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The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race":

Orin points to a New Republic editorial that credits this quote to Judge Carlos Bea and Ted Olson:

Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated. Indeed, the much-cited coda to Roberts's opinion — that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — is lifted almost verbatim from a 2005 dissent by circuit court judge Carlos Bea, also a Federalist Society booster, which itself recalls a slogan favored a decade ago by former solicitor general Theodore Olson, another Federalista.

Note, though, that Judge Bea actually credited the forbears of his quote, and he didn't include Ted Olson. Here's what Judge Bea wrote:

Or, as more recently said by the late Justice Stanley Mosk of the California Supreme Court:

Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, 'one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment [n]ever to tolerate in one's own life or in the life or practices of one's government the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in *1222 life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.'

Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L.Rev.. 775, 809-10 (1979)).

The way to end racial discrimination is to stop discriminating by race.

Judge Mosk, of course, was generally seen as a leading liberal California Supreme Court Justice. William Van Alstyne had been on the ACLU National Board of Directors until three years before he published his Chicago law review article. Many Federalist Society members do share the view (as, polls suggest, do many Democrats) — but the quote's origin seems to be pretty solidly outside the Federalist Society.

Related Posts (on one page):

  1. More on the Origins of Justice Roberts's "Stop Discriminating" Language.--
  2. The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race":
  3. Roberts, Blackmun, and the Rhetoric of Affirmative Action Cases:
Patrick Wright (mail):
At some point, the result-oriented crowd is just going to have to throw in the towel and admit that the Federalist Society is a mainstream entity and that their decades-long attempt to smear the Federalist Society via conspiracy innuendo was a failure.
7.17.2007 12:20pm
Mark Field (mail):
I guess I don't get the point here. This historical vignette doesn't seem to me to prove anything. Judge Mosk manifestly did NOT make the tautological claim, and what he did say would not have prevented a different ruling in the Parents Involved case. Judge Bea DID use the tautology. This seems to me to prove the opposite of what I thought was your point. The phrase doesn't have a liberal origin, it has a conservative one.

But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?
7.17.2007 12:36pm
Houston Lawyer:
Too many people are vested in the enforcement of racism. If your job is "director of diversity" and you can't discriminate based on race, what is your function?

It is really amusing to hear a senior partner lament the lack of diversity at a law firm. We make great efforts to hire all the proper minorities. There just aren't that many available who can do the work.
7.17.2007 12:36pm
BobH (mail):
One small step in the right direction: When a form asks you to state your race, enter "human."
7.17.2007 12:42pm
David M. Nieporent (www):
Judge Mosk manifestly did NOT make the tautological claim, and what he did say would not have prevented a different ruling in the Parents Involved case.
I think there's a typo in there; you apparently hit "shift" instead of "delete," such that NOT was capitalized rather than omitted from your statement.

And since what the Seattle/Louisville school boards were doing was "employing devices of classifying people and of thus measuring their rights," since what the school boards were doing was "the differential treatment of other human beings by race," since what the school boards were doing was "treat[ing] any person less well than another or to favor any more than another for being black or white or brown or red," then of course what he said would have prevented a different ruling in Parents Involved.

But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?
I would think the answer there would be obvious: liberals have no legal, logical, or moral argument for their position in Parents Involved, so they sit there and play the racism card, claiming that the decision is a repudiation of Brown by racist conservatives who never supported it. By showing that the decision has a liberal pedigree, it exposes as ludicrous the claims of liberals to still be fighting the civil rights fight.
7.17.2007 12:59pm
ifoughtthelaw (mail) (www):

But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?


It is interesting how shame-faced conservatives seem to be about their string of Supreme Court victories. First they insisted that the new justices were "respecting" all that wacky liberal precedent they hate so much, and now comes the claim that Roberts' simplistic approach to school integration cases is a grand liberal ideal. I don't get it either.
7.17.2007 1:00pm
Litigator:
now comes the claim that Roberts' simplistic approach to school integration cases is a grand liberal ideal. I don't get it either.

You may have a point. Perhaps conservatives are too optimistic in hoping that liberals aren't REALLY racist.
7.17.2007 1:05pm
Brett Bellmore:
This is absurd; A phrase so short and obvious is going to independently crop up over and over. I'd certainly never heard it elsewhere before I first used it several years ago!

