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 has the required degree of “racial balance.”

Oh, wait….

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  1. vnjagvet December 25, 2006 at 3:35 pm | | Reply

    For those who doubt John’s analysis here, a study of these excerpts from Brown II (the remedy part of the case) is instructive if not dispositive:

    In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies 4 and by a facility for adjusting and reconciling public and private needs. 5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

    While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools [349 U.S. 294, 301] on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

    The purpose of Brown was to eliminate racial discrimination. Promoting racial balance by using racial classification was not a part of the Brown rationale.

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