Who is harmed by race-conscious assignment?

Mon Mar 5 14:43:37 PST 2007

The Seattle and Louisville plans do not separate students by race.  They
integrate them.  So it's hard to call them "separate but equal" plans,
isn't it?

>>> "Coyle, Dennis" <COYLE at law.edu> 3/5/2007 12:15 PM >>>
I'd love to get more specific reactions from anyone on the points and
questions I raised about EP doctrine, and what I take to be Prof.
Wiseman's central point: if there's no disadvantage, where's the EP
violation?  My three numbered points were attempts to address that.

If the discussion of Maslow and anti-subordination theory needs to be
continued, it might be better in a different thread or on a different
listserve. I'll send a couple comments separately, and look forward to
comments here on the doctrinal issues.  In that regard, would it be fair
to summarize your argument, Prof. Pollack, as:

Anti-subordination theory could provide a superior and more clear guide
to EP doctrine.  Race-conscious measures intended to improve the
opportunities of those affected by a legacy of slavery and
discrimination do not violate EP, simply because in application they may
incidentally foreclose specific opportunties of specific persons (such
as the opportunity of a white student to attend a particular public
school). Whites have benefited from a discriminatory past and present,
so it is disingenuous to say that only formal neutrality by government
meets EP standards.  

That may address the larger EP question, but the Court is not likely to
go there soon, whereas they could be expected to at least answer Prof.
Wiseman, whose "where's the disadvantage" question more centrally
questions the rationales they currently use. So I'd still appreciate any
comments from anyone on my points in terms of current and recent
doctrine, and Wiseman's query. I had responded in part:

"Others more closely familair with the history of Brown may be in a
better
position to comment, but isn't this somewhat the problem the Court
faced? ...

The choices may be:

1) Assert that in a more enlightened age separate but equal is
possible,
repudiate Brown, and either withdraw the courts altogether ... or
require some set of procedural safeguards to lessen the
likelihood of exploitive, unequal racial classifications.

2) Accept a Harlanian argument that EP requires colorblindness, that
the
government is denying equal protection when it constraints life
opportunities on the basis of race, even when the opportunities are
deemed
comparable by a legislature, court, administrator or professor.  ...

3) Agree with Prof. Wiseman that classifying everyone by race (at
least
assuming empirical equivalence of opportunities) denies equal
protection to
no one, just as, say denying free speech to everyone denies EP to no
one.
Racial classification might still be deemed a violation of due process,
as
an illegitimate basis for limiting liberty.  ...

Thanks again,

Dennis Coyle
Catholic University of America

________________________________

From: Malla Pollack [mailto:mpollack at ajsl.us] 
Sent: Mon 3/5/2007 2:06 PM
To: Coyle, Dennis; 'Patrick Wiseman'; 'ConLawProf'
Subject: [Spam] [Score: 5.3 ] RE: Who is harmed by race-conscious
assignment?

Prof. Coyle errs -- at least in stating my position.  And probably in
other
ways :-)
1) Maslow is not "pop" physcology.  While the "top" layer of his
hierarchy
is consitantly being reconsidered, most (if not all) accept his basic
contention that persons first need is food and minium shelter.  When
food
and shelter are unproblematical, persons become concerned with safty. 
Only
when food and saftey exist does one develop the willingness to fight
over
status, etc.  When the Court says that stigma injury is no different
constitutionally than only being able to get minimum wage jobs, the
Court is
ignoring reality.  Brown is not just about stigma -- education in
reputable
schools is the basic key to good jobs in the USA in the 1950s and now.
2) anti subordination theory does not assert that some harms are more
important than others-- in the senes implied -- it recognizes that
stigma is
not the same as hunger is not the same as murder etc.  I would assume
that
most people recognize these distinctions.  It asks decision makers to
consider the "real" world -- this goes back at least as far as the
classic
realists eg. Benjamin N. Cardozo -- whose ox is being gored by the
legal
rule suggested.

3) (New) Yes, affirmative action is a "hard" issue but the issue exists
in
the USA because of slavery and other nasty things the USA allowed. Is
anyone
alive today "guilty" of slavery, no.  Can we easily trace the line of
"stolen" property to today, no.  Can we do something about the
continued
fallout of slavery -- yes.  I am not suggesting reparations to
individuals,
but I support strong positive government action to make sure that
children
born into lower socio-economic classes (regardless of skin color,
legal
status, etc) get good schools, good housing, etc.