It seems to me that the only reason to suppose there has to be some unique origin of the phrase, from which it spread, is the believe that people opposed to racial preferences are almost univerally too stupid to come up with obvious, catchy phrases. This seems to be a common belief on the left, on all sorts of topics, but why should we humor it?
7.17.2007 1:09pm
Wahoowa:
I think all of the commentators except the first is entirely missing the point of this post. It really has very little to do with the rightness or wrongness of Roberts' opinion, whether he was respecting precedent, whether the result in Parents Involved is liberals hoist on their own petard, etc. What it has to do with is this: The New Republic article is attempting to posit some right-wing (esp. Federalist Society--every lib's favorite boogeyman these days) conspiracy to eliminate racial preferences and is illustrating it by the origin of what the Chief Justice said. What Eugene is doing is pointing out that that portion of the argument is flawed because it can be traced to a liberal origin and has nothing to do with Ted Olson et al.
7.17.2007 1:12pm
AF:
The line is, of course, pure sophistry. It purports to offer a solution to segregation -- "The way to stop discrimination on the basis of race is . . . ." -- but ignores the fact that school districts are concerned with de facto racial segregation. Removing the rhetoric, Roberts's response is that "[t]he way to stop [de facto racial segregation] is to stop [race-conscious integration programs]." Obviously that is not the case --and Roberts does not mean to suggest that it is.

The whole point of his turn of phrase is to obscure the distinction between de facto and de jure segregation -- and to disparage concerns about the former. I don't see why opponents affirmative action would want to sign on to that.
7.17.2007 1:22pm
Gabriel Malor (mail):
But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?


Conservatives don't mind tracing the idea to liberals because it demonstrates that liberals have dropped the torch as far as fighting racial discrimination is concerned.

Also, conservatives may be less troubled by identifying good ideas wherever they come from rather than falsely shoehorning them into one group or another. For example, Professor Volokh has demonstrated that the New Republic seems pretty desperate to assign this idea to the Federalist Society. And Mark Field seems positively baffled that conservatives would adopt an idea that originated outside their movement. Maybe you should focus less on labelling everyone and their ideas into their own isolated groups and start evaluating folks and ideas based on their quality?
7.17.2007 1:33pm
Mark Field (mail):

It is interesting how shame-faced conservatives seem to be about their string of Supreme Court victories. First they insisted that the new justices were "respecting" all that wacky liberal precedent they hate so much, and now comes the claim that Roberts' simplistic approach to school integration cases is a grand liberal ideal. I don't get it either.


Apparently the best thing conservatives have going for them is that they've adopted all these liberal positions. I'm holding my breath until we get some sort of apology for all the vituperation we received BEFORE they saw the light.
7.17.2007 1:52pm
jrose:
liberals have no legal, logical, or moral argument for their position in Parents Involved,
The dissenters in Parents Involved argue that racial classifications that foster racial supremacy are distinguished from racial classifications which fight racial supremacy. You can disagree with the argument, but don't say it is not based in law, logic or morals.
7.17.2007 1:58pm
Eryk Boston (mail):
Speaking as a member of the Federalist Society, I hardly consider this association to be much of a smear despite TNR's intent to use it as such.

By the way, when I joined, I was a bit disappointed to learn that we have no secret handshake. How can we possibly compete with the Freemasons and Illuminati?
7.17.2007 1:59pm
Thorley Winston (mail) (www):
You may have a point. Perhaps conservatives are too optimistic in hoping that liberals aren't REALLY racist.


It must be the older conservatives who are being optimistic, as long as I've been alive the political left has ALWAYS been racist particularly the ones who try to rationalize their bigotry in the name of "civil rights."
7.17.2007 2:00pm
Thorley Winston (mail) (www):

The dissenters in Parents Involved argue that racial classifications that foster racial supremacy are distinguished from racial classifications which fight racial supremacy. You can disagree with the argument, but don't say it is not based in law, logic or morals.


