Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

More on North Carolina NAACP v. McCrory, the North Carolina Voter ID Case

Last week, a 3-judge court of the Fourth Circuit Court of Appeals issued a unanimous opinion striking down North Carolina's voter identification laws.  Guy offered a terrific discussion of the opinion here, and I don't have much to add to his analysis.  It is dead on.  I want to focus instead on the lessons of the case about judicial behavior, race, and constitutional interpretation.

Race and Merit Return to the Firehouse

The question of hiring practices in fire departments is not new.  But it sure seems troubling.  This is the context that gave rise to the Ricci case and the decision by the city of New Haven to throw away an employment test that would have had a racially disparate impact.  The U.S. Supreme Court, in a 5-4 opinion, strongly disapproved of this action.

The city of New York is no stranger to this debate.  Currently, the city's fire department is in the middle of an effort to diversify that is unprecedented in the history of the department.  According to a recent report by the New York Times, "[i]n 18 months, officials say, recruiters have sought black candidates at more than 6,100 events at high schools, colleges, shopping malls, boxing gyms, softball games and military picnics, all but begging them to apply for the next entrance test, in January, by the Sept. 15 deadline."

This is remarkable in many ways. Commendable, to be sure, and also necessary; but this is not what caught my attention.

After one of his many recruiting speeches across the city, the fire commissioner explained his stance on the issue. 

After his speech, he sat near the church’s basketball court, where he avowed, remarkably, that while he had obviously always known the department was predominantly white, he never understood, until the suit was filed, that others viewed this whiteness through a lens of racial bias." 

“It never dawned on anyone,” he said. “We never looked at white or black. We looked at good firefighter or not so good. Me? I made it in this department by what I did, not who I was. But then you suddenly realize: people may actually think we’re discriminatory.” 

Looking almost hurt, he paused and said, “That’s why I’m here today.”

This is a remarkable passage.  Hurt?  Dumbfounded, as in, how could anyone think we discriminate? This is an old refrain: I made it far in _________ (fill in the blank with your profession of choice), and surely, if I made it, anybody can.

I suspect the fire commissioner is not alone. But such is the beauty of white privilege. Imagine the amount of guilt and unnecessary angst if he were to give any thought to why he rose through the ranks as he did.  It is much easier to think of his achievements as stemming from individual hard work and determination than as a measure of one's racial standing in the world.  

If only life were so simple.

The same day I read this account of the diversity struggle in NYC, I also read Nate Silver's insightful account of the difficulty inherent to differentiating, from the many available teams, which two teams deserve to play for the BCS national championship in football.  This piece is a remarkable read. Silver asks the following question: are the people who participate in the polls used to determine who deserves to play in the championship game "judging teams based solely on their performance? Or do biases and preordained notions about the teams’ quality enter into the equation?"  Unsurprisingly, Silver concludes that "[t]he evidence points toward the latter. A team’s preseason ranking has a modest but statistically significant effect on its B.C.S. ranking at the end of the season, even after controlling for its quality of play as determined by computer systems."

It gets better.  According to Silver, "[t]here is also evidence that teams with wider fan bases are more likely to be treated favorably by B.C.S. voters — meaning that the surveys are a popularity contest, at least in part. A marquee name like Notre Dame is likely to finish a couple of ranks higher than, for instance, Mississippi State or Northwestern given equivalent performance on the field."  This is another way of saying that teams are not treated equally, and that "merit" is more of an aspiration than a political reality.

So much for the objectivity of computers and fancy formulas.

Next time your boss brings out fancy tests or formulas to prove to you why you are not getting a raise or a promotion, think twice about he's telling you.  (It is particularly amusing when a dean pulls out a sheet of paper where he ranks the faculty according to a formula that is only understood by whomever designed it, as if to prove objectively why you are not getting what other people are).  These are probably the same fancy tests and formulas that determined that he should have a raise or a promotion.  It is likely that he became your boss thanks in great part to these same metrics.  That fact alone makes them true.

Maybe this is not so remarkable after all.

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.