More on Forced Integration
Of my post regarding the cases on forced integration, Scott Lemieux says:
not surprisingly he [Patterico] can’t be bothered to make a constitutional argument at all.
I think it’s best to ignore Lemieux’s sneering phrase “not surprisingly” — other than to note that it is a cheap shot that is apparently born of lack of familiarity with my writing.
But what of the complaint that I did not make a constitutional argument at all? Well, in my post, I said:
The issue is whether government may institute forced integration of schools as a matter of state policy. If not done to remedy a specific and demonstrated past history of discrimination, this would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.
Put simply, the argument is that the Equal Protection Clause generally forbids the use of racial classifications by government. For the benefit of Scott Lemieux, that’s a constitutional argument — and one likely to be accepted by the High Court in the recently argued cases.
Of course, this is a generalization, and like any generalization, there are exceptions — albeit limited ones. As I say in the quote above, the State may engage in racial classifications intended “to remedy a specific and demonstrated past history of discrimination” by the State. As Justice Scalia explained in 1992: “the Equal Protection Clause reaches only those racial imbalances shown to be intentionally caused by the State.”
For example, if the State illegally practices segregation at schools, as happened in the earlier part of last century, then it is responsible for desegregating those schools. But there comes a time when a rational observer sees that schools are still segregated — but this result can’t blamed on a long-since-abandoned policy of state segregation. Across the country, there is segregation by choice, arising from people’s voluntary decisions — including decisions about where to live and raise their children.
As the recent arguments made clear, the State is welcome to seek the goal of racially balancing schools. But there are certain means that the State may not employ, such as racial classifications, to achieve that goal. The State may still encourage voluntary racial balancing through programs such as magnet schools, or by locating a school in an area that the school district believes will result in a racially diverse student population, as a matter of demographics. But simply sorting children by race, I hope (and, based on the arguments, suspect) will soon be a thing of the past.
P.S. I’d love to engage in more arcane legal discussion, but I gotta get to bed. Perhaps I’ll have time for more in coming days. For now, I’ll simply observe that there is considerable disagreement concerning Lemieux’s assumption that the country did not intend to outlaw segregation with the passage of the Fourteenth Amendment. As we complain about originalism, it’s good to keep in mind Justice Scalia’s words about providing remedies for racial imbalances intentionally caused by the State. Also, Justice Scalia is not someone who arbitrarily analyzes the specificity of an alleged constitutional right, as footnote 6 to this case illustrates.
Sloppy ad hominems aside, a decent argument can be made that the “conservative” jurisprudential view on discrimination is wrong, at least from an originalist perspective. One can argue, congruent with the basic holding (though not the entire text) of Brown, that the Equal Protection Clause goes far enough against Jim Crow-style “invidious” discrimination ot prohibit school segregation, while simultaneously arguing that it doesn’t have a f’ing thing to do with “do-gooder” discrimination in reverse. All it takes to hold both views is a recognition that the fundamental purpose of the Fourteenth Amendment was to eradicate segregation, and not to create some First Amendment-style neutrality toward the concept, a la “separation of racism and state.” Once you acknowledge that the Fourteenth Amendment is an anti-discrimination law and not a policy of neutrality toward the concept, it’s not hard to understand why it may prohibit racial discrimination toward one end but not the other.
All this is muddied by the touchy-feely social “science” peppered throughout Brown, and by its unnecessarily broad holding. To the extent one swallows these less savory aspects of Brown, hook, line and sinker, I agree that it’s only a small step from Brown’s “screw the facts and circumstances of the particular cases before us in 1954, no state-sponsored segregation can ever be constitutional” to “screw the facts and circumstances of the particular cases before us in 2006, no race-conscious policy can ever be constitutional. But making that jump is hardly an originalist argument, unless the “origin” you’re talking about Brown itself, and not the Fourteenth Amendment.
