Balkinization  

Saturday, June 30, 2007

Confusion about “discrimination”

Guest Blogger

Deborah Hellman
University of Maryland School of Law

In his plurality opinion in Parents Involved, Justice Roberts closes his opinion with the seeming truism that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The problem with this claim is that it profits from an important conflation between two different senses of the term “discrimination.” Sometimes to discriminate is simply to draw distinctions among people or things. For example, insurers routinely discriminate between potential insurance customers on the basis of the risk each poses of making a claim against the insurer during the policy period. Other times, we use the term “discrimination” in a critical rather than a descriptive way. For example, laws forbidding blacks from sitting in the front of public buses discriminate (read wrongly discriminate) against African-Americans. When we pay attention to the two senses of the word “discrimination,” we see that Justice Roberts’ claim is far from obvious. The way to stop discrimination (i.e. wrongful discrimination) on the basis of race is to stop discriminating (i.e. drawing distinctions) on the basis of race. Is he right?

In order to answer this question we would need to know whether he means this to be an empirical or instead a moral claim. The most natural reading of the sentence is the former. As an empirical claim it would be read as follows: The way to bring about less wrongful discrimination on the basis of race is to stop drawing distinctions on the basis of race. Whether or not this is true would require social science evidence and would likely to be difficult to assess – as life does not provide controlled experimental conditions. It is unlikely however that Justice Roberts intends an empirical claim here. Moreover and more importantly, such an empirical claim hardly seems relevant to the constitutional question at issue. Whether or not drawing distinctions on the basis of race is an effective means of ending wrongful race discrimination in our society is the sort of question that is relevant to the political decision-makers in our country – school boards in this instance.

Not withstanding its infelicity, the more sensible reading of Justice Roberts’ claim is as a moral claim: the way to stop wrongful discrimination on the basis of race is to stop drawing distinctions on the basis of race. As such, this claim rests on the dubious proposition that any instance of drawing distinctions on the basis of race is wrongful. Given that the claim occurs in a Supreme Court opinion offering constitutional interpretation, we should charitably refine it as follows: it is almost always unconstitutional (thus the insistence on strict scrutiny) for the state to draw distinctions on the basis of race. But is this even remotely plausible? Think of the census. Is the census’s use of racial categories unconstitutional unless it meets the requirements of strict scrutiny? What about when the FDA approves a new drug for use in a specific racial group?

What is missing from Justice Roberts’ analysis (and Equal Protection doctrine generally) is a theory of when drawing distinctions on the basis of race (or any other trait) constitutes wrongful discrimination. In my view, distinctions drawing is wrongful and unconstitutional when it is demeaning.

In this pair of cases, the plaintiff-students were denied admission to the schools of their choice because of the adverse effect on the racial balance of the schools. While such denials are disappointing to those students, and the students and their parents may suffer real harms (not being in the best program for his needs in the case of Meeks in Seattle and not being close to home in the case of McDonald in Louisville, for example), racial balancing policies do not express that some students are less morally worthy than others or that their concerns are less important. Rather a policy of racial balancing expresses that a racial mixed environment is educationally useful and an important public good. Whether or not that is so I couldn’t say, but the policies surely do not distinguish among students in a way that denigrates the equal worth of any student.


Comments:

It really is amazing when people use a thousand words when about fifty would do fine. You've made an excellent point that clarifies one of the Roberts word games better than many of the analyses I've read. Discrimination doesn't have to be wrongful and discrimination to denigrate and oppress as opposed to assist those denigrated and oppressed are very different in nature. Roberts equates them.

I'll make it even simpler. By Roberts logic when murderers kill people with guns they are committing a despicable act but no attempt to correct or prevent that act should ever involve the use of guns. That would be just as despicable. In the same way any use of force, another despicable act, should never be practiced by government. Police should say "pretty please, stop." At the most they should be allowed to stamp their feet.

I mean the whole idea of a government having a "monopoly on violence" is disgusting and the basis for a totalitarian state.

John Roberts understands this all too well. John Roberts is scum, but then so is a majority of the henchmen on the U.S. Supreme Court.

Keep analyzing though and avoid the down to earth plain spoken conclusions that average people might read and relate to while Roberts and his kind have a good laugh and turn America into a banana republic.

It's not as if the "right" doesn't regularly call for the killing of any judges (with God's help too) that may dare to promote justice. Real justice.

John Roberts = Bad semantics?

