Balkinization  

Sunday, July 01, 2007

Strom Thurmond's BROWN

Mark Graber

The recent Supreme Court race cases strike me as continuing, if not finishing, the constitutionalization of what we might think of as Strom Thurmond’s Brown v. Board of Education. Let me suggest the central understandings of this constitutional vision.

The Civil Rights Act of 1964, the Voting Rights Act of 1965, and other measures passed during the Johnson presidency largely solved America’s racial problems. Strom Thurmond and others recognized that they were wrong to oppose those measures and no reason exists for questioning the sincerity of this repudiation of previous commitments to Jim Crow. Sincerity, unfortunately, cannot be attributed to the politically ambitious civil rights leaders who, concerned primarily about personal political power, insisted on soldiering on. In the process, they transforming the NAACP from a visionary movement into just another interest group. No one who came of age after 1968 could be described as a conscientious objector during the civil rights movement because that movement had already achieved all its legitimate goals.

The central meaning of Brown v. Board of Education is that government should not discriminate against particular persons because of their race. Proponents of affirmative action, in this regard, are little better (if better at all), than the less violent members of the Ku Klux Klan. Given, however, that racism in the United States was largely cured by the Great Society, courts must adopt several principles when examining racial issues. First, as noted above, overt official use of race is the evil of Jim Crow, a constitutional injustice of the worst sort that should (almost) never be sanctioned. Second, because the Great Society largely cured America’s race problem, any racial disparities that have developed after 1868 are presumed to be a consequence of individual choice, unless the disparity can be clearly traced to official actions that overtly discriminate on the grounds of race. Third, given that racism is so evil, but was largely cured by the Great Society, courts should demand that persons seeking to prove covert racism meet extraordinary burdens of proof.

Persons charging covert racism must prove government intentionally discriminated against them. Statistical demonstrations that government officials are clearly discriminating against some persons on racial grounds are not constitutionally relevant if litigants cannot prove they were victims of discrimination. Criminal suspects who demonstrate that race explains more than half the decisions to prosecute in a particular district obtain no judicial redress unless they demonstrate that race explains the decision to prosecute in their case. Given that this is frequently impossible, the result is that government may engage in substantial covert discrimination unless that covert discrimination has identifiable victims. This is McCleskey v. Kemp.

When statistics matter, all the burdens fall on those charging covert racism. Persons attempting to prove covert discrimination must first demonstrate to a mathematical certainty (95% confidence levels or higher) that significant racial disparities exist. This is much higher than a preponderance of the evidence standard and sometimes higher than reasonable doubt. Certainly the standard is much higher than normally required for government action (if only mathematical certainty was required for the evidence underlying our policies in Iraq!). In the rare case in which this burden is met, government officials are merely required to provide a race neutral explanation that must satisfy a weak rationality requirement. As I read Washington v. Davis and related cases, the government need not demonstrate that the race neutral explanation offered in court is the actual explanation for the disparity. They must simply demonstrate at least one excuse exists for the racial disparity, any excuse. If a possible excuse exists, then the above principles require courts to reject a finding of covert discrimination.

Significantly, and this is at the heart of the Strom Thurmond/George Bush/John Roberts understanding of Brown, the instances in which government admits using race and, thus, is held to an extraordinary high burden of proof, are almost always instances when government action is designed to benefit persons of color. The instances in which government denies using race and, thus, requires litigants to meet an extraordinary high burden of proof, are almost always instances where government action is severely burdening persons of color.

If members of the White Citizens Council had understood the above would be the true meaning of Brown, might they have elected Earl Warren their president and bestowed honorary membership on Thurgood Marshall and the Afro-American members of his litigating team?

Comments:

Again and again and again the question to ask when framing or phrasing policy is, "How can this be used to work the opposite of the good we intend? How can this be turned to evil?"

Instead we get, "How will this score points for our team?" And we end up with miscreants like Roberts passing as jurisprudence propaganda like, "...the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Thanks as always, Professor Graber, for a good read.
 

Not a bad post, but you sloppily conflated standards for determining statistical significance (correlation between variables) and the supposed statistical certainty required to find preponderance of evidence/beyond a reasonable doubt.

