Well, as long as he’s “pretty perky” I guess everything is OK.

December 26, 2006

Pluribus E Unum

Goodwin Liu, the Berkeley law professor whose OpEd I criticized in the post immediately below, argued in that OpEd that “the idea that Brown prohibits ‘classification’ by race is profoundly revisionist.”

Professor Liu may not be aware that “revisionist” is frequently a badge of honor worn by historians, who take great pride in correcting earlier misconceptions and erroneous interpretations. In that revisionist spirit, then, I have decided to offer a Christmas gift to the opponents of colorblindness.

Since they have to engage in such contortions and distortions to “construe” so many of the foundational documents in the history of race in American in a manner that rids them of the principle that every American should be treated without regard to race, I decided to make it easier for them and “revise” these documents so that they no longer have to read so much into them or out of them.

Here are excerpts from some of those documents, written the way the apostles of racial preference wish they had been written (and “construe” them as though this is how they were in fact written).

Declaration of Independence
We hold these truths to be self-evident, that all men are created different, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Enjoyment of Diversity.
[Compare to the original]

Gettysburg Address
Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all races are created different.
[Compare to the original]

14th Amendment
...nor shall any State deprive any person of life, liberty, or the experience of diversity, without due process of law; nor deny to any racial or ethnic group within its jurisdiction benefits in proportion to its proportion of the population.
[Compare to original]

15th Amendment
Section 1. The right of members of all racial and ethnic groups to vote, and to elect representatives of their own race or ethnicity, shall not be denied or abridged by the United States or by any state.
[Compare to original]

Plessy v Ferguson
A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races.…

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the preferential treatment afforded one or more races stamps the unpreferred races with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the unpreferred races choose to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the unpreferred races should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the currently preferred races to an inferior position. We imagine that the currently preferred race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured unless we ignore race. We cannot accept this proposition.
[Compare to original]

Executive Order 10925 (“Affirmative Action”), President Kennedy, March 6, 1961
The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin unless doing so is necessary to promote diversity. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, with full consciousness of their race, creed, color, or national origin in order to promote diversity through an equitable racial and ethnic balance.
[Compare to original]

Civil Rights Act of 1964
SEC. 601. No racial or ethnic group in the United States shall be excluded from proportional participation in, be denied the proportional benefits of, or be subjected to colorblind treatment under any program or activity receiving Federal financial assistance.

SEC. 703. (a) It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to be conscious of an an applicant’s or employee’s race, color, religion, sex, or national origin and to fail or refuse to maintain an equitable racial and ethnic balance among all employees; or

(2) to fail or refuse to classify his employees in any way that would promote the employment opportunities of members of various racial and ethnic groups in proportion to their proportion of the relevant labor pool or to take any action that would tend to deprive any racial or ethnic group of proportional representation among his employees.
[Compare to the original]

Now, readers with an intimate knowledge of these documents will recognize that there is one ringer above. Yes, it is the first paragraph of the Plessy revision. That paragraph was not changed at all. That’s because, as I’ve pointed out a number of times, today’s preferentialists actually agree with the analysis of the majority opinion in Plessy.

As I argued here,

the legal theory underlying the Plessy decision is that the Fourteenth Amendment does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. Thus it is the preferentialists today, not the critics of preferences, who unwittingly echo the Plessy argument.

And here, first quoting that renowned constitutional scholar, Jesse Jackson, and then commenting:

More than 100 years ago, the Supreme Court disgraced itself by ruling that legal apartheid — the lie of separate but equal — was constitutional. Almost 50 years ago, it brought that disgraceful era to an end in Brown vs. Board of Education, ruling school segregation illegal. A generation ago, in 1978, it reaffirmed affirmative action in education in the Bakke decision, even while outlawing quotas. Now the question is whether the court will uphold the commitment to diversity or turn back the clock.