Forgive my anger. As I've stated you've done a better job than most of clarifying Roberts duplicity and dishonesty. But you've avoided pointing out the fundamental malevolence involved. The time for timid "erudite" responses is long gone. These people have been shooting us and America with double barreled shot guns (Dick Cheney style) for decades now. It's time to respond bluntly and aggressively - in defense of ourselves and America.
 

But "demeaning" isn't an objective property of acts, it exists only in their relation to specific people. Do you really mean to assert that discrimination is ok, so long as the person doing it doesn't intend it to be demeaning?

And, by the way, you're wrong, these programs DO express that their victims are worth less... How could harming them to benefit the beneficiaries be acceptable, if not because you're weighing their harm lightly?
 

Professor Hellman:

In my view, distinctions drawing is wrongful and unconstitutional when it is demeaning. In this pair of cases, the plaintiff-students were denied admission to the schools of their choice because of the adverse effect on the racial balance of the schools. While such denials are disappointing to those students, and the students and their parents may suffer real harms (not being in the best program for his needs in the case of Meeks in Seattle and not being close to home in the case of McDonald in Louisville, for example), racial balancing policies do not express that some students are less morally worthy than others or that their concerns are less important. Rather a policy of racial balancing expresses that a racial mixed environment is educationally useful and an important public good. Whether or not that is so I couldn’t say, but the policies surely do not distinguish among students in a way that denigrates the equal worth of any student.

In short, you appear to be arguing that the term equal protection of the laws means that it is permissible for the government to engage in racial discrimination which harms a citizen (by denying them equal protection of the laws) so long as the government is not also denigrating the citizen.

wow.

Although this position does not need a rebuttal and fails on its own logical inconsistency, I cannot resist applying it to racial segregation in the 50s.

Do you honestly think that this argument would have prevailed in the Brown case if the Board of Education had argued that its racial discrimination against the black plaintiffs by denying them access to the superior white schools was not a violation of the 14th Amendment because, although the discrimination objectively harmed the black plaintiffs by denying them an educational benefit, the intent was not to demean the plaintiffs?

It is amazing how otherwise extremely intelligent people get wrapped up in logical pretzels of their own making attempting to argue that racial discrimination is not really racial discrimination.

Discrimination on the basis of the melanin content of one's skin is never proper and is always wrong, no matter who's protections under the law are being denied and no matter the motive for the racial discrimination - PERIOD.
 

you lost me in the first paragraph:

"Sometimes to discriminate is simply to draw distinctions among people or things. For example, insurers routinely discriminate between potential insurance customers on the basis of the risk each poses of making a claim against the insurer during the policy period."

but they aren't simply making a distinction : they're acting on it too.

it seems to me that you're profiting different senses of the 'distinction.'

most people, I dare say, do not think that the intellectual act of making a distinction implies the procedural act of discrimination. to discriminate is another step.

hence, Kennedy does not say that admissions officers cannot make distinctions.

they can and they should. but they should not take the next step of discriminating based solely on race.

makes sense to me.
 

Best you kids distinguish between "discrimination" and "prejudice." Your hero, Roberts, purposely muddies the waters on that note, but you don't need to like blind sheep bleat in chorus with him. What liberals/progressives are fighting isn't discrimination, which is merely the facility to tell things apart (as in "he has a discriminating palate") but rather prejudice, past and present, overt and institutionalized and the terrible injustices worked on the oppressed thereby.

Now, there's folks who gotta give up a little if the folks they've been keeping down are to be lifted up. Even if you don't want to give a hand to those folks the act of taking your foot off their throat leaves you with the chore of finding a new place to put it.

Bart, of course, is fond of keeping his foot in his mouth. And when your wife says, "Honey, that pink shirt looks awful with your complexion! Try this brown one." remember to tell her, "Discrimination on the basis of the melanin content of one's skin is never proper and is always wrong...PERIOD." Har.

Sure you didn't mean "prejudice"?
 

The earlier commenter who asked about the wisdom of basing this inquiry on intent has a good point. Prof. Gellman's reasoning could just as easily be used to support separate but equal schools, as long as a showing of good intentions could be made.
 

Deborah Hellman is much too generous to Roberts' remark, although her ensuing discussion seems reasonable.

Roberts spouted a tautology which is uninformative. It tells us nothing to hear that the way to create fair laws is to create fair laws. Without the cover of being in such a venerable position, Roberts would be ridiculed for saying something as obvious as it is useless.

The passing reader should take a glance at the comment left by Bart DePalma for an example of the kind of ideological commitment to abstraction and intellectual games divorced from the real world.

