Marshall's votes in favor of court social engineering in the form of compelled busing and in favor of government racial and gender preferences were plainly extra constitutional, should have been reversed and are not exactly the most shining examples of his legacy.
 

"The efforts of a school board to keep schools integrated were scrutinized in the same way as the efforts of past school boards to keep schools segregated, as if they were the same."

They are the same thing: Treating people according to the color of their skin, instead of the content of their character.
 

Look, there's two meanings of Brown here.

The first is the meaning that the advocates ascribed to it. Brown was part of a long struggle to make conditions in the United States fairer for blacks. And it distresses me when conservatives say (as Brett says here) that the principle was nothing more than colorblindness; no, it was a lot more than that. Indeed, I don't think segregation would have ever been declared unconstitutional if we had truly had separate but equal. (I am not defending the constitutionality of segregation, but simply observing there was an established precedent as well as colorable freedom of association agruments that ran counter to the result in Brown.)

So the point was, racial segregation was a tool of white supremacy. So when other racial classifications were challenged that were NOT a tool of white supremacy, and in fact were tools proposed to alleviate the effects of white supremacist policies, it is not surprising that Marshall and other advocates would point out that these stood in a different stead.

On the other hand, where conservatives DO have a valid point is that just because the advocates intended for Brown to mean a certain thing doesn't mean that this is what it meant. Perhaps Brown did usher in a legal regime where all racial classifications were subjected to strict scrutiny and would usually be struck down. That's certainly a plausible reading of Supreme Court caselaw post-Brown. And there's nothing formally improper about this-- the Supreme Court is not bound by the intentions of advocates and can tailor its doctrine in what it believes to be the most principled and coherent fashion.

Thus, I think we should resist attempts to pretend that Brown did not arise from a historical context of subjugating blacks, or that race-based affirmative action programs that harm white college applicants are the moral equivalent of the rotting schools that blacks were forced to go to in the South.

But at the same time, that doesn't mean that it is unreasonable for Roberts to claim that the RULE that the Supreme Court adopted to alleviate segregation can't also be claimed for the benefit of whites.
 

Brown allowed social change. Bakke ostensibly was the demarcation of the shift from neap toward ebb. Marshall's dissent in Bakke opens with recitation of that historical unfairness which is chattel. JBalkin did an interesting post on the sunsetting of slavery laws, as a way to address some of the excessively scholastic arguments proponents of torture were advancing to idealize existence of US torture programs December 2007. Closely reading Marshall's dissent in Bakke can enhance understanding of where the problems lie in directing the growth of our national character. Stare decisis may be an artform, but change is the essence of guiding our civilization, when there is leadership which has studied history and provides vision. There are more tides in this cyclicality.
 

Mr. DePalma,

I am seventy-four years old. When I was in high school, all the African Americans
in town were bussed to a school thirty miles away. I did not hear one
conservative raise his voice in opposition to bussing. Where were you when we
needed you?

FW
 

"So when other racial classifications were challenged that were NOT a tool of white supremacy,"

But notably, not an effort to alleviate it, either, but just a matter of achieving an aesthetic racial mix. "Diversity", as nice as it might be, is not a value which trumps the right to equal treatment under the law, while repairing the effects of formerly NOT treating people so equally arguably was.

The shift from remediating the effects of racial discrimination to "diversity" was designed to insulate affirmative action against claims that it's original rationale had expired, but it did that only at the expense of depriving it's justification of enough force to over-ride the 14th amendment's guarantees.
 

Actually, Brett, you are partially right about "diversity".

The original intention of affirmative action programs-- and the one Marshall originally believed in (he didn't rely on diversity in his Bakke dissent)-- was as a form of compensation or redress. Now, there's all sorts of decent arguments against this-- affirmative action went to people who weren't victims, it victimized people who weren't beneficiaries of discrimination, and it wasn't tailored to remedying the wrong of white supremacist policies.

