Eric Muller, of Is That Legal?, is heavily, and interestingly, quoted in an otherwise predictable Adam Liptak article in today’s NYT Week in Review, “Palmer Raids Redux: The Pursuit of Immigrants After Sept. 11.” (Attentive readers will recall that Muller and I engaged in some friendly disagreement over a racial assignment policy at his daughter’s elementary school. See my posts, which link his, here, here, and here.)
Here, Muller judiciously defends a narrow, limited amount of racial profiling as long as it is done with intelligence and sensitivity. But in his view, we don’t really have the ability to do it in a way he would find legitimate.
There is a place, he said, for taking account of information about race or ethnicity, along with all of the other data available in modern law enforcement, in making judgments about an individual. But using race or ethnicity as the whole of the analysis is unacceptable, he said.
Professor Muller has concluded, however, that the people charged with implementing these more subtle judgments may not be up to the job.
“It’s not the case that after 9/11 national origin had nothing to do with a personalized suspicion,” he said. “But we’re not good yet in confining our uses of race and ethnicity to very moderated, limited intrusions. We just don’t do it very well. We can’t trust ourselves to do a little bit of racial profiling.”
For what it’s worth, I find Muller’s comments both thoughtful and thought-provoking. Although he doesn’t address here the other popular venue of racial profiling, university admissions, his argument does effectively remind us of the, er, tension in both conservative and liberal attitudes toward profiling. Many conservatives think race should never be the basis for state action, except by the police; many liberals think that race can never be a proxy for attitude or behavior, except in university admissions and employment.
I think this tension, this dilemma, is real, and I haven’t completely worked it out to my own satisfaction. Provisionally, and with no small amount of discomfort, I’m afraid that the “compelling” necessity/”narrow tailoring” standard may be about the best we can come up with (up with which we can come). Fairly and reasonably applied, this standard, in my view, allows such things as racial assignment of undercover policemen (Hispanics to Hispanic gangs, etc.) while it would bar the race-as-proxy-for- (what?) used by admissions officers and the diversity police in school districts.
“Fairly and reasonably applied, this standard, in my view, allows such things as racial assignment of undercover policemen (Hispanics to Hispanic gangs, etc.) while it would bar the race-as-proxy-for- (what?) used by admissions officers and the diversity police in school districts.”
But why? Why is desegregated schooling a less compelling state interest than effective policing?
Lots of conceptual work left to do . . .
Jim
Jim – I agree about the need for more conceptual work, and welcome it from others (on all sides of the issue). My answer, provisional at best, to your “why?” goes something like this:
If it is necessary to have an undercover cop in racially/ethnically defined crime groups (gangs, etc.), then there is simply no substitute for racial assignments. There is no alternative, which is the very essence of “narrow tailoring.”
In my view, by contrast, “diversity” is nice but not “compelling.” What is compelling is right, which I believe to be fundamental, for each individual to be treated “without regard” to race, creed, or national origin, a right which compels a very, very high bar (“strict scrutiny,” “compelling interest,” etc.) against discrimination on the basis of race.
Finally, insofar as a real, thoroughgoing diversity (as opposed to simply racially proportionate representation) is compelling — say viewpoint diversity in an academic setting — then race is not a valid or even terribly useful proxy for it.
John,
As I understand it, you:
1) Do not believe that racial diversity in the classroom is a compelling state interest.
2) Every individual has a right to be treated “without regard” to his or her race.
If this is a correct representation of your views, what would you have had the Supreme Court, Congress, the state legislatures and the local authorities do in response to Brown? What concrete steps could these groups properly take to integrate local schools? Or is that goal impermissible because it required steps (or seemed to embrace goals) inconsistent with #1 or #2 above?
Integrate local schools? If, when you say “Brown”, you mean the Brown v. Board of Education decision, uh, we don’t live in the 50s anymore. I seriously doubt there are many “whites only” schools left. Therefore, saying we need to integrate the schools is misleading. As long as everyone is given the same opportunity it is OK.