I'm always amused by “turn back the clock” references, whoever makes them, implying as they do that history is linear, that there are never any wrong turns that have to be corrected [by revisionists!], etc. It is an especially ironic phrase here since the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

I could go on and on and on but will limit myself going on only once — the famous Southern Manifesto of 1956, which I “revised” at length here. That Manifesto, signed by 19 Senators and 81 Representatives from the South, with only minor revisions, eerily anticipates and previews the arguments of today’s preferentialists. Here’s one example, with my minor revisions in italics:

In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the 14th Amendment no person was denied any of his rights if the States took race into account. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the diversity principle is “within the discretion of the State in regulating its public schools and does not conflict with the 14th Amendment.”
This interpretation, restated time and again, became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life....

Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.

It’s too bad, from a preferentialist point of view, that “diversity” and “integration” were not the core values reflected in our foundational documents, that instead for generation upon generation Americans have unfortunately believed that they were at their best when they honored the principle that everyone should be treated without regard to race, religion, or national origin.

Preferentialists [like Liu], however, should not feel altogether left out of the American tradition, for they too have their own forebears and historical standard-bearers who have argued, with great success, that race preferences are as American as apple pie and are perfectly consistent with the 14th Amendment and the civil rights laws, properly “construed” — from the “moderates” who kept colorblind language out of the 14th Amendment to Justice Brown and his majority opinion in Plessy to the Southerners who defended the right of states to prefer one race over another to today’s “civil rights organizations” who demand preferences based on race.

]]> http://www.discriminations.us/2010/03/in_liu_sic_of_postracialism_ii.html http://www.discriminations.us/2010/03/in_liu_sic_of_postracialism_ii.html politics Thu, 18 Mar 2010 14:16:09 -0500 [NOTE: A CORRECTION is appended to this post.]

In a must-read post on NRO’s “Bench Memos” yesterday, Ed Whelan reveals that Ninth Circuit nominee Gordon Liu supports “racial quotas forever.” And, equally striking, he does so by quoting from from the transcript of remarks Liu delivered at an American Constitution Society convention that Liu, chairman of ACS’s board, claimed in material submitted to the Senate that he did not possess and presumably could not find, even though “it’s the first item that popped up when [Whelan] did a Google search of the panel title.”

It should be no surprise that Obama, whom many voters naively believed would lead us to the promised land of post-racialism, has nominated a strong, hard left racialist to the Ninth Circuit. After all, all of his nominees to date to any position having anything to do with civil rights have been firm supporters of race preferences and thus opponents of the principle that the state should treat all citizens without regard to their race. (If I am wrong about this, if Obama has in fact nominated or appointed any supporter of the “without regard” principle to an important legal or policy position with influence over civil rights, will someone please provide the name or, if I’m really wrong, names.)

And it should especially surprise no veteran DISCRIMINATIONS readers that Obama should find Liu an appealing nominee. In honor (?) of his nomination I will repost two of my old posts from several years ago on Liu (hence the “I” in the title above), the first of which follows here.

December 25, 2006

Racial Classification In Liu Of Colorblindness

Berkeley law professor Goodwin Liu argues in an OpEd today not only that Brown v. Board of Education “unambiguously” stands for the proposition that classifying and assigning students by race to achieve “integration” is constitutional but even that “[n]othing in the opinion establishes or suggests colorblindness as a legal principle.”

I believe, you will not be surprised to hear (especially if you have read this, this, this, this, and this), that Liu reads considerably more into Brown than what was written or intended, and he also reads a considerable amount out of it that is there.

Like nearly all commentators who see the heart of Brown as a command of integration rather than a bar to discrimnation, Liu mistakenly equates “separation” — an absence of “racial balance” — with state-imposed “segregation,” and folds both of them into the general concept of “racial apartheid.”

As I argued here, however, I think that is mistaken:

I think it is clear that, however imperfectly, the 14th Amendment does embody the non-discrimination principle, however indeterminate the exact borders of that principle may be. But even though the exact dimensions of the Constitution’s principle of non-discrimination may be unclear, the principle in some form is at least clearly there. That’s considerably more than can be said for the principle (if that’s what it is) of “integration.”

