Friday, August 03, 2007

Colorblindness, the Liberal Version

I spent yesterday on a series of Practicing Law Institute panels on the recently completed Supreme Court Term. During the panel on the school integration cases, NYU Professor Derrick Bell raised an interesting question. (Bell is technically a "visiting" professor, but he has been at NYU many years, so the "visiting" designation seems mostly a clever ploy on his part to avoid faculty meetings.) With other members of the panel and liberals more generally lamenting the Supreme Court's ruling in Parents Involved, Bell wanted to know why liberals are so attached to integration. Plainly, he said, integration hasn't worked. Here we are more than half a century after Brown v. Board, and most African American public school students attend nearly all-minority schools. Even if the case had come out the other way, Bell said, not much would have changed. Although Bell disagreed with Clarence Thomas as to the constitutional issue, Bell joined Thomas in embracing the viewpoint of W.E.B. Dubois, who said that what African-American children need is neither separate schools nor integration but education. He ended with his question: Why the romantic attachment of liberals to integration?

Duke Professor (and program co-chair) Erwin Chemerinsky gave one answer: African-American students need integrated schools in order to have access to the same resources as white students. "Green follows white," as the saying goes. In this view, separate will always be unequal because people will only work to improve schools that their own children attend.

I don't think Chemerinsky is wrong, but I have my own supplemental theory. Liberals value integration as a good in itself because liberals, like conservatives, value color-blindness, albeit in a different sense. Conservatives believe that GOVERNMENT decision-makers should always or almost always be color-blind in the sense that government should not make decisions that turn on race. Liberals believe that INDIVIDUALS should be color-blind but see ubiquitous evidence that they are not. In deciding where to live, with whom to socialize and all sorts of other matters, individuals make decisions based on race. The conservatives don't deny this, but they call the phenomenon "societal discrimination" or "voluntary segregation," and conclude that the government cannot take any race-conscious measures to remedy it. Liberals, by contrast, see the harms that result from numerous individual private race-based decisions as worse than the harms that result from race-based decisions by the government to remedy these private decisions. Meanwhile, the conservatives deny that such race-based government action is a "remedy" at all, because they deny that private race-based decision making is (at least constitutionally speaking) a harm.

Is that just a roundabout way of making the familiar point that conservatives make more of the public/private distinction than liberals do? In part, sure, but what strikes me as interesting about this example is how the underlying value is the same: color-blindness. Because conservatives have for so long used the term "color-blindness" as a justification for preventing government from fostering racial justice, the concept itself has become something of an anathema to liberals. I'm suggesting that this term may be worth taking back.

Of course, that still only answers half of Bell's question: The attachment to societal color-blindness explains what liberals value in integration but it doesn't explain why they (we) pursue it in the face of evidence that the pursuit has been a failure. And on this point, I think the best answer is simply that many of us believe that Bell---who writes about the "permanence of racism"---is unduly pessimistic. American attitudes about race today are hardly a model of egalitarianism. Revealed preferences are even worse. But both represent a marked improvement over the not-all-that-distant past. So while Bell and others are right to pursue whatever methods of education that work within de facto segregated schools, we conventional liberals are also entitled to think that it's too early to give up on the goals of integration.

26 comments:

Paul Horwitz said...

I don't mean to be unduly cynical about this, but I think Bell has always raised a good and provocative -- always provocative! -- point in his writing and speaking on this subject, one that applies also to the affirmative action debate. One may one might go about posing this question is in terms of naked interests: what do relatively affluent white liberals get out of affirmative action, or out of integration plans? I don't mean this question to plumb the motivations of any individual person; we ask these broad questions on an interest-group level without assuming the bad faith of everyone in that group. But I think there are some possible, and to my mind, compelling answers to this question.

I've written about this elsewhere and won't supply my own answers at any length; I'll just say in short that advocacy of such programs and positions can plausibly be tied to the liberals' sense of self-worth and of moral desert, particularly where their children are deserved. Those goods may well, in the final analysis, be as or more important than the ultimate question how well such programs work for their intended beneficiaries. But I don't suppose I must be right or that there aren't other answers? But I think it's worth asking the question in something like the interest-oriented way I've framed it above, and would be hapy to hear how others would answer the question posed in that way, or whether they simply deny that this is the proper question.

