Vol. 3 No. 1 (January, 1993) pp. 4-6

EVEN THE CHILDREN OF STRANGERS: EQUALITY UNDER THE CONSTITUTION by Donald Jackson. Lawrence: University of Kansas Press, 1992. 282 pp. Paper.

THE COLOR-BLIND CONSTITUTION by Andrew Kull. Cambridge: Harvard University Press, 1992. 301 pp. Cloth $35.00.

Reviewed by Susan Gluck Mezey, Department of Political Science, Loyola University Chicago.

Donald Jackson's EVEN THE CHILDREN OF STRANGERS: EQUALITY UNDER THE U.S. CONSTITUTION and Andrew Kull's THE COLOR-BLIND CONSTITUTION, both published in 1992, do an admirable job of adding to our knowledge of the past, present, and likely future of the Equal Protection clause of the 14th Amendment. While both books pay exhaustive attention to the debates surrounding the ratification of the 14th Amendment and to the subsequent case law that determined the course of legal equality in the U.S., the Jackson book makes a more conscious effort to deal with the present controversy over the legal conundrum presented by the use of race conscious remedies in the light of the Constitution's prohibition against a denial of equal protection to all persons. Moreover, while Jackson ponders the implications of equal protection for discrimination on the basis of a variety of characteristics only one of which is race, Kull remains solely concerned with the nation's battle over racial discrimination. In the end, although both represent impressive scholarly endeavors, each leaves the reader wishing for more.

Jackson sets the theoretical stage for his analysis of the 14th Amendment with the concepts borrowed from Douglas Rae's (1981) edited work entitled, EQUALITIES. In this book, Rae and his co- authors posit the difference between "individual-regarding equality" and "group" (or "bloc")-"regarding equality." The former is a device in which all members of the class are treated equally, subject to inequalities in skills and talents. The latter is a concept requiring equality between subclasses of individuals and leading to proportional equality of these classes, in this case, of course, meaning racial groups. Within this framework, Jackson proceeds to explain the history of the 14th Amendment and its subsequent interpretation by the courts of the United States.

Jackson is concerned with how the open-ended and potentially inclusive language of the 14th came to be selected by the 39th Congress. He concludes that its Framers intended only to establish civil and legal equality, that is, citizenship, for the former slaves despite the fact that Section 1 contains the phrase "all persons" with no reference to race at all. He notes the incongruity between this narrow construction of the Amendment and the array of rights and the classes of persons that were ultimately included within the protection of the 14th: women, aliens, illegitimate children. The bulk of Jackson's analysis of the equal protection cases is presented in categories divided by PLESSY V. FERGUSON, BROWN V. BOARD OF EDUCATION, and post-BROWN V. BOARD OF EDUCATION. Ironically, PLESSY and the "separate but equal" doctrine represented group-regarding equality because the two racial groups were subjected to at least nominal equality. Similarly, he points out that at one level, if one ignores the purpose of the legislation, the anti-miscegenation laws could be seen as a form of group-regarding equality because similar treatment was accorded to members of each group that violated the law. In the cases following PLESSY, the Court diverted from the original meaning of equality (although there is a view that suggests this was actually foreseen and, in fact, intended by the Framers) to protect corporate entities from state regulation. During this era, the Court conveniently lost sight of the fact that racial equality was the principal motive for passage of the 14th Amendment.

BROWN highlighted the Court's commitment to individual- regarding equality when

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it announced that race cannot be the basis of school assignments. What BROWN made clear, however, was that individual-regarding equality was an ineffective device for bringing about the racial equality that was the ultimate goal of the plaintiffs in BROWN. According to Jackson, the "most appropriate inference from BROWN I is that some sort of affirmative policy of integration is required -- at least where there previously has been DE JURE segregation. Otherwise, the evils that BROWN I described would, in large part, continue untouched by the Court's decision" (p. 93). Thus was born affirmative action.