... Brown stands for the principle that students may not be burdened because of their race — not for the contending principle that cities must do whatever is necessary, including imposing burdens on students based on their race, to implement racially balanced integration — because that contending principle is not found in the Constitution. In doing so Brown was based on a belief — a correct belief — that the Constitution embodies the “without regard” principle of non-discrimination, that the contours of Constitutional principle do not simply coincide with whatever judges happen to regard as appealing policies that produce desirable effects.

And here:

... what Brown barred was not the fact of “separation,” whether a lot or a little, but “segregation,” the policy of assigning students to schools based on their race. It was the racial discrimination inherent in that policy that made the “separate” schools inherently unequal, not the demographic fact of blacks attending schools primarily (or even exclusively) with other blacks....

... It seems to me that the underlying principle urged upon us by the Louisville and Seattle school boards and their defenders [including Professor Liu] is that “racial balance” is fundamental. Non-discrimination might be nice, but it’s not essential. What is essential, I believe they claim, is that the need for “racial balance” trumps everything.....

Liu writes that “Brown unambiguously held that racial apartheid has no place in public schools or elsewhere in public life.” That observation would not be troubling if it weren’t accompanied by Liu’s apparent belief that “racial imbalance,” wherever it appears, is the same thing as “racial apartheid” that must be corrected by governmental racial classifications.

Given that belief, I’m actually rather troubled when he makes what would otherwise be the unexceptionable observation that

[a] decade after Brown, Congress passed landmark civil rights laws that effectively integrated the nation's restaurants, motels and workplaces. In short, Brown's principal legacy has been the dismantling of state-sanctioned racial apartheid in the United States.

The Civil Rights Act of 1964, however, did not require “racial balance” or even integration of “restaurants, motels and workplaces.” It barred racial discrimination in those arenas. Given Liu’s view of the meaning of Brown, it’s surprising that he and his friends haven’t demanded a version of economic busing to ensure that every institution and organization [hotel, restaurant, housing development, etc.] has the required degree of “racial balance.”

Oh, wait....

CORRECTION (Sort Of)

Above I asked readers to correct me “if Obama has in fact nominated or appointed any supporter of the ‘without regard’ principle to an important legal or policy position with influence over civil rights.”

Now I am delighted to say I was wrong, sort of, and I will correct myself. In EXTRA! EXTRA! Obama Does Something Right! I mentioned President Obama’s intention to nominate Sharon Browne of the Pacific Legal Foundation to the Board of Directors of the Legal Services Corporation. Now he has done so.

My correction is only “sort of,” however, because this nomination was done only under extreme duress.

A Senate committee approved the nominations of Sharon Browne and two other Republicans to the board of Legal Services Corp. last week on a voice vote with no dissent.

All three were recommended to Obama by Senate Republican leader Mitch McConnell of Kentucky, who has blocked confirmation of five Democratic nominees to the same board until the committee also approved the Republican candidates. The Senate now can vote on all eight nominees.

Still, the nomination under duress of a terrific person is much better than no nomination at all.

]]> http://www.discriminations.us/2010/03/in_liu_sic_of_postracialism_i.html http://www.discriminations.us/2010/03/in_liu_sic_of_postracialism_i.html politics Thu, 18 Mar 2010 12:27:54 -0500 Is there anyone left in America (other than a recently arrived traveler or two from outer space) who believes that the Obama administration favors post-racial policies? If so, and if they’re able to read (which is doubtful), they should take a look at the brief the administration recently filed in the U.S. Court of Appeals for the Fifth Circuit supporting the University of Texas’s desire to return to “race-conscious” admissions. As noted by Roger Clegg of the Center for Equal Opportunity (which along with the Pacific Legal Foundation has filed a brief opposing this return to racial discrimination)

[t]he brief is a full-throated endorsement of such discrimination, and it goes out of its way to say that the administration will support it at the K-12 level, too, as well as throughout university admissions: “In view of the importance of diversity in educational institutions, the United States, through the Departments of Education and Justice, supports the efforts of school systems and post-secondary educational institutions that wish to develop admissions policies that endeavor to achieve the educational benefits of diversity in accordance with [the Supreme Court’s 2003 decision upholding the use of preferences by the University of Michigan law school].”

