By chance, I came upon a discussion of the latest race conscious school choice plan case that reached the Supreme Court, one that argued that the intent of the Fourteenth Amendment was to combat racial caste and thus "benign" plans of this sort were constitutional (and probably good policy in some fashion). This is an example of the need to put words in context, including the famous words of Justice Harlan's dissent in Plessy v. Ferguson. Words in this context probably used more by opponents of race conscious plans than supporters. Consider the very beginning of Justice Stewart's dissent in Fullilove v. Klutznick, a racial set aside case involving federal contracting:
Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . The law regards man as man, and takes no account of his surroundings or of his color. . . .
Those words were written by a Member of this Court 84 years ago. [Harlan's] colleagues disagreed with him, and held that a statute that required the separation of people on the basis of their race was constitutionally valid because it was a "reasonable" exercise of legislative power, and had been "enacted in good faith for the promotion [of] the public good. . . ." Today, the Court upholds a statute that accords a preference to citizens who are "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts," for much the same reasons. I think today's decision is wrong for the same reason that Plessy v. Ferguson was wrong, and I respectfully dissent.
It is often said that there is a firm divide in judging, liberal vs. conservative, but though Justice Stewart was a moderate Republican, he also was on the liberal side of things (particularly in press matters; but, his concurrence in Roe was if anything, more powerful than the main opinion for its simplicity in underlining its legitimacy). In this very case, Justice Stevens (who dissented, on statutory grounds, in the Bakke decision) raised the specter of Nazi race laws in regard to the lengths one must take to determine who is protected by such set asides. Earlier, in DeFunis v. Odegaard (the affirmative action case that was never to be), Justice Douglas also gave the likes of Justice Thomas good fodder with lines such as:
The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone.
But, when you actually read the opinions involved, you run into various problems. A honest analysis of the question suggests difficulties that do not quite seem to be adequately answered. For instance, Justice Douglas suggested the LSAT test was racially (or otherwise) biased, a reflection of the deep problem at hand that had to be faced, even if this one method was not used. A telling problem, since many affirmative action opponents simply do not provide adequate alternatives; the true radicals might be opponents who also demand the deep structural changes really necessary for a shot at true equality. The problem is that after he raised this possibility, Justice Douglas noted: "We are not faced here with a situation where barriers are overtly or covertly put in the path of members of one racial group which are not required by others."
This would possibly justify a race conscious solution as would past discrimination of the particular people directly involved. Even Justice Scalia accepts use of race in this case, most clearly shown in the school segregation cases, the remedies in place to "undo the effects of past discrimination." But, Scalia notes this is a neutral matter -- "race-neutral remediation" based on who was getting hurt, no matter what race. Such remedies, such as those tied to income, very well might disproportionately benefit blacks. But, that's legally acceptable [though de facto discrimination does raise concerns, Scalia generally does not think that should be the test]. Douglas also raised the possibility of "neutral" (the quotes suggest my doubts) solutions such as individualized judging of candidates based on such factors as hardship and fighting discriminatory conditions. There is some bite to this p.o.v.
But, reality was more messy than claimed by some of these opinions. For instance, let's take the case of plans dealing with blatant school segregation in the 1950s and 1960s. Plans were set in place with the understanding that some reasonable subset of the school should be "black" (somehow not taking Nazi-like laws to determine). Though some discriminated against community as a whole might benefit, in no way did such plans (or really could they realistically be) only benefit specific families or individuals hurt in the past. In fact, as long as it was intradistrict (per mid-1970s case law), the remedy very might include parts of an area that historically did not discriminate much at all. Repeatedly, the opposing justices also noted such plans did not deprive students of slots in school. Oh? It is likely that those refused entry into college or law school can get in somewhere. As seen in the recent school cases, the problem is that the slots are not totally fungible -- some schools are better than others.
Thus, in practice, the remedy in school segregation was not narrowly tailored to individual students that suffered past or ongoing discrimination. A remedy would benefit newcomers as well. They were also race conscious. Some, like Justice Thomas, raise doubts that even this hurts their case. Perhaps, all black schools with adequate resources are the answer. Why should blacks need to go to "white" schools to get an adequate education? Justice Thurgood Marshall would answer that the key to an integrated society -- one in which per Scalia, there is only an "American" race -- is one in which the races actually come together. This is especially key in the lower grades.
