Tuesday, December 05, 2006

The (weak) argument for dishonesty in race matters

I don’t disagree with the points made by Sherry, Trevor and Justices Ginsburg and Souter, but I do want to suggest (in an almost-but-not-quite-Swiftian vein) that sometimes there is something to be said for dishonesty. I think it’s no accident that only Justices O’Connor and Breyer voted in the majority in both Grutter and Gratz. The liberals on these issues tend to think that while honesty is the best policy, dishonesty is okay too: so it’s okay, according to the liberals, for a state institution to pursue diversity, integration, etc., through a variety of means. Conversely, the conservatives disdain these programs whether or not they’re open about the use of race. It’s only the middle that really think that some covert uses of race are better than overt uses of race. What can be said for that?

The best explanation comes from Justice O’Connor herself, in Shaw v. Reno:

we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes

Perhaps one could say the same thing about certain forms of affirmative action in higher education. Where a mechanism is “too honest”—expressly different numerical cutoffs for standardized tests or GPAs depending on race, for example—uncomfortable messages will be communicated. But even if one buys this argument, it’s hard to see how it works in the context of public elementary and secondary schools. If the Court strikes down the Seattle and Louisville plans, the most patent appearance will be the appearance of segregated schools, which will, to paraphrase Justice O’Connor, bear an uncomfortable resemblance to American apartheid of the Jim Crow era. As relatively conservative circuit court judges like Alex Kozinski and Michael Boudin recognized, the Seattle and Louisville cases should be stronger candidates for upholding the use of race than was Grutter; yet we may be headed for the opposite result.

7 comments:

Anonymous said...

I'm interested to see if the majority for today's cases even upholds the notion that "diversity in education" is a compelling state interest.

It's probably not likely that the precedent in Grutter, etc. would be boldly overturned, but at the same time, I can envision an argument that ratchets Brown to absolute "colorblindness" -- i.e., the idea of state sponsored diversity in itself is an impermissible use of race.

I think such a ruling would be a misguided interpretation of the fourteenth amendment, when you take into account that several programs were set up during that era to specifically assist freed slaves (black citizens).

But politically at least, the "colorblind" argument certainly carries weight in conservative circles.

Anonymous said...

While studying Grutter, I proposed to my professor that a race-neutral alternative would be preferable, because that way the Constitution remains color-blind while the desireable effects are still achieved. The professor's response was that if you're monkeying with things to achieve racial balance, why not just do it openly? Why bother with the subterfuge?

At least one answer -- other than theoretical originalism divorced from practical effects -- is that at least in some cases a race-neutral alternative can involve a self-correcting mechanism.

The problem (as I see it) with segregated schools is that they don't exist in a historical vaccuum. "Black" schools, it can be argued, involve lower test scores because the area is poorer, and therefore the schools get less funding, and therefore the students do poorly, and therefore those same students can't get out of the neighborhood -- which remains poor, and the cycle is repeated for the next generation. If the black students are sent to a rich, white school (the theory goes), they can get a better education, get a better job, and get out of the cycle.

Now let's take race out of that equation. Let's assume that in a hypothetical area, demographically speaking, blacks are not as wealthy as whites. A race-neutral admissions program which looks to "disadvantage," including growing up in poverty, and which establishes rigid quotas based on disadvantage, should disproportionately benefit blacks in that area. It is "hiding the ball," as Souter would say, but it gets the job done in a color-blind fashion, simply by demographic reality.

Now let's assume that the quota program works according to theory, and the blacks who benefit from the program become wealthier, and are more able to contribute to (among other things) tax revenues to their home districts. As the demographics change for the better for blacks, the race-neutral admissions program will tend to benefit blacks to a lesser percentage. If blacks and whites become equally wealthy in that area, the admissions program will become race-neutral both de facto and de jure.

And herein is a solution to one part of the Michigan cases that really vexes me: O'Connor's utterly arbitrary decision that the Constitution protects racial quotas for a fixed number of years. That is nonsense of the highest order, and it is also unnecessary with a self-correcting, race-neutral alternative.

One more note: I can't think of any particular reason why such a race-neutral plan must be ordained by the Court. A state legislature or local county could implement such a system tomorrow.

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