There is, for anyone who has followed Obama’s career before the campaign and after the election, nothing surprising here. Nor is there anything surprising about the fact that the usual suspects of the higher education establishment are supporting UT, arguing in their brief that universities have a First Amendment right to discriminate in admissions if such a policies “best meet their needs.” The value of “inclusiveness” is so great, in their view, that they support the right of universities to exclude some applicants who would have been admitted but for their race.

Those same groups (for the most part), however, do not believe that religious student organizations have a First Amendment right to admit members (or not) based on whether applicants share the religious beliefs around which the groups are organized. The education organizations believe that the First Amendment rights of the education institutions trump whatever rights their students may have to organize groups that reflect their views.

The journalist A.J. Liebling famously said that “freedom of the press is guaranteed only to those who own one.” To the grandees of American higher education, apparently, the First Amendment belongs only to the institutions that ladle it out as they see fit.

]]> http://www.discriminations.us/2010/03/geese_ganders_and_the_sauces_o.html http://www.discriminations.us/2010/03/geese_ganders_and_the_sauces_o.html politics Wed, 17 Mar 2010 17:09:05 -0500 The Chronicle of Higher Education reports this morning on a new study by The Institute for Diversity and Ethics in Sports (TIDES) (Don’t you just love that title?) that finds a continuing — indeed, slightly growing — racial gap in the graduation rates of white and black male NCAA Division I tournament-bound basketball players.

The key finding: “Eighty‐four percent of white and 56 percent of African‐American men’s Division I basketball student‐athletes graduate.”

According to Richard Lapchick, the primary author,

the continuing significant disparity between the academic success of African‐American and white men’s basketball student‐athletes is deeply troubling. In fact, the already large gap increased by four percentage points. One of higher education’s greatest failures is the persistent gap between African‐American and white students in general. This is also true for white and African‐American basketball student‐athletes in particular

Lapchick notes one bright (or at least brighter) spot:

... it is equally important to note that African‐American basketball players graduate at a higher rate than African‐American males who are not student‐athletes. The graduation rate for African‐ American male students as a whole is only 38 percent, a full 18 percent lower than for African‐American basketball student‐athletes. Presently, too many of our predominantly white campuses are not welcoming places for students of color, whether or not they are athletes. There are lessons that our campuses could learn from athletics.

Welcoming? The problem is that black males are not sufficiently welcome?

What pap.

]]> http://www.discriminations.us/2010/03/and_now_the_basketball_gap.html http://www.discriminations.us/2010/03/and_now_the_basketball_gap.html politics Wed, 17 Mar 2010 09:50:51 -0500 Read about the wound (as in shot in foot) inflicted on Virginia Republicans by one of our newly elected Republican office holders? If not, or if you want to read more, read this.

It may lose me some of my new conservative friends, who have until now warmly replaced my long-lost liberal friends.

]]> http://www.discriminations.us/2010/03/stupidity_duplicity_hypocrisy.html http://www.discriminations.us/2010/03/stupidity_duplicity_hypocrisy.html politics Tue, 16 Mar 2010 08:46:58 -0500 Mark up Obama’s new education policy as another change in the “Change!” promised during the campaign. Remember his call for universal access to college?

We will prepare the next generation for success in college and the workforce, ensuring that ... any young person who works hard and desires a college education can access it.

Actually, that was the quote that appears on the Google link to Candidate Obama’s education policy. If you follow that same link now what you find is:

We will prepare the next generation for success in college and the workforce, ensuring that American children lead the world once again in creativity and achievement....

After graduating high school, all Americans should be prepared to attend at least one year of job training or higher education to better equip our workforce for the 21st century economy....

