A Heretical Proposal for 'Racial Justice'?
7barksda at jmls.edu
Fri Feb 20 14:33:55 PST 2004
I should clarify my point. My point wasn't so much that your proposal
still did not give people complete choice about the racial composition
of their school, because a black student couldn't go to an all white
school, if that was his racial preference (of course once he showed up
it wouldn't be all white anymore.) Or, alternatively a school with 14
blacks and five Haitians.
Rather, I thought the more serious problem with your freedom of choice
proposal was that it forced people to choose their school solely on the
basis of racial composition, eliminating all other factors. For
example, if only the all white school had a special tuba program, a
black tuba player would be locked out because of her race. This is so,
even if her preference for tuba playing outweighed her preference for an
all black or racially integrated school.
Perhaps stipulating that the schools were otherwise identical could
remove this problem, but of course, schools are never identical (for
example, even if the schools were exactly identical triplets on paper,
("facilities and programs" qua Brown), they will never be exactly the
same, once they become populated by different people making different
choices. (In the same way that identical twins are never exactly
identical). Yet, your hypo forces the students to make their choice
only on the basis of their racial preference, thus preventing them from
satisfying any other preference other than race, (unless that preference
could be satisfied by a school which their race could attend.)
Perhaps race's immutability is the difficulty here. Constraints based
upon mutable characteristics (hair color, for example), are less
restrictive of free choice, because people can alter their condition to
fit the criterion. So, a brunette who wanted to attend an all blond
school for the tuba program (or because she wanted to hang out with
blonds) could do so simply by dying her hair. Not so, with the racially
exclusionary schools in your hypo. You can't change your race, so you
can never choose the school which excludes you on the basis of your
race.) Giving people options as to how integrated their school is
cannot remedy the problem that if race is an exclusionary
characteristic, a person of the excluded race lacks choice.
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
Sent: Friday, February 20, 2004 1:12 PM
To: Barksdale, Yvette
Cc: conlawprof at lists.ucla.edu
Subject: RE: A Heretical Proposal for 'Racial Justice'?
All three points are important.
Let me respond to your first point now. Hopefully I will find time
for the other two later.
Any situation of choice has in the background unchosen constraints
that define the particular choice we want to emphasize. In my
hypothetical the constraints are that some people desire whites only
schools, some blacks only, and third integrated schools. That my
proposal does not take into account variations such as a white person
who wants to go to an all black school indicates that no principle can
be "neutral" in a logical sense, and at the same time be relevant to
practical exigencies. That is, no principle can say as far as race is
concerned anyone can chopse any kind of racial set up, for example, a
white person who wants to go to school with light skinned blacks, two
Haitians, and seventeen blacks who read Kant. So when we speak of
neutral circumstances in context we must delineate what our purposes
are. Wechsler could not find in Brown a netral principle, which, if I
recall correctly, would satisfy whites wanting to assoicate only with
whites as well as whites and blacks wanting integrated associational
practice, or blacks who wanted to associated only with blacks. My
proposal, which obviously has enormously difficulties overall, is
neutral in the sense that it can satsify the macro-puproses dominant at
the time. It cannot then or now satisfy micro-purposes because
micro-purposes and infinite. If there exist no consensus on dominant
macro-purposes, my proposal fails. Hopefully, more to come later.
Thanks Yvette for taking the proposal seriously.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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