Jamison Colburn said...

I'll admit I probably tend more toward Bell's view of racism's permanence (look around the entire world, not just post-Brown America--which, incidentally, is a little akin to feint praise) than I do toward Mike's optimism. (I admire Mike's optimism all the same.) And I think I agree with Paul (if I understand him) that individual motivations for supporting AA in high stakes decisions like admissions and hiring are likely more self-serving than justice-seeking in some significant number of cases. What I find most irksome about knee-jerk support for AA among liberals, though, is that it too often is being carried out by people who lack the skills, information, or candlepower to do it well. This is NOT to fall in behind the Sander's of the world -- but it is to say that too many people in my experience think they understand disadvantage and its correction who really ought not to be empowered to attempt any such thing. The consequences for some involved are often tragic.

Mithras said...

"[W]hat strikes me as interesting about this example is how the underlying value is the same: color-blindness."

I just don't see conservatives valuing color-blindness at all. How could they possibly value it, when they don't even see a possibility that correcting private discrimination could rise to the level of a compelling state interest? They are stuck with the 14th Amendment, that's all, and they are trying to interpret it as narrowly as possible. If they do claim to value societal color-blindness, it's just a rhetorical device to help win the argument against beneficial race-conscious laws, like affirmative action.

I do agree with your conclusion, but ask: How did we achieve this "marked improvement over the not-all-that-distant past"? By society adopting a clear message that racial discrimination - whether private or public - is simply morally wrong and unamerican. Our laws are part of that message. I can see why some people might grow cynical with race-conscious integration efforts, but abandoning them means tacitly accepting the conservative premise that discrimination is acceptable, at least.

-M

Benjam said...

I think the debate in not framed correctly. The important fault line is not liberalsim versus conservatism but rather white versus non-white. The second crucial division is de jure versus de facto segregation.

The question isnt "Why are liberals attached to integration?" On the contrary, the question is "Why are white americans attached to the idea of ending de jure segregation?"

The answer to this is clear. White people dislike de jure segregation because it reflects poorly on elite power structures and identity. Ending de jure segregation allows white americans to indulge in the fantasy of equal opportunity and "color blindness." It allows white americans to claim the moral high ground while refusing engagement in remedies that will prove more costly to them-- addressing normative biases and economic exploitation.

The roberts opinion in Concerned Parents reflects this smug, self-satisfied preoccupation with making the rules fair, even if the spirit of the game is still being violated.

Bell is trying to remove the fig leaf of american white supremecy. I can appreciate that effort, but his argument should not be taken as more than a provacative teaching device. No american wants to see a return to our previous apartheid system. However, absent progress on the difficult question, the promise of equality remains unfulfilled.

Tam said...

Paul,

Correct me if I'm wrong, but are you asking that question from the perspective of, "affluent white liberals voluntarily self-segregate anyway, so what exactly is their material interest in integration?"

David Brooks said in this column (free TimesSelect) that people, by nature, want to live in homogenous communities, and concludes that "integration is not in the cards." Don't fret, though, he says, because there's no harm in having a multitude of homogenous communities, as long as individuals are free to move between them.

I disagree. Between a map that is largely heterogenous/integrated with pockets of homogeneity/segregation, and a map partitioned into mostly homogenous/segregated spaces, I think a society represented by the former map would unquestionably function far more harmoniously than one that looked like the latter. This would benefit all the members in a very material way (not just in a "makes me feel good about myself way"), including the ones who voluntarily segregate.

Not sure if that's really the question you were asking, but I figured it was a good opportunity to disagree with David Brooks. :-)

Sobek said...

"I just don't see conservatives valuing color-blindness at all."

I'm a conservative, so I'll just politely tell you you're wrong.

"How could they possibly value it, when they don't even see a possibility that correcting private discrimination could rise to the level of a compelling state interest?"

