. It doesn’t matter what race *I* think they are. It matters what race the discriminator thinks they are. Thats when we have to notice race consciousness.

  24. if someone were to discriminate against them on the basis of race, we should notice that and not allow it.

    And away we go. Barring any constitutionally-viable definition of how to have government disallowbehavior, if you’re going to be so resistant to outcomes the kind of which ruined racial reform by government as plainly as they’re been ruined in this country, shine, at least have the honesty to admit that and save another thousand words.

    The outcome of disallowing behaviors on the basis of just some pet causes and not others — not that any are proper — is folly, but that’s obvious.

    Not that that stops the religion of State, naturally. It just makes it hard to define just what may constitute that variable religion of whim and what may not; both by some basis in what, belief? Theory? Populism? The mob?

  25. It matters what race the discriminator thinks they are.

    In other words, it matters only what values the moralizers favor. Sound familiar?

  26. shine

    Nice duck, but no pie for you.

    Let’s try it again. Obviously my boys can claim “hispanic” status.

    Should they? It would entitle them to all sorts of governmental “goodies” since, along with blacks, they are the race du jour for entitlements.

    Too bad of they were of Asian descent…. the government considers those over-achieving Orientals “honorary whites”, thus its fine to discriminate against them.

    Again, you are reading into Brown YOUR interpretation (as much of the Left has) instead of seeing is as written… a decision against racism in public institutions. Period.

  27. typo… should read “too bad if they were of Asian descent”

  28. if someone were to discriminate against them on the basis of race, we should notice that and not allow it.

    What about someone who won’t date a person because of their race?

  29. If one continues to view these issues through the prism of race, one will continue to find racism. As the term racism continues to mean less and less, ie. complimenting an African-American as being articulate is racist, the continued reliance on finding racism merely perpetuates the construct.

    Which leads me to African-American, Asian-American … the hyphen American labels, a pet peeve of mine. We are Americans. If I were to hyphenate my daughter’s racial identification, she would be an Irish-English-Vietnamese-Laotian-American. What a crock of BS. She can speak, read, and write in English and Vietnamese, but make no mistake, she identifies as an American.

  30. “In other words, it matters only what values the moralizers favor. Sound familiar?”

    Certainly. It matters what the wrongdoers are doing to we who have decided what things are wrong.

    “Again, you are reading into Brown YOUR interpretation (as much of the Left has) instead of seeing is as written… a decision against racism in public institutions. Period.”

    My interpretation is simply the words the court uses. Like yours. Except I use them all. I don’t just bold the ones that support me. The holding is what the court said. Period.

    Try it. Bold a few more words in your paragraph and you’ll get my drift.

    “The outcome of disallowing behaviors on the basis of just some pet causes and not others — not that any are proper — is folly, but that’s obvious.”

    Folly? It underpins all our anti-discrimination statutes! I can fire women or men for cause. I can’t fire them for being women or men. I can refuse someone service at my lunch counter for lots of reasons, but not race. You think this is folly?

  31. It’ll never be folly to you, shine, because you just said that not only is morality derived from government, or force, but that such authority is granted by and for any popular acclaim whatsoever. Of course I think it’s folly that lunch counter policy comes from government.

    This then is the second time I’m accusing you of willfully ignoring the incredibly obvious harm that comes from that type of co-mingling church and state, which in your case I hope doesn’t mean that what had at best looked like ignorance has been replaced with an obvious case of political opportunism, or as I alluded, the familiar cant of just another one of many exclusive religions.

    In other words, your principles exist because of weight and momentum, not principle? I suggest you answer Pablo to explore just how deep that rabbit hole goes. I’m not impressed that what’s right to you is only what’s popular and has traditions, questionable traditions at that — it seems that this is another case of the Progressivism that absolutely wasn’t.

  32. Jeff, can you send this post to that dessicated hippie asshat Mike Littwin at the Rocky Mountain News? Littwin broke out so many violins of racial injustice in his editorial this morning I thought I was reading a review of the Denver Symphony Orchestra.

  33. “It’ll never be folly to you, shine, because you just said that not only is morality derived from government, or force, but that such authority is granted by and for any popular acclaim whatsoever. Of course I think it’s folly that lunch counter policy comes from government.”

    Morality is one of the things we use to decide what it is that we make illegal. Its not derived from government. But it is via government that we enforce that part of morality that are things we are going to make illegal. “lunch counter policies” come from the government to the extent that we have passed laws and enforce those laws. Our legislators acted on this.

    Government doesn’t have authority for legislating on any popular acclaim whatsoever. Look at lawrence vs. texas.

    But this is a big “woah” moment here. You think anti-discrimination laws are “folly”? You think private businesses should be able to refuse to serve people because of their race? Should they be able to give preferences in hiring too?

  34. “What about someone who won’t date a person because of their race?”

    I don’t think the commerce power reaches there. Nor do we want it too.