And, per Justice Blackmun, if we have to take into consider race to deal with racism, so be it. What is the real alternative? As Marshall noted, it does not erase the truth that "all persons have equal worth" to argue that "it is permissible, given a sufficient factual predicate and appropriate tailoring, for government to take account of race to eradicate the present effects of race-based subjugation denying that basic equality." Justice Powell in Bakke said that "societal discrimination" was not adequate to justify race conscious programs. Why not? School segregation had to be fought with broad solutions.
Furthermore, it took legislative action to truly start the road started by Brown to make true in roads (it remains fundamental as setting the constitutional rule) via threatening federal funds. So, those justices who suggested legislative action in this area as compared to judicial mandates (attacked by Thomas et. al. as undemocratic etc. anyway) was troubling also leaves something to be desired. Justice Stevens [cf. his dissents in Fullilove and Adarand Constructors v. Pena] is correct to be wary about the scope of such legislative moves. They can be nothing much more than some sort of patronage system or a little thought out "solution" that does not take into considerate the special care warranted in this area (even Justice Brennan et. al. claimed to require intermediate scrutiny in this context).
But, Stevens' dissent in the "strict scrutiny" ruling in Adarand suggests (his earlier Nazi citation notwithstanding), some legislative policies can past muster. Adarand called into question giving some more wiggle room to the federal government, which earlier rulings suggested had more discretion given express power to enforce the Equal Protection Clause in the Fourteenth Amendment. Justice Scalia had earlier also used a structural/Madisonian argument about the dangers of smaller communities and the lessons of history. This in a case involving an affirmative action plan in Richmond, Virginia. But, Marshall/Blackmun was right to see this as a bit ironic -- if locals, with the lessons of history and pressure from disadvantaged groups now with real voting power, tried to provide remedies, shouldn't this be a good thing?
And, go back to the true nature of the problem at hand. In his Fullilove dissent, Justice Stevens questioned the legitimacy of the federal contracting law (not just its breadth; again, cf. Adarand) by noting that "both federal and state laws have prohibited discrimination in the award of public contracts for many years." As with the reality of "neutral" voting laws, this is rather naive. The fact that equality was legally mandated -- after all, equality was apparently the rule since 1776 -- does not mean it actually was enforced in practice. As Marshall noted in his dissent regarding the Richmond case, if the government ignores private discrimination when handing out contracts, it very well might "perpetuate that discrimination." The solutions might be difficult, but when the problems themselves are not adequately expressed, we are in trouble.
Likewise, let's look at that famous dissent. It is best to key paragraph in full:
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
Justice Ginsburg (Adarand dissent) highlights how even Justice Harlan was not truly of the mind that whites and blacks were fully equal, surely not that race was of no relevance. This is telling enough. But, note the use of "caste" and "classes," a typical understanding of equal protection, one with origins in Jacksonian America and the ban on titles of nobility. Does a remedial race conscious program form "castes?" Use of race, gender or whatnot to promote "diversity" or whatever arguably will lead to "classes" of citizens, though in context, the word seems to connote unequal classes, like levels of nobility. But, neither is really about some "better" race. Harlan does argue the law cannot take account of race -- but this was not an across the board rule. He did not oppose miscegenation laws. This was a "social" matter. Slots in a private university also is not currently a "civil right" like voting (the likes of Justice Thomas do not even consider government benefits "privileges or immunities of citizenship"). Harlan opposed mandated segregation of colleges, but even then he specifically did not include public schools.
Later he notes:
Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.
This underlines the necessity of integration and how segregation (even de facto) is so problematic. Justice Stevens (in an opinion before he supported rejecting the racial set aside in the Richmond case) underlines that some uses of race are permissible to advance this end, suggesting appearances matter as well:
In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty. For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous "melting pot" do not identify essential differences among the human beings that inhabit our land. It is one thing for a white child to be taught by a white teacher that color, like beauty, is only "skin deep;" it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.