The underlying meaning of BROWN, according to Jackson, was that bloc-regarding equality -- measured by outcomes in percentages -- was the only course to take, and that in 1969 the Supreme Court appeared ready to adopt this formula for equality. In allowing busing (in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION), the Court appeared to accept the necessity of the group-regarding view but then in MILLIKEN V. BRADLEY, it reneged on its promise by limiting the "domain" of equality and restricting the race conscious remedy of busing to within the city limits where it would not serve as a remedy at all. Jackson then chronicles the continuing battle over affirmative action, that is, the decision to adopt group-regarding equality, in employment and education and effectively illustrates the Court's growing reluctance to allow the use of race conscious remedies to compensate for past racial discrimination in American society.

After presenting these competing concepts of racial equality, Jackson goes on to discuss other types of equality. In two chapters, he attempts the almost impossible task of analyzing the current multi-faceted equality provided by the equal protection clause. The attempt is not successful for two reasons. First, he loses the continuity of equal protection analysis by considering cases that are doctrinally diverse: from privacy, to the First Amendment, to the due process clause, to statutory interpretation. Second, his analysis of discrimination based on sex, age, residency, marriage, poverty, mental retardation, and alienage tends to lose sight of the bloc- and individual-regarding dichotomy that formed the basis of his analysis in the first nine chapters. Much more successful is his chapter focusing on the different views of equality in other countries, namely India and Canada. In this he convincingly demonstrates that the constitutions of both countries contain a commitment to achieving more egalitarian group outcomes.

Finally, Jackson concludes by showing the basic contradiction in American society that makes affirmative action policy so difficult for so many Americans: a belief in individualism and meritocracy that is incompatible with a commitment to group remedies that are necessary to achieve a condition of equality in the U.S. Although, as he points out, the commitment to meritocracy is so often mythical, it is nevertheless a powerful one.

He proposes instead a "distance-travelled" concept, designed to reconcile affirmative action policies with the principle of individual-regarding equality. This approach substitutes socio- economic conditions for race and gender considerations in selecting among applicants in the employment or education arenas. Thus, he argues, his plan avoids the conflict over affirmative action because it does not challenge the belief system of the American people and offend their political sensibilities. As a principle, his "distance-travelled" concept appears plausible. As a practical matter, it appears unlikely to escape a negative political reaction and the judicial pitfalls that doom affirmative action in the Reagan-Bush Supreme Court. His "distance-travelled" concept relies on socio-economic conditions, which he admits are correlated with race and would therefore be unlikely to fool anyone as being based on non-racial criteria; it requires intensive analysis of the background characteristics of applicants in employment and education, which in most circumstances would be impracticable if not impossible; and while it would appear to reduce

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the emphasis on numbers, it seems unlikely that the effectiveness of the remedy can be measured unless numbers are used to evaluate the results.

While Jackson takes on the task of applying equal protection theory to the affirmative action debate, Kull makes it clear that his book is not about affirmative action. Kull seeks "to locate the sources of the constitutional argument for radical nondiscrimination, 'color-blindness,' and to trace its subsequent manifestations" (p. 2). He does not claim that this historical odyssey will settle the dispute over affirmative action, rather that it will illuminate it.

Kull convincingly demonstrates that the principle of color- blindness was at issue before the ratification of the 14th Amendment -- as evidenced by arguments presented in the 1850 ROBERTS V. CITY OF BOSTON case -- and took on renewed importance after 1868 as well. And while the argument for color-blindness has existed since at least the early 1800s and was articulated during the antislavery struggle, the legal principle of nondiscrimination on the basis of race has never been explicitly accepted by the courts of the U.S.