The situation this site seems to be directed at are the disparate opportunites according to race. For example, a 3.0 with a 1200 SAT is an automatic rejection for certain races (not limited to whites), but an automatic acceptance for other races. That situation is unfair to everyone.
Integrate local schools? If, when you say “Brown”, you mean the Brown v. Board of Education decision, uh, we don’t live in the 50s anymore. I seriously doubt there are many “whites only” schools left. Therefore, saying we need to integrate the schools is misleading. As long as everyone is given the same opportunity it is OK.
The situation this site seems to be directed at are the disparate opportunites according to race. For example, a 3.0 with a 1200 SAT is an automatic rejection for certain races (not limited to whites), but an automatic acceptance for other races. That situation is unfair to everyone.
Gus-
My point is simply that John’s beliefs, as I outlined them above, would not have allowed lawmakers or courts to do anything in response to the immediate aftermath of de jure segregation, i.e., post-Brown.
If I’m right (and of course John is free to correct me), then doesn’t that tell us something about the worthiness of those values?
The use of racial profiling in law enforcement is a logical extension of statistical analysis. It is well known that certain groups are involved in certain types of drug manufacture and distribution. It is both illogical to look for a 90 year Norwegian from Minnesota when looking for a heroin courier rather than a 20-35 year old Latin American on the southern US border. We all employ the same type of profiling in everyday life. If you were walking down a deserted street at night and saw a group of Mormon missionaries, those earnest 17-19 year olds in white shirts and ties, would you feel worried? How would you feel about encountering a bunch of fellows with their hats on backwards and carrying golf clubs? In academia race is used for the spoils system. Why should my education be any better if I sat next to an Eskimo or a Hindu? If this were true why not bring back a universal draft so we could all experience the joys of living with other groups in nice, controlled settings.
Jim,
You said,
“My point is simply that John’s beliefs, as I outlined them above, would not have allowed lawmakers or courts to do anything in response to the immediate aftermath of de jure segregation, i.e., post-Brown.”
As you stated above, one of John’s believes is that “Every individual has a right to be treated ‘without regard’ to his or her race.”
The situation before Brown was decided, and afterwards, was that people were being treated differently because of their race. They weren’t allowed to go to the same schools, eat at the same restaurants, etc. People were being treated differently because of their race.
Courts and lawmakers were integral in ensuring that the laws were obeyed and everyone was given the same opportunity.
Luckily, that time has largely passed by (There are instances of racism, of course, but very few supported by state or local governments and not nearly as blatant as practiced before the Civil Rights movement). No longer are people unable to buy a house or get into a school solely because of their race. That is a good thing.
That is a completely different situation from now. What the students want in the Michigan cases is equal opportunity: being treated the exact same as the person next to you regardless of the race. This is the same thing that the students wanted in Brown.
Jim – Those are fair questions. Sorry I didn’t respond sooner, but I’ve been out of town (see recent post on Boston trip). It’s late now, but here’s a stab at a reply:
1. As a matter of fact, I don’t believe racial diversity in classrooms is a compelling state interest. I do happen to think, as a general rule, diversity is a good thing, but racial diversity is only one kind of diversity, and not inherently more important than others (religion, sex, sexual orientation, geographical, national origin, political views, etc.). None of these, in my view, justifies racial or religious discrimination. Nor do I believe that race is a valid proxy for other characteristics or attitudes one might want in include in a diversity mix (ideas, opinions, experiences, poverty, etc.)
2. I’m not altogether sure what you mean here. Leaving aside the question of what Brown the actual opinion “really” said or “really” means, Brown can at least plausibly be read to stand for the “without regard” principle. At least in the South, the real end of de jure segregaton was a long time coming, as we all know. Thus, while de jure segregation lasted, i.e., for many years after 1954 in the South, the “without regard” non-discrimination principle that I favor would have not only allowed but required vigorous state enforcement action. In retrospect, however, and with the wisdom (?) that comes from hindsight, the vigorous action I would favor would have been aimed at eradicating all vestiges of discriminatory policies, but I would not favor using racially discriminatory means, i.e., racial assignments to schools. This leads to your second question.