The 95% (sometimes 90%, or 99%) threshold is considered a benchmark for determining whether or not correlation between variables exists because beneath that measure, any statistical measure is largely meaningless. Most statisticians would laugh you out of court if you tried to argue that 50% significance equals 50% certainty of discrimination.
 

As a former epidemiologist in a past, pre-law life, I gotta' agree with Bill on this one, but an excellent read nonetheless.

Coming from the South (and having heard those words soooo many times), I simply cringed reading the not-so-coded last line of the opinion. Those words were emphatically NOT jurisprudence; they were instead the reactionary language of right-wing racism masquerading as high-minded idealism. In sum, more judicial logocide from the usual suspects.
 

Der Schatten: I simply cringed reading the not-so-coded last line of the opinion. Those words were emphatically NOT jurisprudence...more judicial logocide from the usual suspects.

I'm gonna _steal_ that one. B^) Peace. (And, hey, consider putting some useful contact info in your blogger profile, eh?) rl
 

Robert Link said...

And we end up with miscreants like Roberts passing as jurisprudence propaganda like, "...the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Now condemning racial discrimination is "propaganda" which is passed only by "miscreants?"

Count me in with the miscreants.
 

The way Bart uses the term "racial discrimination" has rendered it meaningless.
 

Clever. Let's try this another way. (If I were as clever as Prof Graber, I might call it the Al Sharpton vision of civil rights, but I'm not, so I won't.) Nonetheless, here it is:

The "liberal" side of the civil rights movement wasn't right, and the "conservative" side wasn't wrong. Rather, the liberal side was good, and the conservative side was evil. (Sure, maybe a few of them were just misguided, but their leaders certainly weren't.) Therefore, conservatism can be dismissed as a legitimate viewpoint in politics.

Of course, if conservatives want to get on board our civil rights agenda, we'll accept their support. But since we've already established that they're evil, we know that any support they provide is purely tactical, and any objections they have to any part of our agenda are cynical attempts to derail our entire agenda. If they could, they'd take us back to the Jim Crow era, if not the antebellum era.

What about conservatives who 'came of age' after the civil rights era? Well, they're allied with those who were in opposition to the civil rights agenda. 'Nuff said. Even if they claim only to be allied on other issues like taxes, well, so what? Since the older conservatives are evil, any political positions they take are 'code words' for racism anyway.

In any case, we may have talked a lot about discrimination, but that was just to win support; we didn't really mean it. We weren't trying to end discrimination; we were trying to Create Equality. And the only true measure of Equality is outcomes, not opportunity; it would be the unthinkable sin of Blaming the Victim to use any other metric. It may be theoretically possible for there to be disparities in outcomes even without disparities in opportunities, but since we _know_ there are all those evil people out there, we can pretty much ignore that possibility. The burden of proof will always be on other people to prove that they did not discriminate -- and any statistical fluctuation presumptively proves otherwise. Besides, even if they didn't discriminate, someone must have at some point, and it's everyone's job to rectify that, even people who may have had nothing to do with the original act. Because we're good, so our actions and priorities are unquestionable.

Finally, since we used the federal courts, the federal government generally, and sometimes state or local governments, to defeat Jim Crow, everything is a problem susceptible to the same solution. We just know, as an article of faith, that if we just create another government program, and another, and another, we can eliminate all statistical disparities. (Any failure to achieve our goal is merely evidence of the evil racism still out there.)

And if it happens that we create a government program that has no chance of accomplishing much of anything, well, we can still feel good about ourselves by demonizing our opposition as racists when they oppose it. That's Parents Involved.
 

Justin:

There is nothing "meaningless" about the way Bart defines it. You mean "doesn't allow us to achieve our political goals," not "meaningless."
 

Good try, but you obviously don't quite understand the viewpoint you're trying to describe, as you've let elements of the opposing viewpoint sneak in.

1. "The problem of racism is largely solved."

Nope, not nearly. But "the problem of racism" is one of those eternal problems, which will probably never be truly solved. And, further, the solution to this problem is to be found in the hearts of men, not the law books.

Fortunately, the 14th amendment directs, and authorizes, the solution of a much more restricted problem: Racist actions by government. No, really, read it: "No State shall... nor shall any State..." The amendment does not reach the actions of non-state actors. Not only does the 14th amendment not direct the government to solve "the problem of racism", because it does not, the amendment's final clause, authorizing legislation to carry the amendment into effect, does not authorize legislation to that end.