But that's what got Marshall so ticked off. He was saying that Brown was about white supremacist policies, and the Court shouldn't consider programs that were designed to REMEDY such policies to be similarly situated with white supremacism.

"Diversity" became popular for 3 reasons:

1. Academics, especially, started to believe in the value of diversity because people of differnet backgrounds, including different racial backgrounds, certainly did seem to bring something to the conversation.

2. Academics and other affirmative action advocates were also, as you point out, looking for a rationale that would permit racial preferences for a longer term and in a way that was not tailored to helping the historic victims of white supremacism and discrimination.

3. Under Bakke, diversity was the only rationale that the Supreme Court (or more accurately, Justice Powell's controlling opinion) permitted.

I tend to agree with you, by the way, both that race-based affirmative action programs, to be constitutional, should be targeted to victims of discrimination, and that pure diversity programs present all sorts of constitutional problems (such as the fact that they discriminate against Asians, who are a historically oppressed group).

Results-wise, I probably wouldn't come out very far away from where Roberts does on the constitutionality of a lot of these programs.

But what I don't like is the simplistic pretense that the principle is that "classifications based on race are improper" without any reference to the historical context that indeed there was a history with a certain kind of racial classification that the Fourteenth Amendment was supposed to remedy.
 

Dilan, I think absent some substantial justification, ideally directly implicating the people presently gaining and losing in the former wrong, (Not just based on their skin color, as is usually the case.) the motivation for the discrimination is irrelevant. It's a zero sum game, and the harm done to the people who lose out because of affirmative action isn't lessened even the slightest by benign motives on the part of the people doing the discriminating.
 

Brett, I don't want to get into a convoluted, collateral discussion on remedies, and I actually agree with you to a certain extent (e.g., that there has to be a showing of actual acts of discrimination, not foggy ideas about "general societal" or "historical" discrimination).

But I do think you aren't thinking quite deeply enough about the issue of affirmative action as a remedy. Suppose you have an employer who discriminates against blacks and has for 30 years, such that he now has a rather large all white workforce. A discrimination suit is brought, and the plaintiffs prove intentional discrimination. I assume you would agree (without getting into the discussion of what civil rights laws we should have) that under current civil rights laws, that would constitute a redressible violation.

Now, what's the redress? Obviously, back pay. Perhaps the employer could be ordered to hire the plaintiff, though that's a difficult one because the Court would be forcing an employer-employee relationship when there might be all sorts of bad blood that prevents the parties from working together.

Now, employer pays the back pay, and, voila, he still has a 100 percent white workforce. Now, he's also under an order not to discriminate in future hiring, but (1) if he violates that, it will require another court action where plaintiffs will once again face the difficult burden of proving that he acted with an intent to discriminate and there weren't race-neutral reasons for the non-hirings, and (2) even if he doesn't violate it, if it is a reasonably low-turnover workplace, he won't have an integrated workplace for another 30 years, meaning a couple of generations of blacks will have been denied the opportunity to work there.

So what the courts do is they say "you have to hire x number of blacks within y time. You can pick the blacks you want, and if you make a good faith effort to hire qualified blacks but are unable to reach x, you can come back to court and apply for relief from the goal and timetable. But you have to make a real effort, do a real search, and attempt to integrate your workforce".

Now, it seems to me that the argument that THAT order is unconstitutional under the equal protection clause, given the history of the 14th Amendment and its original intent, is quite weak.
 

Dilan, follow up the link to Parents Involved in Community Schools v. Seattle School District, and you'll find it involves a school district which has never previously practiced discrimination, and which is voluntarily (On it's own part, the children and parents don't get a say.) assigning children on the basis of race just so that the school pictures average out to the right skin tone.

In light of that, your example seems rather irrelevant.
 

Dilan, follow up the link to Parents Involved in Community Schools v. Seattle School District, and you'll find it involves a school district which has never previously practiced discrimination, and which is voluntarily (On it's own part, the children and parents don't get a say.) assigning children on the basis of race just so that the school pictures average out to the right skin tone.