Mr. DePalma attacks Hellman for her attempt to provide an interpretation which gives Roberts the benefit of the doubt that he said something meaningful, in the first place. Mr. DePalma prefers to stick to absolutes and tautologies which are probably enjoyable for the armchair intellectual.

The racism and the lack of fair access to resources and opportunity that black folks (among others) face in this country is a complex problem, and it is not helped by high-minded pronouncements that discrimination is discrimination.
 

And, by the way, you're wrong, these programs DO express that their victims are worth less... How could harming them to benefit the beneficiaries be acceptable, if not because you're weighing their harm lightly?

Victims? What right do you think the students were deprived of?
 

Also, just for amusement it is worth checking out Mr. DePalma's previous responses to other issues involving discrimination, compared to his comment above. To be fair, if you follow the previous discussion Mr. DePalma is very adamant than he is not advocating racial profiling.

This is the first page that came up when I searched Balkanization for the word "arabs". I will guess that more amusing (in this context, disturbing in others) responses will come up, if one looks for other relevant words.
 

I agree with the general thrust of your post, but the census is an inapt parallel for making your point. No harm comes about from the census distinctions. Whatever else one thinks about their claims, the white student in Parents Involved suffered *some* sort of harm.
 

As to separate and equal schools, sure. Thus, we allow separate but equal bathrooms, partially because it is not bad intentions but reasonable distinctions behind them. Also, we often read in opinions of "invidious" discrimination.

Still, I'm not sure who is "discriminated" against here. Both white and black students have the same rules to follow. Some parents rather send their kid to a certain school. Local schools however is not really a constitutional right, is it?

As to census, some do have problems with checking that box and other related matters, partially as a privacy issue. To the degree Kennedy was concerned about the meaning of the word "black," same issue might arise too.
 

Whatever else one thinks about their claims, the white student in Parents Involved suffered *some* sort of harm.

As I asked Brett, what harm, specifically, did they suffer? As Joe points out, they have no right to attend any particular school, so what did the program deprive them of that they had a right to have?
 

The core problem with Ms. Hellman's comments - and those of the school district in question here - is that they value racial school diversity as a core good (for the children or the community) while the community (or at least the subset that are parents) do not seem to so value this diversity. That doesn't mean the parents are antagonistic towards it or dismissive of its benefit; they just don't see it as a prime goal of children's' education.

The Roberts Court has merely put an end to this "we know best" government policy.
 

The core problem with Ms. Hellman's comments - and those of the school district in question here - is that they value racial school diversity as a core good (for the children or the community) while the community (or at least the subset that are parents) do not seem to so value this diversity. That doesn't mean the parents are antagonistic towards it or dismissive of its benefit; they just don't see it as a prime goal of children's' education.

The Roberts Court has merely put an end to this "we know best" government policy.


This is an astonishing claim. We liberals have been lectured for 50 years or more about the need for courts to defer to local customs and majorities. Now, apparently, we're to understand that the Court knows better than the local officials who were actually elected. More astonishing yet, the value of diversity which the Court just reaffirmed in Grutter is now not a value at all.

Or is my sarcasm meter broken again?
 

Robert, it's pretty obvious.

From the syllabus: "The Seattle district, which has never operated legallysegregated schools or been subject to court-ordered desegregation,classified children as white or nonwhite, and used the racial classifi-cations as a “tiebreaker” to allocate slots in particular high schools."

So that means that some white kids lost out on their first choice of schools to minority kids on the basis of their race. That's a harm. Is it a constitutional one? The Court thought so. I think not. Unfortunately, I don't have a vote.
 

Excellent post Ms. Hellman, thank you. I was thrilled to learn Justice Roberts is now against discrimination on the basis of ethnicity. Southern plantation owners "discriminated" against African Americans by not paying them for their work. Northern industrialists profited from this institutionalized "discrimination," (aka legalized white supremacy) because it allowed the plantation owners more cash to buy from Northern industries. When will Justice Roberts order the re-payment of "the debt" that is still owed to the descendants of the slaves?
 

To Mark Field and Joe: The majority's argument is not that the harm is denial of admission to a particular school, but rather denial of admission to a particular school on the basis of race.
 

When I went through elementary school in the early 80's, "racism" and "prejudice" and "discrimination" were used interchangeably (undiscriminatingly). It was all bad. The goal was to be perfectly color-blind, both as a society and as individuals.

Today, the conservatives have usurped the old liberal rhetoric of anti-discrimination--rhetoric which I think most liberals have abandoned in favor of "diversity", "multiculturalism," etc--in order to undermine a public policy to harmonize race relations.

