The New Racial Discrimination

I am convinced that the term “racial discrimination” must be the most overused term in our popular culture, ranking alongside “invidious discrimination” in the legal culture.  Neither term means all that much. For a recent example, look no further than a recent letter from Roger Clegg, President and General Counsel of the Center for Equal Opportunity.  In the letter, Mr. Clegg complained that “[t]here can be no serious doubt that whites face more racial discrimination in [the context of university admissions] today than do African Americans.”

In reading this passage, and the letter in its entirety, I was reminded of Herbert Wechsler’s much criticized Holmes lecture, where he offered a critique of the Court’s reasoning in Brown.  I was particularly reminded of his closing, where he offered the following:

I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied. In the days when I was joined with Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.

I must confess that I really don’t get what Professor Wechsler means, the same way I simply cannot understand what Mr. Clegg is referring to.  This is cognitive dissonance in full display.

But to dismiss these views off-hand would be to miss a far more important and interesting story.

I used to think that these arguments were deployed as instrumental accounts of a reality shared by enough justices on the Supreme Court.  In other words, the only reason these arguments were so prevalent in our legal culture was because individuals in the right places happened to take them seriously.  Who could possibly believe that Jim Crow was analytically indistinct from efforts to integrate institutions of higher learning? Nobody in their right mind could possibly think these arguments were the least persuasive, but that was hardly the point.  They were persuasive were it counted, and once the view gained five votes on the Court, that was all that mattered.

Along these lines, I also remember thinking that if this is what the 14th Amendment stood for, then I would happily give it back.

But I don't think this is right anymore.  That is, I don't think that the views of Roger Clegg and Professor Wechsler are any better or any worse than my own.  More importantly, I suspect that Mr. Clegg believes quite strongly that Jennifer Gratz and Barbara Grutter were"discriminated" against by the University of Michigan no differently than Linda Brown, Rosa Parks, or Fannie Lou Hamer were discriminated against by the Jim Crow system. No amount of data about the racial composition of the Michigan student body is likely to change that fact.

This is a case, in other words, about ways of seeing the world.  Where some see a racist and biased admissions and hiring process, where the demand to take race into account ensures a semblance of fairness, others see a racist and biased process because race is taken into account at all.

Similarly, when the justices on the Supreme Court critical of race conscious policies rail against these policies and their unfairness, their beliefs are sincere.  I do not doubt it for one moment.  But the real question is, why should their views of the world, as personal as they are, be privileged in any way?  Why are their views accorded preferential status in our political debates?

That is a question worth asking, yet a question we seldom ask.  To be sure, particular communities ask this question implicitly, often defiantly -- think here about the White Primary cases, to take but one easy example -- when specifically affected  by Supreme Court decisions.  It may be time, and worth the candle, for the larger political community to take on this question seriously.