Except it isn't based in any of the three. The Constitution doesn't have an "except to fight racial supremacy" exception to the equal protection clause. A racial classification which denies a citizen equal protection of the law does so regardless of the purported motivations behind the classification. And people who support affirmative action today are just as bigoted as the people who supported Jim Crow 30-40 years ago no matter how much they like to pretend otherwise.
7.17.2007 2:05pm
jrose:
The New Republic article is attempting to posit some right-wing (esp. Federalist Society--every lib's favorite boogeyman these days) conspiracy to eliminate racial preferences and is illustrating it by the origin of what the Chief Justice said. What Eugene is doing is pointing out that that portion of the argument is flawed because it can be traced to a liberal origin and has nothing to do with Ted Olson et al.
TNR is likely all wet if it is tracing Roberts to Brea to Olsen to establish a conspiracy. However, does anyone doubt the rigid interpretation of Brown embodied in Robert's quote is almost exclusively the province of conservative legal thinkers such as the Federalist Society?
7.17.2007 2:13pm
ronnie dobbs (mail):

The line is, of course, pure sophistry. It purports to offer a solution to segregation -- "The way to stop discrimination on the basis of race is . . . ." -- but ignores the fact that school districts are concerned with de facto racial segregation. Removing the rhetoric, Roberts's response is that "[t]he way to stop [de facto racial segregation] is to stop [race-conscious integration programs]." Obviously that is not the case --and Roberts does not mean to suggest that it is.

The whole point of his turn of phrase is to obscure the distinction between de facto and de jure segregation -- and to disparage concerns about the former. I don't see why opponents affirmative action would want to sign on to that.


What are the "concerns" regarding de facto segregation? I would assume that the preeminent concern is that de facto segregation might suggest some ongoing or, at least, vestigial racial discrimination in housing or employment that results in de facto segregated neighborhoods (and thereby, de facto segregated schools). Assuming that that concern is borne out by the facts, Roberts and his supporters (including me) would say that addressing de facto segregation with de jure discrimination is the incorrect and unconstitutional approach.
7.17.2007 2:17pm
bmullins (mail):
OT trivia about Stanley Mosk: In 1938, science fiction author Robert A. Heinlein ran for California Assembley, representing the Hollywood district (he lost to Charles Lyon). Stanley Mosk was a supporter, having signed the nominating petition. (Campaign contributors included Melvyn Douglas and F. Scott Fitzgerald (Heinlein's wife had worked in the movie business prior to their marriage), and "Lloyd Wright", who I believe was the architect Frank Lloyd Wright).
7.17.2007 2:28pm
Jay Myers:
AF:

The whole point of his turn of phrase is to obscure the distinction between de facto and de jure segregation -- and to disparage concerns about the former. I don't see why opponents affirmative action would want to sign on to that.

But "de facto segregation" is not against the law. If blacks were being prevented from living in the suburbs then the courts would probably have allowed a race-based remedy but that is not the case. Why are those schools not representative of the racial composition of the larger region"? Because a much smaller percentage of blacks can afford to move to the suburbs. That's about as race-neutral a cause as you can get. I suppose you could try to argue that blacks are discriminated against by employers leading to underemployment and lower wages but even if that were true busing kids wouldn't change it.
7.17.2007 2:29pm
Christopher M (mail):
The TNR editorial doesn't actually posit any "conspiracy theory." All it says (in the relevant section) is that Roberts' Parents Involved opinion reads Brown as a case forbidding the government from taking account of students' race in assigning them to schools; that this is a revisionist position, since the legal mainstream has viewed Brown as a case about systemic discrimination against a socially disadvantaged minority; and that proponents of the revisionist view are generally Fed-Society-style legal conservatives. It then backs up that latter claim by citing Judge Bea's dissent and alluding to a similar statement by Ted Olson. That's all. It's not a conspiracy theory; it's just disagreement.

On the substance, the disagreement seems pretty straightforward. On the one hand, it would be nice if one's race played no role in determining what social benefits one gets; on the other hand, it would be nice if the white majority didn't enjoy systematic social advantages, largely resulting from a historical legacy of racism. Conservatives either disagree with the premise of the second principle or think that the first is more important; liberals agree with the second and think that it outweighs the first.
7.17.2007 2:44pm
AF:
ronnie dobbs and Jay Myers: Yes, those are some of the valid arguments against race-conscious integration that are obscured by Roberts's glib phrase.

