The Federalist Society: How Conservatives Took the Law Back from Liberals

4. Race and Gender Discrimination

4 Race and Gender Discrimination The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. —John Roberts1 A racially discriminatory act is, quite simply, an action taken on the basis of race. —Lino A. Graglia2 O ne of the most controversial legal issues with respect to race is whether government may take race into account to benefit minority groups that have traditionally been discriminated against. Historically, when civil rights lawyers litigated against racially discriminatory government policies, they argued that decisions should not be made on the basis of race. They said that members of minority groups deserved to be treated as individuals and judged on their merits. Today, many civil rights advocates believe that in many areas, race must be considered to overcome the vestiges of previous discrimination. Conservatives argue , however, that the Constitution does not permit a double standard, and that any use of race in decision making by the government is illegal and harmful. These are important questions of constitutional law and government policy that should be considered in each instance in the historical context in which they arise. In Parents Involved in Community Schools v. Seattle School District No. 1, the court struck down voluntary school integration plans in Seattle, Washington, and Jefferson County, Kentucky.3 The court held that the plans violated the equal protection clause of the Fourteenth Amendment, on the ground it was unconstitutional for these school districts to take race into account in making decisions about school assignments. The decision was a major triumph in a long-standing, wellorganized , and well-funded conservative campaign to abolish race-conscious decision making by the government. Influential members of the Federalist Society have been heavily involved in this campaign. Federalist Society members were crucial participants in Parents Involved, as they had been in numerous earlier cases. Lead counsel for the parents challenging the school assignment plans in the Supreme Court was Harry J. F. Korrell, an executive board member of the Federalist Society’s Puget Sound lawyers chapter and a member of its Labor and Employment Practice Group’s national executive board. Paul Clement, solicitor general of the United States, filed an amicus brief supporting the parents on behalf of the federal 99 government. Other Federalist Society members filed amicus briefs on behalf of a variety of conservative groups. This chapter begins by describing the arguments that Federalist Society members have developed over the past three decades to oppose affirmative action plans that rely on racial or gender classifications. These arguments formed the basis of the court’s decision in Parents Involved. Federalist Society critic Lee Cokorinos says it is the goal of the Federalist Society “to undermine the idea of a public commitment to diversity.”4 Conservatives believe, however, that it is not appropriate for the government to promote racial balance. The essence of the conservative position is that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse. On the other hand, many civil rights advocates believe that because our history has been one of the systematic exclusion of racial minorities and women from social, political, and economic institutions and from positions of power and influence, the conservative view leads to the continuation of exclusion and retards society’s ability to move toward inclusion. The major issues in this debate, which are interrelated, are identified here and then discussed at some length. Some of the points raise technical constitutional issues , which will be explained. The principal conservative arguments are: • The courts must review all racial classifications made by the government, including for purposes of affirmative action, under the standard of “strict scrutiny.” • The only compelling government interest that meets the strict scrutiny requirement and justifies racial classifications is providing a remedy for previous intentional discrimination by the government unit in question. • The government may not use racial classifications to remedy “social discrimination.” • The Fourteenth Amendment’s equal protection clause guarantees equal opportunity , not equal results. • The Fourteenth Amendment’s equal protection clause secures the rights of individuals, not groups. • Affirmative action unfairly penalizes innocent individuals with no responsibility for discrimination. • Racism has been largely overcome in the United States. • The equal protection clause of the Fourteenth Amendment to the Constitution requires that government action be colorblind, rather than color conscious. • With respect to gender, excessive concern about equality for girls and...