an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Rosenberg has been kind enough to comment on a few of my posts on racial equality. He is especially puzzled by my claim that the ten percent solution is not colorblind because it is specifically designed to help blacks and Latinos.
Under [Balkin's] approach, no policy is colorblind if its purpose and effect primarily benefits minorities. Forget about the Texas Plan. Forget about affirmative action in its original sense of outreach and taking affirmative steps to insure that no person is disadvantaged because of race. They're small potatoes. Welfare? It's unconstitutional if its proponents were aware that it disproportionately benefits blacks, let alone supported it in part for that reason. Indeed, on Balkin's logic, the Civil Rights Act of 1964 and all the other civil rights laws are discriminatory!
John’s onto something big here, although he is a bit confused about what my position is. For the record, I support race conscious affirmative action on a number of grounds, and I also think that laws designed with the purpose and effect of helping minorities achieve equal opportunity can be constitutional even if they make overt racial classifications. I don’t think that they are necessarily unconstitutional or illegal race discrimination. Moreover, I do not think that laws that benefit blacks and Latinos should be treated with the same degree of scrutiny as laws that preserve the superior socioeconomic status of whites in American society. Nevertheless, I believe that all overt racial classifications should be viewed with some degree of scrutiny because racial classifications often have undesirable side effects and sometimes are not the best way to achieve the goals of equality and equal opportunity.
Now back to John’s comment. John is conflating two different issues. One issue is what test has to be met for government action to be unconstitutional race discrimination. This is the question of what makes discrimination “on the basis of” race. For example does the law have to say the magic words, or can facially neutral laws also be discriminatory. If so, under what test? Is a showing of disproportionate impact necessary? Is some showing of invidious purpose necessary in addition to racially disproportionate impact? If so, what is the necessary level of mens rea? Is it neglience, foreseeability, knowledge, purpose, specific intent, or something else? All of these are possible ways of fleshing out the test of what is discrimination “on the basis of” race. There is no inherently right answer to which test you use, and the courts are not consistent in the ways that they articulate the test. (If you don’t believe me on this one John, let’s take it up in another post.)
The second issue is whether the rules concerning discrimination are symmetical: That is whether a law that burdens (or helps) whites is just as unconstitutional as a law that burdens (or helps) blacks, or whether a different standard of review applies for race conscious affirmative action designed to help minorites.
You can have lots of different combinations of views. You can be in favor of symmetry and insist that only overt racial classfications that say the magic words violate the antidiscrimination principle. You can believe in assymetry but require that the statute or policy has to say the magic words. You can be in favor of symmetry and hold that facially neutral statutes which merely have foreseeable effects on racial groups violate the antidiscrimination principle. Or you can hold that view about facially netural policies and also believe in assymetry. The ways you can articulate your favorite version of the antidiscrimination principle are endless. In short, there isn’t one single antidiscrimination principle, there are lots of them, and although most people don’t realize it, they often have different ones for different areas of social life. (More on that, too, in a later post).
Existing Supreme Court doctrine insists on symmetry, in the sense that both discriminations against whites and against blacks are treated with strict scrutiny-- narrowly tailored to promote a compelling state interest with no less restrictive alternatives. This is the holding of Adarand. People who support colorblindness have varying views on what is discrimination “on the basis” of race, but all of them claim to support symmetry. Indeed, some people think that colorblindness is identical with symmetry across races. Adherences of colorblindness can differ on what is discrimination “on the basis of” race, but they can’t abandon the symmetry principle and still be adherents of colorblindness.
But-- and here’s the point-- in practice, almost nobody really is in favor of symmetry, because everybody understands that being black or Latino puts you in a very different social situation than being white in the United States. Even Adarand itself doesn’t really enforce symmetry. The law in Adarand made facial racial classifications which were clearly designed to help minorities in construction contracts. The Court argued that strict scrutiny applied regardless of whether whites or minorities were discriminated against, and then remanded to the lower courts for further hearings on whether the test of strict scrutiny was met. If the law in Adarand had created explicit classifications in favor of whites with a purpose of promoting whites in construction contracts, the Court would not have remanded the case to the lower courts for further hearings. It would simply have struck the statute down on its face. That’s because even the Justices who are most opposed to affirmative action understand the difference between a welcome mat and a no trespassing sign.