It's one thing to say that affirmative action is not the answer to racial discrimination, quite another to say that ending affirmative action is the answer. The former is a reasonable response to supporters of affirmative action; the latter willfully ignores their concerns.
7.17.2007 3:07pm
Elais:
Ah, the usual conservative tripe that liberals are racist.

As long as some are painting all conservatives and liberals with a certain broad brush, so will I.

Conservatives are just as racist as they claim liberals are. Conservatives seem to focus more on individual minorities, but do nothing for minorities as a whole. Liberals seem to focus more on helping minorities in general than individually.

Neither approach alone will eradicate racism. How can one eradicate racism if conservatives pretend it doesn't exist?
7.17.2007 3:13pm
Al Maviva (mail) (www):
Hey, I agree with the local libs and TNR and Linda Greenhouse that there's nothing wrong with "racial balancing." I'm going to suggest to Eugene that he ban most of these white boy commenters for now, to ensure that the demographics of his commenters "look like America."

After all, if the de facto segregation of this blog comments section is basically indistinguishable from de jure segregation, it seems to me we can't just sit around and wait for Oliver Willis to show up - we gotta make Eugene stop discriminating. Immediately. And compel Oliver and maybe Lashawn Barber to start commenting here.

Oh, but that would be absurd, right?
7.17.2007 3:33pm
Jen:
This is off the subject, but why are they referring to the Federalist Society as an "elite organization" when any old law student can join?
7.17.2007 3:35pm
Happyshooter:
This comment and Sandy's 'The University of Michigan can Discriminate on the Basis of Race for 25 More Years' are the best shorthand for the positions of liberals and good honest people.
7.17.2007 3:43pm
Benjamin Davis (mail):
I gave you guys my personal 12 step program to enlightenment on this a couple of weeks ago.

See the new post on volokh today above about the Chairman of the Board of RWU using the N-word in a board meeting where they were talking about diversifying the board. He also says it is the first time he ever used it ("it slipped out") and blames "rap music". I have a bridge in Brooklyn for sale.

The Roberts formula seems to say really "let the government not do anything to address going forward the horrendous past and present of this country related to racial discrimination against blacks and then we can leave the free market of private racism to determine the outcomes."

Being called the N-word by a a state official or the head of a university (that I believes is private) is still being called the N-word. And we are in 2007.

The NAACP effort to bury the term sure did not last long. Back from the grave!

Roberts formula reminds me of when Scalia told me to get over slavery. I did not have the presence of mind to say, but I should have that I will get over slavery when you get over citing to slaveowners.

Best,
Ben
7.17.2007 4:00pm
The Ghost of Xmas Past (mail):
Houston Lawyer:

"It is really amusing to hear a senior partner lament the lack of diversity at a law firm. We make great efforts to hire all the proper minorities. There just aren't that many available who can do the work."


Thorley Winston:

"And people who support affirmative action today are just as bigoted as the people who supported Jim Crow 30-40 years ago no matter how much they like to pretend otherwise."


Nothing inspires me more than to see such color blind, level headed commentators upholding the great conservative tradtions in this country...

Thank god for the Roberts Court, else those proper minorities might just prevent Houston Lawyer from drinking out of the company water fountain.
7.17.2007 4:06pm
Bruce Hayden (mail) (www):
The line is, of course, pure sophistry. It purports to offer a solution to segregation -- "The way to stop discrimination on the basis of race is . . . ." -- but ignores the fact that school districts are concerned with de facto racial segregation. Removing the rhetoric, Roberts's response is that "[t]he way to stop [de facto racial segregation] is to stop [race-conscious integration programs]." Obviously that is not the case --and Roberts does not mean to suggest that it is.
I disagree for a number of reasons. First, and formost, there are many of us who do believe that racism still rears its ugly head because people, businesses, and governments are allowed to discriminate in favor of select minorities. Paraphrasing the sainted Dr. MLK, Jr., they are still being judged by the color of their skin.

Secondly, the majority pretty well demolished your "segregation" argument. You are (arguably intentionally) confusing two terms here, segregation and racial balancing. You apparently support racial balancing, but justify that by calling it desegregation. It isn't. The difference is in they why of where different people live. Segregation requires that they were forced to live somewhere, or prevented from living somewhere else. There was specifically no finding that that was happening in that case. People were living where they wanted to, but the school districts didn't like the resulting racial balance.