Universal access seems to have been, well, somewhat attenuated. And now the new policy has been unveiled, as reported in the New York Times:

The Obama administration on Saturday called for a broad overhaul of President George W. Bush’s No Child Left Behind law, proposing to reshape divisive provisions that encouraged instructors to teach to tests, narrowed the curriculum, and labeled one in three American schools as failing.

The article is fascinating, even aside from the NYT’s typical news story editorializing (“His plan strikes a careful balance...”). An interesting feature of this “overhaul” is that

President Obama would replace the law’s requirement that every American child reach proficiency in reading and math, which administration officials have called utopian, with a new national target that could prove equally elusive: that all students should graduate from high school prepared for college and a career.

Well, whoever said high school graduates must be able to read and write and add and subtract?

President Bush called the attitude embodied in President Obama’s new policy the “soft bigotry of low expectations.” I think he was wrong about the soft.

]]> http://www.discriminations.us/2010/03/reform_of_education_reform.html http://www.discriminations.us/2010/03/reform_of_education_reform.html politics Tue, 16 Mar 2010 08:42:11 -0500 By now you’ve all heard of the “Slaughter Solution” to the House Democrats’ dilemma — how to pass health care reform without actually having to vote for the Senate bill:

House Rules Chairwoman Louise Slaughter is prepping to help usher the healthcare overhaul through the House and potentially avoid a direct vote on the Senate overhaul bill, the chairwoman said Tuesday.

Slaughter is weighing preparing a rule that would consider the Senate bill passed once the House approves a corrections bill that would make changes to the Senate version.

As the Arizona Republic described this unique new non-voting method of voting,

Some House Democrats are proposing a novel way of passing a health-care reform bill, which at the moment is stuck in limbo between the Senate and House.

Just “deem” it passed. No “up or down” vote, as President Barack Obama requested. Indeed, no vote on the reform bill at all. Just . . . declare it passed, and that is that.

Briefly, House Rules Committee Chairwoman Louise Slaughter, D-N.Y., is working on a plan that would have the House vote on a “rule” bill accompanying the health-care bill, rather than the bill itself. The thinking is that this would provide political cover to lawmakers who could tell angry constituents they did not vote for the controversial health-care bill. House leaders simply would move to “deem” the health-care reform bill as passed, thus alleviating House Speaker Nancy Pelosi of the burden of rounding up votes.

Newt Gingrich had the best line about the Dems flocking to Slaughter:

Last year, the House was passing bills without reading them. This year, they're passing bills without voting on them.

If the Democrats’ behavior were portrayed in a movie, viewers would not find it credible. (On the other hand, if it were in a Saturday Night Live skit no one would find it funny — just another routine description of how Democrats behave when they want to pass something the public abhors.)

Speaking of movies, I found the best description of what’s going on now in a book about Hollywood — screenwriter William Goldman’s Adventures in the Screen Trade (which I happened to see at a friend’s house), p. xi:
During the holiday season of ’81-’82, sixteen films were released by the major studios. Of those, only one — On Golden Pond — was a runaway success. And ten of the sixteen each lost more than ten million dollars. One major studio executive told me recently, “Of course the failures are upsetting. But there have always been failures. What’s got us so immobilized now is whatever it is we’re making, we’re missing he audience by a wider margin than ever before. We don’t know what they want. All we do know is that they don’t want what we’re giving them....”

Again, this is the worst period within memory.By the time this book sees print, it may well be the best period within memory. The pont being this: Movies are a gold-rush business.”

So is politics, or at least Deem-ocratic politics in the age of Obama. Until he took office and began doing things, all Deem-ocrats and many normal people thought Obama was golden. Now they know that all that glitters is not gold.

]]> http://www.discriminations.us/2010/03/hubris_leading_deemocrats_to_s.html http://www.discriminations.us/2010/03/hubris_leading_deemocrats_to_s.html politics Sun, 14 Mar 2010 10:05:15 -0500 February was Black History Month. Now it’s March, and March is Women’s History Month.

Will someone tell me when is Southern Jewish History Month? I must have missed it last year.

