Swopa loves that a Madison restaurant asked Governor Scott Walker to leave when customers booed him. He/she links to a Madison blogger who deleted the name of the restaurant after the restaurant received threats. (Threats? Were they reported to the police?) Swopa notes that he edited his post to delete the name of the restaurant, but he leaves in his "via Howie Klein on Twitter" link, and the name of the restaurant is right there.
Idiot. Don't rely on Firedoglake to protect you. They care. They want to protect you. But they just can't quite pull off the protectiveness they'd love to give you.
And that's the problem with liberals. They care. They're here to help. They're here to help the people they've decided are the people who deserve to be helped. But they do a half-assed job of protecting even the people they care about.
And how about believing in principles that you are willing to follow at a high level of abstraction? You love the idea of restaurants letting the passions of their customers determine who ought to be seated (at least when they sympathize with those passions). What sprang into my head was: Ollie's Barbecue!
Ollie's Barbecue is a family owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, with a seating capacity of 220 customers... The restaurant caters to a family and white-collar trade with a take-out service for Negroes....
Ah, but who remembers anything anymore? It's today that matters. The war dead are dead, and now their memorial is a handy place to tape your signs and back your table up against so all your stuff doesn't fall on the floor.
And who thinks about tomorrow? The state capitol is occupied right now and plastered with thousands of signs this week, and isn't that just great? You haven't give a moment's thought — have you? — to what free speech rights will apply to the next group that wants to appropriate the state capitol? Are you planning on advocating viewpoint discrimination to keep the signs you find loathsome off the walls?
No. I know. You have no plan. You haven't thought about it. Swopa began his post this way:
Sometimes, it’s good to leave detached, cerebral meta-analyses of politics aside and just get a taste of public opinion being expressed the old-fashioned way.
Sometimes! The whole point of principles is that you're supposed to follow them all the time — especially when you would find it most satisfying to violate them. Swopa's all: Let's not be "detached" and "cerebral" today when we're having such fun.
What children!
IN THE COMMENTS: There's some evidence that the story of the booing and ejectment was a hoax. Of course, nothing in my post depends on whether the incident really happened or not. I'm writing about the reaction to the incident, not the incident itself. If it is a hoax, I would like to get to the bottom of it. Did the owners of the restaurant seek to endear themselves to Madisonians with viral P.R. about their political faith? Or were employees appropriating their employer's reputation?
"It is important to read past her ugly custody case to have a larger conversation about race (one the baby's father apparently does not want to have). Her daughter will have to choose a racial identity, the way she had to choose a racial identity. In America, that means it will probably be chosen, at least in part, by the way people react to her. In America, her skin color (black or white) will be something that people use to define her. I applaud Halle Berry's courage, if not her choice of words. When she says, 'I believe in the one drop theory,' of course, she does not mean to endorse racism. But she does have the courage to do something so few Americans can: talk about race."
Either that or she's using whatever weapons she finds at hand as she fights for what she wants in her child custody battle.
The school, to be called the Madison Preparatory Academy, would have longer school days, offer a college preparatory curriculum — and require students to wear uniforms.
As the proposal heads for preliminary approval from the School Board early this year and possible final approval in the fall, it already faces opposition from the teachers union, which opposes non-unionized charter schools, and the American Civil Liberties Union of Wisconsin, which opposes single-gender schools.
Why does the State Journal use the term "single-gender" instead of "single-sex" in this context? Anyway, I think the problem is making a special school for males and not having an equivalent one for females. But this isn't a case of training males for elite achievement (as it was in the Supreme Court case dealing with the Virginia Military Institute). Caire seems to be saying that males have a special problem that needs remediation. Actually, he seems to be saying black males have a special problem needing remediation:
Caire views the school as a key step toward building a stronger black middle class in Madison....
An underdeveloped black middle class in Madison means fewer positive role models for youth, Caire said, which partly explains why the city has disproportionately lower graduation rates and higher incarceration rates among minorities.
But it's not racial discrimination that's being proposed. It's sex discrimination. In equal protection law, race discrimination must be justified — at least theoretically — meeting a higher standard than sex discrimination. But if the government interest to be served by sex discrimination is characterized as racial, does that make the argument for sex discrimination weaker or stronger?
The judge is a Clinton appointee, Susan Bolton, and I remember, after it was reported or learned that she was a Clinton appointee, I remember everybody said, "Ah, but this woman, she's not a political judge. She's really not partisan judge. She's a fair judge." Oh, yeah, right. Right, right, right, right....
This judge has not ruled on the law. There is no racial profiling. We didn't make a [big] deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. This underscores why Sonia Sotomayor should not be on the Supreme Court. This underscores why Elena Kagan should not be on the Supreme Court, because they are activists. They have no judicial temperament, judicial experience, they're not judges. Well, Sotomayor pretended to be one on TV, I guess, but she's not....