  35. Should they be able to give preferences in hiring too?

    Ah but they already do… it’s called Affirmative Action. It celebrates racism to ostensibly cure racism.

    It’s a collective scheme that hurts individuals, not only because it gives false rewards to someone based on the level of melanin in their skin, but because others will not only view THAT AA hire as “unworthy” but it puts worthy melanin-enriched individuals in the defensive position of having their achievements tainted.

    BTW shine, in case you missed it above (because you didn’t comment on it) What say you about all-black Howard University. Obviously, it is segregated, albeit voluntarily as people chose to go there rather than being assigned by race enforced by government fiat. That tends belies your claim that Brown is about “race balancing”.

  36. It’s simple. Anti-discrimination laws are already in place. Any move to favor a particular race over another — whether the justification is “diversity” (which, Peter Wood has shown, and I have argued consistently, is an anti-American, in the strictest sense, principle, given that it privileges group status over the individual) or “correcting past injustices” — is simply not Constitutional, though it is legal after Bakke.

    I understand that bad policy in the past necessitated the need for a “leveling of the playing field.” But we are now 40+ years in, and, per O’Connor, we’re supposed to continue this for, oh, 25 more years? — not because the Consitution allows it, but because she thinks by then maybe the “problems” caused by past injustices will be solved, or at least minimized to the point where they are no longer noticeable.

    This is pie-in-the-sky social legislation from the bench.

    But that is all beside the point I’ve been making. Which is, as Great Banana notes above, that the most important step in ridding ourselves (culturally and politically) of the “problem” of race is to do away with the designations and programs that enable it and keep it foregrounded, much to the delight of a group’s “community leaders” and those who work in ethnic and racial studies departments.

    Racism won’t go away because of such a move. But certain racial animus caused by the government claiming it can treat different racial groups different certainly will.

    And as we have anti-discrimination laws, those should be sufficient to police any institutionalized racism.

    Again: we need to begin thinking differently, as a culture, about race. And the most important step in that regard is to take away “race” and its dispersal patterns as a judicial concern. De facto segregation may be the short term effect. But it will be segregation based upon freedom of assembly — and so long as no discrimination is taking place, there is no Constitutional problem.

    I don’t think turning schools or towns into Crayola boxes — that is, artificially dressing them up for catalogue shots of “diversity” — is a compelling govermental interest.

    What is a compelling societal interest is that we get beyond race, and then — when the mixing of cultures inevitably occurs — we can thank the fact that we no longer really care much about what “race” are the people we associate with.

    Many of us are already there, I daresay. Which is why we find it insulting that our government continues to insist it must protect certain races from, well, us.

    This is, I think, responsible for much of the backlash and talk of “reverse-discrimination” (a term oft derided on the left, but one that, by strict definition, is occurring in instances where certain groups are blocked from competing for certain jobs / contracts based upon the color of their skin).

    As Roberts intimated — and as I’ve been arguing for years — the best way to do away with racial discrimination is to do away with racial discrimination.

    Kennedy punted on two key points, and so the government’s social presumptions in these matters can continue apace — though the narrowness in the ruling makes it difficult for k-12, given its current makeup, to get around the decision.

  37. Chris. Go ahead and email it to Litwin. I’m happy to debate him on the race issue.

    Funny thing is, I used to live in Baltimore, back when he was a Sun columnist. I feel like he’s stalking me. In Birkenstocks.

  38. I don’t think the commerce power reaches there. Nor do we want it too.

    And why, precisely, is that?

    I can’t (and won’t) take you seriously, shine. You dance around between tradition and some transcendent code of morals as enforced by government — because we “want” it to. When asked for the basis of these laws, you either assume universal values support them or that prior itself law does. Never once do you even attempt to expand on these mystery values, values so sacred, so pure, so unimpeachable that who eats their racial lunch where on private property eternally trumps why.

    It’s be amusing if it weren’t so transparent, and past that, ultimately lethal to somebody’s freedoms, someplace. But integrated lunch is safe. For now.

  39. You think private businesses should be able to refuse to serve people because of their race? Should they be able to give preferences in hiring too?

    As far as it prevents government* answering the question you refuse to — namely who, to Pablo’s very important point, dates who and thousands of other slippery slope issues — I do. The private sector’s Howard Universities are essential to choice, it being essential to freedom.

    As I said, I’d boycott Woolworths myself for such a policy, but I’d advocate for the sign behind the counter that stated the right to refuse service, a right government simply must not involve itself with. From there, should government find itself running programs that fall victim to political pressure concerning race, gender, income, age, language, ideology, speech, or any of a myriad other private concerns, then it’s simply proved itself unauthorized to be in those concerns at all; government schooling springs immediately to mind.

    Why this is such a mystery to the left’s ostensible equality advocates is to me a mystery. Surely it’s the largest philosophical conundrum the left daily imposes upon itself. And others.