Also, a friend just gave me a copy of Nell Irvin Painter, The History of White People. Is there a White History Month that I’ve also missed?

February was Black History Month. Now it’s March, and March is Women’s History Month.

Will someone tell me when is Southern Jewish History Month? I must have missed it last year.

Also, a friend just gave me a copy of Nell Irvin Painter, The History of White People. Is there a White History Month that I’ve also missed?

About a year ago I was feeling left out when the White House created a special council on women and girls: Men And Boys Need Not Apply: Obama Wants Fairness For “Women And Girls”. Now I feel left out just about every month.

]]> http://www.discriminations.us/2010/03/_________history_month.html http://www.discriminations.us/2010/03/_________history_month.html politics Wed, 10 Mar 2010 19:06:34 -0500 A reader, E, sent a link to this article about admission to the highly selective specialized high schools in New York (Stuyvesant, Bronx Science, etc.) by John Garvey, a former dean at the City University of New York.

Garvey proposes a solution to the old problem of “woefully small percentages of black and Hispanic students” at those highly selective schools based on the Texas 10 percent plan:

The Department of Education should adopt a proportional admissions plan for the exam schools that would offer admission to the highest-scoring students from each of the neighborhoods of the city.

Arguing that “[j]udging students by grades or class rank would offer the fairest estimation of their potential,” he further proposes that the admissions test be scrapped. But there’s something of a disconnect here, since he also argues that there are fewer blacks and Hispanics in the selective high schools because the schools they attend are inferior: “Clearly, segregation and the unequal educational opportunities that result continue to distort the enrollment profile of the city’s most selective high schools.”

Thus what Garvey is saying is that students who do well in poor schools but don’t do well on the entrance tests are as qualified for the selective schools as students who do well in better schools and do well on the tests. This makes no sense.

Garvey notes that a “downside” to his neighborhood-based admission system is similar to an admitted “downside” of the Texas 10 percent plan (guaranteeing the top 10% of the graduate of every high school admission to the University of Texas):

High-achieving black and Hispanic students who rank below the top 10 percent at majority-white schools often do not get admitted to the college of their choice.

Apparently Garvey does not regard the fact that high-achieving white and Asian students who rank below the top 10 percent of their classes also often do not get admitted to the college of their choice as a “downside” worth noticing.

]]> http://www.discriminations.us/2010/03/neighborhoodbased_admission_to.html http://www.discriminations.us/2010/03/neighborhoodbased_admission_to.html politics Wed, 10 Mar 2010 14:46:34 -0500 Two days ago on NRO’s “The Corner,” Mark Krikorian (Executive Director of the invaluable Center for Immigration Studies) invited us to send a message with our Census forms.

Fully one-quarter of the space on this year’s form is taken up with questions of race and ethnicity, which are clearly illegitimate and none of the government’s business (despite the New York Times’ assurances to the contrary on today’s editorial page). So until we succeed in building the needed wall of separation between race and state, I have a proposal. Question 9 on the census form asks “What is Person 1’s race?” (and so on, for other members of the household)....

... [W]e should answer Question 9 by checking the last option — “Some other race” — and writing in “American.” It’s a truthful answer but at the same time is a way for ordinary citizens to express their rejection of unconstitutional racial classification schemes. In fact, “American” was the plurality ancestry selection for respondents to the 2000 census in four states and several hundred counties.

I second his suggestion, but I am even more impressed and excited by his call for “the needed wall of separation between race and state.” DISCRIMINATIONS veterans with long memories, or empty lives (or both), may recall that as long ago as 2002 I made that same plea here, in Separation of Race and State.

In that post I discussed (and applauded) the recent important Supreme Court case holding that school vouchers allowing students to attend sectarian schools did not violate the Establishment Clause, but I drew heavily on the dissenters in that case to argue that the history and principle underlying their impressive devotion to religious neutrality also should compel racial neutrality, the separation of race and state.