After that period, i.e., after racial discrimination has been eliminated, say, in schools, which I think is what you’re getting at, I would ensure that race was NOT taken into account in school assignments (just as I would have done in eliminating the previous discriminatory policies). In the absence of discrimination, the barriers to integration are not civil rights problems. They may very well be poverty problems, if blacks couldn’t afford housing in the suburbs, for example. That would indeed be a problem, but it is not a problem to which racial-based busing of students is a solution. I think integration is good, but I don’t think state-enforced racial balancing is good, or even tolerable.
I’m still perplexed as to how someone could object, say, to a black third grader being forced to attend a far-away school — despite her and her parents’ strong opposition — so that white students could receive the benefit of being exposed to her and not react in horror to the legion of school transfer denials (a couple of which I’ve cited) where transfers have been denied explicity for that reason. And yet “civil rights” groups have routinely defended such policies, and continue to do so.
John-
Now my turn to apologize for delays in responding.
To pick up on a couple things:
1. While racial diversity is indeed only one form of potential diversity, I think mixing it into the others you list is largely unfair to its history in our country. The problem of race really has been the problem of our country in the 20th century, and arguably in the 19th and 21st as well. I don’t mean to say that the other types of diversity you identify are unimportant, but that perhaps most are less important.
2. I think the “without regard” principle breaks down because, as we’ve talked about before, race is still very salient in our society. It strikes me as bizarre, to say the least, that the government and the law cannot recognize or respond to that simple social fact. In terms of my somewhat unformed earlier question:
1955, somewhere in Mississippi, Town City. In Town City, there are two high schools, Davis and Carver. Prior to Brown, all the white kids went to Carver, all the black ones went to Carver. Carver is, as expected, in considerably worse shape (in any relevant sense) than Davis.
Also, as expected, Davis and Carver are not next to each other. Nor are they on opposite sides of Town City — say rather they are in the northeastern and southeastern corners.
Brown comes down. What are Town City officials to do without violating your “without regard” principle, or given classroom diversity’s reducing compelling-ness, the 14th Amendment proper? Because housing patterns follow schools (my understanding is this was at least as true back then as it is today), simply dividing the city in half (north or south, or however) will continue to yield highly-segregated schools. Perhaps not completely, but say maybe 80/20.
Suppose, finally, that Town City officials implement the geographic division and provide equal funding, staffing, &tc. to both schools. Is that necessary? Sufficient? Is busing necessary? Permissible, under your understanding the laws?
3. My final point for now is that racial diversity in schools in not only justifiable on its own terms, but because my final supposition above (equal funding, &tc) is a tenuous one. To put it most crassly: the easiest way to make sure the affluent suburban voters who control the political processes assure quality education for all is to give them a stake in the battle. Or, to put it more broadly: I disagree with your assertion that the secondary effects of de jure racism (what you describe as “integration problems”) are not the proper focus of civil rights law.
Jim – These are all reasonable points, and I hope my general disagreement with them will, in turn, suggest that reasonable people with good intentions can disagree without a commitment to color-blind policies being regarded as bizarre. Taking your points in order:
1. I completely agree that race has been, and continues to be, a unique, and uniquely fundamental, problem in American history. That’s why it, and religion, have been regarded, and should still be regarded, as uniquely protected categories, walled off from official discrimination. It is the preferentialists, not their critics, who would take away the special-ness of race and regard racial discrimination as no different from discrimination on the basis of geography or athletic or musical ability.
2. The more “salient” race is, the stronger the need for adherence to, not rejection of, the “without regard” principle. I believe government should recognize that race still plays too large a role in our society, but the way it should do so is rooting out discrimination root and branch.
I take your point about Mississippi in 1955, but would add the obvious point that the U.S. in 2003 is so far from Mississippi 1955 that the latter does not provide any useful models for federal policy today.