    *http://www.ulib.iupui.edu/subjectareas/gov/docs_abbrev.html

  40. More importantly to your question, shine, By what reliable principle — by precisely what rung on the morality ladder — do you insist private businesses should not be able to refuse to serve people because of their race? Or to give preferences in hiring?

    While neither are paramount as practical policies to the essential point of what constitutes valid law or abuse of law, answering that at least serves to lead fairly directly to how to define all such intrusions into the private sector by government in the name of some eventual brand of morality — what I see as an increasing lack of separation between a nearly religious philosophy and the State.

    No, we know morality doesn’t purely derive from government. But looking to government to enforce pop morality has become a stand-in for the higher power I want you to address. If you do not, all you have is that sad combination of prior law — of tradition — and assumptive morals my government should just intuitively know so as to make sure, under penalty of imprisonment, that I observe them.

  41. JHoward

    IMHO shine dances around straight answers because s/he hasn’t really examined his/her reasoning. S/he is attempting to translate emotional “but I feel it’s right” into some semblance of rational discourse after skipping the middle step of examination.

    Now here I agree partially with shine that all law is based on morality. Law, indeed, is a subset of code of morality – which is basically a code of rules concerning behavior based on values. Who’s morality and how much of it based on what values is the larger, pertinent question. Shine’s conflict and incoherence comes when trying to force a society based on individual values into a collectivist framework.

    It is not innocently that Leftists wish to abolish the differences between public/private realms. It works to their advantage to impose collectivist values. The government is necessarily constrained by using race to grant or deny access to government institutions, entitlements or benefits. Private individuals are not so constrained by law. Only societal/community pressure can be brought to bear on obnoxious individuals. But if we obfuscate the difference between the government and the individual; indeed, if we move to get rid of the uniqueness of the individual in the first place, then more and more individual behavior will be legally regulated as if it were governmental behavior.

    This is further accomplished by the Left’s hostility to religion. Religion (generally) plays a vital, positive, societal role in defining acceptable public behavior. It is surely evident today, in viewing the years long decline of the influence of religion in American society, that we have instituted a plethora of laws concerning individual behavior. Smoking, sexual harassment, etc. Such laws again moving toward wiping out the value of individual autonomy.

  42. “BTW shine, in case you missed it above (because you didn’t comment on it) What say you about all-black Howard University. Obviously, it is segregated, albeit voluntarily as people chose to go there rather than being assigned by race enforced by government fiat. ”

    Ive only ever met two howard students. One was black and another pakistani. so I’m not sure its “all black.” But it seems to be the sort of result of free choice (its also private) that people don’t seem to mind.

    I’m wondering about the sort of free choice that would flow from there being a nice school attended by white kids, and a not so nice school attended by black kids. And then when a black kid voluntarily enters the white school, nooses start to pop up outside. Voluntarily.

    “But certain racial animus caused by the government claiming it can treat different racial groups different certainly will. And as we have anti-discrimination laws, those should be sufficient to police any institutionalized racism.”

    Yes, but the government will still have the choice of when to enforce anti-discrimination laws. And it will bring up identity politics. You see this when, for example, people say that homosexuals are getting ‘special rights’ when people talk about protecting the category of ‘sexuality.’ Even though everyone has a sexuality and is equally protected.

    Or when people talk about blacks getting special protection when people talk about hate crimes that facially neutrally apply to the ‘category’ of race.

    “And why, precisely, is that?”

    Which one? Why does the commerce power not reach dating relationships or why do we not want it? I don’t want it because I don’t want the feds regulating who we date. As for legal arguments why it doesn’t reach it, the easiest would be along the lines of Morrison, which struck down a VAWA provision. Or it could be a simple decisional privacy interest a-la Roe or Griswold that the government can’t regulate my dating relationships. Not to this extent.

    “I can’t (and won’t) take you seriously, shine. You dance around between tradition and some transcendent code of morals as enforced by government — because we “want” it to. When asked for the basis of these laws, you either assume universal values support them or that prior itself law does. Never once do you even attempt to expand on these mystery values, values so sacred, so pure, so unimpeachable that who eats their racial lunch where on private property eternally trumps why.”

    You have a problem with the basis for anti-discrimination laws? I’m not going to explain to you why we have them. And it think its a fair assumption to say that they reflect moral and other judgements that our society has made, and variously expressed into law, to stop certain kinds of racial discrimination.

    But my turn. Do you really think anti-discrimination laws are folly? That businesses should be able to hire and fire based on race?

  43. JHoward

    If I have only one nit to question, it would be when a privately owned/runned business incorporates. It then becomes a public entity, subjected to certain rules/benefits/responsibilities. In operates in a zone neither completely private nor completely governmental institution. IMO, I believe corporations should be held to governmental standards. So, while Joe’s Beanery on B Street in Anytown USA, owned by Joe, should have every right to be as obnoxious to his customers as he likes … Woolworths, Microsoft, Apple, Sears, et al, should not.

