In this edition of Quote Mining! TM we have two quotes from Supreme Court opinions on Race:

Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

50 point question: Does the second quote follow logically from the first?

100 point follow-up quetion: Doesn’t it also follow that even well intended school programs that use race to determine enrollments are illegal?

Special bonus question: Wasn’t the Supreme Court’s decision in Parents Involved in Community Schools v Seattle School District No. 1 a no-brainer?

Thanks for playing. You can collect your parting gifts in the comments section.

(h/t Carpe Diem and The Debate Link)

UPDATE: Oops, the first quote is from a brief for the Brown v. Board of Education case not the court’s opinion. The brief was written by Thurgood Marshall, future Supreme Court Justice. Details, details…

UPDATE 2: Here’s something I wrote 4 years ago about race:

The question remains of how to remove the structural racism. The answer is not obvious but it is obvious that you can’t create color blind institutions by color conscious policy. The policy would be a constant reminder of the thing its trying to erase.

12 thoughts on “Race”

  1. And his mission being accomplished, Thurgood Marshall retired from the public scene, never again commenting on issues of race and racism and certainly never writing an opinion in the original Affirmative Action case, Regents of the University of California v. Bakke, fervently supporting the maintaining of race-conscious remedies for past and present racial discrimination.

    It is unfortunate, but I suppose inevitable, that we must rely on one brief written by Marshall to get the totality of his views on race-related policy. It’s not like we have literal volumes of opinions and writings that we might be able to work from to get a more complete view. However, were we able, through some the super-human effort, to unearth a copy of “Supreme Court Reporter” and thus divine Marshall’s complete belief on this subject, I have no doubt that we would all present his views accordingly, and call out as intellectually dishonest those who would take the outlier and substitute it for the whole.

  2. David, you’re violating the rules of Quote Mining… You can’t add context! 🙂

    But whatever Marshall’s opinions are, I think if you’re interested in undoing structural racism you have to confront the argument suggested by his quote and Chief Justice Roberts’ sound bite.

  3. “The question remains of how to remove the structural racism. The answer is not obvious but it is obvious that you can’t create color blind institutions by color conscious policy. The policy would be a constant reminder of the thing its trying to erase.”

    You know, I never thought studying for the LSATs would yield any useful skills (beyond passing the LSATs), but lo and behold, this a textbook logical mistake (literally, in that my textbook points it out as one to watch for in the “logical reasoning” section). The slide from ending “structural racism” to creating “color blind institutions” is fallacious. I may be (indeed, am) interested in structural racism without being particularly interested in creating color blind institutions (or at the very least, value one far over the other).

    In response to C.J. Roberts’ quote, I’d refer to this post by Maryland Law Professor (go Terps!) Deborah Hellman. As to Thurgood Marshall’s quote, I think there are two likely candidates for reconciling it with his later work.

    1) Litigation strategy: Brown v. Board was a huge case–one with revolutionary impact, one Blacks had a lot invested in, and one guaranteed to elicit a massive negative reaction from White southerners. When you’re trying to get the Supreme Court to take a radical step, you don’t phrase it in the most radical possible terms. Talking, at that stage, of “racial balancing” and busing and forced integration and affirmative action would be a suckers bet and a sure way to lose. As Marshall’s later work demonstrates, lay the foundations first, then build from there. Don’t try to put all your eggs in one basket.

    2) Marshall meant what he said–in 1954: In this scenario, Marshall genuinely believed that with the abolishment of all racial distinctions, racial discrimination and inequality would end. 25 years of living as a Black man later, he had realized that he was, in fact, wrong, and there remained a racial hierarchy in America that put White over Black. So he began advocating a different approach. This evolution, incidentally, would be similar to that undergone by such Black luminaries as Fredrick Douglass and W.E.B. Du Bois, both of whom at first thought that only minimal steps would need to be taken to bring about racial equality, and both of whom grew ever more disenchanted with that prospect as their lives progressed (in Du Bois’ case, culminating in declaring himself a communist, renouncing his citizenship, and exiling himself to Ghana (“I am departing America and I have not set a date for return.”), where he died one day before MLK’s “I have a dream” speech).

  4. A fallacy if you think “structural racism” and “color-blind institutions” are distinct concepts. On the face of it, the phrases seem to be synonyms to me… so I went to look at the post you link to and the post you just put up on your site to get some help with the distinction.

    Neither was much help.

    Discrimination (the bad kind) implies using some irrelevant criteria to give advantage to one group over another. Discrimination (the neutral kind), separating people into groups, is necessary to be able to do the bad discrimination. As your professor points out, its an empirical question of whether neutral discrimination is also a sufficient condition for the bad discrimination.

    My shoot from the hip theory on this would be that because color conscious policies, like these, cause real harm, the neutral discrimination is mis-perceived to be the bad kind. And perceptions matter. Racial animosity is just the perceptions groups of people have of each other.

    Because the kid and the kid’s parents walked away from their experience with the school boards saying, “hey, I got screwed and I got screwed because of my race,” the policy perpetuates racial animosities (whether or not the policy was meant to do so or not).