Simple. Discrimination on the basis of race is wrong. That is an entirely color-blind statement. By contrast, the assertion "discriminating against black people on the basis of race is wrong" is not even arguably color-blind. Nor is the assertion "discriminating in favor of black people on the basis of race is acceptable." If you want to go ahead and argue that color-consciousness is defensible because it may one day lead to color-blindness, fine (all the evidence contradicts you, but whatever). But you can't pretend you're being color-blind in the mean time.

"They are stuck with the 14th Amendment, that's all, and they are trying to interpret it as narrowly as possible."

To an extent that's true. For example, I don't think the history of the Fourteenth Amendment can support even fifteen percent of the cases it has produced. But in matters of race, the language and intent of the amendment is clear: equal protection. That means (as in the Parents Involved case) that forcing a white student to ride the bus for three hours a day, for no reason other than that student's race, is unconstitutional.

"...but abandoning them means tacitly accepting the conservative premise that discrimination is acceptable, at least."

...said the member of a party that consistently re-elects Robert Byrd to the Senate.

Mithras said...

Nor is the assertion "discriminating in favor of black people on the basis of race is acceptable."

The fact is that the social situations of white Americans and African-Americans are totally different. The rule being proposed here is not that injuries to one specific group can be constitutionally addressed by race-conscious means, but that the government has a sufficiently compelling interest in addressing the problems faced by any group that is in the position that African-Americans are in. If the situation ever reverses, and African-Americans become the overwhelming majority and discriminate against other racial groups, then the rule would protect those groups, as well.

If color-blindness is a shared principle, then please tell us what the limits of that principle are. All the other principles embodied in constitutional rights - free speech, say, or the right to be free of searches and seizures without a warrant - eventually meet situations in which the government is justified in overriding them.

...said the member of a party that consistently re-elects Robert Byrd to the Senate.

That actually made me laugh. If sex discrimination ever comes up, please be sure to mention Chappaquiddick.

-M

Sobek said...

"The fact is that the social situations of white Americans and African-Americans are totally different."

Which is also not a color-blind statement. Or do you disagree? Are you going to claim that your foundational premise of relying on race distinction is somehow consistent with color-blindness?

"...but that the government has a sufficiently compelling interest in addressing the problems faced by any group that is in the position that African-Americans are in."

Not just African-Americans, but also Asians, Latinos, and aboriginals. Oh, and women, homosexuals, aliens, the elderly, the mentally handicapped, atheists, Muslims, Jews, etc. In other words, every group is different, and to enshrine those differences into the Constitution is to ensure that the groups remain different. Permanently.

"If the situation ever reverses, and African-Americans become the overwhelming majority and discriminate against other racial groups, then the rule would protect those groups, as well."

Are you talking about simple numerical majority? Because what I'm getting from people like Erwin Chemerinsky is that it's not about numbers, it's about spending power. Have I misunderstood you?

In terms of numbers, there is a realistic possibility that in some states, white will soon become the minority. Do you think affirmative action plans to benefit whites will be constitutional in those states?

"If color-blindness is a shared principle, then please tell us what the limits of that principle are."

I think Prof. Dorf did a good job of explaining that we might be using the same terms, but we're not necessarily talking about a "shared principle."

It's the difference between equality of opportunity and equality of result. Both phrases involve the word "equality," but they are very different in practice.

"That actually made me laugh."

Glad I can entertain.

I'm actually assuming without evidence that you're a registered Democrat, but my point is about painting with a broad brush. Your very first assertion was that "I don't see conservatives valuing color-blindness at all." Really? No conservative, anywhere? Even those conservatives (like the Parents Involved plurality) who believe in color-blindness sufficiently to strike down racially discriminatory school assignment plans? Even in spite of overwhelming evidence that forced integration doesn't work?

It's not conservative to reject forced immigration, it's pragmatist. If something hasn't worked for fifty years, only a law professor could argue that it just needs another half century.

egarber said...

For example, I don't think the history of the Fourteenth Amendment can support even fifteen percent of the cases it has produced.

I disagree. There is plenty of history out there -- specifically behind John Bingham's motivation -- indicating that the intent was to incorporate the bill of rights against the states. I do however, think many cases might be cleaner had they been based on the privileges and immunities clause, rather than the due process language. Still, I don't see that the outcomes would be different.

But in matters of race, the language and intent of the amendment is clear: equal protection.

