French Connection

A new study reveals intense bias against French Muslims of Senegalese descent in the French job market (and a milder one against Christians of Senegalese descent). The study was modeled off the famous Are Emily and Greg More Employable than Lakisha and Jamal? study, which revealed similar (racial) biases in American labor markets. However, this topic is considerably less-studied in France because of that nation's near-fanatical devotion to "colorblindness" and the pure secular state. As this study pointedly demonstrates, that policy is an abject failure.

Justice Thomas and Constitutionalism

Via PrawfsBlawg, I've come across a fascinating conference hosted by the N.Y.U. Journal of Law and Liberty on the "unknown Justice" -- that is, Justice Thomas. There are several good articles in the symposium, including Nicle Garnett's contribution regarding Justice Thomas' perspective on the disadvantaged and marginalized. But I want to focus on Professor Stephen F. Smith's contribution: Clarence X? The Black Nationalist Behind Justice Thomas’s Constitutionalism.

The thesis may sound familiar, but neither he nor I are the first to come up with it, and Professor Smith does cite some of the other scholars making the same point, like Mark Tushnet and Angela Onwuachi-Willig. Nonetheless, Parts I and II, making this argument, is a perfectly welcome contribution to the literature.

Part III tries to reconcile this outlook with Justice Thomas as a strict "constitutionalist" (originalist), and here, unsurprisingly, the wheels begin to fall off the wagon. Mostly, we get a reprise of Clarence Thomas' embarrassingly weak "originalist" justification for his Parents Involved opinion. There's the citation to Plessy, which boils down to "any sufficiently old source is a valid 'originalist' warrant, even if it postdates ratification of the relevant amendment by a quarter-century". Then we have the enlistment of Thurgood Marshall as a paladin of constitutional color-blindness thanks to his Brown advocacy, despite the fact that his opinion in Bakke clearly indicates (at the very least) a change in outlook. Finally, and most tragically, there is the tortured attempts to show how color-conscious acts during Reconstruction don't actually conflict with a constitutional color-blindness principle. These aren't that persuasive to begin with, but what's worse is that they don't actually prove anything, except that the two apparently believe that the best offense is a mediocre defense. In a system of government where we presume the state has residual power to act, and the federal government is explicitly given expansive powers regarding racial remediation, a principled advocate needs to provide affirmative evidence showing that government was meant to be restricted from acting in this manner. Simply showing that the way the government acted would have been compatible with a theoretical restriction means jack without some evidence that the framers intended for the restriction to, you know, exist. Absent that, the presumption ought to be deference to the legislature -- a stance which I think Justice Thomas takes on essentially every other issue.

Smith also adds a few new arguments of his own, but they fare no better. Against all evidence, he throws out a stare decisis argument that the color-blind ethos is "settled law" and should not be disturbed this late in the game, despite the fact that obviously the principle has always been and remains heavily contested, as evidenced by the fractured courts in racial preference cases ranging from Bakke to Grutter to Parents Involved (particularly for someone like Justice Thomas, who is perhaps least sympathetic to stare decisis of any sitting Justice, this is spectacularly unpersuasive). Finally, he accuses Justice Thomas' liberal critics of hypocrisy: it is permissible for someone like Justice Marshall to impose his policy preferences into law, but not Justice Thomas. But that misses the point entirely: I have no problem with Justice Thomas articulating his constitutional vision, and I think he does it quite eloquently. I object to the notion that it exists on some superior legalistic plane, whereby his is "constitutionalist" and mine is just "policy". Once the playing field is leveled, I'm happy to pit my vision against his.

Scalia Cares About Diversity

We read Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) in civil procedure today. In Edmonson, it was held that race-based peremptory challenges in civil cases violate the equal protection clause. Much of the argument between the majority and the dissent grappled with whether peremptory challenges -- basically, eliminating a potential juror from the pool for no reason whatsoever (parties in civil cases generally get a limited number of peremptories) -- is a "state action" for constitutional purposes. The majority concluded that it was, as the selection of a jury is a state body whose composition is merely being delegated to the parties, while the dissenters argued that it was not, that jury selection was a function of purely private actors who were only using the court as a forum to resolve their dispute.