  44. shine

    I’m wondering about the sort of free choice that would flow from there being a nice school attended by white kids, and a not so nice school attended by black kids. And then when a black kid voluntarily enters the white school, nooses start to pop up outside. Voluntarily

    Can you attempt to construct your “arguments” without the use of ridiculous strawmen? Please cite ONE, ONE example in the last ten years of an all white school threatening to lynch the new black kid.

  45. “I’m not going to explain to you why we have them. And it think its a fair assumption to say that they reflect moral and other judgements that our society has made, and variously expressed into law…”

    Do you think you guys could at least organize them and write them down in a book, like the Bible or Koran or something, so us heretics and infidels could at least have something to reference?

  46. “So, while Joe’s Beanery on B Street in Anytown USA, owned by Joe, should have every right to be as obnoxious to his customers as he likes … Woolworths, Microsoft, Apple, Sears, et al, should not.”

    So how about this situation:

    “Ollie’s Barbecue is a family owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, with a seating capacity of 220 customers. It is located on a state highway 11 blocks from an interstate one and a somewhat greater distance from railroad and bus stations. The restaurant caters to a family and white-collar trade with a take-out service for Negroes. It employs 36 persons, two-thirds of whom are Negroes.”

    How do you think a suit against this restaurant’s business practices of only having take out for blacks should turn out? How do you think it actually did turn out in the supreme court in 1964 (10 years after Brown)?

  47. “Please cite ONE, ONE example in the last ten years of an all white school threatening to lynch the new black kid”

    Its a hypothetical. But how about an all white tree? Good thing we don’t have the government institutionalizing racism there eh? That would only make things worse.

    “Do you think you guys could at least organize them and write them down in a book, like the Bible or Koran or something, so us heretics and infidels could at least have something to reference?”

    Why don’t you read some martin luther king speeches and you’ll find plenty of moralizing against racial discrimination there. Is this really a problem here? That people don’t know the case against racial discrimination? I thought that was an assumption of this post and this blog in general: that we want racial discrimination to go away.

  48. shine

    I find Ollie’s obnoxious, I wouldn’t have patronized it, but obviously the “Negroes” working there, or purchasing takeout, didn’t.

    Regardless of the SCOTUS of the time, IMO there should have been no standing to bring a lawsuit on this basis.

    If I rent out the grannie apartment over the garage on my private property, do you believe I have the right to choose the tenant on any basis whatsoever? How about advertising for a roommate?

    Why do we allow the NBA to be so racially imbalanced? Shouldn’t we enforce AA there?

  49. “I thought that was an assumption of this post and this blog in general: that we want racial discrimination to go away.”

    Well if you agree with that, why do you keep arguing against it and insisting it can’t happen? I just want some clarification, because this is obviously some arbitrary belief system you are advocating that has no basis in logic. We are going to do away with discrimination by selectively advocating it? King didn’t want to be judged based on the color of his skin, why do you insist on it?

  50. You’re humorous, shine. Darleen has you pretty much dead to rights, and BMoe gets to the essential question you know you have to ignore in order for your dogma to stand: Denial and that faux morality that demands of others that they present their standards to you for your derision, presumably, by acclaim.

    To wit:

    I don’t want the feds regulating who we date.

    Me neither. But if I don’t want the feds telling me who I must serve? Or associate with? Or privilege or be privileged by? Or fear out of the weight of lopsided law? Or observe as my moral standard, yes, as my tacit religion?

    For the third time I’ve asked, and for perhaps the tenth time in this thread, by what standard, shine? Is it written down someplace?

    As for legal arguments why it doesn’t reach it, the easiest would be along the lines of Morrison…Roe…Griswold that the government can’t regulate my dating relationships. Not to this extent.

    But it can regulate my lunch relationships? (Talk about your selective bollding; I hope you like mine.)

    In other words: By. What. Standard. And then, to what extend then, exactly? Your legal darlings just might not be mine. So before you trot out that indignant lunch-counter canard again, kindly cite the moral standard by which you’d have government imprison me on the basis of my otherwise legal private sector behavior.

  51. shine

    The school admin was boneheaded and it FUBAR’ed out of control. The territorial dispute between students could have easily been between classes as it was between “races”.

    What, you skip high school or something?

    How does Brown tie into it? The melanin-enriched students were already there.

    And if you want to get into racially motivated crimes, statistically, while the vast majority of crime is intraracial, where it is interracial, there is more black on white crime than vice versa.

    Infantalizing the black community does them no favors. But it does keep them on the Leftist plantation.

  52. Why don’t you read some martin luther king speeches and you’ll find plenty of moralizing against racial discrimination there. Is this really a problem here? That people don’t know the case against racial discrimination? I thought that was an assumption of this post and this blog in general: that we want racial discrimination to go away.

    Why don’t you read what you’ve just written: A preacher makes a moral claim and that claim, on the basis of its political weight, then became law?

    From there that law proved to achieve an effect the opposite of what it was assumed to, which I believe is Jeff’s point: How to end racism involves how to end the brands of race policy that directly cause substantial instances of it.

