Posted by Eugene Volokh:
The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop
Discriminating on the Basis of Race":
http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184684008
[1]Orin points to a New Republic editorial that credits this quote to
Judge Carlos Bea and Ted Olson:
Today, the view lives on in elite organizations like the Federalist
Society, with which Roberts has long been affiliated. Indeed, the
much-cited coda to Roberts's opinion -- that "the way to stop
discrimination on the basis of race is to stop discriminating on
the basis of race" -- is lifted almost verbatim from a 2005 dissent
by circuit court judge Carlos Bea, also a Federalist Society
booster, which itself recalls a slogan favored a decade ago by
former solicitor general Theodore Olson, another Federalista.
Note, though, that Judge Bea actually credited the forbears of his
quote, and he didn't include Ted Olson. Here's what Judge Bea wrote:
Or, as more recently said by the late Justice Stanley Mosk of the
California Supreme Court:
Racism will never disappear by employing devices of classifying
people and of thus measuring their rights. Rather, wrote Professor
Van Alstyne, �one gets beyond racism by getting beyond it now: by a
complete, resolute, and credible commitment [n]ever to tolerate in
one's own life or in the life or practices of one's government the
differential treatment of other human beings by race. Indeed, that
is the great lesson for government itself to teach: in all we do in
*1222 life, whatever we do in life, to treat any person less well
than another or to favor any more than another for being black or
white or brown or red, is wrong. Let that be our fundamental law
and we shall have a Constitution universally worth expounding.�
Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604
P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van
Alstyne, Rites of Passage: Race, the Supreme Court, and the
Constitution, 46 U. Chi. L.Rev.. 775, 809-10 (1979)).
The way to end racial discrimination is to stop discriminating by
race.
Judge Mosk, of course, was generally seen as a leading liberal
California Supreme Court Justice. William Van Alstyne had been on the
ACLU National Board of Directors until three years before he published
his Chicago law review article. Many Federalist Society members do
share the view -- but the quote's origin seems to be pretty solidly
outside the Federalist Society.
References
1. http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184675289
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