This is all reacting to the sudden news of the opinion, which he hasn't read. It's 36 pages long, and "there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here":
[The judge has] bought the notion there was racial profiling and discrimination and all this happy horse manure that's part of the American left these days. So that's pretty much it. I guess the judge is saying it's not in the public interest for Arizona to try to defend itself from an invasion. I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision.
So... Judge Bolton just looks at the hot-button issue and emotes without attending to the text that should govern her opinion... asserts Rush Limbaugh as he takes a glance at the news of the decision and let's his feelings flow.
To quote Rush, out of context, from the middle of that rant: "Nothing, nothing in the media is real. There is nothing real. Media is not real. [Political ideology] is not real. It's all spin; it's all fake; it's all lies."
The Civil Rights Act of 1964, subject of the current national conversation about race, was necessary not because "we're all racists"--indeed, if we are, such a law would seem to be an exercise in futility--but because a racist doctrine dominated, and defined the laws of, a region of the country. If "racism" is just a universal human shortcoming, then what was the point of condemning Jim Crow?
Violent urges are universal (or nearly so), yet we outlaw all sorts of acts of violence. We don't pretend that because we've criminalized murder, assault, and rape that we've eradicated violent urges. By the same token, if we enact a law that prohibits various harmful actions that people might take based on racist thoughts, we don't pretend that we've eradicated the thoughts. We've come together as a nation over the belief that certain actions are wrong, but we might still want to look into our own hearts and question how good we really are.
I can think of 2 reasons why we might want to do this, even if we feel quite sure we're far from the stereotypical ugly racist.
1. We may aspire to a higher morality than the conventional norm. I think of Jesus saying "Be perfect... as your heavenly Father is perfect."
2. We might be deluded about the positions and policies we believe are right. Perhaps there are some deep or repressed beliefs about race that underlie something we think will do good. For example, those who support affirmative action should want to make sure that they are not motivated by racial prejudices that they are in denial about. So should those who oppose it. Doubt yourself. Test yourself. Don't be complacent.
In Arizona, there is some racial profiling criteria in order to enforce the law that it's against any sense of human rights; and, of course, is provoking very disappointing, uh, things -- or very disappointing opinion -- in Mexico and around the world, even here in America. So to introduce this kind of elements, especially racial profiling aspect that are attempting against what we consider human rights, it's the principle of discrimination which is against the values of this great nation.
Rand Paul is coming under attack for things he said about the Civil Rights Act of 1964, which outlawed race discrimination in privately owned restaurants and hotels. He's also being defended, of course, notably here, by Allahpundit:
I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh. The left’s going to give him plenty of grief for that — expect questions soon about whether he would have voted to ratify the Fourteenth Amendment — but the “closet Klansman” narrative that NPR’s going for here is D.O.A.
It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns. (As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)
Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed. And that statute was susceptible to arguments it violated the right of the business owners to do what they wanted with their own property. When the Supreme Court upheld the Civil Rights Act of 1964, not only did it need to find an enumerated power for Congress to act, but it also had to deal with the argument that the Act violated the Due Process Clause. Rand's statement harkened back to both of those old arguments.
I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind....
I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.
He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.
***
A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?
I am struck -- you may think it is absurd for me to be suddenly struck by this -- but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening.
I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I'm glad Rand Paul is on the scene, but I'm going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.
UPDATE: Rand Paul goes on the Laura Ingraham show and, with the help of her very supportive questions, finally gets around to saying that if he were in Congress in 1964, he would have voted for the Civil Rights Act. Here's audio of the entire segment. Here's a text summary.
Althouse’s point is that Paul opposes any government interference in how someone runs their business, which would be strong form laissez faire; I assumed, because he danced around NPR’s questions and because this was obviously about to become a major headache for him, that he was taking the more palatable, weaker form position that it’s more acceptable for state and local agencies to act against discrimination but that the feds should stay out. (As it turned out, he now says having the feds interfere is fine.) That’s why I brought federalism into it, and that’s why I thought the Fourteenth Amendment would eventually end up in the discussion. If Paul doesn’t want the feds meddling in private businesses to protect minority rights, does he at least support letting them meddle with state governments that refuse to do so?
"Meddle" in what way? Require the states to legislate? Under New York v. United States, that is more of a constitutional problem than directly regulating. Do you mean putting conditions on accepting federal funds? That could be done most easily. If you mean using §5 of the 14th Amendment, that shouldn't work, because the states are not violating rights by failing to control the choices private citizens that are not, in fact, rights violations. It's hard to believe Paul would support these things (even before he conceded that he'd vote for the CRA of 1964).