Kull presents two possible interpretations of the legal equality principle: a flat-out prohibition against racially determined public policy or an allowance of reasonable racial classifications with the courts the ultimate arbiters of reasonableness. Beginning with the rejection of Charles Sumner's argument for the plaintiff in ROBERTS, the courts have always opted for the latter view of racial equality. When the 39th Congress had an opportunity to correct this interpretation of equality with the passage of the 14th Amendment, it embraced John Bingham's vague "equal protection" language over Thaddeus Stevens' more radical anti-discrimination (that is, color-blind) view. Kull notes that "Congress consistently preferred the more malleable notions of equality and `equal protection' to an unyielding rule of nondiscrimination" (p. 69).

Thus, it was not surprising the Court accepted the separate but equal view of equality in PLESSY, promoting the belief that the 14th Amendment should only be interpreted as a prohibition against laws that imposed explicit legal inequality and that states could treat citizens of different races differently as long as the basis of the different treatment was reasonable. Justice John Marshall Harlan's dissent, incorporating the phrase "color-blind" endorsed the flat prohibitory principle because he did not trust judges with the task of distinguishing a good racial classification from a bad one.

After PLESSY, Kull tells us, the Court seemed to move toward an implicit adoption of the ban on racial classifications but never did so explicitly. It continued to strike laws on the basis of unequal treatment rather than on the anti-discrimination principle advocated by Harlan in PLESSY. Then when it announced that segregation per se was unconstitutional, it had no legal rationale for doing so. Kull's analysis of BROWN strikes just the right note: he admires the Court for its "courageous" act in taking the lead on racial discrimination in the U.S. and criticizes it for its failure to take the forthright position of announcing that henceforth color-blindness was national policy. As he explains it, the color- blind principle was implicit in BROWN (as well as in later rulings), but politics prevented the Court from acknowledging it. Instead, the Court relied on social science data (the accuracy of which has since been called into question) to show that separate was inherently unequal in education. According to Kull, the Court wanted to disguise its decision by deciding it within the bounds of the separate but equal doctrine. Then, in its post-BROWN opinions, the Court appeared to have adopted the anti-discrimination principle but refused to acknowledge it, and struck laws -- even those prescribing equality of treatment -- without providing any explanation.

In the 1960s, the civil rights community abandoned its support of color-blindness as it

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realized that it was inconsistent with the race conscious remedies civil rights leaders were advocating to redress imbalances in employment, school attendance, and voting. The courts and the federal government at first acquiesced in this shift by allowing affirmative use of racial criteria.

Kull concludes by criticizing the principle and practices of affirmative action policies. As a practice, he claims they "spend political capital," without committing the resources necessary to solve the social and economic inequalities in the U.S. In other words, he implies, unless the government commits itself to massive expenditures (unlikely in today's economic environment), all attempts at equalizing racial status are bogus.

Legally, he maintains, the Court is adrift and has no doctrine to guide its judgments of affirmative action policy; he characterizes Justice Brennan's attempts to impose guidelines as "utter banality" (p. 220). And although recognizing a kind of "rough justice" in having discrimination work to expand the rights of African Americans, Kull nevertheless opposes affirmative action in favor of a policy of color-blindness.

In the end, Kull's analysis leaves one unsatisfied. While criticizing affirmative action policy today, he says nothing of the alternatives. Color-blindness was an excellent guiding principle in the past; had it been adopted at the outset of constitutional policy-making, the need for affirmative action policy may not have evolved. Moreover, had today's opponents of affirmative action taken a stand in support of color-blindness during the 50's and 60's, their hands would be cleaner. Calls for color-blindness today tend to sound suspiciously like arguments against BROWN in 1954 for ostensibly nondiscriminatory reasons.

The major flaw in the book is that Kull does not explain how reliance on color-blindness in today's racial environment will lead to a just society. His caveat at the beginning of the book that he does not intend to resolve the affirmative action debate but rather intends to trace the origins of color-blindness does not save him from the need to show that a color-blind society is an anachronism in present-day U.S. society. He has a responsibility to point out these contradictions and he fails to do so; this mars his otherwise insightful analysis.



References

Rae, Douglas, et al. (1981) EQUALITIES. Cambridge: Harvard University Press.


Copyright 1993