As an aside, have you ever noticed how closely people’s personal views on affirmative action mirror their views of what the Fourteenth Amendment does or does not allow or require? On the one hand, I don’t think I’ve ever met a single person who thinks racial quotas (or “goals,” or “plus” systems, or whatever else they’re calling reverse discrimination this week) are a great idea, if only they were constitutional. On the other, sometimes I think I’m the only person on the planet who thinks that reverse-discrimination is a horrible but constitutional idea. I’m not saying my preference shouldn’t be constitutioanlized. I’d love to see a national version of California’s Prop 209 or the Michigan Civil Rights Initiative added to the U.S. Constitution. I’d just be lying if I said we have one now.
Xrlq (f52b4f) — 12/6/2006 @ 7:00 amIf you click all the links in the post you’ll see there’s an argument for race neutrality based on originalism. People can argue it both ways in good faith, I think — and it doesn’t explain Bolling v. Sharpe — but there’s an argument.
Patterico (de0616) — 12/6/2006 @ 7:15 amThere’s no explaning Bolling v. Sharpe, or any other Fourteenth Amendment challenge to any federal law, but I’m curious as to which of the links you think supports the view that the Fourteenth Amendment mandates race-blind policies. The Whelan article provides some support for the opposite view:
[Say I run a school. In my school, red shirts are beating up blue shirts. To protect blue shirts, I pass a rule saying nobody gets beat up on account of shirt color. May blue shirts now beat up red shirts? — P]
Xrlq (f52b4f) — 12/6/2006 @ 8:01 amNo, but that’s beside the point. We’re talking about “good” vs. “bad” discrimination, not discrimation against any form of discrimination for or against blacks or whites per se. I don’t think anyone would argue that a majority black state could pass a law that lifted out of the Jim Crow era, only with all references to the black and white races reversed. The question is whether the Fourteenth Amendment merely requires the state from discriminating invidiously, or whether it prohibits the state from taking race into account under any circumstances whatsoever. I think the latter view is better as a matter of policy, but I’m not convinced it was the policy the drafters of the Fourteenth Amendment intended.
The problem with your analogy is that it assumes we have a flat-out ban on affirmative action for whites. Under my view, we don’t; we just don’t have the circumstances that would justify it, at least on a national scale. for all I know, there may well be a few remote areas with a lot of poor whites dominated by a few rich blacks; there AA would theoretically help the whites.
One troubling side effect of the “conservative” (colorblind) view of the Fourteenth Amendment is that if it were applied consistently, it would effectively ban private as well as public affirmative action. Sure, the state would retain the option of legalizing private discrimination across the board, but let’s face it; that’s never going to happen. Instead, states will be left with no way to justify laws that allow (ostensibly) benevolent race-sensitive programs while prohibiting invidious ones. If the law is too big of a ass to distinguish between invidious and non-invidious discrimination as a matter of public policy, all it will see is a state law that allows blue shirts to beat up red shirts but not vice-versa, an obvious equal protection violation.
Then again, if you take the disparate impact argument far enough, maybe the Equal Protection Clause does not allow any state to regulate private discrimination at all. We’ll never live in a world where all races hate and oppress all other races equally, so as a practical matter, every anti-discrimination law, however neutrally worded, will inevitably benefit members of some races more than others.
Xrlq (6e3d35) — 12/6/2006 @ 11:07 amX #4,
I doubt the state is able to distinguish between “invidious and non-invidious discrimination as a matter of public policy.” To do so requires a moral judgment. In the 1950’s, when American values were essentially homogenenous, systemic moral judgments were palatable. I don’t think they are now so it’s important for public institutions to be neutral.
DRJ (a41dd4) — 12/6/2006 @ 12:06 pmtest
aphrael_test (e0cdc9) — 12/6/2006 @ 12:25 pmBack to the illegal forced busing just likewhat the left-wing NEA wants and no doubt what hitler would approve of
krazy kagu (522a1c) — 12/6/2006 @ 8:31 pmI don’t know why you would expect Scott Lemieux to recognize a constitutional argument if he fell over one. He’s a political scientist, not a lawyer: you will search his CV in vain for a law school degree, any sort of legal training, or indeed any reason to think he has a single earthly clue about substantive constitutional law rattling around inside the dark and empty recesses of his skull aside from the fact that he teaches poli-sci courses about the Constitution (among other courses of such gravamen as Comparative Legal Systems). The guy’s a poseur and a tool.
BC (2b2318) — 12/7/2006 @ 4:54 pm