It was not de facto segregation. No matter how many times you call a racial imbalance that you don't approve of that, it doesn't make it so. It isn't.
The whole point of his turn of phrase is to obscure the distinction between de facto and de jure segregation -- and to disparage concerns about the former. I don't see why opponents affirmative action would want to sign on to that.
I would suggest just the opposite, that the only reason to call a racial balance that you don't like, "de facto segregation", is to piggyback onto civil rights remedies. But the difference between segregation and such a racial balance is the issue of free will. You have to answer the question of: why did the different groups of people end up living in different areas? And in these cases, there was no showing that there was any reason other than personal choice, which the school districts had taken upon themselves to override.
7.17.2007 4:29pm
JonC:

This is off the subject, but why are they referring to the Federalist Society as an "elite organization" when any old law student can join?


Actually, you don't even have to be a law student-- although if you are, "official" membership only costs five bucks.
7.17.2007 4:33pm
Bruce Hayden (mail) (www):
The Roberts formula seems to say really "let the government not do anything to address going forward the horrendous past and present of this country related to racial discrimination against blacks and then we can leave the free market of private racism to determine the outcomes."
I would rather suggest that he/they are saying that we are at a point where dwelling on past transgressions is counter productive.
Roberts formula reminds me of when Scalia told me to get over slavery. I did not have the presence of mind to say, but I should have that I will get over slavery when you get over citing to slaveowners.
Well, not a lot of precedent gets cited from back then, except our founding documents and the thinking behind them. Ok, maybe Marbury v. Madison. But little else. So, I read what you are saying there to suggest that as long as we cite the Constitution, and in particular, the Declaration of Independence (given its authorship), you won't get over slavery. I frankly think that these old documents have a pretty long life ahead of them still, and if I am right, I would suggest that that is a long time to hold a grudge.
7.17.2007 4:39pm
M. Simon (mail) (www):
Mark Field says:

Apparently the best thing conservatives have going for them is that they've adopted all these liberal positions. I'm holding my breath until we get some sort of apology for all the vituperation we received BEFORE they saw the light.

You will be surprised to learn that more Republicans voted for the Civil Rights Act than Democrats. Back when Dems had solid majorities in both Houses.

The Democrat Party was the home of racism in America. Just look up Woodrow Wilson our first KKK President. We still have a KKK Senator (he claims that is all in the past now). He is a Democrat.

The Dems have always been a racist party. They have not changed their stripes. Just their targets.
7.17.2007 5:29pm
Conservative Activist Judge:
Conservatives define racism at the individual level, as action based on race. If an individual, organization, or government makes a decision based on race, it is racist.

Liberals define racism at the group level. If an organization has too few of a minority, it is racist.

It is not a conflict over race, but a conflict over individual versus group rights. Conservatives focus on individual liberty, liberals focus on collective outcomes. If there are no black kids at college, conservatives do not think "The school is racist." Liberals see a college with no black kids, and kick out Asian kids to make room for rich black kids. Conservatives say, "How does that help the high school dropout in the ghetto?" Liberals score another victory for diversity.

I don't think liberals are racist, because they don't have racist intentions. They treat all humans as clay to be molded by the state.
7.17.2007 5:44pm
Californio:
Sadly, it appears that race is still a contentious issue. I declare Reconstruction a failure and decree that we must go back in time and pull out our Federal troops from the South immediately. Those people (Southerners) are savages who reject externally imposed democracy. Blacks may suffer, but the Occupation is only fostering terror groups like the KKK.
7.17.2007 5:49pm
Benjamin Davis (mail):
I think it is more elites who treat people as clay. Open plants in places making people there happy to get employment, close plants in places wrecking people's lives. Remake the Middle East in our image, etc.
Best,
Ben
7.17.2007 5:56pm
Mark Field (mail):

You will be surprised to learn that more Republicans voted for the Civil Rights Act than Democrats. Back when Dems had solid majorities in both Houses.


This old chestnut never dies. The majority vote for cloture was 44 D, 27 R. The final vote tally was 46 D, 27 R. Cite.


The Democrat Party was the home of racism in America.


