Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?

I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?

II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio² principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”³ Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”⁴ They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.

III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.

Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).

In their example of how this process works, GKW rely on economic evidence indicating African-American individuals have steeper discount rates than white individuals to suggest that any offer of a salary with a fixed pension benefit will be of more value to the white applicant than to the African-American applicant,³ so that the employer can shift the distribution of his workforce in ways that advance discrimination. Armed with this knowledge, an employer could alter the racial composition of its workforce.

Assuming that this mechanism has its intended effect, it could work in both directions. An employer therefore could engage in race-based affirmative action under the radar screen by front-loading the employee’s wages and reducing their pensions in order to attract a higher fraction of African-American workers. I am not aware of any evidence that points to a conclusion that any affirmative action employer has ever engaged in this tactic, either deliberately or inadvertently. The usual way to run affirmative action programs is through aggressive recruitment, all of which takes place above the radar, given the one-sided application of Title VII: disparate impact theories are available for use by black applicants,⁴ while affirmative action practices are looked upon with real benevolence.⁵ In addition, it is instructive to note that for many jobs the pension element has little or no traction insofar as the (now discriminatory) social security system covers most of the pension obligation. Yet I hope that GKW lack the courage of their convictions and would not suggest that social security (and Medicare) be unraveled because of its implicit racial skew, or that benefits paid to African-American workers be grossed up to reflect the perceived difference in the discount rates by the median member of the respective groups.

Nor do I believe that this approach has much to commend it, even for a firm that wanted to practice race or sex discrimination under the radar. The simplest objection is that it is not likely to be effective. The initial point is that an employer would have to offer the now-suspect pension feature of the employment practice in constant proportions to all workers in order for the system to work at all. But that is not the way in which most employers want to deal with their employees. One of the most common practices for fringe benefits today is for firms to offer workers an allowance that they can use to make purchases from a menu of items, in exchange for a reduction in their base pay. This menu approach sets out an implicit indifference curve for the employer: the employee can pick any combination of items that he or she finds ideal, and thereby maximize the nonsalary portion of his or her compensation package. Single individuals do not have to buy life insurance; sicker individuals may stock up on health insurance, and so on down the line.

This ability to make the optimal choice thus counts as an implicit wage boost for all employers, regardless of race or sex. If the evidence offered in GKW is indeed correct, we should expect to find that different individuals, by race or sex, will choose different benefit packages. At that point the employer practice should be sheltered by the doctrine announced in EEOC v Sears, Roebuck & Co,⁶ because we have the most explicit declaration of unconstrained worker preferences that we can imagine. Commentators have, wrongly, attacked Sears on the ground that the female workers who opted for store commission jobs were conditioned wrongly by their social settings. But even if that strained interpretation made sense, it is hard to identify any external constraints on choice that fetter employee preferences in this situation. The widespread use of these menu options is not consistent with employers engaging in covert forms of discrimination. The menu strategy is an effective way to attract a diverse workforce because it does not shoehorn the benefits package into a one-size-fits-all straightjacket. GKW should praise employer ingenuity for maximizing the welfare of its employees under competition, not seek ways to expose employers to additional liabilities.

Nor is there any reason to think that GKW’s strategy for racial discrimination is likely to yield any forbidden fruits if put into play. In order for this to work, there has to be an assumption that the compensation demands across races are identical for both African-American and white workers. But suppose that they are not, and that on average the African-American workers have lower reservation wages than white workers, perhaps because of the discrimination in the general market. At this point, the pension-heavy strategy may well reduce the attractiveness of the compensation package somewhat. But that result is consistent with a loss in consumer surplus, and does not require us to assume that there will be much of a change in the rate at which African-Americans accept job offers. We know in addition that even if there is a variation in preferences across groups, there is also a variation in preferences within groups. At this point, one can ask just what the likely shift in workforce compensation is likely to be. My view is that it would be quite small, and for what end if it turns out that it makes it more difficult to recruit workers up and down the line. There does not seem to be much of a future in this practice.

There is, moreover, a real risk that the relentless effort to root out race and sex discrimination has serious adverse consequences of its own. In their article, GKW discuss briefly the Supreme Court’s most conspicuous effort into the field of sex discrimination in pensions, City of Los Angeles, Department of Water and Power v Manhart,⁷ where the City of Los Angeles followed standard actuarial practices by withdrawing more money from women’s salaries to cover its pension obligations than it did from men’s salaries. The statistical reason for this decision was that women lived longer than men and thus needed large amounts of money to fund their monthly payments, which were of the same magnitude as given to men. To put the point in a different fashion, the women paid into the pension plan the exact amount of money that they would have paid if there were no men at all in the employment pool. The men of course did the same.

The key point here is that the program adopted by Los Angeles should be regarded as the epitome of sound gender discrimination policy insofar as it prevented an illicit wealth transfer between the sexes. Stated otherwise, the present value of the entire benefit package was identical for men and women. Men got the additional benefit of a higher monthly payment. Women got the benefit of a longer expected life. Manhart thus showed the capacity for the employment discrimination law to disrupt the rational behavior of both public and private institutions, by using the antidiscrimination law to create an undeserved cross subsidy between men and women, which was a consequence of the rigid formalism of the United States Supreme Court.

Yet note these flexible notions of discrimination could put employers into an impossible bind. Thus, suppose that attention shifts to employer life insurance policies. Under the menu approach set out above, the correct response is to offer the best competitive rates for men and women, and these will show that women receive better offers as a consequence of their lower risk of death in any given period. But now suppose that the City of Los Angeles decided that consistency required it to use the same formal approach for life insurance that the Supreme Court in Manhart forced upon it for pensions. At this point, the women workers could rely on the theories of GKW to demonstrate that they were the victims of employer discrimination. The firm picked a mandatory insurance benefit which it then deliberately mispriced to drive women applicants from the roost. So we now have a new theory of inevitable discrimination. Women, but not men, and African-Americans, not whites, get to pick whether the economic or the formal conception of discrimination governs the case. Since every case will have either formal or impact discrimination, no employment practice is safe.

