Monday, January 14, 2008

Palmore Redux

In a comment on my post on Palmore v. Sidoti, one of my regular readers (Sobek) made what I regard as a valid objection to the outcome of the decision: That it is troubling to knowingly subject a child to prejudice in order for the court to keep its hands clean, rather than to make a custody decision based on the child's best interests. I'm not persuaded that this means the case was wrongly decided, but I do think it means the case was a difficult one.

Indeed, I was so confounded by this point that I wrote my latest FindLaw column as an expansion of my earlier post. But in the column, I distinguish between Palmore---which I now think is a hard case---and the Title VII cases that reject satisfying customer preference as a ground for discrimination. I then conclude that the question whether to vote in anticipation of others' potentially racist or sexist votes is more like Palmore.

Here I'll just make one final observation: It should go without saying that there are perfectly legitimate reasons for voters to decide not to support Senator Obama or Senator Clinton for President that have nothing to do with race or sex. Indeed, I could have turned the question around. Suppose you believe that part of Obama's appeal is that he is an African-American candidate who does not make his racial identity the core of his politics. That is, suppose you think that Obama actually gets a boost from his race. If you are also committed to color-blindness, does this obligate you to vote AGAINST Obama? (Substitute Clinton and sex for Obama and race if you prefer.) If that seems ludicrous (and not just because very few Democratic primary voters are committed to color blindness), does that tell us something about the limits of the colorblindness concept?

Posted by Mike Dorf

25 comments:

Benjam said...

wow, michael. you are really over-thinking this case. if palmore is a hard case, then it is also hard to decide whether gay people should be allowed to adopt. after all, gay people are subjected to bias. so all things being equal, shouldn't we establish a social and legal preference against gay adoptions?

palmore could potentially be a hard case if the record showed actual acts of bias against the family. in this instance, the interests of the child would be actually negatively affected and the court could consider that. absent any showing in the record of bias incidents affecting the child, the court had no basis to consider race.

the parents in palmore deserved to have their home judged as it stood, and not through reference to an abstract statistical regularity--the greater coincidence of interracial couples and acts of prejudice-- especially when considering that the acts in question deserve the highest form of social opprobrium.

sobek, in his evil genius, has put you on a very slippery slope.

Michael C. Dorf said...

Hmmm. As I said in this very post: "I'm not persuaded that this means the case was wrongly decided, but I do think it means the case was a difficult one." A difficult case is one in which there are legitimate factors on each side, and certainly a child's welfare must count as one such factor---indeed traditionally THE MOST IMPORTANT factor in custody determinations. Note also that both my post and the column expressly say that this analysis is based on the assumption that one really thinks (and thus has good reasons, rather than mere conjecture, to think) that the discrimination is real. Sobek may be an evil genius, but I can acknowledge the slope's height without falling all the way down.

egarber said...

Damn it Sobek -- you're taking over!!! :)

Let me offer a more direct hypothetical:

Suppose a mixed race couple has a child together. If Palmore was wrongly decided, then the judge is free to say that the child must remain with the white spouse, given that the non-white parent will more likely face discrimination in employment, traffic stops, etc.

I'm hard pressed to see how that wouldn't be blatant UN-equal treatment under the law, even under an originalist reading. Or is there some doctrine where the child's *theoretical* interest trumps the 14th?

Sobek said...

Benjam said: "palmore could potentially be a hard case if the record showed actual acts of bias against the family."

The thing I find troubling (and I used that word, and not the word "wrong") is that it appears that under Palmore, actual acts of bias are completely irrelevant. That is, the judge was not allowed to consider racism under any circumstances. If a more limited reading is possible -- that a judge may take racism into account in formulating his "best interests of the child" determination after factual findings of racism, that changes the dynamic (I'll admit I haven't read the case since law school, and I'm relying on Prof. Dorf's description).

Prof. Dorf said: "I'm not persuaded that this means the case was wrongly decided..."

That's about where I am. I think I'm at the point of recognizing there was simply no good outcome (for the reasons described in the FindLaw column), so we're looking for the less bad outcome.

egarber, you have nothing to fear until Prof. Dorf gets that Supreme Court nomination, and he hires me as his clerk. I plan on wielding that power with unrighteous fury.

egarber said...

From your Findlaw piece:

Thus, despite the Supreme Court's unanimity, Palmore was, or should have been, a difficult case. The legal principle that the law should not place its imprimatur on discrimination may be fine in the abstract, but in some sense, that principle was going to be violated no matter who was awarded custody. To rule as the Florida family court judge did was indeed to bow to prejudice. But to rule as the U.S. Supreme Court did was--if we accept the factual premise that discrimination against interracial couples in 1981 Florida was real and substantial--to knowingly subject a minor to discrimination.

Do you think it's really accurate to imply that the outcomes are somehow symmetrical on the question of the law's imprimatur? If imprimatur basically means "approval" or "endorsement", it seems a stretch to say the SCOTUS was putting its stamp on the private discrimination the child might face.

(BTW, I know you said in "some sense", so I realize you're not saying they're literally the same).