At this point I must point out that this is not to say that, when the racist actions of non-state actors express themselves in ways which would be criminal if not motivated by race, (Lynchings, for instance.) the government is not authorized, indeed mandated, to take action. But this is a law enforcment issue, not civil rights. Unless the government itself discriminates in the enforcement of race neutral laws, of course, which comes under "equal protection".

2. The government can take race into account when attempting to remedy the effects of past racist actions by government, though the passage of time must eventually render those actions too remote to address, or else we've got, "Affirmative action today, Affirmative action tomorrow, Affirmative action forever!".

But when the government takes race into account for any other reason except to remedy bast racist actions by government, it is engaging in the very evil the 14th amendment was ratified to halt, and in so doing both legitimizes racial discrimination, and fans the fires of racial hatred.

*******

Is this clear?
 

The recent Supreme Court race cases strike me as continuing, if not finishing, the constitutionalization of what we might think of as Strom Thurmond’s Brown v. Board of Education.

Well, the constitutionalization of Strom Thurmond’s Brown v. Board of Education was certainly continued and advanced last week, but the majority of Justices still largely rejected it (despite all of the reactionary rhetoric to the contrary), so that effort isn't finished -- yet.
 

As I read Washington v. Davis and related cases, the government need not demonstrate that the race neutral explanation offered in court is the actual explanation for the disparity. They must simply demonstrate at least one excuse exists for the racial disparity, any excuse. If a possible excuse exists, then the above principles require courts to reject a finding of covert discrimination.

Which "related cases" do you mean? I don't see anything in Washington v. Davis that says the defendant can escape liability just by providing any "possible" excuse. Perhaps you're getting this confused with the McDonnell-Douglas test from the employment law context (and even there it would be a very incomplete summary).
 

David Nieporent said...

The "liberal" side of the civil rights movement wasn't right, and the "conservative" side wasn't wrong. Rather, the liberal side was good, and the conservative side was evil...

In any case, we may have talked a lot about discrimination, but that was just to win support; we didn't really mean it. We weren't trying to end discrimination; we were trying to Create Equality.


Finally! An honest and open supporter of government racial discrimination meant to advance his political goals.

No tortured arguments here claiming that racial discrimination is not really racial discrimination.

What a breath of fresh air!

Once again, you can count me among the "evil" "miscreants" who oppose racial discrimination for any reason.
 

Count me in with the miscreants.

# posted by Bart DePalma : 9:21 PM


I once spent a few days watching you insist that red states have more divorces because they have a higher African American population, even as the statistical proof refuting your position was repeatedly shoved down your throat.

Because of this experience there is no doubt in my mind that you are a racist POS.
 

Bart: Count me in with the miscreants.

Never was any doubt, you cherry-picking thug.

Now condemning racial discrimination is "propaganda" which is passed only by "miscreants?"

Not at all, you pathetic hack. Roberts didn't condemn racial discrimination. He didn't even condemn prejudice. He spouted a useless tautology to which mindless parrots such as your semi-literate self flock in lieu of actual thought on the topic. That's propaganda, and the hard on it's given you shows it's worth. But that blood would be better directed to your brain that you might actually _think_ about what's being said for once.

On the other hand it's unlikely your world view could withstand any actual cognition; you're safer as you are.

Once again, you can count me among the "evil" "miscreants" who oppose racial discrimination for any reason.

A non-sensical claim already twice countered on another thread, but you're not man enough to address them, as usual, you sophistical hack, preferring instead to run to a new thread rather than take your spanking.

Were you _really_ a soldier? Then man up, or stand down.
 

Bart, displaying an embarrassing deficiency in reading comprehension: Finally! An honest and open supporter of government racial discrimination meant to advance his political goals.

See, what's funny about that is the item to which it was addressed was an attempt to refute Professor Graber's post and generally support the position of Bart's partisans. Graber said, in effect, "Here's how Thurmond would put it," and David Nieporent said, "Here's how Al Sharpton would put it," and then Bart wrote the above to David as if to deride David's views.

Moral of the story? Literacy skills are still king, kids.
 