There are two conclusions that I draw from this general saga. The more modest one is that we should give new theories of employment discrimination a well-deserved vacation on the grounds that they are likely to spawn more discrimination than they prevent and to do so at a public and private cost that makes everyone worse off. My more aggressive conclusion tracks that which I have argued for since I wrote Forbidden Grounds: The Case against Employment Discrimination Laws. Just repeal the employment discrimination laws in their entirety, except as they apply to monopoly situations, of which there are virtually none in private unregulated markets.⁸ One of the reasons for this position is that it frees up any and all affirmative action programs from the legal limbo in which they are rightly placed under the current law. The text of Title VII is perfectly neutral on race and sex, for it applies to “any individual” as a conscious effort to introduce a color- and sex-blind regime into the law.⁹

The tortured interpretation of the text to allow affirmative action on the one side and to impose disparate impact liability on the other¹⁰ has had two serious dysfunctional consequences. The first is to abandon all principled rules of statutory construction in order to adopt a highly race-conscious endeavor. What could be done in the one case can be done in the next, which imposes a serious crimp on all rule-of-law values. The second is to create the need to develop some ad hoc public justification for affirmative action programs in the private and public sector, which in turn gives all institutions a strong incentive to develop narrative accounts that overstate the level of discrimination, especially in recent times, in order to lend legitimacy to these programs. In the private sector, at least, the principle of freedom of association allows the programs to go forward without needing to tarnish the reputation of other individuals. And for public institutions the correct test, I continue to believe, is to allow them in employment contexts to mirror the voluntary practices that dominate private institutions, which in turn permits the same kind of employment practices in both markets. And this freedom in labor markets comes at a much lower cost than the current suffocating regime.

And to what end? GKW do not offer any aggregate statistics that indicate that the position of African-American workers lags behind that of whites, controlling for the usual key differences in education and work experience and the like. That literature is of course enormously complex, and among its most persistent findings are that wage gaps between blacks and whites prove significant for men, but not for women.¹¹ The explanations for that disparity are likely to prove complex, but invidious discrimination on racial grounds does not look to be one of them.

The situation on the ground, moreover, is quite different from what it was some years ago. When I started teaching in 1968, the faculties were pretty much white and male. My first Dean, Dorothy Nelson, was a real pioneer.  The composition of every university and every business has been transformed in the interim. I do not think that this is in response to legal pressures, but in response to real perceived demands inside the organizations in question. The high level of support for affirmative action cannot be squared with a covert racial or sexual animus on the part of white men who now occupy a shrinking proportion of the dominant positions. Abigail Thernstrom was quite right to attack the Attorney General, Eric Holder, for his dismal account of race relations in his February 18, 2009 speech.¹² It does not help matters today to make bald assertions that “in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.”¹³

That broad denunciation denigrates the brave work and large sacrifices of too many honorable people. There is no reason to get smug on questions of progress on matters of race and sex, but the thought that any tightening of the anti-discrimination laws can help improve the current situation should be put firmly to one side. Yet Congress does not seem to be listening. Recently, it adopted the Lilly Ledbetter Fair Pay Act, which included an unexplained one-sentence finding about the “reality of wage discrimination” in American life.¹⁴ It is therefore not too much to note the recent statistical information that the unemployment rates for men is higher in all relevant categories than for women.¹⁵ There are doubtless many possible explanations for this turn of events. But the one point that does seem clear is that on matters of race and sex discrimination our first order of business should be to give it a rest, not to embrace new theories of liability under a statute that has already outlived its usefulness.
 

Acknowledgments:

Copyright © 2009 The University of Chicago Law Review.

Richard A. Epstein is James Parker Hall Distinguished Service Professor of Law, The University of Chicago Law School; Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and a visiting law professor at New York University Law School.

This Editorial is a Response to the following Legal Workshop Editorial: Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination, LEGAL WORKSHOP (U. CHI. L. REV. June 22, 2009).

By way of illustration, imagine that individuals from two groups, Deltas and Omegas, comprise the labor pool from which employees may be hired.  While their work productivity is drawn from the same distribution, a given employer dislikes Omegas for reasons unrelated to their job qualifications.  Because Omegas have suffered discrimination historically, legislation explicitly protects Omegas from employment discrimination.  Further, while Deltas and Omegas have similar reservation wages,¹ Deltas, on average, more highly value some nontransferable good that the employer can procure (or produce) at a cost equal to or lower than the Deltas’ average valuation of the good.  To make the illustration more concrete, assume the employer is a brewery and offers free beer at lunchtime.

While the employer prefers to hire only Deltas, federal legislation limits the employer’s ability to do so. Yet we contend that employers may advertise the job broadly and make hiring decisions in a seemingly nondiscriminatory fashion, avoiding lawsuits, and still achieve an ultimate workforce that is predominantly (if not exclusively) composed of Deltas.  Specifically, if the employer offers a compensation package composed of a submarket wage as well as access to free lunchtime beer, Omegas will find such a job unattractive, while Deltas will still gladly accept the job offers.  Ultimately, according to the firm, due to no misconduct on its part, Omegas lacked interest in working for the brewery.

While scholars have touched on this phenomenon,² no one has examined these employment practices in a systematic way.³ Such discrimination is presented as an ancillary effect of employment policies or conditions. Yet recent class actions suggest that basic animus- or stereotype-driven discrimination is still quite prevalent. So it should be unsurprising that litigation-savvy employers might deliberately craft compensation structures to exclude certain types of workers.

In this online Article, we provide an illustration of group-level preference heterogeneity that could generate passive discrimination in an occupational setting. We next discuss how current antidiscrimination law applies and conclude with a brief discussion of how we might better address passive discrimination.

I.
Illustration

In this Part, we first describe the conditions necessary to create the segregated equilibria described above. We then provide an example where these conditions may apply. In the case of intentional passive discrimination, the employer must be able to identify a good that satisfies two conditions: (1) the disfavored group values the good on average less than the average valuation placed on the good by other groups of potential employees, and the employer knows this; and (2) the good is nontransferable. A third condition under which the employer can ensure that she attracts the favored type of employee is satisfied when the employer can provide the good for a cost below that paid by workers outside of the employment relationship.

While we have focused on intentional passive discrimination, the phenomenon could also arise as an accidental byproduct.  For example, a brewery whose owners are indifferent regarding employing Deltas and Omegas might still offer free beer during lunch because it believes doing so promotes product knowledge.  In such a case, even if the brewery starts out offering this benefit plus a market wage, Deltas who do not secure positions will offer to work for a lower wage given their valuation of the free beer.  Eventually, this group valuation will lead to a workforce composed of Deltas, to the exclusion of Omegas.