This isn't just about rhetoric and words. Because Americans continue to have charged feelings about race, and the ideal for a time was to be perfectly color-blind, intellectual dishonesty about race has become unavoidable for us. "Discriminate" never should have been a dirty word. First, because we won't ever be color-blind. Second, because differences have to be acknowledged on the way to being coped with.
Discrimination by the state is a means to any number of ends--the obviously bad, the obviously good, and a few things in between. Roberts's rhetorical jujitsu exploited a conceptual weakness in the liberal discourse of integration and race relations.
 

The majority's argument is not that the harm is denial of admission to a particular school, but rather denial of admission to a particular school on the basis of race.

I understand this and I'm sure Joe does too. Our point is that students have no right to attend any particular school, so the policy didn't deprive them of anything to which they were entitled. If this had been a damages case, they'd have been unable to show any.

The more I think about it this way, the more it appears that the Court has used the standing doctrine generally associated with free speech cases and applied it to the EPC. That hardly seems consistent with their approach to standing in other cases.
 

Peter said...

Roberts spouted a tautology which is uninformative. It tells us nothing to hear that the way to create fair laws is to create fair laws. Without the cover of being in such a venerable position, Roberts would be ridiculed for saying something as obvious as it is useless.

One would assume that the point which CJ Roberts and I have made would be so obvious that the statements would be unnecessary.

However, given the reply posts here, which range from the oblivious to active support for racial discrimination, I would suggest that CJ Roberts and I will have to repeat the obvious again and again in the future until the oblivious get it and the supporters of racial discrimination are too embarrassed to continue that support.
 

Mark Field said...

The majority's argument is not that the harm is denial of admission to a particular school, but rather denial of admission to a particular school on the basis of race.

I understand this and I'm sure Joe does too. Our point is that students have no right to attend any particular school, so the policy didn't deprive them of anything to which they were entitled.


Students have the 14th Amendment right to have equal access to a school based on non racial criteria - geography if this is a neighborhood school or merit or even a lottery if this school is seeking students without regard to geography. What is not permitted is denying one student an educational benefit and granting it to another based on government racial discrimination.
 

Robert, the point is not that the white students had a right to attend any particular school. The black students do not either. In fact, that completely mischaracterizes what the dispute was about. The fact is that, on the basis of race, the schools divvyed up the spots for the schools. But that does not necessarily mean the harm was of a constitutional dimension. And finally, no kidding there weren't any damages. The Plaintiffs were suing for INJUNCTIVE relief.
 

@Mark Field: Speaking of verbal ju-jitsu, another devious bit of confounding fluff is the slippery use of the word "harm" traceable to Ronald Coase's "The Problem of Social Cost", in which the wrongful acts of a wrongdoer and the rectifying commands of a court are equated willy-nilly as "harm." It's not unusual to see folks on the right invoke this kind of harm criterion in a manner which is meant to exclude matters of social justice (which is not the same as assuming zero transaction costs, which was Coase's actual suggested analysis.)

Harms come in many shapes, sizes and flavors, as when the needle harms the integrity of the skin so the vaccine can get to the blood, or when the vaccine causes a low fever as it is responded to by the immune system being inoculated. There are affirmative harms and harms of negligence. But folks seem, in venues such as this, to think they can say "harm" and end conversation when in truth they are only identifying another item to be deconstructed.
 

Bart: ...the point which CJ Roberts and I have made...

Har. How lucky he must feel to have you helping him, you sophistical hack.

...repeat the obvious again and again in the future until the oblivious get it and the supporters of racial discrimination are too embarrassed to continue that support.

So, Bart, how do you feel about Chinese food, should we lose the ability to discriminate between Szechwan and a Big Mac? Sure you didn't mean "prejudice" where you've written "discrimination"? Of course the honest answer would undermine your fatuous attempts to deny the legitimate analysis of your hero's sophistry. Too bad for you, you odious simpleton.
 

@Calvin: I think you may have confused me with Mark Field (a compliment to me, indeed.) That's the best I can make of a couple of your comments seemingly addressed to me. $.02...
 

Bart DePalma's comment, 11:54am, represents a position lacking any substance. Of course, Roberts is right that the way to stop racial discrimination is to stop racial discrimination; just as he would be right that the way to build a house is to to build a house.

(Notice that Hellman's post generously attempts to credit Roberts with saying something that might be falsifiable, instead of a statement true by virtue of itself, hence no different than "the way to create fair laws is to create fair laws." As I mentioned before, I think Hellman is being too generous.)