At this point I must point out that this is not to say that, when the racist actions of non-state actors express themselves in ways which would be criminal if not motivated by race, (Lynchings, for instance.) the government is not authorized, indeed mandated, to take action.

It seems to me that the logic of this applies equally well to non-criminal discrimination (in housing, say).

As for David, I think he has a real future as a speech writer for Al Sharpton. But none as a political analyst.
 

This comment has been removed by the author.
 

Robert Link:

["Bart" DePalma]: Once again, you can count me among the "evil" "miscreants" who oppose racial discrimination for any reason.

A non-sensical claim already twice countered on another thread, but you're not man enough to address them, as usual, you sophistical hack, preferring instead to run to a new thread rather than take your spanking.


"Bart" is a racist. I say that without reservation. "Bart" has cited his 'authority', Mark Steyn, suggesting that I should be worried that those dirty Schwarzers and Brauners and Gelbers are going to outbreed me (little ol' me) and leave the wonders of Western civilisation (and in fact, in "Bart"'s own words, the Western "species") to rot. See here (and elsewhere in that thread) for the full ugliness of "Bart"'s bigotry.

Just to make it clear to "Bart": At no point did I ever suggest that I'm the least bit worried that some human demographic was outbreeding another, and in fact such an event doesn't trouble me in the least. This suggestion that I should take alarm is purely his "statement of the case" and is seemingly a projection of his own beliefs and fears.

Just so you know where this king-sized azo is coming from.

Q.E.D.

Cheers,
 

Affirmative action and similar policies attempt to remedy massive disparities in education and employment directly attributable to centuries of subaltern status. Opponents of such programs suffer from a triumvirate of mistaken impressions: opportunity is a zero-sum game, wealth and resources are finite and unchanging, and racism is just a social attitude (perhaps changeable, perhaps not) that has little real bearing on people's lives.

Race, of course, is a social category. We aren't different species, we have the same mental and physical abilities, we can interbreed, etc. Phenotype simply does not determine the ability of a person to learn or do a job. People categorize other people by phenotype all over the world, and our system is unique to our situation.

However, economic analysis using our categories finds that members of certain groups are disproportionately disadvantaged in terms of employment and education.

We know it's not the color of our skin making us disadvantaged--it has no bearing on our inherent abilities--so surely it must be something outside of ourselves, something social.

The question is: does government have the right to intervene on the basis of racial categories when there is a demonstrable imbalance in opportunity that is attributable to cultural dispositions towards segregation, or at least, hiring like-skinned people?

How does one change the "hearts of men" at the nation level without state support? Will "National Equal Hiring Practice Day" be a suitable replacement for attempts to make education opportunities equal across the board?

One study done in the Milwaukee area showed that a young black HS graduate with a clean record had less chance to obtain a callback on entry-level jobs than a young white HS graduate with a conviction for cocaine possession with the intent to sell.

Another study showed that identical resumes with names associated with white people were more likely to get callbacks than those considered to be "black" names. ("A white name yielded as many more callbacks as an additional eight years of experience.") This discrimination was evident in all job sectors, including positions which were "Equal Opportunity Employers."

So, whole groups of people are identified by race and are subjected to different hiring standards. It's a systemic problem in society, and hasn't been solved by outlawing discrimination (even so-called EOEs have same level of discrimination as other employers), pithy quotes ("way to stop discriminating is to stop discriminating"), changing people's hearts (a la Brett), or simply refuting the problem altogether ("woo hoo, count me in with the miscreants, suck it!").

Somebody who is applauding the decision please tell me: what has society really gained by ending practices intended to alleviate such problems?
 

PMS, I liked your post so much I took the liberty of quoting it in full at Volokh.
 

i ordinarily leave well enough alone with past posts; however, mr. depalma's words herein, as well as the continued relevance of the within post, compel me to refer people back to prof. ryan's post of june 29, 2007 entitled "narrow tailoring and judicial arrogancwe". you will recall in that i had invited bart, charles, humblelawstudent, etc., to provide possible solutions that would pass constitutional muster to provide minority students from mostly minority, disadvantaged school districts with an education that maximizes their educational quality and therefore, their lifetime opportunities. i received a response from mark field, suggesting that we award school placements simply on the basis of random drawing, which i concede would probably pass constitutional muster, but is not practical on a number of levels. i thank prof. field for his suggestion, which i'm not sure was not simply tongue in cheek.