One example of potentially discriminatory screening practices relates to subjective discount rates and pay structures that include a deferred compensation component, such as a pension.⁴ To begin with, a person’s subjective discount rate captures her willingness to delay current consumption for the prospect of increased future consumption.  While everyone exhibits some positive subjective discount rate, individual-to-individual heterogeneity exists in those subjective discount rates.⁵

While individual-level heterogeneity is prevalent, labor economists have noted that systematic differences in individual discount rates across racial groups may also exist.⁶ A natural experiment provides the most interesting supporting evidence in the finding of large inter-race heterogeneity in discount rates.⁷ Specifically, conditional on a large number of other effects,⁸ black military enlistees and officers exhibited significantly higher subjective discount rates than other minorities and whites.⁹ This result is robust with blacks exhibiting, on average, discount rates on the order of five to nine times as great as whites.

Assuming this empirical regularity holds,¹⁰ an employer wishing to passively exclude blacks could offer a low current wage coupled with generous deferred compensation benefits, such as a large pension. Such a package would attract individuals with relatively low subjective discount rates and repel those with higher subjective discount rates. Note further that this could also represent a situation in which a nondiscriminatory employer might engage in unintentional passive discrimination, as employers may possess numerous other reasons to include a generous retirement component in its compensation package.

II.
Applying Title VII

In determining the legality of passive discrimination, we begin with Title VII. Congress enacted this statute “to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered [ ] stratified job environments to the disadvantage of minority [or other protected] citizens.”¹¹ Congress did not ban all forms of workplace segregation, but rather forecasted that integration would be a beneficial byproduct of ending active discrimination. Thus, Title VII makes it an unlawful employment practice for an employer to “fail or refuse to hire . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”¹²

A.     Disparate Treatment

Title VII jurisprudence allows plaintiffs to choose among disparate treatment and disparate impact claims. Under disparate treatment, an employer treats some individuals worse than others because of a protected characteristic. “Proof of discriminatory motive is critical, although it can . . . be inferred from the mere fact of differences in treatment.”¹³ In individual disparate treatment claims, each plaintiff must prove that she was treated less favorably than others similarly situated and that this disparate treatment was “because of” the plaintiff’s race, color, sex, national origin, or religion. The plaintiff must provide either direct or circumstantial evidence to demonstrate the employer’s discriminatory intent. While these claims may evidence a concern about segregation, courts link this concern to the elimination of discriminatory practices which deprive individuals of employment opportunities.¹⁴

In pattern or practice cases, another type of disparate treatment claim, the plaintiff can satisfy the prima facie case with “statistical evidence demonstrating substantial disparities in the application of employment actions as to minorities and the unprotected group.”¹⁵ These plaintiffs need not present individual victim testimony to support a finding of intentional discrimination—courts may rely purely on evidence of gross statistical disparity,¹⁶ which raises an inference of discriminatory intent.

Under disparate treatment claims, Title VII prohibits the employer from using group-based characteristics, preferences, or stereotypes to treat individuals differently even if such stereotypes are largely accurate. In City of Los Angeles, Department of Water and Power v Manhart,¹⁷ the Supreme Court ruled that an employer may not deduct more from women’s pay to cover their pensions even though as an actuarial matter, women as a class are likely to draw more pension benefits.¹⁸ The Supreme Court reasoned that any individual woman may not draw benefits longer than any individual man, her employers may not condition her pay on her sex.¹⁹

Easy disparate treatment cases include those instances in which an employee offers a potential plaintiff a facially different wage than others similarly situated. For example, an employer may not offer Caucasian bus drivers comprehensive health insurance and fail to offer African-American drivers the same insurance package. If, on the other hand, the employer offers all bus drivers lower wages and higher pension benefits than other area employers, individual employees cannot successfully lodge a disparate treatment claim. Even if empirical evidence indicates that, as a group, African-American drivers have a higher discount rate and place a lower value on such pensions, the employer has treated each individual African-American driver the same as all its other drivers. So we contend no individual disparate treatment claim could succeed.

Under pattern-and-practice claims, however, if employers devised a very successful sorting mechanism, plaintiffs might be able to satisfy the prima facie showing of gross statistical disparity. For instance, in International Brotherhood of Teamsters v United States,²⁰ the Court suggested that the complete, or very nearly complete, absence of members of a protected class in a particular job can compel an inference of discrimination.²¹ So if the high pension, low wage strategy resulted in a workforce with no or very few African-American drivers, employers could face a Title VII problem. Yet plaintiffs rarely prevail in such cases without testimony about individual acts of disparate treatment.²²

Only if the employer foolishly allowed the discovery of direct evidence of discriminatory intent would the employer face real difficulty in providing nondiscriminatory explanations for the disparity. Even then, the plaintiffs might not prevail. Such a memorandum would reveal an intent to achieve a segregated workplace, but a plaintiff would still bear the burden of proving the occurrence of discrimination as defined by Title VII. Here, the employer has relied on preferences that tend to be correlated with protected characteristics, but has offered each individual the same package.

Title VII clearly prohibits employers from treating individuals differently because of discriminatory animus or outmoded stereotypes or even seemingly rational group-based stereotypes. Yet, as currently conceived, disparate treatment claims seemingly do not prohibit the employer from using group-based characteristics, preferences, or stereotypes to treat individuals similarly in hopes that such treatment will encourage applicants from disfavored groups to sort themselves out of a job based on their own preferences. As any individual applicant may defy the stereotype and elect into the job, no disparate treatment has occurred even if an employer succeeds in achieving a segregated workplace.

B.     Disparate Impact

Disparate impact claims allow plaintiffs to prevail if they identify a particular employment practice with a significant adverse impact on a protected class, and the defendant fails to demonstrate that the challenged employment practice is “job related  . . .  and consistent with business necessity.”²³ If the challenged practice significantly serves the employer’s legitimate employment goals,²⁴ the plaintiff can still prevail if she proves that a less discriminatory alternative employment practice equally serves the defendant’s goals.²⁵

Passive discrimination seemingly fits better under this analysis, as employers devise facially neutral compensation packages that may result in only a few individuals from a disfavored group in their workplace. Yet the Supreme Court has cast doubt as to whether fringe benefits and compensation packages are subject to disparate impact analysis.²⁶ In Manhart, described above, the Court stated in dicta:

Even under Title VII itself—assuming disparate-impact analysis applies to fringe benefits—the male employees would not prevail. Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. [Griggs v Duke Power Co, 401 US 424 (1971)] does not imply, and this Court has never held, that discrimination must always be inferred from such consequences.²⁷

Likely as a result of this language, few cases have grappled with compensation and fringe benefits under disparate impact analysis. In Finnegan v Trans World Airlines, Inc,²⁸ the Seventh Circuit held that across-the-board cuts in fringe benefits were not eligible for disparate impact analysis under the Age Discrimination in Employment Act.²⁹ Judge Richard Posner rejected even a prima facie case of disparate impact for such cuts, as the focus of disparate impact should be on the exclusion of individuals from certain opportunities.³⁰ But passive discrimination does not exclude anyone from an opportunity; it just makes the opportunity less desirable.