Ditto in respect to selecting police officers, broadcast licenses (to promote diversity) and certain other contexts. Selectively citing Harlan's concerns is sort of cheating. Maybe, racially conscious programs are not necessary to obtain this end, or (per Kennedy in the latest ruling) they must be less blatant than your typical racially conscious affirmative action plan. But, integration is a compelling state interest. The same can be said about some aspects of the move toward "diversity," no matter how some ridicule such concerns. Some sound arguments can be made that race based programs can cause such divisions, even such "hate," though few would think some absolute rule would be necessary. Justice Thomas takes the extreme view:
I believe that there is a "moral [and] constitutional equivalence," between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
This is asinine. It does not necessarily justify it to put in different categories appointing Marshall or O'Connor to the Supreme Court in part because of their race/gender and earlier efforts to keep blacks and women off the courts (or from being lawyers). Likewise, government programs and laws most assuringly do at least help us on the road to equality. In fact, you can believe that equality is our birth right, not a right given by governments (positivists beware), but even then governments can make certain classes of people in various respects "equal" in the area of civil rights. For instance, vets and non-vets can obtain equal benefits pursuant to some civil rights law. To the degree we are "equal" outside the area of law's cognizance, the Constitution and such is somewhat besides the point. We are not talking equality writ large here, but under the law.
Harlan again:
Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.
This hits to the core of the issue. We are not talking simply "equality" or not using race as a factor at all. We are talking about "sinister legislation" that interferes with the "civil rights" of blacks. Legislation that in effect excludes them from equal inclusion in the political community, threatening our very republican form of government in the process. As an aside, a state law (not just federal) that does the opposite seems benign. Anyway, this hits to the core of "invidious discrimination," which -- Thomas et. al notwithstanding -- is not the same thing as recognizing some differences, and/or attempts to attack the very problem at hand. Problems that underline, talk by Scalia of no race but "Americans" aside, we are racially divided.
Trying to ignore it by acting in some totally "racially neutral" way will not stop that -- in fact, in the end, it very might well further the underlining problem. Thus lies the dilemma with which we are faced. Even supporters of affirmative action -- and Stevens-like wariness in the courts is a good policy given various factors, including the perils of various good intentions -- realize the "solution" has problems. But, in practice, things are not as clean as the other side suggest as well. Still, they have something to teach us (to a degree) at the dangers of solutions to "compelling" problems. Justice Douglas again:
The argument is that a "compelling" state interest can easily justify the racial discrimination that is practiced here. To many, "compelling" would give members of one race even more than pro rata representation. The public payrolls might then be deluged say with Chicanos because they are as a group the poorest of the poor and need work more than others, leaving desperately poor individual blacks and whites without employment.
This simplifies the problem, but raises an important red flag all the same. Just pointing to a problem (e.g., crime) does not justify any solution (warrantless searches). But, it is useful to note that the "public payroll" are likely to have a disproportionate number of disadvantaged classes, as someone who worked for the New Deal like Douglas would know (e.g., the poor in civil service jobs). So, his example does not really amount to much -- yes, being black or poor would not obligate the city to give the person a job, but some program that favors them (in real numbers at least) makes some degree of sense. And, there are limits, especially if we accept some compromise in between the extremes. See, e.g., Stevens' dissent is Adarand, which notes the program in question had economic requirements, oversight and was overall of limited nature.
And, yes, race conscious programs are problematic and divisive. So is the status quo. Likewise, any solution is likely to be race conscious in some fashion. Again, special care can be used, limits be put in, and this still be the case. So, if possible, programs that largely focus on class can be used, even if the results are disproportionately black or Hispanic in various cases. Or, some sort of "head of school" rule. An honest accounting will suggest such policies are not just concerned with merit (the best of some schools are not that good) or free of race consciousness (often the real reason for such policies), or that "neutral" techniques like individual analysis of candidates will in practice take into consideration race. We have to make questionable choices ... doesn't mean we can make the best of bad situations and avoid more questionable options.
Overall, I understand the concerns of those who oppose race conscious programs, and think the other side often does not adequately address them. Given my druthers, I would avoid them, even when the ends (such as diversity) are to my liking. This sometimes would lead me to support more radical solutions, such as someone who opposes Obama's health plan in lieu of universal health care. And, I realize sometimes the likely alternative is as questionable in various cases. But, they are helped by some less than stellar arguments as well. A reasonable/rational policy needs to address the complexities and not be as tied to standard lines of rhetoric and dismissive scorn.
Simple, right?