Brett, where did I say I disagreed with the result of that case? In fact, I think I said specifically that I would probably come out close to where Roberts does on the entire issue.

What my hypothetical was directed at was your implicit claim that the only situation where race-based affirmative action is constitutional is with respect to a remedy that involves the specific victim and the specific perpetrator. In my hypothetical (which isn't so hypothetical-- it is standard stuff in the area of employment discrimination), you definitely have the specific perpetrator, but the beneficiaries won't necessarily be people who had applied for jobs and had been turned down. Nonetheless, race-based affirmative action is pretty clearly constitutional in that situation.
 

Well, it's pretty clearly approved of by the courts, but I suspect you're aware that I don't view that as the same thing as "constitutional". The 14th amendment, on the face of it, does not reach the actions of private individuals: "No State shall... nor shall any State..."

None the less, such race based affirmative action is becoming less and less common, because the legal predicates for it are expiring. Hence the switch to "diversity", which we seem to agree does NOT cut it as a justification for racial discrimination.
 

Brett, I wrote a law review article on the state action requirement of the 14th Amendment. Essentially, under Shelley v. Kraemer and New York Times v. Sullivan, a court ordered affirmative action plan definitely is state action that can be ruled constitutional or unconstitutional under the 14th Amendment. To the extent the Civil Rights Act is construed to require such a remediation plan, that is clearly state action as well.

I don't think diversity is a legtimate constitutional basis for affirmative action. I don't think diversity is totally invalid-- I do think there is some basis to say that bringing different people together can make for a better school or workplace-- but there's no way in practice that you can allow diversity as a permissible rationale under the 14th Amendment without upturning the provision's central purpose, to prevent discrimination against historically oppressed groups. Diversity rationales end up discriminating against many historically persecuted minorities, such as Jews and Asians. Plus, as you point out, there's no time limit on diversity; presumably, we would still be counting by race 350 years from now.

But I do think that in limited circumstances, the Fourteenth Amendment permits race-based affirmative action as a remedy for proven specific acts of past discrimination, in order to achieve racial integration.
 

Well, it's pretty clearly approved of by the courts, but I suspect you're aware that I don't view that as the same thing as "constitutional". The 14th amendment, on the face of it, does not reach the actions of private individuals: "No State shall... nor shall any State..."

Ironically, you need to rely on the approval of courts in order to make your "facial" claim. What the amendment actually says is that no state shall deny to any person the equal protection of the laws. As Chris has pointed out here on several occasions, the natural reading of this provision is that states are obligated to protect minorities equally against individual wrongs, and their failure to do so gives Congress grounds for acting pursuant to Sec. 5. This was also the position of Justice Harlan and a number of the originators of the 14th.

I should add that I disagree with Dilan to some extent also. It's mostly a factual disagreement, though, on the extent to which past practices of de facto and de jure segregation continue to harm blacks. In my view, the continuing effects suffice to justify affirmative action programs.

Plus, as you point out, there's no time limit on diversity; presumably, we would still be counting by race 350 years from now.

"If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether."
 

I have sympathy with those that oppose AA in various respects, but share MF's stance, more or less, on the factual issue.

I don't quite understand why broad based discrimination suddenly cannot be targeted. That is, if AA is okay overall. As to the positive obligation reading, that too has force.

"freedom of association agruments that ran counter to the result in Brown"

Segregation laws also harmed freedom of association as an earlier case dealing with forced intregation in a private religious college suggested, ditto laws against interracial fornication and marriage etc.

States also cannot religiously segregate public schools, even if voters and parents wish it. This would be true even if religiously discriminated groups weren't targeted.

Marshall's sentiments as to how white and black kids play together all the time w/o state action stopping them also comes to mind.

As to diversity hurting various discrminated groups, I'm a bit more optimistic on formulating programs, if we tried harder. Of course, if diversity is really just a faux rationale to serve as a backdoor way to help selected groups ...