C.     Lack of Interest

The so-called “lack of interest defense,”³¹ available in both disparate treatment³² and disparate impact cases, is particularly relevant to the causation questions raised by passive discrimination. Lack of interest is a nondiscriminatory explanation for statistical disparities,³³ and rebuts the plaintiff’s prima facie case.³⁴ Under this “defense,” employers dispute the causal chain by showing that employees’ voluntary choice, rather than a particular employment practice, causes workplace inequality or segregation.³⁵ If the employer succeeds in showing that individual preferences cause a disparate impact, then it need not reach the question of whether the practice is job related and consistent with business necessity.³⁶

This Article suggests that labor market conditions that shape individuals’ interest in particular jobs may include more than the substance of the job, but also the terms, conditions, and privileges of employment, such as the compensation structure. Yet employers and courts seem to view these packages as mostly within the employers’ discretion to design and the employees’ discretion to take or leave. Passive discrimination suggests that courts’ acceptance of such preferences under the lack of interest doctrine may allow employers to use such preferences with impunity.

III.
Conclusion

This Article fits within a larger debate about the appropriate framework from which to address workplace discrimination and segregation. If one were concerned about workplace segregation or the effect that group-based preferences have on individuals, some judicial and legislative actions might be taken.³⁷ Title VII reform provides one obvious approach. Courts could apply disparate impact doctrine to the structure of compensation and to the provision of fringe benefits. Interest groups may push for stand-alone legislation to address particular mechanisms of passive discrimination. Independent legislation may bypass litigation hurdles associated with Title VII if it does not rely on individual claimants. More innovative approaches include standalone legislation, education initiatives, and incentivized employer restructuring through an enhanced range of employee choice in compensation options, which are more fully fleshed out in our full article.
 

Acknowledgments:

Copyright © 2009 The University of Chicago Law Review.

Jonah Gelbach is Associate Professor of Economics, University of Arizona; Jonathan Klick is Professor of Law, University of Pennsylvania Law School; and Lesley Wexler is Assistant Professor of Law, Florida State University College of Law.

The following is a companion to this Editorial: Jonah Gelbach, Jonathan Klick & Lesley Wexler, A Formal Model of Passive Discrimination, LEGAL WORKSHOP (U. CHI. L. REV. Aug. 10, 2009).

The following is a Response by Richard Epstein to this series of Editorials: Richard A. Epstein, Protect Us, Lord, from Title VII: A Response to Gelbach, Klick, and Wexler, LEGAL WORKSHOP (U. CHI. L. REV., June 22, 2009).

Partway through the route rap, tuning in and out, the cyclists remember why they came.  Details accrete, making the journey more vivid.  A catalogue or recommendation might have enumerated for them the attractions of the ride, but the experiential sequence laid out—first this, then that, watch for the other thing—gives destinations their texture.  Heralded difficulties, even for riders who think of glasses as half empty, become opportunities in the mind’s eye.  Any nasty uphill slope almost certainly brings a breezy reward.  Why are those dogs chained?  Must be something to see, a story to hear.  The big pothole, or the bad road surface?  Better to know about it now.  We’re all here voluntarily, after all; we signed up for the ride.

Planned, scripted bicycle outings have led me to reflect on how law students go through the J.D. curriculum in general, and how they receive training about their professional responsibility in particular.  On my bicycle, I am a consumer and recipient of route raps that others recite.  In the professional-responsibility classroom, it’s I who dole out the rapping.  Bicycle recitations, for me, generate what may seem an unlikely effect: even when—or is it just when, without the “even”?—a route rap warns us riders about negative contingencies like potholes, it gives us riders a boost of vigor and optimism. 

Teachers of professional responsibility who ride bikes and get route-rapped have to wonder whether the pedagogy transfers.  I think it does.  The survey class that most law schools impose as a graduation requirement can prepare students for entry into the legal profession by delving into occupational trouble.

Our line of work sure could use more vigor and optimism.  Anyone reading this far will recognize what I enumerate in the essay version of this editorial—with half a dozen footnotes duly appended—as a blight pervading American legal education, which writers describe variously as “demoralization, depression, dissatisfaction at work and in school, alienation, cynicism, heartlessness.”  These conditions stem at least in part from inside the school; self-selection does not explain all of them.  Careful regressions show that although gloomy individuals may feel lured by a J.D. program, law school environments make depression and other pathologies more intense. 

Now, if misery were necessary to the effective training of lawyers, just as boot camp is thought necessary to the making of soldiers, then we instructors (and students) would have to live with it.  Misery in law school may be traditional or familiar.  But necessary?  Route rap again: We’re tipped off about the rutted road surface at the sixteenth mile.  We nod.  We’re informed, ready to maneuver.  If someone knowledgeable had said, “You’ll be miserable, it’s awful out there,” we wouldn’t feel stronger.  It’s particulars that deliver us from malaise.

I call them pitfalls.  The term oversimplifies a bit for the sake of compactness.  What law schools should teach includes opportunities and invitations as well as metaphorical traps that can make ground give way below one’s feet.  But a focus on perils fits the rest of the curriculum and makes a class on professional responsibility comport with the standard mix of pessimism and preparation.  Just as Criminal Law tells you what you can get punished for, Corporate Finance and other business courses warn you what can happen if your client’s enterprise runs short of money, and Evidence tells you why a judge might not let you put on the testimony you want to use, Professional Responsibility or Legal Profession ought to advise you of your occupational hazards. 

Classes that emphasize the American Bar Association’s (ABA) Model Rules of Professional Conduct instead typically hew to disciplinary law.  Students learn of behaviors that can cost lawyers their licenses or otherwise provoke condemnation from bar authorities.  Because disciplinary rules are under-enforced, however, this classroom emphasis does not align with reality for most lawyers.  Several proscribed behaviors are almost universally flouted yet receive no sanction.  The clearest illustration is Model Rule 8.3, which obliges lawyers to report misconduct.  Other blackletter duties are also honored in the breach. 