the only response from a dyed in the wool conservative came from mr. depalma, whom i thank for his response, even if it was presented two days later at a time when most had moved on from the post to more recent threads. i invite all to look at my post and then mr. depalma's. i would submit that the post is breathtaking in its statements and constitutional, educational and practical naivitee.

mr. depalma starts by disagreeing with my prelimninary statement that schools, and i clearly meant public schools, can discriminate on the basis of race. HUH???

mr. depalma then goes on to disagree with the proposition that all students have a constitutional right to a certain level of education and opportunity, claiming that this is a minority held view, and that forcing all schools to spend the same amount of money on all students results in some sort of unconstitutional chaos. i did not say or suggest that all schools within a county, city or state should be required to spend the same amount of money per student, only that the students therein are entitled to a certain level of education and opportunity, and there is a public interest in fostering that level of education and opportunity, regardless of the race of the child.

mr. depalma then goes on to state that there really is no inherent right to education at all, stating, "maximum educational opportunity is simply another human need, like food, shelter, employment, etc., and the resources given to education have to be measured against other needs". he concludes that this shows no right ot the best possible education, comparing it with the right to dine at a fine french restaurant, as opposed, i guess, to macdonald's. once again, i did not say that all students are entitled to be educated at harvard; however, they are entitled to maximization of their educational opportunities within as available to them. what they make of the opportunity is up to them and their families. no community can possibly feel that holding a student down or limiting his potential is in his/her best interests, or the interests of the community for that matter. denying any child the right to the best education possible within the community cannot possibly be the goal of any reasonable human.

which lead to mr. depalma finally answering my question, which was, if you are so against anything proposed by louisville, seattle or any other public school system to provide maximum educational opportunity for all, what system do you propose? his response -- turn the public schools into a free market zone,forcing all schools to compete for all students. putting aside whether we will allow public school recruiting, say for the best basketball or football players, which is clearly not the aim of any public school anywhere, this proposal raises certain questions and issues:

1. who is going to pay for this? instead of involuntary bussing for some students, you are proposing voluntary bussing for many more.

2. if you want to send you child to a private school, do i, the taxpayer, have to pay for it? what if you want to send your child to a religious school? what about a madrassa?

3. are all schools going to be required to accept all students who apply? if so, what are you going to do with the schools, presumably in the minority, disadvantaged neighborhoods that do not get enough applicants to justify keeping them open. if these schools close, what are you going to do with the students who wanted to go there? if the schools are not required to accept all applicants, what is the constitutional criteria for acceptance? if it turns out that the public school is accepting a smaller percentage of minority students per minority applicant than white students per white applicant when compared to the applcant pool at large, are we going to allow the student and his family to sue for discrimination then?

4. how far away from home are you going to let a child apply to attend public school. i heard william kristol rail on television this weekend against bussing a child in louisville ten miles, even though some children routinely get bussed much more than that already. is it okay to force the taxpaying public to bus a child ten miles if the child's family wants to attend a school in another town? how about twenty-five miles? one hundred?

5. as a practical matter, isn't it clear that white upper class or upper middle class families are going to send their child to the nearest white or nearly all white school? is that what you want to foster? if you think that is not going to happen in your system, with the minority neighborhood or majority schools left begging, then you are naive beyond any reasonable belief.

as i started out above, the response was stunning. i continue to invite my friends on this blog from both sides of the aisle to propose a system that will pass constitutinal muster under the new guidelines enunciated by the court last week.
 

i'm not sure was not simply tongue in cheek.

It wasn't, though I agree that it's difficult, if not impossible, to implement in larger school systems. I think it would work reasonably well in smaller cities with 2-3 high schools.

I should add that I voluntarily bused my children to middle school. The distance wasn't that great, but because of traffic their time on the bus was roughly 45 min/1 hr. each way. There have been times here in LA when students have been bused longer distances.

One irony to this, of course, is that there was more busing under segregation than there ever was under integration. Apparently it was fine to bus "those" children but not "ours".

I'll add here another suggestion which I made at Volokh: that government home loans provide cheaper rates for those who buy in in cross-ethnic neighborhoods. This might, over time, smooth out the housing disparities which contribute to school segregation.
 

