A COLORBLIND CONSTITUTION????

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The following was in my e-mail today and was sent from the CFIF.org site. We may soon be realizing the difference the new Supreme Court will make. The thesis of the piece I interpret to be that you cannot have both affirmative action and colorblind law.

So what do you think? Does affirmative action trump the intent of the 14th Amendment? Or is it time that we finally become a color blind society and base everything on need, ability, or earned benefits no matter what race, ethnicity, etc. a person is?

Quote:

14th Amendment
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Another Chance for a Colorblind Constitution

Maybe America's next generation of students will get to see a colorblind Constitution after all -- at least through their high school graduation.

Three years ago, a bare majority of the Supreme Court of the United States further delayed Dr. Martin Luther King's dream that his children would one day live in a nation where they would "not be judged by the color of their skin but by the content of their character" when five justices ruled colleges and universities could admit students based on their race.

As Justice Clarence Thomas wrote of the decision then, the High Court had granted colleges and universities a "25-year license to violate the Constitution," thus teaching America's future leaders the lesson that their race matters.

But, on Monday, a new High Court signaled that maybe, just maybe, that same lesson won't be taught to our nation's elementary and high school students. Specifically, the justices agreed to hear two cases next term challenging the practice of some public school districts to use race in deciding whether students can choose to attend the elementary or high school of their choice.

The cases come from Louisville, Kentucky, and Seattle, Washington, where the public school districts allow students (with the assistance of their parents) to choose which schools they want to attend. However, in assigning a school to each student based on his or her preferences, those school districts also considered the student's race if the school of choice already enrolls too many pupils of that same skin color.

Of course, the school districts claim they have a legitimate reason for engaging in this obvious racial discrimination. The school districts argue they need to ensure each one of their elementary and high schools maintains the "proper" racial balance so that their students can reap the reward of educational diversity. Not surprisingly, this was the rational approved by the bare majority of the Supreme Court three years ago.

The truth, the racial balancing engaged in by the Louisville and Seattle public school districts is anything but permissible under both the Fourteenth Amendment and the Supreme Court's interpretation of it. While five justices did uphold the University of Michigan's consideration of an applicant's race in admitting each student to law school, the Court said such racial consideration had to be "individualized" on a student-by-student basis to promote the "educational benefits" of "diversity."

Indeed, in the companion University of Michigan case, a larger majority of the High Court struck down the University's undergraduate admissions process that gave a fixed number of "bonus" points toward admission to under-represented minority applicants. Such a rigid preference for students of particular races was unconstitutional racial discrimination that violated the Fourteenth Amendment's Equal Protection Clause, the High Court ruled.

Rigidly is exactly how racial preferences have been used by the Louisville and Seattle public school districts. Quite simply, those school districts used race as a disqualifying factor once a specific elementary or high school already had "enough" students that looked the same. This certainly cannot be the holistic "individualized" consideration of race in education the bare majority approved three years ago.

Moreover, this new Court should get back to basics and reconsider what they want to teach our nation's school children about the Constitution. Three years ago, five justices taught students applying for higher education that their race could matter more than their past educational performance or future academic potential. Next year, the newly constituted High Court should teach America's elementary and high school students that the Constitution ensures their race shouldn't matter at all, and that Dr. King's dream is on its way to becoming reality.

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Edward Lazarus, who teaches constitutional law at Yale, agrees about the difference the new justices are likely to make, but thinks that previous precedents should prevail. I'll add the conclusion of his articles so readers can consider both sides of the debate.

Edwar Lazarus, in a recent FindLaw column wrote:

But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference, and creates no racial stigma?

This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.

We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.

Integration Properly Done Is More Important than Pure Color-Blindness

Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.

But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.

It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned Dr. King's dream by prohibiting elected officials from bringing kids of every color onto every schoolyard, so that the hand-holding of the next generation may begin.

Source

Personally, I would prefer it if the Supreme Court found Affirmative Action unconstitutional. It's a much clearer rule than 'schools can consider race, as long as theyre fuzzy and opaque about it´, which is what I read Grutter v. Bollinger to be saying; and it takes seriously that the 14th amendment applies to an individual right of persons, not a collective right of races to be integrated with one another.

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The poll, as is so often the case with such polls, inherently assumes that affirmative action cannot be consonant with the provisions of the XIVth amendment. However, it is entirely possible that one could act affimatively to recruit employees or students from an historically marginalized group without depriving any one of life, liberty or property without due process of law.

This is a typical "have you stopped beating your wife" argument. To take a position on this issue in the terms offered would entail accepting an assertion that affirmative action of necessity entails a violation of the XIVth amendment. I do not agree with such an assertion.

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Setanta wrote:

The poll, as is so often the case with such polls, inherently assumes that affirmative action cannot be consonant with the provisions of the XIVth amendment. However, it is entirely possible that one could act affimatively to recruit employees or students from an historically marginalized group without depriving any one of life, liberty or property without due process of law.

The clause in question is a different one, however. It's "nor shall any state [...] deny to any person within its jurisdiction the equal protection of the laws." Hence, when state universities deny admission to qualified students because they're white, and grant it to less qualified ones because they're black or hispanic, the rejected white guys have a valid 14th amendment complaint. Foxfyre may have made ' have you stopped beating your wife?´ type statements on other occasions. But this is not one of them.

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Thomas wrote:

Setanta wrote:
The poll, as is so often the case with such polls, inherently assumes that affirmative action cannot be consonant with the provisions of the XIVth amendment. However, it is entirely possible that one could act affimatively to recruit employees or students from an historically marginalized group without depriving any one of life, liberty or property without due process of law.

