Shelly

[Larry Tribe]

Tobias's example is precisely the one I have used in teaching my basic con
law class in recent years, right down to the number 5. And I must say the
approach doesn't thrill me either, precisely because of its implications in
the Adarand context. But thrilled or not, I find it hard to escape. -- Larry
Tribe.

-----Original Message-----
From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
Sent: Thursday, November 02, 2000 4:50 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Shelly


Larry Tribe writes (in part):
>Contrast the task of an officer asked to arrest or remove "all
>African-Americans" or "all individuals of Hispanic ancestry" from a given
>area. Is the officer to conduct interrogations? Ask for birth certificates
>and family trees? Take blood samples? Study each individual's DNA? Is not
>the very spectacle of having a government official classify individuals by
>their racial ancestry -- recall the demeaning business of whether Homer
>Plessy had enough White blood to classify as non-Black -- and then use
>that classification to determine who gets what opportunity, part of the
>evil of racial classification by government? Do not those who insist that
>supposedly benign uses of race as well as malign uses merit strict
>scrutiny, that race-based affirmative action should not escape such
>scrutiny, depend for their argument upon this view of the distinctive evil
>presumptively associated with government classification by race?

This paragraph captures what may be a very persuasive articulation of
Larry's position here.  The salient question may be whether the State is
simply enforcing neutral laws according to the privately expressed wishes
of a property owner, or rather acting in a manner that enmeshes the State
with the individual's private discrimination, creating the appearance of an
endorsement of, or a substantial contribution to, that
discrimination.  Contrast two situations: (1) a bigot throws a party just
for white people.  Uninvited party-goers try to "crash".  The bigot calls
the police and says, "These five people are trespassing [pointing to the
apparent non-whites]; please remove them."  (2) Same situation; but when
the bigot arrives, he says, "Remove all the non-whites in here; they're
trespassing."  Or take Michael's example: (1) A women's clinic calls the
police and says, "Remove these twenty protestors [indicating only the
anti-abortion protestors]; they're trespassing."  (2) Same situation; but
the clinic says, "Remove all the anti-abortion protestors."  In the first
variation on each example, the police are enforcing the law in a neutral
way, albeit on behalf of decidedly non-neutral private citizens.  In the
second variations, the police are being invited to participate in the
"discrimination" -- literally, the act of discriminating differences -- in
aid of effectuating the private citizens' expressed preferences.  (The
concern over having to determine and give proper names is, I think, a
non-issue -- I can't see any reason why names would be required, and
requiring the property owner to point to various individuals and say,
"remove them" is not burdensome.)

Under this approach, Shelley is correctly decided because it would have
required the government to "discriminate" between white and black
purchasers in adjudicating when it would be appropriate to enforce the
restrictive covenant, and then to act upon that "discrimination" in a way
that could be perceived as endorsement and that would involve the State
intimately in the ongoing discrimination.

I hasten to add that I am not unreservedly thrilled with this approach.  In
the context of the present discussion, it may make a lot of sense.  But if
considered in the context of an affirmative action program, it might
further reinforce the post-Adarand hostility toward any reference to race
in state actions, even when undertaken for salutary purposes like the
empowerment of historically subordinated communities.  But it may be just
as fruitless to search for a "uniform" equal protection jurisprudence as it
has been to search for such "uniformity" in the First Amendment, and in the
present context, at least, this approach seems to make sense.

-- TBW