John says he just can’t believe my claim that “no policy is colorblind if its purpose and effect [is] primarily [to] benefit minorities.” But that’s because he’s confusing the issue of symmetry with the issue of what is “on the basis of.” Substitute the word “whites” for “minorities,” and you get the sentence “no policy is colorblind if its purpose and effect [is] primarily [to] benefit whites.” Doesn’t sound so crazy now, does it? That’s exactly what former Jim Crow states did after Brown. They passed facially neutral laws like freedom of choice plans whose purpose and effect was to keep blacks segregated in inferior schools. Even Washington v. Davis, which many liberals criticize, assumes that if a law can be shown to have the purpose and effect of discriminating against a racial group, it violates equal protection.
Our actual practices and our sense of what is fair just do not conform to the principle of symmetry. There is lots of dispute among conservatives and liberals about whether symmetry should apply to overt racial classifications, but when we move to facially neutral laws, most conservatives and liberals tend to accept assymetry, even though, as I've argued it's really not consistent with colorblindness. As John's post points out, legislatures often use facially neutral laws to benefit disadvantaged groups and say so publicly. The fig leaf of facial neutrality is invoked to justify the law, but legislators are permitted to say in public that it’s designed to help disadvantaged minorities. That practice, however, is *not* symmetrical among the races. Legislators do not justify facially neutral laws on the grounds that they are specifically designed to help white people. They don't because it's a sure fire invitation to a lawsuit and because they would be thought racist, and rightly so.
Why aren't our practices with respect to facially neutral laws symmetrical? Because most people understand that it’s fair to help out disadvantaged groups through facially neutral laws, but that whites don’t need as much help, and to go around saying that white people are oppressed in the United States and then to try to help them through the disguise of a facially neutral law sounds just a bit too much like the Jim Crow South.
What about the Civil Rights Act of 1964, then? It’s a terrific question, and it cracks the case for colorblindness wide open, because it brings us to the issue of baselines. John argues that laws like the 1964 Civil Rights Act that guarantee blacks equal opportunity clearly are designed to help them, so doesn’t that make them race conscious? Well, if your baseline is a world in which everyone has the right to refuse service to anyone they don’t like, and the right to hire and fire anyone they don’t like, yes, it does. The law is altering common law rules of contract and property for the explicit purpose of benefitting black people.
Indeed, this *is* the argument (made in 1964) that the Civil Rights Act does not guarantee equal rights but rather creates “special rights” for black people. It is the argument made in 1883 in the Civil Rights Cases that the Civil Rights Act of 1875, which outlawed public accommodation discrimination (an ancestor of Title II of the Civil Rights Act of 1964) was unconstitutional because it made blacks, in Justice Bradley's words, “the special favorite of the laws.” Today opponents of gay rights laws say they give gays and lesbians “special rights” because these opponents work from a baseline in which its ok to refuse to deal with someone whose sexual practices they find morally offensive.
To reject the claim that antidiscrimination laws are “special rights,” you have to start by rejecting the fairness of the common law rules of property and contract. You have to say that those rules are defective in some way, and that without antidiscrimination laws, you actually have an economic system that, although it looks nominally equal to all, is actually unfair to blacks. That view, I should point out, was not generally accepted until the Civil Rights Movement, and it still has not been generally accepted with respect to gays and lesbians. (One can always hope, however).
What’s the lesson here? The lesson is that our sense of what is colorblind and what is race conscious is not fixed; it is continually subject to change and social contestation. It depends on a baseline of expectations about what’s fair and what’s not fair in American society. Advocates of colorblindness tend to miss this point, because they tend to assume that there’s a single legal form, or a single moral principle that can be called “colorblind,” and deviations from it constitute discrimination. But there isn’t, and the more you study the history of how the rhetoric of colorblindness has actually been deployed in history, the more you will see that this is the case. What “colorblindness” is today is an amalgam of different assumptions about what constitutes discrimination “on the basis of” race and what forms of asymmetry one is willing to recognize and not recognize. (The history of the rhetoric of colorblindness, by the way, is really interesting, and I hope to provide some of it in another post).