Non-feasance

[Earl Maltz]

In purely formal terms, it seems to me that, I think that since race is a 
factor  in defining "community", strict scrutiny applies under Arlington 
Heights.

BUT it seems to me that formal doctrine was developed in an era dominated 
by a romantic liberal view of race-related problems--particularly those 
faced by residents of our inner cities.  The fundamental question is not 
segregation or integration--it is, "How can we best get these children the 
tools and attitudes they need to have a chance to enjoy the benefits that 
middle class people generally take for granted in our society."  If that is 
in integrated schools, then I am for integration.  If that is in segregated 
schools, then I am for segregation.  If that is in schools operated by the 
Nation of Islam, then I am for giving the children the opportunity to 
attend those schools.

As to which is best, I will defer to those who live in the inner city 
culture and are more intimately familiar with the problem.

At 07:54 PM 4/21/2006 -0500, Barksdale, Yvette wrote:
>Content-class: urn:content-classes:message
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>Hi
>
>
>
>I am going to try this yet another time (now fourth try) to send through 
>this time too many addressees
>
>yb
>
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>
>
>Professor Yvette M. Barksdale
>
>The John Marshall Law School
>
>315 S. Plymouth Ct.
>
>Chicago, IL 60604
>
>(312) 427-2737 (phone)
>
>(312) 427-9974 (fax)
>
>
>
>***/////////////////////////////////////////***
>
>-----Original Message-----
>From: Barksdale, Yvette
>Sent: Friday, April 21, 2006 6:17 PM
>To: Barksdale, Yvette; 'matthewhpolsci at aol.com'; 
>'marty.lederman at comcast.net'; 'conlawprof at lists.ucla.edu'; 
>'lawcourts-l at usc.edu'; 'jperezmonf at panam.edu'; 'nakoma at aol.com'; 
>'holden.j at bigpond.net.au'; 'benniethompson at mail.house.gov'; 'Rscottva3 at aol.com'
>Subject: RE: Non-feasance
>
>
>
>Hi, I dont think this has gone through, although I have sent it twice 
>(lets try after editing  out more of the prior messages).
>
>
>
>Also, just to clarify re my point on current doctrine (since I have to 
>resend anyway)
>
>
>
>As to Mallas constitutional issue it seems to me the governments goal here 
>is community control which is why I dont see why you have to identify the 
>community by race in order to achieve the goal of community control other 
>than the rhetoric of black/brown power, etc.
>
>
>
>Grutter is thus distinguishable because there race neutral means were not 
>sufficiently effective to  achieve diversity.
>
>
>
>And community control ok because comes  under Washington/ Feeney analysis 
>the classification community controlis race neutral, even if these 
>communities are predominantly of one race (see Feeney where 98% of the 
>veterans were men)
>
>
>
>Also, the purpose is not race control, but community control  (of this 
>might be a more difficult sell because of the initial plan which was 
>framed in race based terms but if  the lines are truly drawn on the basis 
>of factors other than race  - such as economic, cultural, other ties then 
>the new plan could be seen as a way to avoid discriminating on the basis 
>of race like the 10% Texas plan, etc.
>
>
>
>yb
>
>
>
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>
>
>***/////////////////////////////////////////***
>
>
>
>Professor Yvette M. Barksdale
>
>The John Marshall Law School
>
>315 S. Plymouth Ct.
>
>Chicago, IL 60604
>
>(312) 427-2737 (phone)
>
>(312) 427-9974 (fax)
>
>
>
>***/////////////////////////////////////////***
>
>-----Original Message-----
>From: Barksdale, Yvette
>Sent: Friday, April 21, 2006 5:24 PM
>To: 'matthewhpolsci at aol.com'; 'marty.lederman at comcast.net'; 
>'conlawprof at lists.ucla.edu'; 'lawcourts-l at usc.edu'; 
>'jperezmonf at panam.edu'; 'nakoma at aol.com'; 'holden.j at bigpond.net.au'; 
>'benniethompson at mail.house.gov'; 'Rscottva3 at aol.com'
>Subject: RE: Non-feasance
>
>
>
>  If one can find "communities" that have "geographic. cultural, social, 
> political ties" independent of "race,"
>
>
>
>No, the geographic, cultural, social and political ties are not 
>independent of race. This is in large part, because the segregation of the 
>past forced people into communities which were based upon race.  See for 
>example, the long history of housing segregation, political 
>gerrrymanderings, public accommodations discrimination, etc.   These 
>practices forced people into communities which were race based. This meant 
>that it was difficult, if not impossible,  to form community ties 
>that  bridged racial groups.
>
>
>
>And, white resistance to more than token integration (See for example 
>Milliken v. Bradley,) etc, during the integrative ideal phase   60s, 70s, 
>etcs), and the rise of Black Power, Brown power  movements during the same 
>era, meant that the Civil Rights movement did little to disturb the 
>racialized nature of these communities.
>
>
>
>These segregative patterns continue to the present day  both 
>exclusionarily (See for example, the recent study on the pervasiveness of 
>discrimination by real estate agents steering minority buyers to minority 
>neighborhoods, showing them fewer homes, etc.)  and, inclusionarily (ex. 
>this particular plan.)  in fact there may be an argument that the 
>communities are more cohesive, and more rigid.
>
>
>
>However, the fact that race was a significant factor historical factor in 
>shaping these communities, both minority and white, does not necessarily 
>mean that they are not also social, economic, cultural,  units, like any 
>other communities.
>
>
>
>Now question could the state draw school district lines based upon 
>community ties within racially identifiable communities  -  I think the 
>answer would be yes.
>
>
>
>So question, why does the fact that a community happens to be racially 
>identifiable mean that the line drawn based upon community is necessarily 
>race-based?  I think perhaps the question is whether the motive for the 
>line drawing is race or is community.
>
>
>
>And if you dont permit predominantly minority communities to have the 
>benefits of community, because they are predominantly minority, and thus 
>arguably race based then you are essentially penalizing them for the 
>discrimination of the past  - which divided our society into racialized 
>communities to begin with.
>
>
>
>I would love to hear your perspective on this
>
>
>
>As to Mallas constitutional issue it seems to me the governments goal here 
>is community control which is why I dont see why you have to identify the 
>community by race in order to achieve the goal of community control other 
>than the rhetoric of black/brown power, etc.
>
>
>
>
>
>
>
>yb
>
>
>
>
>
>
>
>
>
>***/////////////////////////////////////////***
>
>
>
>Professor Yvette M. Barksdale
>
>The John Marshall Law School
>
>315 S. Plymouth Ct.
>
>Chicago, IL 60604
>
>(312) 427-2737 (phone)
>
>(312) 427-9974 (fax)
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