The Relationship between Association and Identity

Heather K. Gerken

For the last two days, here and here, I have been blogging about Justice Kennedy's new equal protection jurisprudence. Analyzing his two most recent race decisions -- a voting-rights case handed down last year and the school desegregation cases decided in June -- I argued that Justice Kennedy has been adapting his vision of race to the context in which each case arose. Thus, in describing the voting-rights claims of Latinos, Justice Kennedy told the story he has long associated with the electoral arena, one having to do with political agency and expression rather than equality. Similarly, in evaluating the equal protection claims raised in the school desegregation cases, the novel parts of Kennedy's opinion focus not on race, but on a story he has long associated with public schools -- the exceptional role that schools play in inculcating civic morality. These narratives have nudged Justice Kennedy's race jurisprudence in interesting new directions. I also speculated that it might sometimes be useful to follow Kennedy's lead and think about how race plays out in different domains, arguing that this may be an area where displacement can be a source of power.

There is one last connection between the two cases worth mentioning. One can trace in Kennedy's two opinions a dawning awareness of the relationship between the associational and expressive dimensions of racial identity -- the notion that the choices a state makes in grouping individuals affects the choices individuals make in expressing their identity. Though the opinions are certainly not cast in those terms, both describe how association affects identity. In the voting-rights case, the question was whether the state had to maintain a district where Latinos had developed what Kennedy termed an "efficacious political identity" or could instead create a different district that would result in what he called a "troubling blend of politics and race." Similarly, in the desegregation cases, Kennedy worried that the way students were grouped in a classroom would affect how they thought about racial identity, that segregated schools might not be the best environment to teach students about the colorblind ideal. Electoral districts and schools are, of course, quite different environments for working out questions of identity. But the underlying connection -- that who is part of our community might affect who we become -- is the same.

The reason I find these threads in Kennedy's opinions so interesting is that I think scholars have a lot more thinking to do about the relationship between the expressive and associational dimensions of identity. It's a minor theme in some of my own work and the work of others, but there's lots more to do.

As I describe in the essay that explores these issues in greater depth, one of the most recent contributions to this debate is a terrifically interesting essay by Michael Kang that will be published later this year by the Yale Law Journal. He theorizes that majority-minority districts are useful because they temporarily pull race out of the political discussion and thus help fracture rather than reify racial categories (precisely the opposite of what the Supreme Court predicted in its racial gerrymandering decisions). Kang points out that where people vote along racial lines, racial minorities have every incentive to vote monolithically because that is their only hope of electing their candidate of choice. The result, writes Kang, is that race becomes a "conversation stopper": "politics freeze along the axis of race, crowding out room for deliberation and presentation of choices for the public along other dimensions of policy and identity."

Kang argues that the solution to this problem is majority-minority districts. In such districts, Kang points out, it is all but a given that the minority group's candidate of choice will win the general election. That means that minority voters can enjoy the luxury of division and debate during the primary. Rather than coalescing behind a single candidate, racial minorities can choose among different platforms and debate the "more optimistic question of who [their] candidate of choice will be." Racial minorities, in other words, are able to engage in the usual stuff of pluralist politics, something that would be impossible -- or at least unwise -- during a general election. On Kang's view, majority-minority districts temporarily displace race, allowing racial minorities to politic the way any other group politics.
Kang's claim connects directly to the questions raised by Kennedy's two most recent race opinions about the relationship between association and expression. Kang's argument is that the state's choices about how to group voters affect how voters experience and express racial identity. Suggesting yet another variant of displacement as a source of power, Kang argues that one form of association -- majority-minority districts -- usefully places race in the background for some part of the electoral cycle. He also suggests that other strategies for grouping voters -- majority-white districts -- may foreground racial concerns in a destructive fashion. Whether Kang's argument extends beyond the electoral domain remains to be seen. But it is certainly a question worth asking.
Posted 9:42 AM by Heather K. Gerken [link]