Historically true. From the foundation of the Republican party in 1856 until it transitioned to the Southern party sometime after 1968, the GOP was generally more liberal on racial issues than the Dems taken as a whole. The liberal wing of the Dems was, of course, more liberal on race than the Republicans as a whole (and, by the mid-60s, than even the more liberal Republicans).


Just look up Woodrow Wilson our first KKK President. We still have a KKK Senator (he claims that is all in the past now). He is a Democrat.


I think you mean "was", Wilson being long dead and all. But you're right -- he was not just a racist, he glorified the KKK. As far as I know, however, he was not a member.


The Dems have always been a racist party.


This hasn't been true since at least 1964, when over 2/3 of Dem Senators voted for the CRA. While there undoubtedly remain racists in the party, the party itself gave up its sordid alliance with the racists in the 60s and could not be fairly characterized as racist since.
7.17.2007 6:00pm
Aultimer:

Thorley Winston:

"And people who support affirmative action today are just as bigoted as the people who supported Jim Crow 30-40 years ago no matter how much they like to pretend otherwise."


To be "just as bigoted" one would have to propose making whites chattel for a few years before returning to the no-AA, no-Jim Crow situation, or at least reparations.

Now, AA-supporters are somewhat bigoted, but they do offer a coherent answer (which may well be wrong) to the question of how to address what seems to be the effect of Jim Crow and other now-illegal laws. "No affirmative action" lacks that element.
7.17.2007 6:23pm
Redman:

The Dems have always been a racist party.


This hasn't been true since at least 1964, when over 2/3 of Dem Senators voted for the CRA.


Two things.

1. Affirmative action is a racist policy. It is bottomed on the belief that minorities cannot achieve equally with anglos without quota systems to force socially desireable results. It categorizes people according to skin color, for good or ill, without regard to individual characteritics or merit. Its nothing more than the liberal version of God awful racial profiling.

2. A higher percentage of republican senators than democrat senators voted in favor of the CRA in 1964.
7.17.2007 6:29pm
BobH (mail):
bmullins hypothesized that "Lloyd Wright" was the architect Frank Lloyd Wright. Lloyd Wright, who was indeed an architect, was Frank Lloyd Wright's son.
7.17.2007 6:56pm
David M. Nieporent (www):
However, does anyone doubt the rigid interpretation of Brown embodied in Robert's quote is almost exclusively the province of conservative legal thinkers such as the Federalist Society?
Yes.

I think the vast majority of Americans took the message of the civil rights movement generally and Brown specifically to be that racial discrimination was wrong. Which is why anti-discrimination laws have obtained widespread support, while racial preferences have not.


The dissenters in Parents Involved argue that racial classifications that foster racial supremacy are distinguished from racial classifications which fight racial supremacy. You can disagree with the argument, but don't say it is not based in law, logic or morals.
But what would such an argument have to do with Parents Involved? The Seattle/Louisville plans had nothing to do with "fighting racial supremacy." They had to do with aesthetics of the class photographs.
7.17.2007 7:11pm
Mark Field (mail):

A higher percentage of republican senators than democrat senators voted in favor of the CRA in 1964.


Agreed.


Affirmative action is a racist policy.


Opposing AA is a racist policy. There, do we all feel better now?
7.17.2007 7:29pm
Elliot123 (mail):
Houston Lawyer: "We make great efforts to hire all the proper minorities. There just aren't that many available who can do the work."

Affirmative action never ends. It is needed for eighth graders getting into high school, high school grads getting into college, college grads gettig into law school, law school grads getting in top firms, and associates making partner.

It's your job to have the right mix of races in your firm regardless of their skill level. Just hire them and pretend.
7.17.2007 9:03pm
M. Simon (mail) (www):
Redman,

When the policies were first enacted I thought AA for 20 years would be a good idea. A jump start.

