More on the Origins of Justice Roberts's "Stop Discriminating" Language.--

As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.

The idea that the best way to end discrimination is to stop discriminating was a common idea by at least the Reagan Administration. Here is Education Secretary Bill Bennett being interviewed in 1985 (source LEXIS/NEXIS), using language much like Stanley Mosk's from 1980:

What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy. (Meet: William Bennett; the Secretary of Education; interview NEA Today June, 1985.)

Anderson (mail) (www):
So the best way to stop discriminating [against black people] is to stop discriminating [against white people]?

Government turns out to be easy!

The way to increase wealth [among the poor] is to increase wealth [among the rich] -- hence, Bush's tax cuts!

The way to stop Arab psychopaths [who attacked us on 9/11] is to stop Arab psychopaths [who rule Iraq] -- hence, the Iraq war!

7.17.2007 4:43pm
nope, the best way to stop discriminating is to actively encourage the government to do so on an ongoing basis and, in fact, establish numerical quotas for each race in education and other public arenas. instead of color blindness, we must classify people by race down to the last drop of blood. does that sound better than the simplistic gibbering of those awful conservatives (neocons, no doubt).
7.17.2007 4:51pm
Libertarian1 (mail):

If in your utopian world it is acceptable to discriminate against whites is it also acceptable to discriminate against Asians? In Seattle a major class effected was not white but Asian.

In LA in the future it will be Blacks vs. Mexicans. Would you draw your discrimination-is-constitutional line at Hispanics?

Also do you really believe it strenghens your arguments to bring Bush into absolutely everything?
7.17.2007 4:58pm
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
7.17.2007 5:36pm
Libertarian hits on a couple points that have me a bit puzzled on this issue. (Full disclosure: I generally support AA, though I don't view it as sacramental and eternal.)

1) I work at an "elite university." We have programs that provide tutoring, mentoring, travel money, free dinners, etc., for "students of color." But Asians are not invited to join. I have trouble justifying this.

2) The city in which I used to live is politically divided along the Black-Brown axis, not the Black-White axis. (There are very few whites left in the core city.) Should the affirmative action programs in the schools, contracts, etc., be continued? Why?

I'm not arguing. I'm just perplexed by my own position.
7.17.2007 5:37pm
jimbino (mail):
The way to solve our race problem is to offer a premium such as $5000 + free college for each interracial kid produced. That would not discriminate against any race and would have the benefit of eliminating racial differences.

A better solution, of course, would be to penalize the parents of every pure-blood kid, the greater the racial purity, the higher the penalty.
7.17.2007 5:41pm
Same way you stop gambling, I suppose.
7.17.2007 5:46pm
Anderson (mail) (www):
But Asians are not invited to join. I have trouble justifying this.

Do Asians, historically or presently, have trouble getting admitted to your school?

--More generally, I take no position on the policy wisdom of affirmative action. My point is that the rhetorical value of the "way to stop discrimination" quote is not independent of its cognitive value, and that cognitive value is rather low.

Also do you really believe it strenghens your arguments to bring Bush into absolutely everything?

Of course!
7.17.2007 5:49pm
Anderson (mail) (www):
Btw, if there's not already an Onion profile of an Asian-American C-student, there needs to be one.
7.17.2007 5:51pm
Crunchy Frog:
And the same way you stop smoking. You simply stop smoking. Yeah, I know it's a bitch, but the patch works about as well as AA - it keeps the monkey on your back. It just pretties it up a little.
7.17.2007 5:53pm
Benjamin Davis (mail):
And when after you are working hard some place the powerful Chairman of the Board lets "slip" the N-word that he learned from "rap singers" I guess you just move on to the next company, right?
7.17.2007 6:00pm
guest368 (mail):
Many thanks to the various posts on this. It's been fascinating to see the roots of the Roberts rhetoric. It's worth noting that in the blogospheric reaction to Roberts' opinion, Roberts was tagged with spouting the "Strom Thurmond view." Stanley Mosk was no Strom Thurmond and neither is Roberts. It was also asserted that those who had fought Brown v. Board has no moral authority to interpret its legacy. Again, the Stanley Mosk sourcing quashes that idea. Finally, given the pedigree of the Roberts quote, isn't it a given that it will "have legs" as the decades roll? Call it wicked conservative "framing" if you want, but as the US becomes more multi-cultural, it will be harder and harder to argue that "the best way to fight racial discrimination is to engage in it."
7.17.2007 6:07pm
Does Justice Roberts (et al) come from a world where tautologies don't exist? That the modern argument against prejudice springs forth from such nonsense is amazing to me.
7.17.2007 6:13pm

'Do Asians, historically or presently, have trouble getting admitted to your school?'

Not now, no. Nor do blacks or Hispanics. Historically--We've had African Americas almost since the beginning (1800s), although in small numbers for much of that time. But the numbers of applicants, from what I understand, was very small as well. It may have been a simple demographic trend in higher ed, and not something that related to university policy. I can't say for sure.
7.17.2007 6:17pm
kind of like "can't we all just get along?"; but spoken by a white man.

i'm not certain how convincing that argument is. and i'm even less certain now that federal judges are underpaid.
7.17.2007 6:20pm
Anderson (mail) (www):
Interesting, Hoosier.

FWIW, I think that focusing on diversity in college admissions is wrongheaded, &that we need greater intervention in grades K-12 so that there are plenty of academically qualified black students to attend college. But that, of course, would be much harder to do than the kind of policies you describe at your school.
7.17.2007 6:20pm
Rich B. (mail) (www):
It continues to shock me that everyone is so intent on the pros and cons of marginal affirmative action, which affects so few people, when nearly every single elite college in America discriminates against women in their admissions policies, and nobody even bats an eye lash. William and Mary, for example, admits 26% of women and 44% of male applicants, even though the women are better qualified.