I also think diversity very well might advance the interests of all groups. If so, just as other preferences (basketball scholarships etc.) disfavors certain groups in some ways, the burden might be worth it.

But, the whole matter is messy enough, that I am quite willing to be somewhat agnostic. Dilan's due care is respected on that end.
 

dilan:

The EPC does not say that "No State shall...deny to any person within its jurisdiction the equal protection of the laws unless they have denied equal protection of the laws in the past.

The remedy for discrimination is equality, not retaliatory discrimination to even up an historical score.
 

Question: If Obama wins the election, could Croson and Adarand potentially get overruled? Adarand was decided 5-4, although Souter and Breyer dissented on narrower grounds than whether strict scrutiny should be applied to all racial classifications, but in Gratz, Souter signed on to dissents that argued that it shouldn't be, and Breyer rather gnomically remarked in his concurrence that "government decisionmakers may properly distinguish between policies of inclusion and exclusion." So if Obama gets to replace Scalia or Kennedy, could we be looking at an overhaul of the last 20 years of the Court's affirmative action rulings?
 

Croson was 6-3, with Stevens concurring. The two recent college affirmative action cases split the baby. Race based districting actually was upheld on political grounds. So, any change would not be a complete U-Turn in any respect.

Other factors ...

The safe centrists sorts that Obama might pick (and some suggest he is moderate on AA) very well might be the sorts that would respect precedent. Such justices have been shown to do so in many cases (e.g., Stewart, O'Connor).

Dilan's views suggests another possible nuance -- someone who might be a Obama justice very well might be fairly "conservative" on this issue in various ways.

Finally, past rulings and current trends very well influence the actual results. For change to occur, there would have to be openings to overrule past cases. But, strategically, such a challenge would be a bit unwise.

And, will take years, during which Adarand rules will only further be put in place, making change that much more complicated.
 

tray said...

Question: If Obama wins the election, could Croson and Adarand potentially get overruled?

That is unlikely because the next President will most likely be replacing 1-2 aging leftists on the Court.

If Obama wins, look for Ginsberg clones replacing Ginsberg. This will shift the age balance against the conservatives, but not the near term court balance.

However, if McCain wins, he has the opportunity to establish a conservative super majority on the Court by replacing aging leftists with young conservatives like Alito and Roberts. Whether he will carry through is another issue, though.
 

On how we got from the world Farris W. experienced to the era of Bakke and beyond, a new essay on "Racial Exhaustion" has been posted on SSRN by Darren Hutchenson, noted here: http://legalhistoryblog.blogspot.com/2008/05/hutchinson-on-racial-exhaustion.html
 

His carrying through is extraordinarily unlikely, given his attachment to campaign regulations no conservative would likely be willing to call constitutional.

And, let's remember, accidents do happen, a President Obama getting to replace one of the (relative) conservatives in his first term may not be a virtual certainty, but it's not much of a longshot, either.

Take a look at an actuarial table, and the ages of Scalia, Kennedy, and Breyer: The odds of all three of them living another 4 years are, to be blunt, not good, and I'd give you at least even money two of them will croak during the next President's term, or at least suffer sufficient disability as to be forced to retire.
 

The remedy for discrimination is equality, not retaliatory discrimination to even up an historical score.

Bart, my post above amply demonstrates why that does not work. You never get an integrated workplace post-discrimination without these sorts of programs. I should add, by the way, that my approach is generally consistent with the caselaw, except I would not allow diversity as a rationale for affirmative action.

I should add one more thing. What you are implying is that even an affirmative action program that satisfied strict scrutiny would not be constitutional. Not even Scalia and Thomas, to my knowledge, believe that. You are really way more extremist than even the right wing of the Supreme Court, it would appear.
 

dilan said...

BD: The remedy for discrimination is equality, not retaliatory discrimination to even up an historical score.

Bart, my post above amply demonstrates why that does not work. You never get an integrated workplace post-discrimination without these sorts of programs.

