Who is harmed by race-conscious assignment?

[Patrick Wiseman]

Sorry for the delay ... and the length ....

On Mon, 5 Mar 2007 at 1:36pm, Coyle, Dennis wrote:

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

Hardly - the whole point of taking race into account in student
assignments is to send them to integrated schools.  How else can a school
system assure racially diverse student populations?

:It's not surprising that when the academy 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.

Actually, my point was rather that the slope down which we've slipped is a
slope on which _any_ consideration of race gets strict scrutiny, even when
that makes little sense.  It's not "affirmative action" to take race into
account in student assignments; affirmative action is when race is taken
into account to someone's _advantage_, just because of his race.  Just as
no-one is _dis_advantaged by taking race into account in student
assignments, so no-one (or perhaps everyone) is advantaged by it.  That's
my point - it's _neutral_ (unlike the bogus "symmetry" in _Loving_).

: 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.

I'm not sure why you characterise my suggestion as neo-separate-but-equal.
Again, the whole point of race-conscious student assignment is to end up
with integrated schools.  So it's more like equal and not separate.

: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.

It's hardly psychobabble to reject the _Plessy_ view that if the race
separated from the majority race _by_ the majority race perceives that to
be demeaning, that's their problem!

: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.

I don't see why you'd need to repudiate _Brown_.  When the Court says
"separate is inherently unequal," it's speaking of separation imposed on a
minority race by the dominant race.  There are cogent arguments around
these days to segregate some levels of education by race (and gender) in
pursuit of some rather compelling educational goals.  Segregation of old
served no such ends.

: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.)

Governmental neutrality in the face of societal non-neutrality is not
neutrality, it's endorsement.

: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.

You misstate my position.  My point was that there _is_ no classification
by race when falling one on side or the other of the race line subjects
one to the same potential for being assigned to a school on the basis of
race.  So your "denying free speech" analogy is misplaced.  And racial
_classification_, when done in order to deny liberty, might well violate
due process (as the Court sort of said in _Bolling v. Sharpe_) as it would
be irrational.  But that's not at all the situation with the student
assignment cases.  What "liberty" is being denied on the basis of race?
The "liberty" to attend the school of one's choice, perhaps?  Why, as I
asked in another response, is that the constitutional baseline?  Is it one
of those rights "implicit in the concept of ordered liberty"?  I wouldn't
think so.

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