That's your scandal. Not the marginal University of Michigan caucasian or Seattle Asian student.
7.17.2007 6:30pm
Libertarian1 (mail):

Anderson wrote:
Do Asians, historically or presently, have trouble getting admitted to your school?

In the Seattle case Blacks "historically or presently" didn't have trouble getting admitted. The Seattle law wasn't designed to correct previous instances of State discrimination. It was designed to produce diversity in the face of the factual pattern of de jure segregation.

A current response to Kennedy is to try and institute economic diversity in admissions hoping that will produce racial diversity but the last study I read showed that admissions by economic diversity failed to achieve the tacit but unstated goal of racial equality.
7.17.2007 6:42pm
Andy Freeman (mail):
> Do Asians, historically or presently, have trouble getting admitted to your school?

Why does it matter whether they historically had trouble?

Neither the historical ones nor the folks who discriminated against them can be affected by anything that we do today. One could argue for compensating/punishing their descendants, ignoring the whole "corruption of the blood" issue, but many/most of the folks affected are not their descendants, they just look similar. On what basis do they get different treatment?
7.17.2007 6:48pm
Libertarian1 (mail):
Somewhat off topic but we are discussing "diversity" My question is what are the supposed benefits of achieving diversity on a college campus?

My eldest daughter went to Stanford in the 80's and my second daughter went to Michigan in the 90's. In both instances I was amazed to walk through campus and discuss with them integration in higher education. Both campuses had basically a 100% black dorm and 100% (minus a token) white dorms. The two groups absolutely never socialized and the only time they even saw each other was walking to class or in the classroom.

I walked through the campus on many occasions and observed large blocks of black students, totally and completely undiversified and large blocks of white students, totally and completely undiversified talking, frizbeeing and in general truly enjoying the company of their own. Not that there is anything wrong with that.
7.17.2007 6:55pm
RogerG (www):
Not discriminating solved a lot of problems in the past, however now race and class have become very intertwined, with many people occupying in a low economic class. Therefore, it becomes possible to racially (de facto) by discriminating against policies that address class.

my political forum
7.17.2007 9:15pm
Andy Freeman (mail):
> Not discriminating solved a lot of problems in the past, however now race and class have become very intertwined

"have become" suggests that the intertwining is recent, but it isn't.

When did we try "not discriminating"?
7.17.2007 9:25pm
Public_Defender (mail):
I guess we can now expect Roberts to be consistent enough to start saying:

You can't make peace by waging war.

Why do we kill people who kill people to show people that killing people is wrong?
7.17.2007 10:25pm
JosephSlater (mail):
Nice, Public Defender.

Affirmative action is a complicated issue, in law and practice. But I can't help but be reminded of Stephen Colbert's recurring bit in his right-wing-commentator-parody persona: "I don't see race. People tell me I'm white, and I take their word for it. . . ."
7.17.2007 10:35pm
Michael B (mail):
We engage in war ("kill people") due to intrinsic moral qualifications; race is not an intrinsically moral qualification. The Chief Justice, should he engage in such thinking, wouldn't be consistent, he'd be confused.
7.17.2007 11:26pm
Public_Defender (mail):

You're right, Roberts sounds a lot like Colbert, but he's more of a cross between Stephen Colbert and Cindy Sheehan.
7.18.2007 7:11am
Eli Rabett (www):
OK, so what do you do to compensate those who have been discriminated against in the past directly, and indirectly through their parents/grandparents? Sounds like a good argument for reparations.
7.18.2007 11:55am
Anderson (mail) (www):
We engage in war ("kill people") due to intrinsic moral qualifications

I hear the Pentagon is working on its "moral bomb" that kills only the evil soldiers, but the bleeding-heart liberals won't let them test it on human subjects.

As for capital punishment, I don't think "my victim was unspeakably wicked" is a defense in most states.
7.18.2007 12:36pm
Michael B (mail):
The irony, Anderson, is that in your scorn, precisely in your scorn, you're attempting to position yourself as possessing greater moral standing. The most basic fact remains, race has no intrinsic moral qualifications; by contrast what constitutes jus ad bellum can be variously debated, but it's a debate based upon conceptions of justice/morality.

That's not the end of the story for the race issue, it's still reasonable to consider AA as a temporary corrective, but the underlying logic, in the long run, is inescapable; race has no inherent moral qualifications.
7.18.2007 1:45pm
Anderson (mail) (www):
you're attempting to position yourself as possessing greater moral standing

Nope, just greater intelligence.

The news that race has no intrinsic moral qualifications did not make it to the South until 1865 ... is still not universally accepted on a pragmatic level by lots of white Americans ... and affirmative action is a rather blunt policy instrument for attempting to redress the bad effects of the attribution to race of intrinsic moral qualifications by generations of Americans.

You can quarrel with whether AA is a good idea, or whether it's constitutional, but please don't act stupid about why anyone ever thought it was necessary.
7.18.2007 1:52pm
Michael B (mail):

Oh, it's intelligence? But of course. As in intelligence, divorced from morality? Now that would make for some interesting historical, and contemporary, reviews. More succinctly put, despite your trumpeted claim of superior intelligence, you're not thinking very well. (Btw, intelligence divorced from morality is tantamount to and necessarily implies intelligence divorced from reality.)

Regarding AA, you're being presumptuous, you misunderstand. I have always supported it, while also insisting it needs to be used within some horizon, needs to be used as a temporary, if decades-long, corrective and, initially, was used as a means of jump-starting more equitable reforms, more equitable institutional and societal/cultural forms. Most recently here at VC.
7.18.2007 3:41pm