A focus on pitfalls, by contrast, uses disciplinary law as only the beginning of forewarning new lawyers.  You could be sued for malpractice.  Your zealous advocacy might fulfill the elements of a crime like obstruction of justice; it might violate Sarbanes-Oxley.  Your work could be deemed ineffective—so unhelpful that your criminal-defendant client might be entitled to a new trial or the return of a plea because of its egregious badness.  If you’ve crossed some line before your case comes to trial, your assigned judge could disqualify you.  Maybe you could disqualify her: do you want to try?  Remember what Emerson said about shooting a king.  Free speech?  Welcome to a profession where your First Amendment rights are now lower with respect to the things you may say and the associations you might choose.  You have your own occupational common law of contracts, torts, crimes, property, agency, bailments, and fiduciary duty—and most of it doesn’t favor you.  Look out.

And yet, just as the nasty uphill promises a breezy downhill for the cyclist who listens to a route rap, the account of pitfalls for lawyers necessarily recites opportunities.  Every risk of loss for one lawyer presents a chance for gain for another.  You could prosecute a successful claim of malpractice.  If you are literally a prosecutor, you may charge an attorney with obstruction of justice.  Effective assistance of counsel, the Sixth Amendment right held by persons accused of crimes, could be the path your client takes to get out of prison or recover from professional humiliation.¹  Disqualification of counsel and judges can make clients and lawyers better off.  Judges’ vast “inherent powers” to control their courtrooms could be yours, should you ascend to the bench.  Maybe you’re another kind of neutral in relation to partisan disputes: you could be an expert witness, a CLE authority, a mediator, a bar disciplinarian or rule-writer . . . or a law professor, perhaps.  Pitfalls are openings to power.  Seize them.

In my view, pitfalls is the only sensible way to understand the ABA rule that all accredited law schools must instruct students in professional responsibility, or “the history, goals, structure, values, rules and responsibilities of the legal profession and its members.”²  What other pedagogical point could this requirement advance?  Bear in mind that the ABA does not like to dictate curricular content.  It does not require law schools to teach contracts, property, torts, criminal law, or any other substantive topic regarded as central to training.  It does not compel what many advocates deem central to work as a lawyer: hands-on experience in a clinic, pro bono service, instruction in public speaking, or the completion of a writing project. 

When the ABA does issue a mandate, then, it has something fundamental in mind.  People like me, deputized to carry out the mandate in a classroom, must investigate what the rule seeks to achieve.  The most fundamental goal of any professional school is preparation.  What “history, goals, structure, values, rules” and so on all have in common, for purposes of training, is the guidance they can give newcomers on how to navigate the shoals ahead. 

Thus attention to pitfalls—particularly in a professional responsibility class, but elsewhere in the J.D. curriculum too—advances what might be understood as two separate goals.  It discharges the accreditation-standard obligation to prepare students for the practice of law, and it helps to combat tendencies toward malaise and discontent that obstruct legal education.  Any pedagogy that fosters two separate goals can indicate what the two have in common and how they reinforce each other.  I suspect that malaise and discontent within law schools arise at least in part from students’ suspicions that they are not being adequately prepared, and that students miss out on stimulating, career-preparing opportunities that arise for them in law schools when they are distracted by their own unhappiness or alienation. 

Perhaps needless to add, attention to pitfalls is not a tonic that will cure every ill in the building.  Some categories of law school disaffection seem relatively impervious to the charms of a detailed route rap.  Here are three examples.  A fraction of students wish they were elsewhere: recitations and warnings about the path ahead will not alleviate much pain when an individual thinks the entire journey is a mistake.  For other students, the journey is fine but the monetary price tag is not: even when they feel engaged by the content of their classrooms, they worry about repaying their loans.  Finally pitfalls, like any other pedagogy, can be misapplied or misunderstood.  The Scout model, Be Prepared, is after all a bit risible.  Sloppy teaching or listening might misconstrue training in pitfalls as a lesson of Don’t Get Caught, a pedagogy of cynicism. 

A few words on these resistances.

The first resistance to pitfalls-teaching stems from distaste for legal education or the legal profession.  We can all think of hypothetical reasons to regard lawyers and law with revulsion.  My own experience with law-student disaffection—anecdata, if you like—suggests that the phenomenon is ambivalent and complicated.  I have never met a law student who detested without nuance the thought of enrolling for a law degree and completing the work.  It behooves an instructor to consider how to leverage and turn around discontents.

Facing up to pitfalls of this profession can feel bracing for any law student, but it gives the disaffected a particular dash.  If in students’ minds the legal profession has become a looming menace, forcing postulants into a vocation they find unattractive, then the recitation of dangers and comeuppances reveals their enemy’s vulnerability.  Maneuvers covered in the pitfalls playbook—professional discipline, malpractice actions, other kinds of civil liability, criminal proceedings, disqualifications, judge-initiated sanctions—present accounts of how a lawyer can defeat another lawyer.  Pitfalls remind students that the power they are fighting is, in part, themselves.

Pitfalls-pedagogy has a similar, though weaker, relation to students’ anxiety about their financial future.  It cannot persuade all law students that the law degree that they are pursuing makes economic sense.  No pedagogy can; the calculations that underlie opportunity cost vary too much among individuals. 

Feeling modest in relation to the size of a tuition bill, I would make only a couple of small claims about the added value of pitfalls instruction.  First, disclosure.  Students embarking on an expensive course of study have a right to know about the vulnerabilities their occupation faces.  Disclosure necessarily communicates optimistic information too: if, as I try to emphasize in class, every pitfall is an opportunity for a lawyer, then in the aggregate pitfalls build advantages: government jobs for the disciplinarians, occasional windfalls for lawyers who initiate civil actions, and non-pecuniary wealth like the satisfaction of seeing one’s client, the victim of constitutionally inadequate legal assistance, released from prison. 

Second, comparative advantage: that is, pitfalls beats the alternative in a required course.  When money is tight and an often unloved course is required, students should not have to sit through homilies.  Anyone feeling the pinch of tuition would want to receive utility in each classroom hour.  Specific factual information about occupational trouble is in my view more valuable—it is certainly scarcer—than sermonettes about legal ethics that talk about “professionalism” or the superiority of truth to partisanship.