At the time the 14th was passed, Congress also established the Freedmans bureau to help and monitor freed black people. The program clearly took race into account -- and the goal was to promote equal protection by using government power to counter institutionalized INequality. So the "intent" might have been equality, but it's not credible (imo) to say equality at the time meant absolute colorblindness in all government action.

If the rule is strict colorblindness, does that mean minority outreach (via recruiting drives for colleges, etc.) is unconstitutional? Is it unconstitutional for the government to track trends about african american employment? Is it unconstitutional for the government to study health risks among certain minorities?


Simple. Discrimination on the basis of race is wrong. That is an entirely color-blind statement.

That's certainly a viable opinion, but I don't think you can conclude that the specific history of the 14th amendment supports the idea that pure colorblindness was the original intent. After all, the Freedman's Bureau was established by Congress at the same time -- and it called for remedial action to help and monitor freed black people.

Plus, if you’re trying to make an original intent argument that color blindness is rooted in the history, that’s belied by the fact that segregated schools were the rule of the day – a racial classification system that would only be thrown out later.

Sobek said...

egarber, Prof. Dorf stated as follows:

"Because conservatives have for so long used the term 'color-blindness' as a justification for preventing government from fostering racial justice, the concept itself has become something of an anathema to liberals. I'm suggesting that this term may be worth taking back."

In response to this (indirectly) and in response to mithras' assertion that conservatives are not concerned with color-blindness (directly), I pointed out that affirmative action is not even arguably color-blind. It's foundational premise is color-consciousness.

Mithras' response failed to really disagree with that point -- he pointed out that whites are in a different position than blacks, and therefore it is justifiable for the law to treat them differently (at least in terms of benign discrimination -- I'm not assuming he believes it's okay to discriminate against blacks).

But that, of course, is clearly not a color-blind approach. It is expressly and unavoidably color-conscious.

The heart of your comments seems to be that the Fourteenth Amendment has a history of race-conscious applications. Fair enough, but will you argue that those applications can be considered color-blind, in any meaningful sense of the term?

"Plus, if you’re trying to make an original intent argument that color blindness is rooted in the history..."

No, I don't think that argument can really be made. (At the same time, I also don't think there's any historical justification for the proposition that the white students in Parents Involved could be discriminated against, based on their race).

egarber said...

(At the same time, I also don't think there's any historical justification for the proposition that the white students in Parents Involved could be discriminated against, based on their race).


But if you agree that historically, the 14th hasn't been read to exclude race-based action to eradicate inequality, then it just becomes a matter of how you characterize the Parents Involved issue -- i.e., does the government action de-institutionalize racial inequality, or cross the line into oppression of some other group (white students in this case).

The history of the 14th makes a distinction between these two. Anyway, you're right to say I was replying to your comments about the supposed "intent" of the 14th.

The Casual said...

Color me clueless but I'll chime in. I'm not liberal or conservative as far as I know...just an American lawyer (registered independent if it matters). This is admittedly not my area of expertise.

The intent of the 14th Amend. was to end state-imposed or sponsored discrimination or disparate treatment, primarily occurring at the time on the basis of race (and also gender - but we let that continue in many ways for quite some time - so much for original intent). Section 5 gave Congress enforcement power. That this required government attention to the local situation of African-Americans at the time does not support the broader assertion that all forms of affirmative action remedying all forms of social ills are justified.

If we are, at bottom, talking about resources, what we are essentially talking about here is socio-economic discrimination. It is just as much of a problem for African-Americans in Seattle as it is for caucasion country bumpkins in rural West Virginia, Arkansas and Oklahoma. The remedy to this problem is not race-conscious re-districting or school assignment. It is (in my humble opinion) potentially RESOURCE-based redistricting or school assignment in which race is a factor, but not the sole or controlling factor.

Race is unfortunately still a factor in socio-economic status...but not the sole or controlling factor. Other factors such as education or family and local social culture influence as well.

Instead of worrying about remedying the effects of private racial dicrimination in housing choices and its attendant effect on the quality of education available to minorities (which - I would submit - is now more a function in EVERY location in the nation of socio-economic status rather than race), let's focus on how - exactly - the states are violating the disparate treatment and equal opportunity components of equal protection. They are providing disparate educational opportunities.