    Conflating racial healing with legal race policy is where you go wrong — the former does not respond to the latter in the way you seem to assume it shall. Presuming your values are universal and mine are not then compounds the problem.

    The solution? Government entirely out of the sector because (1) it’s shown to cause harm there and (2) because, at least in my view, it has no constitutional authority there.

    Racism is healed by the individual heart or it’s not healed at all. Can you find an actual flaw in that reasoning other than to paint it with assumptions and tradition and a dishonest reading of the historical effects of racial policy as law?

  53. I used to eat lunch frequently in a funky little soul food place near my house. There was a stage in one corner, with some really cool old vintage amps and keyboards stored there, I asked the kitchen staff about it once, and was told that at night, under different management, it was a nightclub with live R&B and Blues music. I told them I was a musician and would really like to hear some, and asked when the band started. I was told politely but in no uncertain terms that I would not be welcome, and would possible be hurt if I tried. Should I have gotten a lawyer, shine? Should I have went anyway and called the police if I got my ass kicked? Or should I have just respected their right to associate with whom they chose, and went to listen to music elsewhere?

  54. BMoe

    You beat me to it. However, let me add to shine

    YES, we all want racism to “go away.” And the only way it will be lessened to the point of individual obnoxiousness is when we stop perpetuating racism via government fiat.

    Governmental regulation of PRIVATE behavior based on bean counting creates resentment on the part of both those discriminated against because they are the color du jour AND those whose talents and accomplishments are tainted because others figure they got their position based only on their color.

    That helps end racism…how?

  55. A new post attempting to flesh out, in a different way, the socio-political philosophy behind my thinking here.

  56. “I find Ollie’s obnoxious, I wouldn’t have patronized it, but obviously the “Negroes” working there, or purchasing takeout, didn’t.”

    I don’t think its so obvious that they didn’t. No. Maybe what they found obnoxious would be what would happen to them if they strayed outside of the rules of second class citizenship.

    “If I rent out the grannie apartment over the garage on my private property, do you believe I have the right to choose the tenant on any basis whatsoever? How about advertising for a roommate?”

    The law treats diferently the commercial landlord from the one renting out parts of their own home, I believe. And in that context I think it also treats differently the basis on which you make that decision from how you advertise. At least so I’ve heard.

    “Well if you agree with that, why do you keep arguing against it and insisting it can’t happen? I just want some clarification, because this is obviously some arbitrary belief system you are advocating that has no basis in logic.”

    Jeff’s argument is that we get rid of racial discrimination by, among other things, getting rid of identity politics and race-based preferences. My counter is that this still leaves us with facially race neutral anti-discrimination laws. Which still leaves PLENTY of room for identity politics. And that anti-discrimination laws to some extent respond to race consciousness as well as are animated by them, at least in enforcement.

    My other point is that these identity politics are not simply the causes of racism, but also responses to it. So its not as simple as erasing one to erase the other.

    “But it can regulate my lunch relationships? (Talk about your selective bollding; I hope you like mine.)”

    It can’t regulate who you have lunch with. No. But it can regulate who a restaurant can turn away. Thats not the same as who you have lunch with is it? You’re not having lunch with everyone in the restaurant are you? Just hte members of your party.

    “And if you want to get into racially motivated crimes, statistically, while the vast majority of crime is intraracial, where it is interracial, there is more black on white crime than vice versa. Infantalizing the black community does them no favors. But it does keep them on the Leftist plantation.”

    Whats infantalizing? I think whats keeping them on the left is your description of them as living in a plantation. As well as your nice little addition there to just make sure that we all know that there is way more black on white crime. Um. So what?

  57. About the corporation, I don’t know, Darleen. It does indeed operate in a zone neither completely private nor completely governmental, and my understanding is that it was originally the unique point of tax contact with the public, which changes its responsibility versus those of that public at least in that realm.

    Although how a corporate tax obligation modifies its legal behavioral ranges beyond this debate, if that’s true, then as long as it doesn’t violate government policy that (in my view) government is actually legitimate to hold — which is to say, about a percent of what it does today — I’d tend to agree: Hold corporate America to a standard that amounts to nothing more than observing basic laws against theft, fraud, etc. In other words, no real need to write laws for corporations that do not already apply to the citizen.

    Should government shrink to it’s proper size and impact as regards behavior, then holding corporate America to that standard wouldn’t do much, thankfully, to impact the behaviors of corporations; the markets exist for that. Which I think boils down to the Libertarian standard for behavior in a Constitutional Republic: Just this side of anarchy.

  58. “Racism is healed by the individual heart or it’s not healed at all. Can you find an actual flaw in that reasoning other than to paint it with assumptions and tradition and a dishonest reading of the historical effects of racial policy as law?”

    The flaw that I find is that race relations are better now than they were in the past before government started regulating private racism.

