One good way of avoiding this constitutional quagmire wherein someone says "My group has suffered, so let's give my group a leg up over the others...say for the next twenty-five years," might be to insist that each group be treated equally in the sense that no member of any group is entitled to inclusion or exclusion for any government supported benefit on the basis of membership in that group.
That's what I'd always supposed the goal of equal protection was. Otherwise there's always going to be another group and we're going to be playing group chess for a long time, with the winner being the group with the best political and PR instincts. Race politics at its best, in other words, with a premium on singling-out and stereotypical thinking. And the Supreme Court presiding as referee over the whole racial hockey game. Just what we always wanted, right? Inflating the arguments by dressing them up in the trade jargon of the conlaw profs and the sociological academics adds little to their respectability in my book, considering that the constitutional attitudes of most people are formed at the ground level, where push comes to shove. Robert Sheridan [EMAIL PROTECTED] SFLS > [Original Message] > From: Barksdale, Yvette <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 7/7/2003 9:44:40 PM > Subject: Re: Puzzles re: Grutter and Korematsu - hispanicsandsegregatedschools > > G Rusello writes: (re Sylvia Lazos post) > > > Her identification of the categories of history, cultural ideology and psychology provide a fruitful framework for analysis. As others will note, these categories can be turned in ma[ny] directions. One could argue, for example, that Catholics and evangelical Christians suffer from the majority culture in profound and continuous ways. As Philip Jenkins has recently noted, anti-catholic prejusdice is deeply rooted and casually expressed in almost every area of American life, and the evidence he marshals satisfies at least the last 2 categories described above. Speaking as a Catholic, I can attest to its negative psychological effects. But were a court to examine a claim for AA by a Catholic,I don't think we would feel comfortable identifying that plaintiff (or, say, a rural evangelical Christian) as a "minority." > > > I agree that Prof Lazos' analysis is terrific. She is a fabulous critical race theory scholar, and the insights of critical race theory scholarship are powerfully illuminative on issues of inequality and justice, etc, as you can see here on the question of which groups should qualify for remedial -based affirmative action.. > > But, I think your question of whether catholics or rural evangelical christians should be considered minorities brings into relief the incongruity of the argument that remedial justifications are necesary (not merely sufficient) for the constitutionality of a university's admissions search for racial and ethnic, but not other, diversity. > > For example, suppose a state school, as part of a broader diversity search, were to seek to admit more Evangelical Christians concluding that the world view of Evangelical Christians was underrepresented on their campus, thus impoverishing the education of all students. (and I say this as an evangelical christian - although I'm neither conservative nor Republican.) Does anyone seriously argue that such inclusion would violate the religion clauses by discriminating against, say, Baptists or Methodists? Certainly the state could not exclude Evangelical Christians (or Baptists or Methodists) from admission. But is seeking them out to enhance the university's intellectual and cultural diversity, the constitutional equivalent of religious discrimination? Or suppose Catholic University were to conclude that its applicant pool was too heavily Catholic and seek to admit more non-Catholic applicants for diversity. Would Title VI prohibit it from doing so, on the theory that suc! > h action would be unconstitutional religious discrimination if done by a state university? > > Again, I think the antisubordination arguments clearly carry the day, if need be. But, I think those who argue racial and ethnic affirmative action is unconstitutional in the university admissions context, have to first make the case that seeking racial and ethnic inclusiveness is somehow uniquely more constitutionally problematic than seeking other types of inclusiveness. > > > yb > > > > ********************************************* > Professor Yvette M. Barksdale > Associate Professor of Law > The John Marshall Law School > 315 S. Plymouth Ct. > Chicago, IL 60604 > (312) 427-2737 > (email:) [EMAIL PROTECTED] > ***************************************************** > > > > ---------- > > From: [EMAIL PROTECTED]:[EMAIL PROTECTED] > > Reply To: Discussion list for con law professors > > Sent: Monday, July 07, 2003 6:02 PM > > To: [EMAIL PROTECTED] > > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics andsegregatedschools > > > > Professor Lazos' thgouhtful and informative piece adds much to this debate. Her discussion of "race" in the context of "minority" reveals an important point. She writes: > > > > "To determine if any social group is a "minority," the Court should take into account history ( a history of stigmatization as is the case with segregation and racial minorities), cultural ideology (a "common sense" that makes a group inferior or places that group in a restrictive role), an> d psychology (documented showing that the majority regards the minority as inferior or subordinate to them in some respect.) The nature of the dominant-subordinate dynamic will vary with context because different minority groups are subject to different kinds of prejudices and power dynamics." > > > > > > Her identification of the categories of history, cultural ideology and psychology provide a fruitful framework for analysis. As others will note, these categories can be turned in mah directions. One could argue, for example, that Catholics and evangelical Christians suffer from the majority culture in profound and continuous ways. As Philip Jenkins has recently noted, anti-catholic prejusdice is deeply rooted and casually expressed in almost every area of American life, and the evidence he marshals satisfies at least the last 2 categories described above. Speaking as a Catholic, I can attest to its negative psychological effects. But were a court to examine a claim for AA by a Catholic,I don't think we would feel comfortable identifying that plaintiff (or, say, a rural evangelical Christian) as a "minority." > > > > The larger question Professor Lazos reises is really whether the courts are the right vehicle for making these judgments, and whether such obviously contextual and shifting definitions of minority, which depend on region, education, and the reigning majotity stereotypes, are of suitable determinateness to be comprehensible in a constitutionally-viable way. > > > > Gerald J. Russello > >