No one here is contradicting Roberts. Except those represented by Bart DePlama's fawning support for uninformative tautologies, everyone here is concerned with the real world consequences of the judges' decision.

Perhaps, Mr. DePalma thinks that racial discrimination has ended now that Roberts has made his pronouncement from the bench. The naivety displayed by that sort of childishness would be amusing, if its consequences did not include possibly increasing racial prejudice.
 

I don't think we should lose sight of 'harm' in this discussion because in Brown it all begins with a showing that separate but equal is harmful to blacks.

I agree, Calvin, that the state needn't worry about the plight of applicants who don't get into the schools of their choice.

but I don't see how not getting into Seattle was in anyway harmful.

In this view, I agree with the critics who see Multi-culturalists (and Feminists) as having exploited both the meaning of the word 'harm' and court's noble deference to its injury.
 

Sorry Robert! I also enjoy your posts.
 

To Mark Field: But then what, in your view, was the harm that was found in Brown v. Board?
 

To Mark Field: But then what, in your view, was the harm that was found in Brown v. Board?

They were being treated as second class citizens. They have a clear right not to be so treated.
 

@Calvin: No worries, truly. Just wanted to make sure I hadn't lost track of my own posts along the way. Peace.
 

Peter said...

Perhaps, Mr. DePalma thinks that racial discrimination has ended now that Roberts has made his pronouncement from the bench. The naivety displayed by that sort of childishness would be amusing, if its consequences did not include possibly increasing racial prejudice.

If governments followed the plurality opinion, then there would be less government racial discrimination. However, I fully expect governments to continue their attempts at racial discrimination by stretching the Kennedy concurrence beyond reasonable interpretation and we will be back at court yet again.
 

"We liberals have been lectured for 50 years or more about the need for courts to defer to local customs and majorities. Now, apparently, we're to understand that the Court knows better than the local officials who were actually elected."

Hardly. The parents know better than any official - elected or unelected. At least they aren't playing p.c. sociological games with their own children. Besides, its not "local" customs but "state" customs. The locals in these "locals" have long since fled to the suburbs to escape having to buy this unwanted product.

Let's see - you were for civil rights trumping state's rights before you were against it? (or is it the other way around?)
 

@Mark Field, et al: I'm slowly plodding through the 185 pages of the pdf of the opinion. So far it seems to me the main card palmed by the majority is the notion that race was "the" criterion to be used when it reality it was "a" criterion to be used after the evaluation of other criteria. It's an important distinction, affecting the issue of strict scrutiny and remedial versus forward looking goals. Thoughts?
 

jamesaust: ...the subset that are parents...

Uh, surely you're not saying "Parents Involved" represents the views of _all_ parents in the potentially affected schools, are you?

jamesaust: At least they aren't playing p.c. sociological games with their own children.

Hmm, this would seem to disqualify you as a legitimate interlocutor. Certainly one can disagree about the methods used to pursue social justice and equality for all children in a school district, but to express one's disagreement in such prejudiced terms hints that perhaps one isn't interested so much in either law or justice as in partisan posturing.

Be clear, race was _one_ criterion to be used in making admissions decisions, *if-and-only-if* the other criteria when evaluated yielded a tie, an "other things being equal" situation. That's a vital distinction which somehow seems lost on some voices in conversation.
 

So far it seems to me the main card palmed by the majority is the notion that race was "the" criterion to be used when it reality it was "a" criterion to be used after the evaluation of other criteria. It's an important distinction, affecting the issue of strict scrutiny and remedial versus forward looking goals. Thoughts?

I think that's clearly right. The other point I keep emphasizing in this thread and elsewhere is that there was no actual harm done to the plaintiffs. They were not deprived of any right. Nor were different classes treated differently -- everyone got treated equally, like going through a metal detector.

Let's see - you were for civil rights trumping state's rights before you were against it? (or is it the other way around?)

That's the question I asked you. I can understand why you ducked it, given the circumstances.

Just to be clear, I DO think federal law trumps state law. I just enjoy the laugh at the intellectual dishonesty of "conservatives" who claim to believe the opposite but can't wait to use the federal government to force the rest of us to do as they say.
 

I eagerly await Roberts' application of his "all discrimination is invidious discrimination" tenet to sex-based discrimination. After all, even he would have to admit that there is such a thing invidious sex discrimination and that governments have the power to combat it. It follows from his reasoning, doesn't it, that therefore states and the federal gov't are not allowed to draw any distinctions on the basis of sex?
 

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