As a very minor aside, it also may be worth noting that “Town City,” Mississippi, was probably quite a bit different in 1955 from what you imagine. I don’t mean that it was less racist. I mean that, unless it was quite unusual, there almost certainly was not the geographical housing segregation you posit. In most Southern towns and even cities of that era, whites and blacks actually often lived in close geographical proximity. In my town, when I was growing up, and in most towns like my town, segregation actually required the busing of both whites and blacks; neighborhood schools would have resulted in integration. (The housing, of course, wasn’t equal, and it wasn’t integrated, with blacks and whites mixed together on the same street. Nothing was equal, and that was what was wrong with that society.)
Let’s leave law out of it for now. I believe Brown should have been interpreted to mean no official discrimination on the basis of race. In truly equal schools, thus, no racial assignments. Otherwise, differential spending to provide equal schools, enforced freedom of choice, etc., would be preferable to busing. I don’t think “integration” per se should be a Constitutional imperative, and I think the generation of busing did even more to set back sensible solutions to race than the more recent preferences have.
3. That’s what people said a generation ago to defend busing. What it caused was white flight and the near destruction of public schools. Even if what you say is true, children shouldn’t be racial hostages to adult policies.
If we lived in a dictatorship, or conceivably in a parliamentary system based on common law, i.e., without a rights-protecting Constitution enforced by courts and common reverence, it might be possible to bring about “diversity” (the quotes because we’re talking only about racial diversity, not real diversity) without dire consequences. But we are who we are. We do have a Constitution, and courts. And you can’t undertake controversial public policies that cut against the grain of deeply embedded principles without enunciating a new and better principle to replace the old one, a principle that will, in the way of Constitutions and courts, be applied to situation other than the one that gave rise to it. And it is the principle of diversity that I find truly destructive, not the particular practices you favor. It is the principle that would require relgious, sexual, etc., micro-management and regulation.
I remain convinced that as a society we’re much better off just saying no to all special favors and disfavors based on race, religion, and national origin. But then, you already know that….
John–
First off, my apologies if “bizarre” was offensive; remnants of the seminar room leaked into public discourse.
In further response:
1. I don’t see how it follows that recognizing the special nature of racial history in our country makes it an especially good candidate for the sort of “race neutrality” you support. If anything, it cuts in the other direction – because of the special saliency of race in our nation’s history, we are more obliged to correct for prior misdeeds.
I understand and appreciate, and to a certain extent agree, with your critique of racial preferences as extending the problem rather than the solution. But at the same time, I think it is wrong to assume that the only duty the government has going forward is to stop making the same mistakes it made previously. (Imagine an industrial company polluting a river and then suggesting that it was enough for it simply to stop its prior bad practices. Oh wait, GE tried that).
2. I do not understand your easy dismissal of my 1955 model. My model was designed to showcase what I see as flaws in the principles I outlined above, not any particular set of policy outcomes. So I ask you: what has changed in 2003 so that your two principles are more of a concern now than they were 50 years ago? Is diversity less of a compelling interest today than it was then? Do individuals now have a greater right to be judged “without regard” to their race now than they did then?
And I confess I don’t understand at all your point about Brown. However it “should” have been interpreted, I’m fairly certain that “separate but funded equally” was never really an option. And why shouldn’t integration be a constitutional imperative? Segregation and slavery were.
3. True enough that the policy I endorsed might have contributed heavily to white flight, but I take away the opposite conclusion: not that the policy was flawed, but that it demonstrated latent racism in our society. After all, in a perfect world what is more objectionable: children studying in an integrated school or parents uprooting communities to avoid that integration?
And how is racial diversity not “real” diversity? Are you suggesting that there is no identifiable non-white culture in our society? That such cultures might exist but the government should pretend that they don’t? Applying racial adjectives to nouns like “culture” is tricky and fraught with peril, but that doesn’t necessarily invalidate their application.
As a matter of constitutional theory I’m not convinced (in fact, I’m pretty sure I even disagree) that all principles must be applied “to situations other than the one that gave rise to it.” Can you explain that more?
I want to close by returning to the beginning of this thread, and my original question: setting aside our disagreement about whether diversity counts as a “compelling state interest,” can you give me some insight as to what criteria you use to decide what is and what is not a compelling state interest? (Without reference, if you please, to the 14th Amendment, because that is the mechanism which frames our question, not its answer).