Tuesday, July 10, 2007

An Important Distinction

The debate here over the recent Supreme Court decision ruling Louisville's and Seattle's public school desegregation plans unconstitutional (irony # 458: the Louisville plan the court struck down was put in place when an earlier Supreme Court ruled that the city wasn't doing enough to integrate - so, essentially, a plan ordered by the Supreme Court was later ruled unconstitutional by the Supreme Court!) has forced me to consider an important distinction that needs to be made.

Just as, earlier (in a discussion on the theology of James Cone - see the whole series here) I argued for the need to make a distinction between the violence of oppression and the violence of the oppressed in response to their oppression, here I will argue that we need to make a distinction between kinds of discrimination.

Much has been made of this line in Chief Justice Roberts' majority decision:

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

On the surface it makes perfect sense. The thinking behind it led to Roberts' equating of desegregation plans which consider race, and as such, in some way discriminate on the basis of race, with the forced segregation that was (at least legally) overturned in Brown v. Board of Education. If what was wrong with segregation was that it was a legal form of racial discrimination, then racial discrimination of any kind must be both wrong and unconstitutional.

But the question we have to ask is this: Are all kinds of discrimination on the basis of race equal? Is the discrimination of Jim Crow equivalent to the discrimination of public school integration plans that consider race? I have to say NO!

Our country has a long history of racism and social injustice. This racism has placed many groups at a significant (and unnatural, as it has nothing to do with the inherent nature of the disadvantaged groups) disadvantage. Perhaps the single most disadvantaged group (with all due respect to the indigenous population that was nearly wiped out with the arrival of Europeans) is the group we call "black." Stolen from their native lands and forced into slavery, this group has been consistently dehumanized, to the point where our court system ruled once that blacks have no rights that whites are bound to respect.

The persistent legacy of racism - and of this there is no doubt - has long limited the educational and economic opportunities and outcomes for blacks. As such, they have been explicitly excluded from full participation in American culture, despite their great contributions to American culture, without which it would make no sense to speak of a distinctly American culture. (Jazz, blues, rock and roll - these are distinctly American forms of music, but their roots are black.)

Because blacks have been explicitly excluded from full participation in American culture; because they are the victims of a persistently racist social structure; they must be explicitly included, and such inclusion looks a great deal like the discrimination of favoritism. This brings me to the first distinction that needs to be made when talking about discrimination:

We must make a distinction between discrimination which favors or advantages a group, and discrimination which excludes, harms, or puts a group at a disadvantage.

Of course these kinds of discrimination are related. It is difficult and often nonsensical to distinguish between these kinds of discrimination in certain cases. In a society in which "white" is considered the normative form of humanity, the favoring of whites cannot be distinguished from the excluding of non-whites from full participation in humanity. White privilege disadvantages blacks. This is why, in addition to distinguishing between favoring a group and marginalizing a group, we must make another kind of distinction:

We must distinguish between discrimination that perpetuates past inequities and discrimination that aims to level the metaphorical playing field.

Simply put, outcomes matter. Any discrimination that favors an already favored group or that pushes an already marginalized group further toward the margins has a very different outcome from a discrimination that recognizes past inequities and tries to create a more just and equitable society. It is with this in mind that I'd like to revisit the Roberts quote:

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

I don't necessarily disagree with it. However, in our effort to "stop discrimination on the basis of race" we must recognize the many expressions of harmful discrimination, of white favoritism and black marginalization, inherent in our society. Absent that, ruling desegregation programs unconstitutional, and equating them with the discrimination of Jim Crow laws, does not "stop discrimination on the basis of race." Rather, it robs those who wish to end harmful discrimination of a valuable tool to fight discrimination.

The discrimination of integration in public schools is not the same as the discrimination of segregation. In slightly favoring a disadvantaged population it helps create a more just and equitable society, which is very, very different from the discrimination of entrenched white privilege and racism.


Brian said...

I don't think I could add anything to your defense of the 'important distinction.' Well said.

I would add, though, that while Chief Justice Roberts' line from the plurality opinion deserves the discussion you're giving it, in practice it's Justice Kennedy's opinion, not Roberts', that sets the controlling precedent. And Kennedy's opinion seems to leave SOME latitude for Seattle, Louisville, and others to pursue racial diversity in schools as a legitimate state interest, as long as race is an explicit factor. Or so I'm led to believe; Kennedy's opinion is a bit inscrutable.

Roberts' plurality opinion in _Parents Involved_ is important, I think, as a sign of what we can expect from the court if Bush or another Republican gets to nominate the next vacant SCOTUS seat, or if Kennedy somehow figures out what he stands for and decides to move in the Roberts-Scalito direction.

Brian said...

Oops. In paragraph 2 of my previous comment, "as long as race is an explicit factor" should read "as long as race is NOT an explicit factor."