In federal racial harassment cases, one study found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American....
A second study, looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel....
More grist for the empathy/"wise Latina" conversation.
But when the subject turned, at long last, to race, "Obama produced a bluntness and lively engagement that had been absent for most of the preceding hour." From the transcript (with my boldfacing):
Well, I should say at the outset that Skip Gates is a friend, so I may be a little biased here. I don't know all the facts. What's been reported though is that the guy forgot his keys, jimmied his way to get into the house. There was a report called in to the police station that there might be a burglary taking place. So far, so good, right? I mean, if I was trying to jigger into -- well, I guess this is my house now, so...(LAUGHTER)... it probably wouldn't happen. But let's say my old house in Chicago. (LAUGHTER)
Here, I'd get shot. (LAUGHTER)
My understanding is, at that point, Professor Gates is already in his house. The police officer comes in. I'm sure there's some exchange of words. But my understanding is, is that Professor Gates then shows his I.D. to show that this is his house and, at that point, he gets arrested for disorderly conduct, charges which are later dropped.
Now, I don't know, not having been there and not seeing all the facts, what role race played in that. But I think it's fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, number three, what I think we know separate and apart from this incident is that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That's just a fact.
As you know, Lynn, when I was in the state legislature in Illinois, we worked on a racial profiling bill because there was indisputable evidence that blacks and Hispanics were being stopped disproportionately. And that is a sign, an example of how, you know, race remains a factor in the society.
That doesn't lessen the incredible progress that has been made. I am standing here as testimony to the progress that's been made. And yet the fact of the matter is, is that, you know, this still haunts us.
And even when there are honest misunderstandings, the fact that blacks and Hispanics are picked up more frequently and often time for no cause casts suspicion even when there is good cause.
And that's why I think the more that we're working with local law enforcement to improve policing techniques so that we're eliminating potential bias, the safer everybody is going to be. All right? Thank you, everybody.
I had 3 responses to Obama's Gates statement. (I'm not counting the brief interlude when I thought I could get credit for coining the term "Gatesgate." I can't.)
1. On hearing the statement live: If you don't know the facts, why are you saying the police acted "stupidly"? The President's own words collapse on themselves. How dare he take sides? Gates has already signed a statement, along with the police, saying “This incident should not be viewed as one that demeans the character and reputation of Professor Gates or the character of the Cambridge Police Department,” and here is the President of the United States taking it upon himself to demean the character and reputation of the Cambridge Police Department and to (sort of) vouch for the Gates version on the story.
2. The morning after: It really was stupid for the police to arrest Gates, and it's a stupidity that stands apart from whether the police or the Gates version of the story is accurate. Considering who Gates is and where he was, he's a sympathetic character or, if you don't think he's fully sympathetic, he's certainly capable of playing this incident big, as in fact he did. Thus, it was stupid to give him this platform.
3. As I started writing this post: As he was speaking, I think, the President realized his words collapsed on themselves. He said he didn't know the facts, and yet he called the police stupid. To get out of that jam, he decided to veer into a riff about racism in general, asserting that "there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately." (I love the way he threw Latinos into that.) He celebrates what he sees as or hopes you see as his escape from the jam by asserting "That's just a fact." He didn't know the facts of the specific case, but hey, look over here, here's a fact: There is racism in this country, we all know that. He then tumbles toward the end of the hour with an acknowledgment of what he knows a lot of people will say — that he made it to the presidency, and, yeah, there's been "incredible progress" — and a reprise about racism — it haunts us — and reform, reform is important. He worked in the Illinois legislature. Let's improve policing. Let's make everybody safer. He's just trying to wrap things up and get out of there looking reasonably okay. "All right? Thank you, everybody."
The incident... “was regrettable and unfortunate,” said a statement released Tuesday by Professor Gates, the Cambridge police and the Middlesex County district attorney’s office.
“This incident should not be viewed as one that demeans the character and reputation of Professor Gates or the character of the Cambridge Police Department,” the statement said. “All parties agree that this is a just resolution to an unfortunate set of circumstances.”...
Professor Gates’s front door was stuck shut, and his taxi driver helped the professor pry it open. According to the police report, a woman called to report two black men on the porch of the home trying to wedge the door open.
Police and Professor Gates offered differing accounts of what happened when officers arrived. According to Professor Ogletree, Professor Gates said he showed the responding officer, Sgt. James Crowley, photo identification, but the sergeant did not believe Professor Gates lived at the home. Frustrated, Professor Gates asked for Sergeant Crowley’s name and badge number, which he refused to give. Professor Gates was arrested on his front porch, where several other officers were standing.
The police said Professor Gates refused to show identification. When told that Sergeant Crowley was investigating a robbery, the police said, Professor Gates yelled, “Why because I’m a black man in America?” and accused the sergeant of racism. The police report said Professor Gates followed the officer outside, yelled at him and was arrested for disorderly conduct.