But Justice Scalia's separate dissent was interesting to me, because he spent much of it waxing poetic about the need and right of litigants to pursue racially diverse juries -- or at least select their jurors race-consciously. After noting his agreement with Justice O'Connor's argument that the majority is wrong "in principle" to assert that peremptory challenges in civil litigation are state actions, he continued to write that:

[today's opinion] is also unfortunate in its consequences.

The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U.S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so - so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true - but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury.
[...]
Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion - what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent. [500 U.S. at 644-45]

I find it interesting that Scalia appears to recognize here that stripping minority actors of their ability to use race conscious procedures is, in fact a problem. More than a problem -- morally objectionable; a bar to basic fairness! The move towards color-blindness, he's arguing, is qualitatively harmful to minority litigants, and that's a concern he wishes the court to be mindful of.

An interesting argument, and one that gave me pause when reading this case. Kind of incongruous with the bulk of Scalia's jurisprudence, though, no?

What Is Colorblindness?

Back in 1994, Lani Guinier noted an interesting paradox regarding the ideology of "colorblindness":

In contemporary discourse, colorblindness has come to mean that mere recognition of race, except to condemn intentional racial discrimination, is dangerous. Yet because of the recognition and support our political system gives to other, non-racial groups, colorblindness, although ostensibly race-neutral, singles out race for special treatment.

Lani Guinier, The Supreme Court, 1993 Term: (E)racing Democracy: The Voting Rights Cases, 108 Harv. L. Rev. 109 at 123, n. 104 (1994).

Sometime before that, Neil Gotanda noted that in order to "not consider race", you have to recognize it (else how would you know what to avoid?).* Colorblindness is at least a little bit of a misnomer, then -- we have to see race in order than decide not to consider it.

This is a maneuver we make as a matter of course with regards to all manner of identity orientation. We notice, and decide to consider, gender when assigning bathrooms. We notice, and decide not to consider, religion when assigning public school teachers. As Guinier notes though, by creating a unified rule for the race category, we are treated it different -- specially -- compared to other identity groups. We are consciously deciding to treat the category "race" in a specified manner.

There might be excellent reasons for doing this. We might believe that conscious consideration is so dangerous that it rarely will result in more good than harm. But this sort of calculation is still, at root, color conscious -- deflating any theoretical (as opposed to pragmatic) reasons to maintain a fictive "colorblind" polity. Colorblindness, in other words, is just a particular subdivision of a color conscious outlook. Recognition of that fact allows us to have the debate between color blindness and its alternatives on fair ground, without slanting the playing field by unrealistically placing colorblindness as somehow beyond the realm of race-based decision making.

****

* Neil Gotanda, A Critique of "Our Constitution is Color-Blind", 44 Stan. L. Rev. 1, 6 (1991).

Colorphobia

A post at The Ambrosini Critique has reminded me of a post I've been meaning to write for some time now, but have never gotten around to.

The apex of Chief Justice Roberts' opinion in the recent school desegregation cases, the line he hoped would be quoted and deified as a constitutional cornerstone, was this: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." It represents a vision by which the harms of racial hierarchy (represented by, though by no means limited to, discrimination) can only be overcome by strict color-blindness. Admitting color, even for remedial purposes, even without intending to stigmatize, even where it is sanctioned by both Black and White parents as in the best interests of their children, is and will be disastrous. Race and color must be avoided at all costs, lest we be consumed by the darkness of our racist past.

In my Race LASIK article, I noted the peculiarity of proudly naming a philosophical paradigm after a medical disorder. Few of us actually wish to be medically color-blind. I know I am quite happy that I can identify my laptop as black, my desk as white, my sheets as blue, and my New Jersey Devils jacket as red. And I certainly cherish that ability strongly enough such that I want to preserve it, even at the "expense" of also being able to see that this man is Black and this man is White. I assume most people are no different than I am in this respect. So right from the start, there is at least some dissonance in the "color-blindness" paradigm--it isn't really accurately describing the society we want to live in.

A better name for what most people call the "color-blind" mentality, I propose, is a "colorphobic" mentality. As a society, we are terrified of color (in terms of race), and we wish to banish it. Any admission of color into our city gates is poisonous, corrupting, corrosive. We can't handle it. And the mark of a mature society, one that has gotten beyond racism, is that it never uses race, never discriminates or differentiates on the basis of race, and does not, in fact, even notice race.