For all of you upset about Roberts and the line "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" were you also upset about the earlier thread by Ian: "Marriage is Not a Threat to Marriage"?
 

P.S. to phg -- I sincerely apologize as I never saw your post asking for possible solutions that would pass Constitutional muster to provide minority students from mostly minority, disadvantaged school districts with an education that maximizes their educational quality and therefore, their lifetime opportunities. How about school vouchers?
 

For all of you upset about Roberts and the line "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" were you also upset about the earlier thread by Ian: "Marriage is Not a Threat to Marriage"?

# posted by Charles : 5:01 PM


Charles, I'll take non sequiturs for $1000!
 

Or, a Daily Double of Hypocrisy . . .
 

Mark Field: One irony to this, of course, is that there was more busing under segregation than there ever was under integration.

I want to publicly thank Stuart Buck for challenging me to read a little DuBois. While I might be opening myself to accusations of reversing syntax, I will share some words from near the end of that piece: "...there is no magic, either in mixed schools or in segregated schools....the Negro needs neither segregated schools nor mixed schools. What he needs is Education." This is no less true today than when penned. It is true for "the Negro," and all the rest of us.

The issue isn't discrimination, not even as the term was abused by Roberts. Nor is it busing or integration. First, from the strictly legal viewpoint, it is a matter of equal protection under the 14th amendment. In Brown a set of students was at long last given protection from legislation which institutionalized prejudices which in turn relegated those students to inferior schools resulting in inferior educations (albeit not without notable exceptions, as pointed out here) and the attendant inferior opportunities to participate as citizens even absent the then virulent non-legislatively institutionalized prejudices which existed at the time, and of which we certainly have not yet freed ourselves as a nation.

Since Brown, liberal awakening has come quite a distance, not alone because of the valid points made by many that "liberal white guilt" was often condescending and in its way as likely to prejudge "the negro" as inferior as were the proponents of Jim Crow. Of course there was and is a vital difference. Condescension from those seeking to be our allies but who have not yet cast off the vestiges of the prejudices with which they have been raised, and which are in places shameful part of the very fabric of the culture, such condescension is curable. It only takes a little education. Another important distinction to make, the very real difference between acknowledging one of my kin of color has less, in possessions and intellectual capital, as a result of legislatively institutionalized prejudice, from slavery to separate-but-equal, versus assuming any such lack is an inherent correlate of my kin's color itself. Here again, education, of the actors, of those in the trenches working for justice and an end to bigotry, education is the key.

The schools in Parents Involved can arguably be viewed as attempting to counter remaining vestiges of racial prejudice, a unarguably worthy goal. But the Roberts court infamously mis-frames a key fact: race was not a lone criterion which the schools invoked. On the contrary, it was one of a set, and only invoked when that set yielded a "tie." Disingenuous is far too kind a word for this kind of logicide, but it is the key lie on which the majority rests its arguments. I haven't given the 185 page pdf of the decision the full read I would like yet, but I gather so far that systems in which race is but one of a set of criteria are subject to a different level of scrutiny, thus the importance of untruthfully casting matters as dealing with a single criterion, and the need on the part of Roberts and his partisans to muddy the waters as quickly and thoroughly as possible with puerile propaganda, to prevent, if possible, the discussion from ever attaining the level of discrimination needed to properly assess such distinctions.

Anyway, Mark, I thought you would appreciate the resonance I found between your words and the DuBois quote. Peace.
 

This comment has been removed by the author.
 

Bartbuster: Charles, I'll take non sequiturs for $1000!

It's really not so much a non-sequitur as an open admission that folks such as Charles are content with jurisprudence the rigor of which only need be as robust as that used for punch-lines of campaign debate answers or titles of blog posts.

Some of us expect a little more of the most powerful jurists in the world, but it's nice to know what your standards are, Charles.
 