But what about legal ethics?  Isn’t the subject of professional responsibility more exalted, more transcendent and noble, than Be Prepared or Don’t Get Caught?  Indeed it is.  Yet individuals, no matter how intellectually inclined or fond of abstraction they may be, need particulars to work through problems of professional ethics.  At least I do.  Strictures like “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest” and “[a] lawyer shall not reveal information relating to the representation of a client” (from the Model Rules) and “Act only according to that maxim whereby you can at the same time will that it should become a universal law” (from Kant) fascinate me, but when I try to think about them as guideposts for a lawyer dealing with a client or prospective client, I need more content about the stakes. 

The pitfalls pedagogy supports discussion about legal ethics as both foundation and rooftop.  An instructor can use it to open colloquy: What could happen to you if you do that?  Now, is the opposite path any better?  Once perils have emerged in sufficient detail, emphasis can shift from Is to Ought.  Tougher, I think, to maneuver from Ought to Is, in the more familiar homily mode, where the discussion lacks a damned-if-you-do pair of dilemma horns that impale our classroom protagonist.  The pitfalls technique also can wrap up discussions when they start to gather wool: You may be right to value X, but the risk-management people who sell malpractice insurance insist on not-X.  Let’s take a look at what they require.

Ethical theory and blackletter law alike commend attention to pitfalls as a mode of fulfilling the accreditation mandate regarding instruction on professional responsibility.  On this occupational road, forewarned really does mean forearmed—and, if one is lucky, exhilarated.  Lawyers with a command of occupational dangers can defend themselves against onslaughts they might face, first in the corridors of law school and then when they venture into practice.  And pitfalls-preparation enables lawyers to pursue what is good for their clients, the profession, and the public.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Anita Bernstein is Anita and Stuart Subotnick Professor of Law, Brooklyn Law School.

My thanks to faculty participants at a workshop at the University of Hawaii School of Law, especially Randall Roth, for their insights, and to my Brooklyn colleagues Joan Wexler, Ed Cheng, and Nelson Tebbe for helpful comments on a draft. My thanks also to the Brooklyn Law School faculty research program for its support. This Editorial is indebted to the foresight and creative thinking of Judge Hugh Lawson of the United States District Court for the Middle District of Georgia, who established an endowment to create and support my post as the Sam Nunn Professor of Law at Emory University (2000-07), as well as training for lawyers and law students.

This Editorial is based on the following Essay:   Anita Bernstein, Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 CORNELL L. REV. 479 (2008). Click Here for the Full Version

In the concluding section of the Opinion of the Court, Chief Justice Roberts looked to the history of Brown to support his claim that, subject to very limited exceptions, all racial classifications violate the Fourteenth Amendment’s Equal Protection Clause.  Yet the history of Brown that he settled upon was somewhat unusual.  Moving beyond the sources courts typically use to evaluate their own precedent, namely, the published text of past decisions, the Chief Justice drew upon historical materials that have typically been more the concern of scholars.  He looked to the words of the NAACP lawyers who successful argued Brown, quoting written briefs and oral argument statements of the civil rights lawyers as they made their case before the Court in the early 1950s, and he claimed to find in these words ample support for a “colorblind” or anticlassification reading of the Fourteenth Amendment.  Justice Thomas, in his concurring opinion, also drew upon the history behind Brown as supporting colorblind constitutionalism.

Both the Chief Justice and Justice Thomas quoted, for example, NAACP lawyer Robert Carter in oral argument in Brown when he stated: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”³ ”There is no ambiguity in that statement,” the Chief Justice explained.  “And it was that position that prevailed in this Court” in Brown.⁴

Justice Thomas took the historical analogy a step further, not only quoting from the NAACP lawyers as a way of bolstering the legitimacy of his sweeping anticlassification interpretation of the Equal Protection Clause, but also comparing the position of the Justices who dissented in Parents Involved to that of the lawyers in Brown who defended segregated schools. In “giv[ing] school boards a free hand to make decisions on the basis of race,” Justice Thomas wrote, the Parents Involved dissenters embraced “an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education.”⁵

The dissenting Justices in Parents Involved also looked to the history of Brown for guidance.  Yet they did not focus on the history behind Brown as much as the history that Brown set in motion—a history that revolved around court-led efforts to decrease segregation in schooling through race-conscious policies.  ”There is a cruel irony in the Chief Justice’s reliance on our decision in Brown,” wrote Justice Stevens.⁶  “The lesson of history,” Justice Breyer explained, “is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration.”⁷

Chief Justice Roberts’s and Justice Thomas’s use of the NAACP arguments to strike down a school integration plan proved predictably controversial.  It was “dirty pool,” declared William T. Coleman, who had worked with the NAACP’s legal team in the Brown litigation.⁸  According to Jack Greenberg, Thurgood Marshall’s successor at the head of the NAACP’s Legal Defense and Educational Fund, Chief Justice Roberts’ reading of Brown was “preposterous.”⁹  “All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization,” Greenberg commented, “and I am confident that those no longer with us would disagree too.”¹⁰

In this Editorial, I consider two questions raised by the use of Brown in Parents Involved.  First, what does this history of Brown actually say about the idea of a colorblind constitution?  And second, what is gained—and, as importantly, what is obscured—from this turn to history?  What are the lessons and limits of history when it comes to evaluating our most pressing constitutional disputes?

 
I.
Brown and the Colorblind Constitution—The Historical Record

Briefly summarized, the history of Brown shows the following.¹¹  The Chief Justice was more right than his sharpest critics allow in his characterization of the NAACP: the civil rights lawyers and their allies indeed expressed, repeatedly, in public and private statements, a deep commitment to the principle that racial classifications by the government violated the Equal Protection Clause.  Principles of colorblind constitutionalism inspired the efforts of many of the NAACP’s allies in the struggle against school segregation and, more generally, had a powerful presence in early post-World War II American society.  An anticlassification principle proved particularly attractive to a generation of liberals committed to a universalist ideology, which was premised on the idea that racial identity was a legal and moral irrelevance and that progressive racial policy should move beyond racial categorizations.  Colorblind constitutionalism was an integral element of the legal and moral challenge to white supremacy at the time of Brown.

