Bork on Civil Rights Laws

[Scarberry, Mark]

In the same vein as Professor Bernstein's post:

At the AALS law and religion program Joanne Brant argued for a very
expansive notion of state action in order to limit discrimination by
religious groups. She answered "yes" when I asked her whether her theory
would also lead to the prohibition of private affirmative action plans. She
blamed Adarand but agreed that under her approach private employers (for
example) would be prohibited by Adarand from engaging in voluntary
affirmative action. Her approach is frightening for other reasons, too, but
isn't private affirmative action essential to the welfare of minorities?
(Especially private affirmative action by minority businesses--e.g., the
black small business owner who hires other African Americans.)

But perhaps this subject belongs on the conlaw list. (And I do think,
contrary to Bork, that eradicating racial discrimination is a sufficiently
compelling interest in most cases to overcome expressive associational
claims.)

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu



-----Original Message-----
From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
Sent: Thursday, February 03, 2000 11:23 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Bork on Civil Rights Laws


Who's to say that if constitutional assocational freedom is destroyed,
that in the long-run it won't be the minority groups (who, after all,
are in the political MINORITY) who won't suffer most?  It always amazes
me how willing folks are to give up constitutional rights because doing
so comports with short-term political considerations, with little if any
thought to what happens if the political consensus/dynamic shifts.

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> <JMHACLJ at AOL.COM> 02/03/00 11:51AM >>>
Brian Landsberg wrote:

<< The question then, as now, is freedom for whom?  Freedom for whites
meant
that people of color lacked associational freedom. >>