I want to quickly distinguish what I'm talking about here from a concept called "negrophobia", coined by Jody Armour in his article, "Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes" (later published as a book). Negrophobia refers to the condition of being afraid of Black people, generally as the result of some psychological trauma (for example, being mugged by a Black man). Armour examines whether such a condition could or should be used to excuse certain discriminatory behavior (see here for a scenario). This is not what I mean by "colorphobia." By colorphobia, I mean a fear of the entire concept of race, not necessarily (or specifically) of people of color.

To be sure, it is not entirely unreasonable for us to fear color. After all, the majority of America's history has used color to enact and legitimize some of the gravest and most horrifying injustices. Slavery. Jim Crow. Lynchings. Rape. Even genocide. White people who feel guilty about such atrocities, as most do, understandably do not want to return down that path. It is the site of our lowest moments as human beings. Instinctively, we are averse to anything that seems to even risk bringing as back there.

In our heads, race has become the villain, the perpetrator of these crimes against humanity. One could argue that this serves the function of shifting the blame from the shoulders of White people--now it's not the fault of people, it's the fault of a concept. That's a subject for another post. What I want to focus on is how this historical narrative has cast race as irredeemably corrosive to the functioning and maintenance of a civilized, liberal society. More so than any other distinction we might make, race is uniquely invidious in that it can never be used, regardless of motive, regardless of end. This construction of race as a larger-than-life, invincible, unconquerable foe, can be described by no other word but a phobia. Color-blindness is the political manifestation of hiding from a demon we fear we cannot tame, one that will consume us if admitted into our presence.

Race has primarily been used for terrible things, that's true. And it is a truth admitted by all the advocates of color-conscious policy. However, they argue that in our current situation race is an indispensable tool for righting these wrongs, and for creating and ordering a more just society. We can't do without it. The color-blindness mentality has us run from our past through exile and banishment. This is no longer a tenable option. We have run for too long. We must use race without subordination. And to do that, we must show courage, face our fears, and overcome the monsters in our past.

The mark of mature society, of one that has gotten beyond racism, is not that it shuns race. That is the mark of an immature society still beholden to its past and unable to move beyond its phobia. The mark of a mature, post-racist society, is that it uses race without subordination and without fear. This does not mean that we use race uncritically. Like most tools, race can be a dangerous thing, and should not be wielded casually or with reckless abandon. But it cannot be avoided altogether. We must use it courageously, with noble purpose, to forge a path towards justice. Anything else is cowardice.

And in that way, race without fear will give us a world where nobody need fear race.

The False Hero

"You don't need many heroes if you choose wisely." So reads John Hart Ely's dedication of his masterpiece, Democracy and Distrust, possibly the most important work of constitutional law in the 20th century, by perhaps the greatest constitutional law theorist of the 20th century.

The man Ely was referring to in his dedication was former Supreme Court Chief Justice Earl Warren. Hero of American liberals, Warren is most famous for authoring the pathbreaking and unanimous decision in Brown v. Board of Education, the decision which barred racial segregation in public schools. Though it did not explicitly say so, Brown is widely understood today to have overturned the 1896 case of Plessy v. Ferguson, which upheld the notorious concept of "Separate but Equal."

Plessy was an 7-1 decision, and the lone dissenter was a Kentucky jurist from a former slave-holding family by the name of John Marshall Harlan. The first Justice Harlan, as he is known (his grandson, also named John Marshall Harlan, would serve on the Supreme Court as well during the Warren Court years), also has emerged as somewhat of a hero, especially on the right, for his role in Plessy. The apex of his dissent, and his most quoted passage, represented the birth of the ideal of "color-blind" equality in America:

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens."

Striking words, and ones that have stirred not a few hearts, including my own. I do not deny their poetry. And the surrounding text only adds to their power:

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 guarantied by the supreme law of the land are involved.

And these words have passed into our lore and legend. Harlan's dissent is the keystone of the conservative argument in favor of color-blindness as race equality, against "color-conscious" remedies like Affirmative Action. Harlan's heroism gives this position a moral legitimacy in American discourse, as the rallying cry of his solo dissent against one of America's darkest chapter.