It is now going on 40 years. Enough.
7.17.2007 9:55pm
M. Simon (mail) (www):
Not every one is created equal. The top sprinters in the world are blacks from a specific part of Africa:

Inequality

The best we can work towards is giving every one a shot to do their best.
7.17.2007 9:58pm
Asher Steinberg (mail):
It's a silly and probably regrettable little sound-bite that doesn't make a great deal of sense, but I think the decision was a good one. Suppose we accept that racial balance, not in the sense of strict numerical balance but in the sense of limiting de facto segregation, is a compelling purpose. Was the Seattle plan even remotely close to being narrowly tailored towards achieving that end? In the first place, the plan works on the basis of a white/non-white binary, which means that, by Seattle's lights, there's something more integrated about a half white, half Hispanic school than a half Asian, half African-American school. In and of itself that could've been enough to sink the plan as far as tailoring's concerned. Secondly, they sought to keep each school within 10 percent, + -, of the demographic mix in Seattle (41% white, 59% non-white). You have to draw the line somewhere, of course, but what could possibly be the matter, by any standard of diversity or integration, with a school that's 52% white, 48% black? Yet such a school would be unbalanced under Seattle's scheme. If Seattle simply made a law saying that no school's student body shall be, say, 80 percent or more comprised of any one racial group, that might have passed muster because then they could legitimately say they made a law narrowly tailored to ensure that all their schools would be at least (to a significant extent) biracial. But they didn't do that; they didn't come even close. Secondly, how compelling a purpose is integration really in the absence of past discrimination? If a kid lives in a predominantly Korean part of town, I don't quite understand what the constitutionally compelling purpose is that demands that he be sent out to a distant school so that he might study amongst non-Korean students.
7.18.2007 3:33am
William Van Alstyne (mail):
Yes, thanks, Eugene, for noticing! Actually, when I read Chief Justice Roberts' Opinion and the particular sentence ("The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race"), I frankly, privately thought it was traceable to the paragraph I wrote near the end of the Chicago Law Review piece, but of course, kept the thought to myself. --The reason I thought it might have that origin is simply that I knew it appeared in Judge Bea's (dissenting) opinion in the ninth circuit case under review, as I knew, too, that Bea was quoting it from Judge Mosk's strongly stated opinion for the Calfornia Supreme Court (I had some congenial correspondence with Mosk shortly thereafter...we subscribe to the same "strong" view).
And, all of this aside, quite personally, the particular paragraph in the Chicago law review article is one of the (very few) things I have put into print that I am pleased to have framed so unequivocally. Indeed, even these twenty years later, there is not one word of that particular paragraph--or sentiment--that I would change today.
Oh, for a final coincidence, Carlos Bea (the ninth circuit judge) is himself a fellow classmate from my Stanford Law School class (of '58), and we've had an ongoing congenial e-mail correspondence ever since he was appointed to the ninth circuit.
Last, just in case anyone might be interested (including those who disliked and heaped scorn on the quoted material as well as on Justice Roberts' rephrasing), I returned to this subject (of "using" race) in still another article I even now care about in much the same way. It is called, simply, "Affirmative Actions," (with "Affirmative" in italics) and appears at 46 Wayne Law Review 1517 (2000).
William Van Alstyne
7.18.2007 10:27am
jrose:
However, does anyone doubt the rigid interpretation of Brown embodied in Robert's quote is almost exclusively the province of conservative legal thinkers such as the Federalist Society
I think the vast majority of Americans took the message of the civil rights movement generally and Brown specifically to be that racial discrimination was wrong. Which is why anti-discrimination laws have obtained widespread support, while racial preferences have not.
I was referring to the Constitutional aspects of Brown, not the preferred public-policy (via majority rule). The notion that Brown stands for Constitutionally-mandated, rigid color-blindness is of course mostly a conservative idea in line with the Federalist Society.
But what would such an argument have to do with Parents Involved? The Seattle/Louisville plans had nothing to do with "fighting racial supremacy." They had to do with aesthetics of the class photographs.
Of course the desired end which is hoped to be achieved through desegregation is to foster equality of the races.
7.18.2007 10:47am
jckeith (mail):
Thank god for the Roberts Court, else those proper minorities might just prevent Houston Lawyer from drinking out of the company water fountain.


Facts are racist now, eh?
7.18.2007 4:00pm
Andy Freeman (mail):
The civil rights act cloture vote was 44 Democrats and 27 Republicans voting for cloture with 23 Democrats and 6 opposed.

Jim Crow was imposed by overwhelmingly Democrat party politicians.

While the Repubs made presidential inroads during the late 60s, the state and local wins by the Repub party in the south happened after the last jim crow democrats retired. We still occasionally see "first Repub elected to {office} since reconstruction" news - the big wave was in the 80s and early 90s.
7.19.2007 12:58pm