You are welcome to read (or for you hearty veterans, re-read) that post for those quotes, but I’m giving myself editorial license to include here the guts of my argument there, on the theory that plagiarizing oneself is legitimate after eight years. So:

Separation of Race and State — No, that’s not a typo. I meant to say race, not church. But first we in fact do have to go to church. By now I know you’re probably all tired of vouchers, but please bear with me. I want to suggest that the principle articulately defended in the minority opinions in the recent voucher case unwittingly provides a convincing argument why the principle of religious neutrality they advocate compels neutrality regarding race as well as religion.

The dissenters dissent because in their view vouchers violate the principle of neutrality. Since 96% of the students with vouchers chose to attend religious schools, they argue, the fact of intervening private choice was not sufficient to insulate the government funds from the charge of impermissibly favoring — which in the current understanding is tantamount to establishing — religion.

What I want to emphasize, however, is not that familiar argument. More important, I believe, is the repeated, emphatic recognition throughout the dissents that the principle of neutrality itself derives not so much from the text of the Constitution as from something deeper in the very structure of our society. That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality would lead to constant strife and conflict. The dissenters, in short, recognize that the small “c” constitution of American society of necessity dictates the meaning of the large “C” Constitution.

[Quotes from dissenters]

Race and Sects in American History

Although I think the dissenters are mistaken when they conclude that vouchers violate the principle in, and underlying, the First Amendment, I think their vision of American history, and of the neutrality principle that history has generated, is compelling.

One of the most cherished myths of American history is that our foremothers and forefathers fled the Old World for the New to escape religious bigotry and build a new society based on religious freedom. In fact, the Puritans’ strongest complaint against the Old World was that it was too tolerant, that it was swimming in a sea of such moral sloth and corruption that it had lost all interest in purifying the church. The New World appealed to them because it was empty (except for the “heathens” ripe for conversion), and they could establish Godly communities the way they were quite certain God intended.

And yet within several generations religious toleration had broken out all over. Despite the best efforts of the Puritan divines, diversity could not be denied. The Baptists and Quakers proved irrepressible. Mennonites appeared, and Methodists sprouted like weeds in the wake of itinerant ministers. Even many Congregational churches split asunder as revivalist “New Lights” walked out and founded competing congregations.

What happened? Unintended and unplanned, America began to happen. What Voltaire said cynically about England came to be celebrated here: “If there were one religion . . . , its despotism would be terrible; if there were only two, they would destroy each other; but there are 30, and therefore they live in peace and happiness.”

Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”

America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp (1963), “the government is neutral, and, while protecting all, it prefers none.”

But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state (as the dissenters and I believe it does), should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time "ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history." (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as "divisive" today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

As a perceptive if fickle critic of affirmative action has written, racial and ethnic preferences predictably lead (and in fact have led) to

a real Balkanization, in which group after group struggles for the benefits of special treatment.... The demand for special treatment will lead to animus against other groups that already have it, by those who think they should have it and don’t....

The rising emphasis on group difference which government is called upon to correct might mean the destruction of any hope for the larger fraternity of all Americans.

That was Nathan Glazer, in AFFIRMATIVE DISCRIMINATION (Basic Books, 1975), and if anything he underestimated the divisiveness of bestowing governmental favors on the basis of race and ethnicity. Now that liberals have abandoned the formerly core value holding that every individual is entitled to be treated without regard to race, creed, or color in favor of multiculturalism and group rights, the very idea of “the larger fraternity of all Americans” is regarded by many as nothing more than right-wing cant.

Or consider the current mantra of “diversity.” Harvard law professor Christopher Edley — former White House aide, co-author of President Clinton's “mend it, don't end it” review of affirmative action policies, advisor to Clinton's race commission, fervent advocate of racial preferences (he described Stephan and Abigail Thernstrom's America in Black and White as “a crime against humanity”), and advisor to the 2000 Gore campaign — has written that “our rich religious diversity” provides a model for racial diversity. “We are fairly united as one of the most religious nations on earth,” Edley wrote, “but we worship differently, celebrate that fact, and recognize that religious differences should play only a limited role in our social and economic lives. Perhaps a model along these lines is what is needed in race.” (Edley, “Why Talk About Race?” Washington Post OpEd, 7 December 1997, p. C1.)