    “Governmental regulation of PRIVATE behavior based on bean counting creates resentment on the part of both those discriminated against because they are the color du jour AND those whose talents and accomplishments are tainted because others figure they got their position based only on their color”

    Of course anti-discrimination laws are going to cause racists to feel resentful. But it will also drive racist business practices out of our economy. Thats a good thing. And another moral value: equal opportunity.

  59. Darleen, You know that i’m not talking about preferences, right? I’m talking about anti-discrimination laws. Which for some reason seem controversial here.

  60. It can’t regulate who you have lunch with. No. But it can regulate who a restaurant can turn away. Thats not the same as who you have lunch with is it? You’re not having lunch with everyone in the restaurant are you? Just hte members of your party.

    So you don’t believe in denial of service rights, shine?

    Regardless, I believe you’re still intentionally misreading me — my point was clear and dealt with your ongoing inability/refusal to identify the moral standards from which law should arise so as to be enforced by the State. From there we can get into how such policy harms those it’s established to protect much as race policy does.

    Establishing rights requires establishing values. Clearly you expect the former without the latter and you do so on the basis of an odd brew of precedent and assumption. So just forget it.

  61. “Regardless, I believe you’re still intentionally misreading me — my point was clear and dealt with your ongoing inability/refusal to identify the moral standards from which law should arise so as to be enforced by the State. From there we can get into how such policy harms those it’s established to protect much as race policy does.”

    The overarching moral standard is that we want to end the evil effects of racial discrimination. Obviously we’d also like it if people weren’t racist at all. But we can’t really put people in jail just for their opinions. Thats another moral we have.

    So we work to end the evils of racism by, among other things, trying to eliminate them from our economic relations (who you sell lunch to) but not our personal relations (who is in your lunch party).

    Have you never really heard the moral case for things like the Civil Rights act?

  62. “So you don’t believe in denial of service rights, shine?”

    You mean like my right to not do business with someone? I believe the government can outlaw certain business practices, or create private causes of action for certain business practices.

  63. The flaw that I find is that race relations are better now than they were in the past before government started regulating private racism.

    You simply cannot be serious. The flaw I find is that saying race relations are better now than they were in the past before government started regulating private racism lacks a comprehensive, reasoned, balanced proof — the fork in the racial road completely changed the course of American history and it established massive causes and effects. Developing that perspective is simply not something you’re going to do with a blanket statement and a one-sided conclusion.

    To the contrary, I’d say that having the State in the business of regulating race-oriented behaviors has done more to harm, for example, black America than anything done privately to “assist” minorities, should that be a legitimate use of centralized power.

    anti-discrimination laws…for some reason seem controversial here.

    What’s controversial here is finding that there is no basis for them aside from the blind assumption they achieve the desired effect without any negative repercussions. If they are so universally beneficial, surely you can cite not only the proof for that claim but the principle that reliably predicted such an overwhelming success in the first place.

  64. Have you never really heard the moral case for things like the Civil Rights act?

    Have you never really heard the moral case for things like the Civil Rights act?

  65. Of course anti-discrimination laws are going to cause racists to feel resentful.

    Ok, so a white man who feels resentment when passed over for promotion so a less-qualified black woman (in order for the suits in mahogany row to avoid ‘discrimination lawsuits) is racist? And the black man who graduated top of his engineering school who feels resentment because co-workers take him less seriously because they think he got his position via Affirmative Action is racist?

    baby, you’re getting ever more incoherent in your attempts at rational debate.

  66. “Developing that perspective is simply not something you’re going to do with a blanket statement and a one-sided conclusion.”

    Its also something i’m not goign to be able convince you of in a blog on a saturday afternoon. Look at how now blacks can stay in any motel they want in the south. Look at how now we don’t have lynchings any more. Look at how our boardrooms and businesses are now accessible to and populated by blacks. Look at how now we no longer have signs in private places that say “whites only.” These are all goods. I really can’t believe you can’t see them.

    “If they are so universally beneficial, surely you can cite not only the proof for that claim but the principle that reliably predicted such an overwhelming success in the first place.”

    Go read “I have a dream.” Then make your case.

  67. “Ok, so a white man who feels resentment when passed over for promotion so a less-qualified black woman (in order for the suits in mahogany row to avoid ‘discrimination lawsuits) is racist?”

    Mahogany row? Thats nice. But said white man has dicrimination suit no?

    “And the black man who graduated top of his engineering school who feels resentment because co-workers take him less seriously because they think he got his position via Affirmative Action is racist?”

    I’m not talking about affirmative action. I’m talking about anti-discrimination laws.

  68. I didn’t say I don’t see them, shine, as you should well know by now. What I said, and what you deny to address, is that without a valid, concrete, reliable standard, you cannot decide what moralities government may establish under penalty of law. Murder was already illegal. Discrimination was dealt with in markets. Speech is free.

    But I won’t be dragged down that path, shine; keep your strawmen there. Instead, answer the question: By what standard?

