Non-feasance

Mon Apr 24 22:02:33 PDT 2006

Earl Maltz writes: 

"I think that since race is a factor  in defining "community", strict scrutiny applies under Arlington
Heights."  

Hi Earl, 

Question - would you have the same view of predominantly white suburban communities - that decisions targeting their community are subject to strict scrutiny.  I think the same arguments apply - these communities are predominantly white because of long histories housing and employment and other forms of discrimination which made it difficult for minorities to move in. (Arlington Heights, just north of Chicago is a prime example of this) Yet, school financing plans have  traditionally have isolated these suburban communities from urban minority ones - and yet no one concluded that the decisions were subject to strict scrutiny, simply because race was a factor in how the communities were formed.  Rather, once the white communities were formed, then their communities are judged as communities, not as racial groups, even though they are almost exclusively white, and not by accident. Yet their decisions to include whites (and exclude blacks - see Arlington Heights itself) is seen as not racial, but geographic, protecting the character of the neighborhood (again see Arlington Heights) 

Another example here is Miliken  [which by the way was a suit brought by a little boy in my predominantly black childhood neighborhood - I taught him piano lessons when he was a tiny tot. ]  There the financing plan for the state specifically insulated predominantly white suburban districts from predominantly black Detroit, which meant that whites, (who controlled most of the finances - for reasons certainly, in part related to past and present racial privilege), got to drain Detroit of any possibility of adequately funding their school system without economicially ruinous taxation.  And yet, that decision was "geographic" not "race-based"  - because the decisions that racialized the suburbs were isolated from the decisionmaking that formed the school  financing plan. 

This is the current law. So, why under your view,  are decisions targeting the communities of minorities subject to strict scrutiny because the communities are racialized, while decisions targeting equally racialized white communites only get rational basis review.  Or put another way-  why are only black communities inherently constitutionally suspect.

 yb

________________________________

From: Earl Maltz [mailto:emaltz at camden.rutgers.edu]
Sent: Sun 4/23/2006 7:31 PM
To: Barksdale, Yvette; conlawprof at lists.ucla.edu
Subject: RE: Non-feasance

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
>
>
>
>***/////////////////////////////////////////***
>
>
>
>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
>
>
>
>
>
>
>
>
>
>***/////////////////////////////////////////***
>
>
>
>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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