    BTW, I’m not colorphobe. I enjoy diversity of culture (which is multicolored); I think its America’s greatest asset. I’m a policy-that-causes-racial-animosity-phobe.

    In any case, I wonder if anybody has checked to see if there’s correlation between the existence of color conscious policies and levels of racial animosity… there must be data on this… I smell a dissertation topic…

  5. Perceptions do matter. But who (or what) do we blame for them? If a White person is more inclined to be angry at Blacks because affirmative action policies exist, we still have to make a normative judgment about who (or what) is in the wrong. To put it another way, consider this post I wrote on the statement “Israel is the greatest threat to world peace.” People have defended that by saying that, regardless of what you think of Israel, it is most likely to be the flash point for a major catastrophic global conflict. I responded that since it generally takes at least two parties to start a conflict, “greatest threat” has an inevitable normative component–depending on who I fault, it would be just as sensible to say “Islamic radicals” or “Palestine” is the greatest threat to world peace as it would be to say Israel, and by naming one or the other I am assigning blame, not just describing a situation. Since I think White people have no strong moral basis for disliking Blacks more than they already do based on AA, I think that the fault for any increased animosity lies on their shoulders.

    But that entire paragraph is irrelevant if it turns out that race-conscious policy do not increase racial animosity. Most of the studies I read dealt with education see the amici briefs collected here, and they point to a decrease that comes from diverse educational surroundings. As a general matter, Richard Delgado (“10 Arguments Against Affirmative Action — How Valid?”) has noted that in the 30 years since America has adopted race-conscious remedial practices, public perception of Blacks has gone up, not down. The data isn’t exactly conclusive, but it points strongly in the direction that race-consciousness policies that speed up social integration helps, not hurts.

    Finally, structural racism is a concept that was developed generally to explain how racism could persist in a color-blind institution. American drug laws don’t sentence dealers to harsher sentences based on their race, for example, in that sense, it is a color-blind institution. Nonetheless, the crack/powder cocaine disparity means that the weight of our drug enforcement falls far heavier on Blacks than on Whites, even though Whites constitute a majority of drug users (and even though–in theory–a White crack dealer should see the same punishment as a Black crack dealer). Redrawing a district boundary to reflect economic demographics–in an area where race and socioeconomic status are linked–can ghettoize Black people without using race explicitly or implicitly. Individualized prejudice, be it conscious or subconscious, may continue to exert meaningful effects on Black people even while being too minor or inconspicuous to find legal remedy.

  6. Can policy combat internal resistance to integration, e.g. negative perceptions of “acting white?” If you’re limiting the scope of this argument to Black integration in mainstream American society, I submit that Blacks seem to face a much greater risk of being ostracized by other Blacks than other groups. This seems to present challenges (in addition to structural racism) to individual Blacks who seek greater levels of integration.

    I’m interested in conclusions on how forced integration (race conscious policies) affect long-term voluntary integration. This seems plausible. It’s difficult to maintain faith in stereotypes when you are exposed to exceptions to those stereotypes on a daily basis.

    Looking at friends I’ve known since grade school, they make many, many more racist statements now than they did before entering the workforce. It may be that they held these beliefs all along and concealed them, but I suspect that their beliefs grew stronger as their daily exposure to different cultures shrank.

  7. Its not enough to show that these policies have benefits… I’m sure they do. The important question is: do those benefits outweigh the harms I described above?

    I agree drug policy is a sort of instituted racism. It doesn’t follow that the remedy is a color-conscious policy. (I’m a nutty libertarian on this point… End the drug war.)

    Also, Blacks aren’t the only ones harmed by invidious policy like race-motived redistricting. In fact, my point above was that the White kids were harmed by the race-motivated policy.

    On your substantive point: your discussion of Israel makes sense because there are political realities, we live in a world of nation-states, and geographical realities, there’s millions of Arabs and Jews living in close proximity, that force the issue. You’re forced into one normative statement or the other.

    These realities don’t exist in the race case. We have a choice between a non-normative color-blind policy (you go to school based on where you live and your academic performance) and a normative race-based policy (“you can’t come here because you’re white”).

    Of course, you could argue that the first is normative because “where you live” and “academic performance” are correlated with race. This is true only because these things are correlated with economic status which is correlated with race. The poor white redneck in the Ozarks has more in common with the poor inner city black guy than he has with me or the black guy has with a black lawyer. Is there any evidence that middle class black kids do worse than their white counterparts?

    The issue, then, is economic status. This is why many folks, me included, are ok with economic-based AA.

    Race-based policy cause gross harm (although its up for grabs if they cause net harm) and they don’t even cut to the heart of the issue.

  8. Swong, two points:

    1. For long term effects, see the brief linked to at David’s site starting about page 14. “According to Wells’ study, which based its conclusions on data drawn from interviews of over 500 high school graduates who graduated from desegregated schools in 1980, educators, advocates, and policy makers who were involved in racially diverse public high schools nearly twenty-five years ago, found that “the vast majority of graduates across racial and ethnic lines greatly valued the daily cross-racial interaction in their high schools. They found it to be one of the most meaningful experiences of their lives, the best—and sometimes the only— opportunity to meet and interact regularly with people of different backgrounds.”