If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?
I think religious diversity is particularly important, because it has more to do with the individual's mind. It's part of one's thinking, and legal analysis is thinking. Race and ethnicity might have an effect on your thinking — in that it may involve various personal experiences and feelings of identification — but it is not a characteristic that you have by deciding to have it or by believing you have it. Religion is different.
Strangely, though, we are circumspect on the subject of religion. A lot of people seem to think it's wrong to talk about the number of Catholics on the Court, or to state simple facts like: Once Sotomayor is confirmed, there will be 6 Catholics, 2 Jews, and 1 Protestant on the Court. Perhaps this is because it is a quality of mind, internal to the individual. That makes it seem like a private matter. And who knows whether a given individual remains devout in the religion of his or her childhood.
Is it rude to ask? Is atheism still a secret? Why not be open about it, especially when we are inspecting a Supreme Court nominee? This is a mind that is going to be imposing its thoughts on us, probably for decades.
In February of 1973, President Nixon called future president and then-Republican National Committee chairman George H.W. Bush, and recounted a recent visit to the South Carolina state legislature.
"I noticed a couple of very attractive women, both of them Republicans, in the legislature," Nixon told Bush. "I want you to be sure to emphasize to our people, God, let's look for some… Understand, I don't do it because I'm for women, but I'm doing it because I think maybe a woman might win someplace where a man might not… So have you got that in mind?"
The same speech showed an appreciation for racial colorblindness:
She observed that anyone in the world watching television on Sept. 11, 2001, "could not miss the diversity of colors and hues" of the New Yorkers scrambling to evacuate the destruction of the World Trade Center. She said "on September 11, we stood as Americans and as human beings and saw past our ethnic differences and responded to a common threat with a complete giving of heart, soul and for some, of life."
Do they really? Or has Sotomayor been rising to the top of the liberal pile by burbling the platitudes white liberals love, while Thomas got noticed by stating the views that white conservatives want to think are true and just. The headline reads "For Sotomayor and Thomas, Paths Diverge at Race," but it's not hard to make the argument that what they've done is more the same than different.
And I got a little grief from people for saying that there's no such thing as reverse racism, just call her a racist, so - and they're right. That ["wise Latina" remark] is a racist thing to say and it's bigoted. And she would bring, no question about it, racism and bigotry to the court, if she is confirmed.
But, Sean, I've been thinking about this, and there's something else going on with Sonia Sotomayor. We don't know what she thinks about Roe versus Wade. She hasn't said. Now we know that she's Catholic. We know that she's Puerto Rican - Hispanic Catholic. They tend to be devout.
She has no record. She hasn't said much about it. If, and I'm speaking for me personally, if I learned, if I could be assured, that she is actually a pro-life person and does think that Roe versus Wade is bad constitutional law, and if she would rule on the right side on the life issue, I might look past this racism and even deal with that, but that's something very, very important to me, and she could be stealth in that regard.
And I know that - well, there's no record. Normally most liberals, they love to tell you how pro-choice they are and abortion. She doesn't have any of that.
Says Tom Goldstein, who's done the work, reading all the cases relating to race:
[I]n an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.
So the reverse-discrimination claim is one of the very few cases where she stood out from the other judges. It's notable that that was a case that turned on free speech rights — and the speech in question was speech Sotomayor presumably disgrees with vehemently:
Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involv[ed] an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.” In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant”....
But she upheld the rights of the employee as grounded solidly in the constitutional law of free speech. So let's think clearly about the real working of this "empathy" Obama has touted. Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record.
"... I am saying that I cannot sit in the game, and that safer rules must be made to give me a chance. I repudiate that. If others are in there, deal me a hand and let me see what I can make of it."
[T]he International Association of Professional Black Firefighters tells us, "Cognitive examinations have an adverse effect upon blacks and other minorities." Du Bois crowed, "Fifty years ago the ability of Negro students in any appreciable numbers to master a modern college course would have been difficult to prove," and proudly documents 2,500 black college graduates. Imagine Du Bois listening to a rep from the black firefighters' association now sneering that the promotion test merely measures "the ability to read and retain"--i.e. engage in higher-level thinking processes! O tempora, o mores.
This will not do: People like Du Bois did not dedicate their lives to paving the way for black people to be exempt from tests. Sure, the tests may not correlate perfectly with firefighters' duties. But which falls more into the spirit of black uplift that you could explain to a foreigner in less than three minutes: teaching black candidates how to show what they are made of despite obstacles, or banning a test of mental agility as inappropriate to impose on black candidates?
The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”
Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.
The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.
“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...
The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...
Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”
Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.
Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.