    See, every time you trot out some presumed positive federal policy outcome you deny some other proved negative outcome. Being an optimist about the responsible individual citizen, I could claim that time and a raised national consciousness made racial progress — that same raised consciousness that enacted those laws, ironically, as misguided as they turned out to be in so many cases.

    Like I said, forget it: You’re unserious about the issue, preferring to conform reality to preconception.

  69. “What I said, and what you deny to address, is that without a valid, concrete, reliable standard, you cannot decide what moralities government may establish under penalty of law.”

    I can decide which ones I would vote for. I would vote for the civil rights act. Vote for the morality of equal opportunity in our economy.

    But yes. We should drop this.

  70. shine

    Hello? Is this thing on? AA was instituted because it is a way to AVOID “anti-discrimination” lawsuits. Why? because courts accept bean-counting as evidence of discrimination.

    So, you’re in exec office of a deep-pockets corporation looking over middle management stats that show less than 13% of your middle managers are black. Do you just shrug it off or do you put a call into HR and order ‘em to hire the next black person who comes through the door, regardless of merit?

    In the early 70’s I had my first real office type job in a major corporation, Kaiser Aluminum, in Los Angeles. I worked clerical at in the offices of the extrusion plant. One of my duties was lunch and vacation relief of the receptionist (I actually learned to answer phones on an old PBX system). We always got walk-ins to fill out job applications for plant workers. I was instructed to take the applications and when the person left to pencil the race of the applicant in the upper right hand corner.

    Why? Because our plant was located in an area surrounded by mostly white/hispanic neighborhoods and we didn’t have “enough” black plant employees. No matter what the qualifications of white/hispanic applicants that walked through the door in response to our “now hiring” sign outside, not one of them were going to be hired until we got the “correct amount” of blacks. This was because we could be sued for “discrimination” based on our statistical racial balance regardless of other factors.

    Hell, if we were honest we should have put out a sign saying “now hiring – whites and latinos need not apply”

    but that would have been discrimination, right?

  71. I can decide which ones I would vote for.

    Exactly. Making it a morals by acclaim society.

    Vote for the morality of equal opportunity in our economy.

    As much as you obviously do not comprehend its vagaries. Making it a morals by acclaim society, a decided ill once meant to be avoided at nearly all cost.

    Consider it dropped.

  72. “Do you just shrug it off or do you put a call into HR and order ‘em to hire the next black person who comes through the door, regardless of merit?”

    “Exactly. Making it a morals by acclaim society.”

    Well, we do have a political system via which our individual preferences, including morals, get turned into policy. Surprise.

    “Do you just shrug it off or do you put a call into HR and order ‘em to hire the next black person who comes through the door, regardless of merit?”

    I wouldn’t put it on paper.

    “but that would have been discrimination, right?”

    Sounds like they both are. Where did you work? Duke power?

  73. shine

    Brush up your reading comp… I put my employer’s name in the comment.

    KAISER ALUMINUM.

  74. I’m referencing a supreme court case. Griggs vs. Duke power. It’s about how to deal with disparate impacts of business decisions.

  75. And shine, I’m talking about the real world consequences by fighting discrimination by mandating businesses have set percentages of employees of various melanin levels without regard to any other factor

    Disparate business decisions? Well, honey, why should the NBA not be race-balanced and have some obviously discriminated by being persons of pallor individuals get some of the millions now disparately given to melanin-enriched players?

  76. “And shine, I’m talking about the real world consequences by fighting discrimination by mandating businesses have set percentages of employees of various melanin levels without regard to any other factor”

    I’d like see a citation to that “mandate” somewhere other than “36 years ago someone told me so.”

    “Disparate business decisions? ”

    Disparate impact. You know what that means under civil rights law? And I have no idea why you’re stuck on the NBA. Is there any indication they use criteria other than merit? Why does it have to be race balanced? because someone in 1971 told you it did?

  77. You still haven’t responded to this, shine:

    “Comment by B Moe on 6/30 @ 10:21 am #

    I used to eat lunch frequently in a funky little soul food place near my house. There was a stage in one corner, with some really cool old vintage amps and keyboards stored there, I asked the kitchen staff about it once, and was told that at night, under different management, it was a nightclub with live R&B and Blues music. I told them I was a musician and would really like to hear some, and asked when the band started. I was told politely but in no uncertain terms that I would not be welcome, and would possible be hurt if I tried. Should I have gotten a lawyer, shine? Should I have went anyway and called the police if I got my ass kicked? Or should I have just respected their right to associate with whom they chose, and went to listen to music elsewhere?”

    That is absolutely a true story. What are your feelings in this case?

    “Jeff’s argument is that we get rid of racial discrimination by, among other things, getting rid of identity politics and race-based preferences. My counter is that this still leaves us with facially race neutral anti-discrimination laws. Which still leaves PLENTY of room for identity politics. And that anti-discrimination laws to some extent respond to race consciousness as well as are animated by them, at least in enforcement.”