But there is a problem. Harlan was not arguing for racial equality. I admit that I cheated you earlier, for I omitted the opening sentences of Harlan's climatic paragraph:

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 guarantied by the supreme law of the land are involved.

This is a very revealing preface. At the very heart of his argument, Harlan reveals that he believes his position will strike no blow to White supremacy or superiority. White people will continue to be "the dominant race in this country...for all time." Given this context, Harlan's argument takes on a significantly darker tone. Harlan's passage simultaneously subverts the case for color-blindness at the precise moment it creates it, for it ratifies the principle critique of color-blindness by racial progressives: it won't work. If our goal is to live in a society where White supremacy will not last "for all time," a color-blind ideology won't take us there.

Many race theorists have noted that much racial reform in America, including Brown v. Board itself, occurs only when White people deem it to be in their interests, or at least not threatening to them. There is plenty of empirical evidence to back this claim (the "interest-convergence" theory) up. And this appears to be the vein in which Harlan is arguing: Don't worry. Allowing Black men on trains with Whites won't undermine the hierarchy of racism. Be confident in White supremacy. We can throw Blacks a bone here. There is no genuine threat to our interests; we can afford to be magnanimous. Derrick Bell, the principle architect of the interest-convergence theory, has written further of so-called "contradiction closing" cases. These cases show that "the system is not so bad after all," that in fact minorities can depend on Courts for protection. When minorities claim that the deck is stacked, it is these cases that defenders of the status quo point to, proclaiming its fairness while ignoring that the other 51 cards are marked. Because CCCs are outliers, they usually have very little impact on the overall structure of racism, which simply shifts course slightly and then continues unabated. The argument between the majority and the dissent in Plessy ought to be understood as a debate as to whether Plessy was a good candidate for a "contradition closing" case.

Do you think I am reading Harlan too harshly? Consider, then, his lesser-known but more notorious opinion in Cumming v. Board of Education of Richmond County, written three years after Plessy was decided. If Harlan's commitment to color-blindness was ever meant to signify a push towards true racial equality, this was the moment of its ultimate betrayal. Harlan's opinion, written for a unanimous court, held that the 14th Amendment, including the "equal" part of "separate but equal", was not breached when a Georgia county closed down its only Black high school, but continued to operate programs for White students, citing budgetary concerns. A more flagrant breach of the 14th amendment could scarcely be envisioned, as Black students were left with neither equal nor separate schools. Harlan did not just sign on to this position, he wrote it.

Does this mean that Harlan ought to be condemned, his Plessy opinion thrown in the trash heap as but dolled-up racist garbage? Perhaps, but I think not. Jack Balkin has written of a concept he calls ideological drift, where a principle or ideology changes in meaning and affiliation over time due to changing circumstances. In a world where virtually every relevant governmental institution and structure was officially tasked with anti-Black suppression, where the laws themselves where the vanguard of White supremacy, color-blindness was indeed quite a liberal notion, even if it did nothing to offer Blacks true social equality. But, as society progresses and our concerns shift from eliminating laws designed to maintain White supremacy, to achieving the social equality and standing that Harlan proudly declared would not come from color-blindness, the meaning of the principle changes. It shifts from progressive to regressive, from left to right. Words which stir our hearts because they were uttered in 1896, when few Whites even had the vision to demand formal equality, become bitter and foul when used by Whites to block social equality. The liberal remembrance of Harlan can make this distinction, and can preserve Harlan's poetry without being eternally bound to it.

You don't need many heroes if you choose wisely, and Justice Harlan, while no hero, is certainly a revealing figure. His words offered hope to a generation of Black civil rights leaders who knew that there was an alternative to Jim Crow waiting to be redeemed. And his preface to those words similarly reveals the limitations to that alternative. Faced with Harlan's world or Jim Crow, Blacks would choose Harlan's in a moment. But those are no longer our choices, and the cost of Harlan's preface weighs heavier on us then it did in years past. It is time to transcend the first Justice Harlan. We can cast down the burden of White supremacy "for all time." Every future becomes a past, every story carries within it both the seeds of its own destruction and the materials to craft new tales. Harlan's world is not ours. And we make a mistake if we cling to a past that is slowly devouring our chance for a brighter future.