Mr. Link:

I haven't gotten through the 185 page decision yet, but as soon as I do, I will let you know right away if I am content with Roberts' jurisprudence. In the meantime, I was asking those upset about that ONE Roberts line whether they were similarly upset with Ian's. No surprise that you weren't.
 

charles, your comparison of the roberts language vis a vis racial discrimination and ian ayres post regarding "marriage is not a threat to marriage" is completely inapt (putting aside for the moment that the line itself was not his).

i have stated before at this site the proposition that ignoring racial discrimiation to cure racial discrimination only serves to perpetuate discrimination. as an ideal, yes i suppose that if one stops discriminating then discrimination stops; however, in the real world, ignoring discrimination does not end discrimination, it merely places a bag over one's head. the discrimination is still there. the harm still continues.

on the other hand, please tell me once again, who is harmed when two gay people marry? i believe it was you (if i'm wrong, please forgive me) who said that gay marriage harms civilization because gays marrying could eventually end propogation and therefore the species, as if two gay people marrying would suddenly cause all heterosexuals on earth to become gay. i believe you are also the person who equated gay marriage with marriage outside of the species (once again, if i am wrong, please accept my apology).

let's have a debate on the issues. let's have a serious debate. let's not lower ourselves to a ridiculous level none of us wishes to go to.
 

In the real world, phg, same-sex marriage harms the institution of marriage as well -- if you've actually read that thread below, I would be happy to continue the debate there -- I was not proposing that we debate same-sex marriage on this thread. I was simply pointing out the hypocrisy.
 

Charles: I haven't gotten through the 185 page decision yet, but as soon as I do, I will let you know right away if I am content with Roberts' jurisprudence.
What an odd piece of snark. Did I say something accurate enough to offend you, perhaps regarding your low standards for rhetoric from the bench? Or maybe you truly are reading the decision?


In the meantime, I was asking those upset about that ONE Roberts line whether they were similarly upset with Ian's. No surprise that you weren't.
No surprise that you haven't the analytical ability to realize you haven't yet reached my feelings on the matter, and, thank you kindly, but please refrain from putting words in my mouth. The most you can accurately infer from my post is that I would hold blog titles, campaign debate punchlines and rhetoric from Chief Justices each to differing standards. Apparently it's a "one size fits all" in your world, more's the pity.
 

But the Roberts court infamously mis-frames a key fact: race was not a lone criterion which the schools invoked. On the contrary, it was one of a set, and only invoked when that set yielded a "tie." Disingenuous is far too kind a word for this kind of logicide, but it is the key lie on which the majority rests its arguments.

I fail to see the relevance of this distinction between "lone criterion" and "tie." Let's suppose I need to hire a bunch of people for a construction job. I have a set of criteria -- related to past experience -- for determining who's qualified. Whenever there's a job opening, I hire the first qualified person who walks into the office and requests a job. If two people walk in at the same time, and one is white and one is black, I use race to break the tie; I hire the white job applicant in those situations.

Is that okay because race is only used to break ties, and isn't the only criterion used?


in the real world, ignoring discrimination does not end discrimination, it merely places a bag over one's head. the discrimination is still there. the harm still continues.

I don't understand where you get the phrase "ignoring discrimination" from Roberts' comments. He did not suggest that any discrimination be "ignored." Roberts is not a libertarian; he does not suggest that private discrimination ought to be legal. Rather, he said that discrimination should cease. Clearly, the statement was meant as a rebuttal to Blackman's "In order to get beyond racism, we must first take account of race."
 

I can "infer" you are not similarly upset -- I have printed the decision to read later -- I'm not offended though.
 

prof. field

I meant to note this in my last post: I appreciate the implicit compliment, but I'm merely an attorney.

Anyway, Mark, I thought you would appreciate the resonance I found between your words and the DuBois quote. Peace.

I appreciate it. Thanks.
 

David: Is that okay because race is only used to break ties, and isn't the only criterion used?

Why don't you try it and see. Later you can also try to create a hypothetical that actually has some bearing on the facts in question...but I won't hold my breath.
 

Charles: I can "infer" you are not similarly upset
If you like, but there's nothing to support that inference, and, well, why infer when you can ask? It's bad form to speculate when data is so easy to collect. Meanwhile I take note that you have more than once declined to correct my understanding that you think the rhetoric of blog titles or campaign debate punch-lines is appropriate in opinions from our highest bench. That's probably not the only place we part company.

I have printed the decision to read later.
Heh. Better you than me. That's what pdf and electronic storage are for. Best of luck.
 

Post a Comment

Home