    We get rid of racial discrimination by getting rid of race-based preferences? Why, that is just crazy talk!

    So do we keep chasing our tails, faster and faster in ever tightening circles- or do we just let society evolve at its own pace and start moving forward?

  78. Damn, I missed this one:

    “Why does it have to be race balanced? because someone in 1971 told you it did?”

    That is a helluva question.

  79. ” I was told politely but in no uncertain terms that I would not be welcome, and would possible be hurt if I tried. Should I have gotten a lawyer, shine? ”

    Thats up to you. But it does sound like it violates the civil rights act. Read section 201.

    “So do we keep chasing our tails, faster and faster in ever tightening circles- or do we just let society evolve at its own pace and start moving forward?”

    Does the evolution of society include the passage of the civil rights act?

    “That is a helluva question.”

    It certainly is. in the early 70’s she heard of a mandate. I still haven’t heard of a citation.

  80. “Thats up to you.”

    I am aware of that, I am asking what you would do?

    “It certainly is. in the early 70’s she heard of a mandate. I still haven’t heard of a citation.”

    Now you are just being dishonest, either that or you are too stupid to be arguing this point.

    “Does the evolution of society include the passage of the civil rights act?”

    Apparently so. Now the question is: is that the end all and be all? Is this as good as it gets? No more progress, no more moving on?

  81. “I am aware of that, I am asking what you would do? ”

    Probably nothing.

    “Now you are just being dishonest, either that or you are too stupid to be arguing this point.”

    Lets hear of the mandate.

    “Apparently so. Now the question is: is that the end all and be all? Is this as good as it gets? No more progress, no more moving on?”

    Why would that happen? Of course it moves on.

  82. ‘Round and round he goes!

  83. I was thinking that shine was monkyboy/alphie. But the more I see of shine, the more I see actus.

  84. ARGH…. again a comment goes missing and I don’t know what I did!

    So, shortly and this time with no links ATTENTION shine you’ll have to go look things up

    I worked at Kaiser from ’74-76. The EEOA was passed in 1972. Discrimination lawsuits at the time cited statistical evidence as “proof” of discrimination and the courts accepted that.

    Businesses, not wanting to be sued (very bad for the bottom line) went the way of least resistance … start hiring by melanin as first criteria over talent or merit.

    Sweetcheeks…there is no mandate that coffee shops put “Warning: contents may be hot” labels on their takeout cups, but its a lot cheaper than being the target of a lawsuit when someone drives with the cup between their legs.

    Sheesh, it would be so much easier if I was debating with someone with something between their ears!

  85. “Businesses, not wanting to be sued (very bad for the bottom line) went the way of least resistance … start hiring by melanin as first criteria over talent or merit.”

    Don’t sound like least resistance to discriminate. Did anyone sue?

    I can see data of disparate hiring being used as part of proof. But whole proof?

  86. Shine, you are obviously quite ignorant of the evolution of anti-discrimination law. The courts created a shifting of burden of proof from plaintiff to defendant. If the plaintiff presented evidence that there was a racial imbalance, that’s all they had to prove themselves as plaintiffs, it then became the defendants’ burden to prove that such was not discrimination.

  87. Don’t sound like least resistance to discriminate.

    oh for the love of ….

    Shine, what PROOF would those whites and hispanics whose applications were stuck in the back of the file cabinent while the company was busy hiring to achieve the Golden Race Balance present to the court? Do you have any idea the abuse that Bakke went through when he brought his lawsuit AND HE HAD DOCUMENTS proving his entrance requirements (gpa sat) were higher than the set-asides.

    The collectivists stated “thou shalt have Racial Balance according to census” and businesses recognized it was either tow the Proper Percentage Line, or be tied up in expensive, damaging litigation for years.

    Even today use the phrase “reverse discrimination” and you invite derision and abuse from collectivists small and large. For them it’s about the Invisible Knapsack of White Privilege. No individual white male can be discriminated against when he is part of the White Patriarchy.

  88. “Shine, you are obviously quite ignorant of the evolution of anti-discrimination law”

    I cited Griggs vs. Duke power above. Do you know what that case is about?

    “Shine, what PROOF would those whites and hispanics whose applications were stuck in the back of the file cabinent while the company was busy hiring to achieve the Golden Race Balance present to the court?”

    The same as anyone else that is discriminated against has.

  89. The same as anyone else that is discriminated against has.

    No, they didn’t. Fact.

    That you keep refusing the reality I can only conclude you are now arguing in bad faith.

    and it would seem you’ve been dishonest from the first.

    I’d say you should be ashamed of yourself, but I doubt you even grasp the concept.

  90. Pingback: Provocateurism, 7

  91. SOS! My car was broken on road. Must I calkl to service or police?

  92. amazing psot))

  93. Good night, bloggers =)

  94. It’s hard tto understand..

  95. Super! I’ll do similar post in own blog

  96. such a nice story…

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