    2. I’m not so sure I care about things like people making “racist statements.” This seems to be aspect of human nature. What concerns me is do people of all races have the same opportunities to succeed, e.g. are your friends less likely to give black people opportunities… hire them for jobs, etc.

    And if they don’t, I’m not interested in race as a covariant of the primary causal factors. Does race, in and of itself, relate to substantial inequality of opportunity? Specifically, could economic status explain most of the variation in opportunity by race?

  9. I’m using racist statements as a loose indicator of racist beliefs. I’m making the (possibly erroneous) assumption that a person who says “dumb niggers should stick to eating watermelon” might be a smidge biased when evaluating an African American’s loan application. If you believe that something like, say, cognitive behavioral therapy works, can it work in reverse? By hearing and repeating racist statements, can one make oneself more racist?

    Re-read the quote from #1. If cross-cultural exposure is so wonderful, why is it their only opportunity to meet and interact regularly with people of different backgrounds? What currently limits voluntary exposure?

    The harm vs. good question is perfectly valid, and I think that any conclusive answers to that question will be controversial. One thing I’ve always wondered, and this is deeply personal: how does race-based AA function when considering individuals of mixed heritage? Do you always pick the favorable half/quarter/eighth/sixteenth/thirtysecond? With trends like this growing, it’s bound to come up at an increasing rate. Does it make sense to displace a German/Brazilian American student in favor of a Haitian/Korean American student for the sake of promoting cross-cultural exposure? At that point, aren’t you, like, done?

    You’ll probably cringe at this, but the authors of Freakonomics seem to have answered your economic status question as a substantial “yes.”

  10. Can’t remember the chapter number, but the first reference involved parental choice of schools, and the second reference involved “Black” vs. “White” names on resumes. The conclusion of the first was that the socioeconomic status of the parents is a far better predictor of success than race and school choice. The conclusion of the second was that “White” names tend to get more callbacks for interviews, but names don’t do much more than pre-set expectations for a first impression.

    The closet conservative in me wonders why the rest of us have to pay extra taxes because some people picked bad parents. Where’s the personal accountability?

  11. Push: Actually, there is evidence suggesting that Black middle-class denizens perform worse (on a variety of metrics) than their White counterparts–indeed, that a White kid growing up in a family making $20,000/year has better life chances than a Black kid in a $50,000/year family (cited in Delgado, supra). Hence, we move to this statement…

    Of course, you could argue that the first is normative because “where you live” and “academic performance” are correlated with race. This is true only because these things are correlated with economic status which is correlated with race.

    Well, “where you live” is more closely tied to race due to housing segregation patterns than it is to economics, per se (part of the reason why your equally poor White guy and Black guy are living in the Ozarks and the inner-city, respectively). It also only gets us so far–as you admit with your academics exemption, it can presumably be outweighed (magnet schools and the like). More importantly, I’d question your claim that it is normatively neutral even on its terms. Of course it isn’t–it’s taking the normative stand that it is more important to send kids to school closest to their house than it is to send kids to schools that a racially diverse. That’s a subjective value judgment.

    The “academic performance” metric, in addition to making very little sense in primary education (what does it even mean to be an academically meritorious six-year old? I can color in the lines better?), can also be racially tinged depending on what “performance” means. In a college context, performance quite obviously refers to more than just academics–such things as community service, musically ability, extra-curriculars, sports, personality, or even an intellectual talent not demonstrated in a GPA (a great debater, say), all play a role. First, I’d note that weighing these against each other is inherently subjective–how many hours of community service does it take to equal a year of first chair in the band? So right there the objectivity we cherish is pretty illusory. Second, though, the manner by which we weigh them has racial implications. If we implicitly weigh attributes socially or mentally coded as “White” over “Black” (say, being a violinist over being a hip-hop MC), that would skew performance on racial lines. I’d digress here and say that one of the metrics colleges ought to and do use is creating the best possible educational climate for its students–something that requires a diverse array of experiences, backgrounds, interests, and perspectives (my college certainly would be a far worse place if it was just a bunch of White dudes, no matter how smart they were). Being part of an underrepresented race is definitely meritorious along this axis.

    Even on the pure academic side, though, merit isn’t a stable subject. My (liberal, progressive) high school definitely valued formalist technical analysis in papers over deconstructive or revolutionary perspectives–which makes a difference if you’re on the top of the hierarchy (and want to preserve the status quo) versus the bottom (and want to overthrow it). English class might focus on the Dead White Male canon, which may speak more to White experiences and history than a curricula centered around the many great Third World (or American minority) authors. Government class might idealize its perspective based on a vision of an inclusive social citizenry that would seem foreign to people who have been historically excluded from the civic table, whereas the class could demand of its students to demonstrate a keen grasp of what it means to be oppressed by the state to demonstrate “merit”. All of this is to say that merit is not a metaphysical absolute–it is a cauldron of competing socially sanctioned values that can be mixed in a variety of ways to manipulate outcomes the way we like them.

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