In the New Republic Richard Kahlenberg repeats his argument (see here and here) that “The answer isn’t race — it’s class.” It’s not a bad argument — in my view its strengths and weaknesses are about equally balanced — and this short presentation of it is as good as any. It’s worth reading to see what you think.
I mention his article now, however, not to discuss that argument but because of a rather offhand observation he made while he was warming up. Commenting on the argument over assigning students by race in Seattle and Louisville, Kahlenberg noted:
The parents claim that this violates the proposition in Brown v. Board of Education that students should not be treated differently because of skin color. Advocates of the school policies, including civil rights groups, say that, under Brown, schools have a right to consider race because integration improves academic achievement and fosters better relations between races.
But wait a minute. These claims sound parallel, but are they? The parents are not claiming the violation of some “proposition” but that Brown recognized that every student has a fundamental individual right, guaranteed by the Constitution, to be free from state-imposed discrimination based on race.
By contrast, the Louisville and Seattle school districts want to “consider” race (a euphemism for basing school assignments on race; if all they did was “consider” race no one would be complaining) because they believe it to be a good policy. But are they really claiming a “right” to do so? If so, what exactly is that right, what is its source, what are its boundaries? Do they believe they have a “right” to discriminate against members of any group so long as doing so would “improve academic achievement,” etc.? What if Jews were disproportionately loud, boisterous, and disruptive; could the school districts adopt a policy that limited the number of Jews in any one school to no more than 3%, on the grounds that any more created a combustible “critical mass” that interfered with everyone’s education, including their own?
In short, if one looks closely at the defense of the state’s right to engage in racial discrimination when it believes it has a good reason (a “rational basis,” in the arcane language of “levels of scrutiny”), one sees a general denigration of the idea of rights altogether, or at least of the idea that race is a “suspect classification.”
ADDENDUM
I’ve recently been looking a Mark Tushnet’s interesting book on the Rehnquist Court. In his chapter on Ruth Bader Ginsburg Tushnet describes how her early career was devoted to the effort to move sex discrimination from “rational basis land” to “suspect classification land.” How ironic, then, (or if not ironic, something) that the latter part of her career, with all its votes in favor of racial preferences, has contributed to making “suspect classifications” less and less suspect. (For earlier discussions of what strikes me as a major reversal in feminist legal arguments, see here, here, and here.)