On the other side, one could argue that allowing such discretion leverages a race-based formula as a matter of law. And unlike admissions policies that exist to confront racism, in this case the government rule would in a sense fortify it through acknowledgment.

Michael C. Dorf said...

I have devastating answers to these questions but no time to write them up because today is the first day of classes for the new semester, I still have exams to grade from last semester, and half a dozen other things to do. I'll let my law clerk, sobek, answer for me.

;-)

Sobek said...

"...given that the non-white parent will more likely face discrimination in employment, traffic stops, etc."

My understanding of Palmore is that the judge found that the child would be subject to discrimintation (as always, with the caveat that the judge got the facts right, and wasn't just throwing his personal opinion in there). You're giving examples of a child indirectly suffering because of discrimination aimed at the parent.

And I won't presume to speak for Prof. Dorf unless and until we meet in chambers to discuss his views.

Paul said...

"And unlike admissions policies that exist to confront racism..."

I assume you mean "exist" above to imply purpose rather than effect?

egarber said...
This comment has been removed by the author.
egarber said...

My understanding of Palmore is that the judge found that the child would be subject to discrimintation (as always, with the caveat that the judge got the facts right, and wasn't just throwing his personal opinion in there). You're giving examples of a child indirectly suffering because of discrimination aimed at the parent.



Right. I should have extended my scenario to the child somehow -- good catch.

Given these hypotheticals though, how could the potential discrimination against the child be different in any significant way between the two? If the judge thinks a child would be discriminated against because a white mother is married to a black father (for example), why couldn't there be a risk of prejudice if the child were to remain with a single (black) father? Would it matter if the child was white in this scenario -- because mixed families face particular risk?

Did the judge cite a specific finding for the people involved in that case, or some logic for why inter-racial marriage is more guaranteed to create backlash than other established forms of racism? If not, it seems to me one could argue that a child would face a risk of discrimination in either scenario.

Sobek said...

"If not, it seems to me one could argue that a child would face a risk of discrimination in either scenario."

All very good points for disagreeing with the district judge on the facts, but not necessarily on the law. That is, the law says there is no conceivable, hypothetical situation, no matter how clearly established by the evidence, where provable discrimination against the child will allow a court to consider that discrimination in evaluating the best interests of the child.

Benjam said...

ok, so let's see if we can agree on the following:

1) the rule of palmore may be problematic as it pertains to future cases. that is to say that a court should be able to consider the effects of actual bias incidents affecting a child.

2) there was nothing of the sort on the record in palmore.

3) based on #2, the result of palmore was correct.

4) based on #2, palmore was not a particularly hard case.

i think sobek, mike and egarber could agree with those points. i dissent because i cannot agree with point #1. i simply cannot support using the coercive power of the state to break up a family in order to appease racists. if the state can bring itself to break up an otherwise healthy family, let it find the courage to protect that family from acts of bias.

moreover, we dont serve the child's best interests by appeasing racist thought. nor do we serve the child's interest by teaching them that an interracial marriage carries with it profound legal disadvantages.

finally, it is essential that the "best interests of the child" analysis cannot allow courts or litigants to make an end-run around due process and equal protection. otherwise, we empower the state to make judgments based on race that are forbidden under the constitution.

Benjam said...

mike:

i have a devastating rejoinder to your answers (whatever they are), but i'm way too busy right now to share it.

heh. ;-)

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Black_Bull said...

Modern Faces of Racism by the Elite of New Hampshire
“In A.J’s best interest I recommend that he attend the Burnham School in Haverhill (MA)….Furthermore, the issue of diversity is real. A. J. would likely find it lonely being the only Black child in a school in NH. He has a rich Black Heritage of which to be proud. He can share with and learn from other children of his color and it can enhance his growing up years in numerous ways. In Haverhill (MA), he has that opportunity far more that it exists in NH.” –Patricia Frim, Esq., Court Appointed Guardian ad Litem, 07/14/03
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“No appeal, however, is declined except by unanimous vote of the court with at least three justices participating. No justice who considered this matter voted to accept this appeal. Accordingly, the appeal was declined. If any justice who considered this matter believed the appeal should have been accepted, this case would have been scheduled for briefing. Declined. Brock, C.J., and Broderick, Nadeau, Dalianis and Duggan, JJ., concurred. Case No. 03-0640, (Declining to hear appeal of Case 02-M-0032), 11/21/03) NH Justices denied the respondent’s appeal without opinion.

Black_Bull said...

Before Tipton v. Aaron and Dansby v. Dansby there was the Matter of Holder v. Holder in New Hampshire. State Sponsored Racism is alive and well.

Black_Bull said...

You should have flagged the Asian comments, they are nothing but adverstisements.

Black_Bull said...

Dividing a child's emmotional attachment to ome parent over the other because of race is insidious. In my case, the most inportant factor should have been the environment, including which school system offered the best educational opportunity and safer environment. Race should have never played a part in the case. Taking a child away from the only stable home they have ever known, friends and familiar activities is emotionally damaging. The lack of a good quality educational environment and crime has the most potential to cause the foreseeable harm to the child. Take it from me, I grew up in poverty and worked law enforcement in high crime, drug and gang areas.