The clause in question is a different one, however. It's "nor shall any state [...] deny to any person within its jurisdiction the equal protection of the laws." Hence, when state universities deny admission to qualified students because they're white, and grant it to less qualified ones because they're black or hispanic, the rejected white guys have a valid 14th amendment complaint. Foxfyre may have made ' have you stopped beating your wife?´ type statements on other occasions. But this is not one of them.

Do you then assert that affirmative action only functions in that manner, and that it can only function in that manner? For whatever the material in the initial post may say, i remarked on the poll offered, which inherently assumes that one either supports affirmative action or one supports the provisions of the XIVth amendment. I am simply asserting that the one does not axiomatically so impinge on the other.

As for the originally posted article, i invite you to read the CFIF.org "about us" page--and then draw your conclusion as to whether or not the organization is, as it claims, non-partisan. I submit to you that it is not.

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IMO, the issue should be less racial and more economic.

We should be striving for all of our kids to have world-class educations, not just affluent kids.

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A very cogent point--what about "heritage" admissions to universities?

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Since I desire a meritocracy, I'd have to say I'm against 'em. Of course, schools seek money just like every other entity.

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Setanta wrote:

Do you then assert that affirmative action only functions in that manner, and that it can only function in that manner?

"Only" is a strong word, and I can't swear there has never been an aspect of affirmative action that didn't work that way. But usually, yes. Often enough to justify Foxfyre's poll question that a strict interpretation of the Fourteenth amendment is incompatible with any race-based admission policy.

Setanta wrote:

I submit to you that it is not.

Oh, I'm sure it is not. Nevertheless on this particular issue, I tend to agree with it.

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Setanta wrote:

A very cogent point--what about "heritage" admissions to universities?

Same thing.

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Thomas wrote:

Setanta wrote:
A very cogent point--what about "heritage" admissions to universities?

Same thing.

Or is it?

Say you have parents from the 'wrong side of the tracks or whatever" who studied hard, paid their dues as apprentices to learn a trade, and worked hard to elevate themselves squarely into the middle class or upper middle class so that they could offer their kids more advantages than they had. All other things being equal, should their kids now be locked out because they are too affluent or too white or too anything? "Heritage" admissions to universities is one way the parents can ensure the kids get the breaks the parents worked so hard to give them.

In one way it appears to advantage the rich. In another way, it appears to be an earned benefit. (This all assumes that I am correctly interpreting what a 'heritage admission' is.)

I'm thinking on it.

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Are you honestly trying to argue that preferentially admitting one group of people (blacks) is bad, while preferentially admitting another group of people (children of alumns) is good?

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She's thinking about it. Thinking is good. Let her finish thinking.

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DrewDad wrote:

Are you honestly trying to argue that preferentially admitting one group of people (blacks) is bad, while preferentially admitting another group of people (children of alumns) is good?

If that is directed to me, I don't see how you could have inferred that from anything I've said. Or anybody else for that matter.

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As I have posted in other threads, I have spent a good deal of my adult life in vocations or avocations working with socially and/or economically disadvantaged people. Some of the efforts were targeted at eliminating racism, sexism, and other ugly -isms, and I helped develop some wonderful programs for kids who otherwise never could have afforded them.

The problem is that there is little seed money or grant monies available for anything other than disadvantaged people. And there is a LOT of it available for them if you know how to go after it.

One day I was visiting with some more affluent parents, the very ones who were helping fund the programs we were running, and they were becoming aware that unless they were very rich, they were in a kind of no man's land. They weren't rich enough to afford the best for their kids and they were too rich to receive the subsidies and preferences offered to some of the disadvantaged kids.

All they were saying is that they were all for helping the poor kids, but they wanted something available for their kids too.

I didn't think it was an unreasonable request.

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Thomas wrote:

Setanta wrote:
Do you then assert that affirmative action only functions in that manner, and that it can only function in that manner?

"Only" is a strong word, and I can't swear there has never been an aspect of affirmative action that didn't work that way. But usually, yes. Often enough to justify Foxfyre's poll question that a strict interpretation of the Fourteenth amendment is incompatible with any race-based admission policy.

That is not what the poll question says--it does not mention admission policy at all.

Quote:

Setanta wrote:
I submit to you that it is not.

Oh, I'm sure it is not. Nevertheless on this particular issue, I tend to agree with it.

It was not the particularism to which i objected--it was the poll in its character as sucker question, which in my experience appears to be the only type of poll which this member is capable of constructing.

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I would vote for all of the above.

Foxy, you should include an "all of the above" option on all of your polls. This would make them much less biased.

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Setanta wrote:

That is not what the poll question says--it does not mention admission policy at all.

But it's what the upcoming Supreme Court cases are about, and Foxfyre's initial post discusses these cases. In these cases, there is a very real tradeoff between a strict reading of the equal protection clause and the promotion of integrated schools. I disagree it's a sucker question to ask about these cases. And even if it was, nobody forces you to answer it. Nobody forces you to enter a thread that adresses a question that doesn't suit your tastes.

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The poll precedes the first post, and is not directly referential to it. The poll asks nothing about the contents of the initial post, the poll only leaves one the choice of asserting affirmative action as superior to the XIVth amendment, or of asserting the contrary, or of making another assertion. I'm making another assertion, which is that the poll questions constitute a sucker question, in which it is assumed that affirmative action and the provisions of the XIVth amendment are axiomatically incompatible.

No one can prevent me from entering a thread, either, and objecting to the cheap tricks of the author of the thread.

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Setanta wrote:

No one can prevent me from entering a thread, either, and objecting to the cheap tricks of the author of the thread.

Nobody is preventing you indeed.

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A COLORBLIND CONSTITUTION????

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