Nonetheless, Chief Justice Roberts overstated his claim on Brown’s history in at least two ways.  First, colorblind constitutionalism was only one of a number of arguments offered by the NAACP.  During the litigation of Brown, lawyers advocating a blanket prohibition of racial classifications never put forth these arguments in isolation from other, more context-based, color-conscious arguments relating to the meaning of the Fourteenth Amendment.  At a time when the problem of “benign” racial preferences and affirmative action was rarely even considered, civil rights advocates easily moved back and forth between making anticlassification arguments and claims based on what has come to be know as “antisubordination” principles—a distinctly color-conscious interpretation of the equal protection requirement.  Furthermore, when the NAACP lawyers transitioned from defining the equal protection right to defining the scope of the remedy, they recognized the limitations of anticlassification arguments and looked increasingly to antisubordination arguments to guide the Court’s implementation of school desegregation.  To now isolate the lawyers’ anticlassification argument as their only, or even primary, constitutional claim in the school segregation cases fails to do justice to the historical record.

Yet even if we accept the Chief Justice’s implication that the NAACP was committed to an anticlassification argument, a second and more significant weakness of Chief Justice Roberts’ reading of Brown is his attempt to extrapolate the arguments of the advocates in Brown to reflect the views of the Supreme Court Justices as expressed in their school desegregation decisions.  The history on this point is quite clear: Although the members of the Brown Court considered basing their desegregation decisions on the anticlassification principle, this approach never came close to reflecting the positions of all nine Justices who committed themselves to the unanimous decisions; it would not have even secured a majority of the Justices at the time of Brown.  The Brown decision actually reflected a conscious effort by the Justices to not accept the general principle of colorblind constitutionalism—a conscious decision by a Court that sought to contain the reasoning of Brown so as to avoid the then hot-button topic of interracial marriage, which would logically fall under a sweeping colorblind rationale.  In arguing that the Brown court actually accepted the NAACP’s anticlassification argument, Chief Justice Roberts is simply wrong.

 
II.
Why History?

So this, in brief form, is what the history has to say.  Contrary to Chief Justice Roberts’ confident reading of selected NAACP quotations, the history of Brown and the colorblind Constitution contains plenty of ambiguity.  And in those places where ambiguity gives way to a measure of clarity—in those places where history indeed can be “heard”—the weight of history runs against reading the Brown court as adopting a sweeping anticlassification position.  Recognizing the limits of the historical record on this question brings forth still another, more foundational question: Why are we looking to the history of the legal battle against Jim Crow education for answers to the present-day dilemma of racially segregated and unequal schools?  Is historical analysis of this kind a useful or productive way with which to engage with these issues?

I must admit that as a historian who has spent countless hours researching the history of Brown, I am torn on the Court’s use of history in Parents Involved.  Any time the Court (or any public official for that matter) turns to history to better understand and explain contemporary social challenges, there is potential for adding depth—and hopefully increased wisdom—to a discussion.  There is of course much to be learned from the history of the struggle against Jim Crow schools.  And the words and experiences of the NAACP lawyers as they urged the Court to abandon Plessy surely have continued value and resonance as we today search for the appropriate standard for judicial oversight of voluntary school desegregation plans.

Yet when I read the Chief Justice’s Parents Involved opinion, in which he asserts that the position of the NAACP lawyers “could not have been clearer” and their statements have “no ambiguity” (cringe inducing assessments to any historian of this field), and therefore we can derive lessons of this history behind Brown in a straight-forward manner; or when I read Justice Thomas’s effort to equate the position of the four dissenters in Parents Involved with that of the lawyers defending state school segregation policy in the Brown litigation—then it is hard to avoid the most obvious question: What are we doing here?  Putting aside the obviously result-oriented use of history in these opinions (which is of course nothing new and not about to go away, as made clear in the recent originalist bonanza of Heller¹²), there remains the question of whether even a more thorough and balanced assessment of the history of Brown offers a useful way to engage with the debate over whether present-day pupil placement plans that take race into account to achieve some level of integration run afoul of the Fourteenth Amendment.

The reason for the historical turn in Parents Involved is not difficult to discern.  Regardless of ideological leaning, proclaiming one’s position as faithful to Brown is standard practice in cases involving racial segregation, particularly when the context is education.  Since the 1960s, when obeisance to Brown started to become required practice throughout American society, the debate has turned from the rightness of the decision to its meaning.  As people bow down to Brown, they also seek to reshape its meaning.¹³  Hence, today Brown is a centerpiece of the arguments of those who favor both anticlassification principles and antisubordination ones.

The turn to Brown also serves a special role for the proponents of colorblind constitutionalism.  The anticlassification principle that constitutes the heart of colorblind constitutionalism has little basis in the original meaning of the Fourteenth Amendment.  Its framers did not envision their creation as requiring a per se or even presumptive prohibition on laws that classify by race.  The legislators who in 1866 drafted the Amendment also passed distinctly color-conscious legislation designed to help the newly freed slaves.  And these same framers appeared to have little trouble squaring certain forms of segregation (including school segregation) with their understanding of the equal protection of the laws.  Mining the history of the framing and ratification of the Fourteenth Amendment for the roots of an anticlassification principle is a dead-end.¹⁴

Originalists who also favor color-blindness typically get around this embarrassing situation by a simple move: they ignore the history of the Fourteenth Amendment.  When Justices Scalia and Thomas defend their colorblind reading of the Fourteenth Amendment, they tend to paint with broad brushstrokes, citing seminal documents from American history and general principles of fairness, and relying heavily on rhetorical salvos.  It is the “letter and the spirit of our Constitution,” that demands colorblind constitutionalism, Justice Scalia has argued.¹⁵  Justice Thomas found the same conclusion in “the principle of inherent equality that underlies and infused our Constitution,” citing the Declaration of Independence for support.¹⁶  In his dissent in Grutter v. Bollinger, Justice Thomas opened with a quotation from Frederick Douglass and went on to claim that racial classifications “only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”¹⁷  And all colorblind advocates cite Justice Harlan’s Plessy dissent, the original source of the phrase “our Constitution is color-blind.”¹⁸  As justification for a reading of the Equal Protection Clause, the limits of this approach are obvious.  Skimming over two hundred years of American history and citing broad principles of equality, while rhetorically powerful perhaps, hardly provides anything approaching a historically grounded mandate for colorblind constitutionalism.

With the generally unsatisfactory options for making the case for the colorblind Constitution, the turn to the history of Brown in Parents Involved should not be surprising.  Failing to find what they want in the Fourteenth Amendment, and recognizing that rhetoric and policy arguments can only take them so far, anticlassification proponents look to Brown as the de facto constitutional basis for colorblind constitutionalism.  In this way, Brown became the battleground of choice in Parents Involved.