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us 
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/ 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Coyle, Dennis
Sent: Monday, March 05, 2007 12:37 PM
To: Patrick Wiseman; ConLawProf
Subject: RE: Who is harmed by race-conscious assignment?

That's an interesting doctine, we could call it "separate but equal"
....

It's not surprising that when the academic overwhelmingly approves of
"affirmative action," having one's life opportunities determined on
the
basis of race might seem acceptable and constitutional. We have slidden
down
the slope, so Prof. Wiseman is asking a fair question.

 Prof. Pollack's response is interesting, but doesn't quite address
Prof.
Wiseman's question.  Anti-subordination theory suggests differential
harm or
differential valuation, in which the harm to some is deemed less
substantial
or worthy of concern, whereas I think Prof. Wiseman is positing a
neo-separate-but-equal state in which there is no harm, period.

Others more closely familair with the history of Brown may be in a
better
position to comment, but isn't this somewhat the problem the Court
faced?
That even in the face of facilities stipulated to be equal, they felt
compelled to create a psychobabble argument to establish an inequality,
and
thus an EP violation? This was a point of criticism by Wechsler, if I
recall
correctly.

The choices may be:

1) Assert that in a more enlightened age separate but equal is
possible,
repudiate Brown, and either withdraw the courts altogether ("once the
legislature has spoken the public interest has been declared in terms
well
nigh conclusive") or require some set of procedural safeguards to
lessen the
likelihood of exploitive, unequal racial classifications.

2) Accept a Harlanian argument that EP requires colorblindness, that
the
government is denying equal protection when it constraints life
opportunities on the basis of race, even when the opportunities are
deemed
comparable by a legislature, court, administrator or professor. (Of
course
Harlan also assumed inequality was natural and perpetual, and thus
segregation in law was unnecessary.)

3) Agree with Prof. Wiseman that classifying everyone by race (at
least
assuming empirical equivalence of opportunities) denies equal
protection to
no one, just as, say denying free speech to everyone denies EP to no
one.
Racial classification might still be deemed a violation of due process,
as
an illegitimate basis for limiting liberty.  As I recall, Wechsler
suggested
that would be a more candid basis for Brown, although due process was
still
under the long shadow of Lochner.

As for Maslow, perhaps it is just as well that he is ignored by the
Court,
although there is a certain affinity between the hierarchy of needs and
the
double standard of rights. And maybe the Court deems pop psych a more
legitimate source than foreign law. :)

Dennis Coyle
Catholic University of America

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Patrick Wiseman
Sent: Mon 3/5/2007 12:58 PM
To: ConLawProf
Subject: Who is harmed by race-conscious assignment?

Colleagues:

I was talking in class the other day about the student assignment
cases
from Seattle and Jefferson County, KY, and a student asked a good
question:  who is denied equal protection if _all_ students are subject
to
being assigned to a school based on their race?  (It may be that the
details of the programs are such that there are students who can claim
to
be disadvantaged by their race, but I want to put that aside for the
moment.)

As I thought more about the question, it occurred to me that explicit
racial classifications now get strict scrutiny regardless of whether
anyone is put at a disadvantage by the classification.  (I'm _not_
speaking here of the difference between invidious and benign
classifications.)  Since _Loving v.  VA_, in which the state argued
"symmetry" between the races, the Court has subjected all explicit
legislative mentions of race to strict scrutiny.  But VA's argument
was
bogus, the "symmetry" was false - the classification put uni-racial
couples on one side of a line (they could marry) and bi-racial couples
on
the other (they could not).

But there's a _true_ symmetry in the student assignment cases.  _All_
students, regardless of race, are subject to being assigned to school
on
the basis of race.  No-one is more or less disadvantaged.

(I'm also puzzled by the notion that Jefferson County is one day
constitutionally _required_ to take race into account, and the next,
after
the school system is declared "unitary," constitutionally _proscribed_
from taking race into account, but that's another matter.)

I'd be interested in reactions.

Patrick
--
Patrick Wiseman
Professor of Law
GSU College of Law
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