Indeed it is, but this “model” suggests a conclusion that Edley and other preferentialists will not like. If ethnic and racial groups are now analogous to religious sects, why should it be permissible for the state to grant preferences to the former when it is clearly prohibited from doing so to the latter?

Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear “the risk” of “potential” divisiveness in what they see as religious preferences but not the clear and present divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for “diversity” as race.

Would they look on religious preferences in admissions and hiring with the same favor they bestow on racial and ethnic preferences? What is it precisely that would make a preference for Arabs acceptable but for Muslims unacceptable? Are not evangelical Christians “underrepresented” among the students and on the faculties of our elite, selective universities? Why must the Michigan law school have a “critical mass” of blacks and Hispanics but not of Missouri Synod Lutherans? Why was the old quota system that restricted the number of Jews in the Ivy League (presumably) wrong, but the de facto quota system that restricted the number of Asians admitted to Berkeley and UCLA under the reign of preferences not wrong?

In short, perhaps it is time to insist on a separation of race and state, to insist in the ethnic and racial sphere, as well as the religious, that government must be neutral, that it protect all of its constituent groups but prefer none — not because the First Amendment compels neutrality in this sphere, but because of the same social reality that led to the First Amendment in the first place.

Amen.

]]> http://www.discriminations.us/2010/03/the_separation_of_race_and_sta.html http://www.discriminations.us/2010/03/the_separation_of_race_and_sta.html politics Wed, 10 Mar 2010 09:09:22 -0500 An major UPDATE II was added to Obama's New Anti-Civil Rights Civil Rights Policy today.

]]> http://www.discriminations.us/2010/03/update_67.html http://www.discriminations.us/2010/03/update_67.html politics Tue, 09 Mar 2010 09:04:43 -0500 In the two posts immediately below (here and here) I discussed civil rights in the schools, arguing that the Obama administration fundamentally misunderstands civil rights.

Because it didn’t fit the points I was making, I neglected to mention one of the most revealing, and most depressing, tidbits about the Dept. of Education mentioned in the Washington Post article I cited:

With about 600 employees and 12 field offices, the Office for Civil Rights is one of the largest units in the department. Its annual budget is $103 million.

Does anyone really believe that “one of the largest” problems of American education today is rampant, pervasive discrimination against minorities?

]]> http://www.discriminations.us/2010/03/distorted_education_priorities.html http://www.discriminations.us/2010/03/distorted_education_priorities.html politics Mon, 08 Mar 2010 08:49:50 -0500 In the post immediately below I discussed the Obama Dept. of Education’s view that lower minority graduation rates and lower participation in advanced placement courses, etc., reflect a pervasive problem of civil rights violations in our nation’s schools.

In that regard, however, consider the penetrating question asked by George Leef:

American colleges and universities are delighted to have minority students. They’re usually specially recruited and often given favorable treatment by the administration and professors. Some minority students work hard, perform very well, and graduate with honors. So why is it that graduation rates for minority students tend to be low? Is it because schools haven’t learned how to teach them? I don’t think so. The explanation is that on the whole, those students enter college with far lower basic academic skills (which can seldom be overcome just with a remedial course or two) and less academic engagement.

If you doubt that, ask yourself if the very high graduation rate among Asian students is because schools are “good at teaching them,” or because those students generally have high skills and motivation as they enter college....

Good question. If the “underrepresentation” of some minorities in advanced school courses and programs means the schools are discriminating against them, does the “overrepresentation” of Asians mean the schools are discriminating in favor of them?

Isn’t it posible, that is, that students and their families might be more responsible for how students perform than their schools?

]]> http://www.discriminations.us/2010/03/if_schools_discriminate_agains.html http://www.discriminations.us/2010/03/if_schools_discriminate_agains.html politics Mon, 08 Mar 2010 08:35:10 -0500