 
III.
Brown and History

It is ironic that the history of Brown has come to be such a looming presence in contemporary constitutional disputes, because the decision itself reflected an effort to limit the relevance of the past on the process of constitutional decision-making.  At the time of Brown, most assumed that the weight of history went against the cause of civil rights.  Segregationists routinely called upon history to attack what they saw as the dangerous idealism of integrationists.  The experience of Reconstruction, the most relevant potential model for racial reform in the mid-twentieth century, seemed to warn against precipitous social reform.  In his unpublished concurrence in Brown, Justice Jackson dismissed Reconstruction as “a passionate, confused, deplorable era.”¹⁹  This belief that the lessons of the past were an obstacle to change was mirrored in constitutional analysis.  When the Court was faced with the question of whether the Fourteenth Amendment could be construed to prohibit segregation in schools, the historical record seemed to favor the status quo.  The history of the framing and ratification of the Fourteenth Amendment, most assumed, revealed an original meaning that was consistent with the practice of school segregation. 

One of the great achievements of Brown was Justice Warren’s decision to acknowledge the limitations of history on the question of whether, in 1954, segregated schools were unconstitutional.  A critical turning point in the reasoning of the opinion was when Justice Warren concluded that a review of the framing of the Fourteenth Amendment, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.  At best, they are inconclusive.”²⁰  Warren insisted that the Court face the problem of segregated schools in 1954 squarely. 

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.  We must consider public education in the light of its full development and its present place in American life throughout the Nation.  Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.²¹

The proud ahistoricism of Brown is one of its most remarkable characteristics. 

At the time, many celebrated Brown as a triumph of the present over the past.  Justice Reed, the most reluctant of the Justices to join Brown, described his reasoning in a letter to Justice Frankfurter shortly after the decision was announced.  “The factors looking toward a fair treatment of Negroes,” he explained, “are more important than the weight of history.”²²  A sense of relief that the Court was able to extricate itself from the morass of history was also found outside the Court. “It is futile to make war ‘to keep the past upon its throne,’” wrote Harvard Law School professor Charles Fairman in praising the Court’s decision.²³  Edmond Cahn of New York University Law School effused: “Never was Thomas Jefferson more clearly vindicated in his insistence that the Constitution belongs to the living generation of Americans.”²⁴

 
IV.
Overcoming History

Of the recent judicial efforts to evaluate the constitutionality of voluntary school desegregation plans, some of the most valuable words offered have been those of judges who, like the Brown Justices, question the relevance of history to this particular dispute, who ask whether efforts to align these cases with Brown is a productive way to engage with the difficult questions we face today regarding racial classifications, education, and the Fourteenth Amendment.  In a 2005 First Circuit decision that upheld a race-conscious school assignment plan in Lynn, Massachusetts, Judge Boudin put the issue into perspective:

The Lynn plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed.  It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks; nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes).  [T]he plan does not segregate persons by race.  Nor does it involve racial quotas.²⁵

Similarly, in the Ninth Circuit’s review of the Seattle case that was brought to the Supreme Court in Parents Involved, Judge Kozinski wrote: “[T]here is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here.  I hear the thud of square pegs being pounded into round holes.”²⁶

Of course any proposal regarding school and race must place itself on the side of Brown.  But Judges Boudin and Kozinski are surely onto something when they question how far to take the Brown analogy when evaluating constitutional challenges to locally initiated race-conscious school desegregation programs.  History provides guidance on these questions, but not answers—certainly not unambiguous answers.  Contrived historical forays result in avoiding the critical issues in the case at hand, they provide the illusion of an easier answer when, beyond some clever rhetorical turns (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”²⁷), none exist, and none should exist. 

Justice Kennedy’s concurring opinion might be read to rely on some of these insights.  While providing the fifth vote to strike down the Seattle and Louisville plans, Justice Kennedy pulled back from a strong anticlassification rationale, leaving open the possibility of certain race-conscious assignment plans that could survive constitutional scrutiny.  In his concurrence he touched on Brown only lightly and with none of the interest in its background history evidenced in the opinions of the Chief Justice and Justice Thomas.  Nonetheless, Brown plays an important symbolic role in Justice Kennedy’s concurrence.  He turned to Brown as a moderating influence, as a testament to the mixture of pragmatism and principle that is necessary to balance the compelling state interest in creating a diverse educational environment, while avoiding race-based solutions that risk “entrench[ing] the very prejudices we seek to overcome.”²⁸  Although committed to “[t]he enduring hope . . . that race should not matter,” for Justice Kennedy a sweeping dismissal of racial classifications is “not sufficient to decide these cases.”²⁹  “Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution.”³⁰  If for Justice Kennedy the evocation of the ideal of the colorblind Constitution provides the aspirational principle, then Brown and the experience of school desegregation it launched demonstrate the pragmatic judgment necessary to move the nation toward this principle.

 
V.
Conclusion

The history of Brown does not offer any easy guidelines for the issues of most importance today.  The Justices and lawyers most responsible for Brown accepted both colorblind and color-conscious rationales for what they were doing.  These two rationales were generally assumed to be compatible; in the battle against Jim Crow, they both led to a more fair and racially integrated society.  To now demand of this history that it choose sides in our debate on the validity of colorblind constitutionalism is not to actually listen to the history.  As Edmund Cahn put it, in approving of Warren’s willingness in Brown to move away from 1868, “the past cannot be allowed to decide for us what it did not have to decide for itself.”³¹

The history of Brown also suggests the importance of recognizing the limitations of history in resolving our most pressing constitutional issues.  On the most difficult of our present-day disputes, history should open up questions, not preempt them; it should offer guidance, not unambiguous answers.  It should challenge entrenched assumptions, but without entrenching new ones.

In Parents Involved, the use of the history of Brown by Chief Justice Roberts and Justice Thomas was designed to end the discussion.  In an effort to defend a reading of the Equal Protection Clause that has little basis in the original meaning of the Fourteenth Amendment and generally relies largely on rhetorical salvos, these Justices portrayed Brown as a supposedly stable fixture of colorblind constitutionalism.  This flattened version of Brown not only fails to do justice to the history of Brown, it also reflects a misleading assumption that history offers an easier way.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Christopher W. Schmidt is Visiting Scholar, American Bar Foundation; Visiting Associate Professor, Chicago-Kent College of Law.

This Editorial is based on the following Essay:   Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203 (2008). Click Here for the Full Version