Mulling Muller

A few days ago I responded to a question posed by Eric Muller, a law professor at the University of North Carolina, about whether it would be legitimate for administrators at his daughter’s elementary school to take race into account in classroom placement, clumping some minority students together so that they would not feel isolated.

You will not be surprised to hear that I replied, somewhat longwindedly, no. Muller in turn has replied with a thoughtful and appealing, if not persuasive, defense of such a policy.

Let me first agree that the example of racial consciousness he defends is indeed benign. It involves nothing that can be described as discrimination.

This is utterly unlike a case in which a person gains or loses an advantage or opportunity on the basis of his or her race. Nobody is being fired. Nobody is being denied admission. Nobody is being compelled to assume any burden of any sort that he or she would not otherwise have to assume. The classes are all third-grade classes; all are in the same school; all are receiving the same everything. They just have different teachers. The “costs,” in the conventional sense of that word, are zero. So too are the risks that the program is evidence of some sort of illicit and submerged racial politics.

Muller acknowledges that some might see stigma as a cost — the implication that minorities cannot perform well on their own but must have minority company nearby — but he dismisses that as not really stigmatizing. No one likes to be isolated. Thus Muller concludes that “I confess that I cannot see a reason — other than maintaining fealty to a proposition about the categorical illegitimacy of using race for any purpose — to quibble with this program.”

I think he makes a very good point, and may even be right. One’s opinion about his hypothetical racial assignment policy does indeed come down to how much importance one places on “fealty to a proposition” about the impropriety of the state taking actions based on race.

I freely confess: I think fealty to that proposition is important. Let me hasten to add, however, that Muller’s hypothetical is a good one, as is his argument for it. Even I don’t regard the fealty-deserving proposition as absolute. It would be foolish, for example, to say the police could not take race into account in deciding what undercover officer to place inside a black gang. Nor is it necessary to deny that knowingly assigning a young student to a class where he or she may feel isolated is not good.

But having said that, I continue to believe that ignoring, and hence undermining, the colorblind principle has costs that go far beyond the possible stigma that Muller addresses. In fact, Muller’s example eerily resembles the Brown opinion’s much-criticized reliance on “a feeling of inferiority” generated by segregation to find it unconstitutional. Would it not be unconstitutional if there were no feelings of inferiority? But even leaving aside constitutions, laws, regulations, etc., our sense of fairness in everyday life is inescapably based on our understanding of principles. What Muller seems to me to be saying here is that a very real (actually, possible) feeling of isolation in a very real child should trump rigid fealty to an abstract principle. The implication — although Muller is much too polite to say, or perhaps even to think, such a thing himself — is that only cold-hearted conservative ideologues could disagree.

Maybe he’s right. It’s certainly not an easy choice. But I keep coming back to the principle, and the effect of abandoning it. Muller’s example has no victims, but he doesn’t explain why a school should not bus in more minority (of whatever color) students if there are not enough on hand to avoid feelings of isolation, more Jews to keep the Jews company, etc. And why limit the solution to student assignment? What about the assignment of teachers? Wouldn’t it be foolish to cabin such assignments inside one school when you have a whole district or city or county to work with?

One of the reasons principle is important, and one of the problems with setting principle aside and acting on an ad hoc basis, is that actions set precedents. Muller posits a third grade with 60 students, of whom 9 are black. If a normal, i.e., non-racial, assignment resulted in 7 blacks being in one class and 1 black in each of the two others, he asks, what would be so bad about taking their race into account and assigning three to each class?

For starters, it puts the school’s imprimatur on the belief that the black students should not be treated like everyone else because of their race. This is not good. But if the school, out of a laudable concern for the black students’ possible feeling of isolation, does follow such a racial assignment policy, what does it say when the three Hispanic students request the same privilege but insist they do not want to be in the class with the two Hispanics whose families came from Cuba? (We remodeled out kitchen years ago, and had to act as a constant buffer between the Salvadorean painter who would not speak with the Cuban contractors, and vice versa. It was a left-right thing.) For that matter, what does the principal say to the black (or white) high school students who don’t feel comfortable as a minority at the school prom and want to use the gym for a prom of their own? No stigma would be imposed, and since everyone would have a prom, there would be no “costs” in Muller’s sense there either.

Muller regards setting aside the principle here as a victimless crime, and hence no crime at all. No harm, no foul. In my view, however, there is indeed harm. But that’s because I think honoring important principles is important even when the effect of dishonoring them is not immediately evident.

UPDATE – For a very perceptive argument in favor of a middle position in the culture wars that is directly relevant to the disagreement between Muller and me, see Stanley Kurtz’s recent column in National Review Online. Kurtz does not discuss race here at all, but his reflections on the conflict between a strict adherence to the precepts of “moral traditionalism,” on the one hand, and a Muller-like rejection of such fealty as unjustifiably constraining could not be more on point.

ANOTHER UPDATE – Two recent posts on Larry Solum’s excellent Legal Theory blog throw some important light on this debate over fealty to propositions. (Post one and Post two) Solum describes himself as “neo-formalist” in these matters, and I tend to agree, although perhaps honesty should compel me to dispense with the “neo” in my case.