Disparate education opportunities was the focus of Brown. Does RACIAL integration fix the problem? It might have under state-sponsored segregation. But how does sending a caucasion kid to an inferior school and a minority student to a "better" school fix the inherent disparate treatment of states providing significantly disparate educational opportunities to its various residents? Isn't the real remedy to require the state to provide equal educational opportunities to ALL of its residents - regardless of race or socio-ecomnomic status? Or - if that is not practical - to assign students based on criteria in which race is a factor but not the controlling factor?

It seems to me that the better argument is not being advanced by liberals. Liberals are focusing too much on race and integration rather than disparate educational opporutunities to students - regardless of their race. The latter this is the real issue driving the quality of education. Race is merely a factor in that situation. The liberals' obsession with integration or race-based fixes, rather than socio-economic based fixes, causes the conservatives to focus on color-blindness. This obscures the debate from being one focused on providing equal treatment and oppourtunity across the socio-economic spectrum.

I recognize the focus on race is to invoke a specific level of scrutiny...but it is working against liberals in this context through the compelling interest requirememnt. Perhaps they would do better to frame the issue as disparate treatment without a rational basis. To say that a child's educational oppotunity rationally should be based on its parents' or surrounding community's socio-economic respurces seems a bit idiotic given that the state can easily redistribute resources to provide greater (though not perfect)equality. Conversely, a state redistributing school resources or students to provide equal educational oppotunities based on curriculum in the former ot aptitude and interests in the latter would be rational. If the STATES are serious about providing equal protection in the form of equal opportunity, they could try this approach and will probably win. If they are not, it is possible but probably unlikely the disparate treatment argument can be used to coerce them into providing equal educational opportunities.

I will now reveal my own bias. I was raised in the rural Midwest. Although I did very well and wound up at a very selective university, I felt I was disadvantaged there by my weak post-secondary education compared to those who went to public schools in larger cities in my own state, let alone those from bigger cities or private schools in different states. I would guess that I probably was. Therefore, I cannot understand why intellectuals of either liberal or conservative persuasion want to make this debate about race when it is so clearly about resources that in many cases are loosely tied to race - but also due to a host of other factors.

-- The Casual Observer

egarber said...

Regarding the 14th:

That this required government attention to the local situation of African-Americans at the time does not support the broader assertion that all forms of affirmative action remedying all forms of social ills are justified.

I agree. But the 14th (viewed historically at least) doesn't absolutely preclude the use of race in government action. That's what my hypotheticals were about earlier -- i.e., you can't make an "intent" argument to say that minority outreach (for example) is an unconstitutional abuse of power.

But history aside, that's why I'm bothered by the concept of absolute "color-blindness": it threatens too much legitimate (imo) government action. Everybody agrees on some level that "color-blindness" is a desired value, but it can be a very slippery slope if applied literally to all conceivable uses of power.

Mithras said...

Sobek-
Which is also not a color-blind statement. Or do you disagree? Are you going to claim that your foundational premise of relying on race distinction is somehow consistent with color-blindness?

It's just a statement of fact. If acknowledging reality somehow challenges your principles, then I suggest the problem is in your principles, not the facts. Let's compare some statements that are the negative of mine: "There are no differences in the relative social conditions of white Americans and African-Americans." Or, "I don't know what the relative social conditions of white Americans and African-Americans are, and I don't care." Are these statements more principled to you?

I fail to see your causal reasoning. We start with the observation that there is pervasive inequality and discrimination as between racial groups. You seem to be arguing that ignoring it will cause that inequality and discrimination to diminish. Call it the "Sergeant Schultz Rule": I see nothing, and somehow that causes what I don't want to see to disappear!

I think the root of the problem is a misunderstanding of what we're trying to promote. When we say "colorblindness", we mean millions of people collectively choosing to interact with others in a way that disregards the other person's race. How do we make that happen? You say, I take it, that by not talking about it and the government not doing anything about private discrimination, individuals will just sort of forget to discriminate. It doesn't seem like a good plan.