Workforces are not static, especially in the highly mobile US workforce.

Furthermore, talent is scarce and is actively sought after by employers.

Thus talented African Americans can actively search for employment with and will be actively recruited by multiple employers.

If talented African Americans are being refused employment with some employers because of actual discrimination, the discriminating employer will be at a competitive disadvantage and will eventually go out of business or have a change in management who will bring in the talent to remain competitive. Moreover, the African American prospective employee will have legal recourse for the discrimination.

Racial preferences do not look at talent. They only look at the melanin content of one's skin.

I should add one more thing. What you are implying is that even an affirmative action program that satisfied strict scrutiny would not be constitutional. Not even Scalia and Thomas, to my knowledge, believe that. You are really way more extremist than even the right wing of the Supreme Court, it would appear.

What government racial preference program will survive strict scrutiny today?

It is nearly impossible to find an overt government policy of racial discrimination (outside of affirmative action itself) which theoretically needs to be remedied by retaliatory racial preferences.

I am unaware of any other basis which would survive strict scrutiny. Even you reject diversity as a valid basis for government racial discrimination.
 

Bart, I would suggest you learn something about employment discrimination law before you post on this. The truth is that you want to impose a simplistic "a black can never be preferred over a white" interpretive heuristic over what is an extremely complex subject. The bottom line is that those who have adjudicated cases in this area, including many conservatives, know better than you do and know that your test would be an invitation for discriminatory employers to just wait it out and make it costly to sue them over and over again, and they would be able to keep blacks out of their workforces if that is what they want to do.

Look, I don't buy, either constitutionally or on a policy basis, 95 percent of what affirmative action has become. But really, you are in "Bart DePalma, criminal defense lawyer, knows employment discrimination law better than the people who practice in it" territory. You shouldn't opine definitively about factual scenarios that you simply do not see in your law practice. You have a real problem with this, and it's one of the reasons that you are (correctly) mocked so much around here.
 

Dilan:

Bart, I would suggest you learn something about employment discrimination law before you post on this....

Why start now?

Look, I don't buy, either constitutionally or on a policy basis, 95 percent of what affirmative action has become. But really, you are in "Bart DePalma, criminal defense lawyer, knows employment discrimination law better than the people who practice in it" territory.

"Bart" can't even figure out what the courts have said in their holdings when it's put in front of his nose before he spouts off his ignerrence. This example should demonstrate that "Bart" has nary a clue about discrimination law:

["Bart" shows his cluelessness]: "There are two Brown decisions - (Brown I) Brown v. Board of Education, 347 U.S. 483 (1954) and (Brown II) Brown v. Board of Education, 349 U.S. 294 (1955). The first held that de jure segregation violated the EPC and the second held that courts may legislate forced bussing of students to achieve desegregation."

This is simply wrong, as I pointed out in that thread before he made that comment.

As I said back then, the only reasonable response to "Bart"'s eedjitcy and ignerrence, compounded with a wholly unearned righteousness and a refusal to admit he's wrong, is simply ridicule, insult, more ridicule, followed by more insult and scorn. Corrections are useless unless you're interested in being called a "jerk" by "Bart" for doing so.

There was a reason that the amasingly tolerant Glenn Greenwald banned him.

Cheers,
 

dilan:

We are talking past one another again. (Surprise, surprise).

You were arguing that racial preferences were necessary to integrate workplaces and I disagreed as a matter of economic fact.

To recap, the economic argument I posited is that companies which practice racism deny themselves scarce employee talent and place themselves at a competitive disadvantage with companies that do not discriminate. Employee talent flows to companies which appreciate and compensate it. Companies that place themselves a competitive disadvantage in employee talent either fail or reform to regain their employee competitive advantage. In sum, the markets punish irrational racism in employment.

Rather than addressing my economic argument, you went off on a tangent about employment law and arguing your resume in this area.

My economic argument has nothing to do with employment law. Your legal resume is immaterial to my economic argument.
 

"Bart"'s sociaology is justa about as bad as his law is:

To recap, the economic argument I posited is that companies which practice racism deny themselves scarce employee talent and place themselves at a competitive disadvantage with companies that do not discriminate. Employee talent flows to companies which appreciate and compensate it. Companies that place themselves a competitive disadvantage in employee talent either fail or reform to regain their employee competitive advantage. In sum, the markets punish irrational racism in employment.

Hey, eedjit: The folks that are racist don't think that the racism is "irrational".... Some people might maintain, with pretty good cause, that this cohort includes you.

Cheers,
 

Bart:

Race discrimination can be economically rational for all sorts of reasons, including customer preferences, societal mores, the threat of violence, community pressure, etc. Indeed, these things helped keep Southern lunch counters and interstate bus lines segregated for 100 years after the Civil War. There's plenty of economic literature on the rationality of discrimination.

Further, some people feel so strongly about discrimination that they are willing to forego profit to do it. A nice contemporary example of this is homophobic landlords. Statistically, gays probably make better tenants (or at least as good tenants) than straights, but some landlords won't rent to them because they hate gays and lesbians.

In any event, it's worth noting that whether Bart DePalma's free market economics entertains the possibility of rational discrimination, the Civil Rights laws are premised on the idea that it can exist. (If it didn't exist, you wouldn't need a fair housing act or an employment discrimination law, for instance.) So, I don't think I can blame courts for ignoring your arguments when determining how to remedy the discrimination that, according to your economic theories, doesn't exist.
 

dilan said...

Bart: Race discrimination can be economically rational for all sorts of reasons, including customer preferences, societal mores, the threat of violence, community pressure, etc. Indeed, these things helped keep Southern lunch counters and interstate bus lines segregated for 100 years after the Civil War. There's plenty of economic literature on the rationality of discrimination.

There was nothing economically rational about the Old South declining to educate their African American population and then declining to employ the talent which remained.

The results were a large scale African American migration to the North which utilized this talent, a wealthy North and a poor South.

The South was only able to keep up this system for an extended period of time because their businesses were largely regional and they were not subject to national competition which would have driven their racist businesses out of business.

That is no longer the case and has not been for a generation or more.

The United States has a much freer national market with cut throat competition at nearly every level of the economy. Any business which irrationally excludes talent on the basis of race is at a serious competitive disadvantage.
 

"Bart" still misses the elephant in the room:

The United States has a much freer national market with cut throat competition at nearly every level of the economy. Any business which irrationally excludes talent on the basis of race is at a serious competitive disadvantage.

He neglects the simple fact that the racist, almost by definition, has a prejudiced and disparaging view of the objects of his racism, and thus thinks that these people have no "talent". That they are wrong in such prejudice hardly makes them think they're not acting perfectly "rationally". They, like "Bart", simply won't admit that they are wrong.

Cheers,
 

What Arne said.

In addition, there's plenty of economic scholarship on the question of under what circumstances racism can be rational. (Suffice to say, there's plenty of arguments that the violence, political climate, and social mores of the South created an atmosphere where rational individual actors had to discriminate against blacks, even if it would have been to the South's collective benefit not to.)

Bart's comments typify a certain sort of talk-radio-style conservative mindset that pretends that the discipline of economics starts and ends with the Invisible Hand and the law of supply and demand.
 

What Dilan said, as well.

I'd point out for the brain-damaged that if there were no racism in employment, then the laws prohibiting such would just be superfluous.

But as we see, reality bites. And racism still persists, despite "Bart"'s 'theoretical' (and unpersuasive) handwaving that such is "Impossible!!! Rational businessmen (and by that I mean people) wouldn't and don't do such!" I'd note further that "Bart" cites the racism Mark Steyn approvingly for the proposition that us Good White Folks are being outbred by the mongrel and/or darkie hordes and we ought to take alarm, a sentiment straight out of the pages of the CCC (the neo-KKK).

Cheers,
 

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