Analogize racism to a mental or emotional illness -- it doesn't seem too far a stretch. Some millions of people in our country suffer from depression. Our goal is to reduce that rate. Say a patient with depression goes to a psychologist because he's having thoughts and feelings which are having a negative effect on his life. The psychologist presumably would not encourage the patient to ignore his negative thoughts and feelings, but to examine them, and consciously try to replace them with countervailing positive thoughts, leading to healthier behavior. And if the negative thoughts recurred, then the psychologist would help the patient think through what circumstances caused it to happen, and discuss strategies to prevent it in the future and how to handle them if prevention doesn't work. Would it help that patient more if the counselor encouraged him not to think about his negative feelings? Would if help if the public health authorities didn't study rates of depression, or which treatments were more or less effective? Would not acknowledging that depression exists cause people not to be depressed?

Are you talking about simple numerical majority? Because what I'm getting from people like Erwin Chemerinsky is that it's not about numbers, it's about spending power. Have I misunderstood you?

I mean a combination of (1) numerical majority, (2) disproportionate control of wealth, and (3) verifiably discriminating against the minority. That is, having a lot more power, and using it to hurt members of the other group (whether consciously or unconsciously, as many studies show is the case).

Do you think affirmative action plans to benefit whites will be constitutional in those states?

If the situation is such as I laid out above, yes. Similarly, hate-crimes laws and sex-discrimination laws have been used omnidirectionally.

I think Prof. Dorf did a good job of explaining that we might be using the same terms, but we're not necessarily talking about a "shared principle."

Let me make sure my question is clear. Certain principles are embodied in constitutional rights. For example, the Free Speech Clause of the First Amendment prohibits the government from abridging freedom of speech. But clearly, this prohibition is not absolute. The famous example is that the right of free speech is not a defense for someone who falsely shouts "Fire!" in a crowded theater. Or, as another example, I don't have a free-speech right to commit assault, even though the crime was committed by me speaking the words, "I'm going to shoot you in the head." In other words, there are harms against which the government is permitted to act even though such action violates the principle embodied in the constitution. If we agree that one of the principles embodied in the constitution is that the government may not take race into account when acting, my question to you is: What circumstances would permit the government to set that principle aside? I say that it's when there is evidence of pervasive and persistent discrimination by one group against another that results in serious, widespread harm to the group discriminated against. How about you?

-M

Sobek said...

"If acknowledging reality somehow challenges your principles, then I suggest the problem is in your principles, not the facts."

You're not really answering my question, which was about whether your policy preference can be considered color-blind. That you think your color-conscious preferences are justifiable because of race history and socioecomonic factors does not refute that point -- it sidesteps it, and tacitly concedes the point. You cannot with a straight face claim you prefer color-blindness, in any meaningful sense of that term.

"We start with the observation that there is pervasive inequality and discrimination as between racial groups. You seem to be arguing that ignoring it will cause that inequality and discrimination to diminish."

For right now, I'm arguing about terminology -- can expressly race-conscious state policy rationally be described as "color blind"? Apparently not; or at least, you haven't tried to argue otherwise.

As for the relative effectiveness of race-conscious measures in diminishing inequality and discrimination, my argument is not simply that everyone needs to ignore racial/economic disparities, but that race-conscious government programs are both pernicious and counter-productive. Enshrining race in the Constitution cannot possibly make race culturally irrelevant, and therefore cannot lead to social color-blindness. And I think I have fifty years of history on my side.

"You say, I take it, that by not talking about it and the government not doing anything about private discrimination, individuals will just sort of forget to discriminate."

And therein lies the heart of the misunderstanding. Where did I say no one can talk about race? As I type this, I am talking about race. I'm saying that when government gets out of the business of telling people how to think about race, race-relations are more likely to improve than when government permanently makes race a culturally-relevant factor.

"What circumstances would permit the government to set that principle aside?"

I accept half of the Parents Involved majority's answer: in order to remedy the present effects of past de jure segregation. Even that has a limit, however: I would only apply race-conscious measures in the event that race-neutral alternatives are unavailable.

Every time I try to write my preferred solution to race/wealth disparity it gets too long, so I'll cut it off here.

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xw said...

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