Kia Franklin

Is the Race Question Suited for Lawsuits?

Quite timely given that today is Martin Luther King, Jr.'s birthday (he would have been 79 today!), we have a race case to discuss today.

In the Post, another racial quota lawsuit against NY Schools. This time, a South Asian couple from Brooklyn has initiated a class action lawsuit based on an antiquated quota system from a 1974 desegregation order. The deseg order required a 6:4 ratio of white to minority students in the schools. Although the couple's daughter, Nikita, scored 2 points higher on her music test than she would have needed to if she were white, she was rejected from the school's gifted program.

Relying on the Seattle/Kentucky school integration Supreme Court ruling, the Rau family is suing the Chancellor and Department of Education in federal court. Mr. Rau, suing on behalf of his daughter and other minority students left out because of the quotas, quoted words from Dr. King's famous I Have a Dream Speech as he explained why he filed the class action lawsuit:

"Children should be judged on the content of their character, not on the color of their skin," said Dr. Anjan Rau, the girl's dad, about the quotas at Mark Twain School in Coney Island.

First, the easy stuff: this lawsuit is again an example of the civil justice system providing a forum for individuals to bring their grievances forward, seeking both individual redress and, often, a solution that will affect other individuals, or even the national community, for the better. Having sought alternative resolutions, and having found none, the Rau family turned to the civil justice system to settle what they feel (and in my opinion, rightly so) is a serious injustice. They'll have the opportunity to state their case, their case will be resolved, and this will inform the way the law operates for students.

But now for the more difficult stuff--the question of whether this problem can be fixed through our courts? Do our civil courts even allow us to articulate the problem in a way that is helpful and productive? We've discussed this a little bit, here and here, but could benefit from more dialogue. (Comment away!)

No doubt that on a very individual basis, yes, the problem of these individual students being excluded from certain opportunities based upon their race will be addressed, and one hopes also solved, through the civil justice system. But in terms of shifting the way we, through our laws and norms, understand race, privilege, and power in this country? I'm not so sure. And I suppose this is the nagging feeling that plagues both plaintiffs and civil rights lawyers grappling with these issues in the courts. It's why racial-justice oriented litigation strategists wrestle with the question of bringing suit in the first place.

Sigh. The race cases. Du Bois said the problem of the twentieth century was the problem of the color line. Well, we all know that a problem doesn't go away by just covering it up or sweepting it under the rug. So unfortunately, we still have the same problem on our hands, in all of its new, complicated, frustrating, and interesting manifestations.

That's my 1.5 cents, but I really hope to hear from folks in the comments thread. While the civil justice system is a vehicle for racial justice in terms of enforcing already-established laws and norms, in terms of changing the laws and shifting the way we think about race, power, and privilege, it may only serve as a reminder that we have some serious digging, and 'splaining to do as a society.

Let's keep talking about this. Happy Birthday to MLK, a true drum major for justice.

Kia Franklin: Author Bio | Other Posts
Posted at 12:13 PM, Jan 15, 2008 in Civil Rights | Class Action | Discrimination | Education
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thanks for this kia,
i think your question concerning the ability of courts to deal with this is the appropriate question. i have a question about effective ways to go about fixing that however. you later state, "No doubt that on a very individual basis, yes, the problem of these individual students being excluded from certain opportunities based upon their race will be addressed, and one hopes also solved, through the civil justice system. But in terms of shifting the way we, through our laws and norms, understand race, privilege, and power in this country? I’m not so sure." In what ways does our thinking about race need to shift, and does it make sense to address the problem of the courts ability to deal with these issues before or after we try to answer the question about intellectual shifts?

Posted by: matthew Birkhold | January 15, 2008 8:20 PM

First, I believe our thinking--as a nation--about race needs to shift into “drive mode” instead of neutral or park. The first shift has to be into making thinking about race something people actively, openly, and willingly do as a project they understand to be necessary for our country’s redemption. In our current climate, even saying the "r" word is like pushing mute--People shut down, fear being labeled "racist" or "overly-sensitive" or sparking hostility. Funny thing is, hostility, racism, and sensitivity are already there so ignoring it will do nothing. We've got to recognize and accept that racial oppression in our country is a very present day problem and until then, legislation, litigation, or anything else will have a limited impact on the bigger picture problem, while it may “solve” a particular discrete and distinct version of the problem.

That's where the tactical decision of whether or not to engage in racial justice efforts via litigation comes into play. What are we really asking for when we go to court and can we really expect to get it there? So to reflect on your second question, I think the civil justice system, and its efficacy in addressing racial justice issues, must be examined both before and after we figure out that intellectual shift in the way we conceptualize race and power. We can’t figure out the intellectual shift without public will to sit down with the problem. Lawsuits often catalyze this will-shaping by shining light on the problem. But visibility isn’t always a good thing, for instance when it also creates “bad law.” So as the law shapes how we think about race and racism, we have to ask ourselves whether we want to use the courts as a vehicle for influencing this project. When the answer is “yes”, we still have to turn around and in retrospect reassess whether the courts were effective and productive to that end.

Matt, thanks for the thoughtful questions. I’d love to hear your thoughts.

Posted by: Kia | January 16, 2008 1:16 AM

Kia: All -isms are folk statistics, mostly correct, most of the time.

What are you asking for by going to court? You are asking the little caesars on the bench to violate Article I Section 1, and their state equivalents. The left, deserted by the facts 100 years ago, cannot prevail by democracy. It can only prevail by the tyranny of pro-lawyer rent biased land pirates on the bench.

You are asking for force, tyranny, and rent. You sure are getting it. Just the lawyers, not the victims of any -ism.

Posted by: Supremacy Claus | January 16, 2008 7:20 AM

Hatred and bigotry are functions of ignorance. The only way these twin devils will be overcome is through education and living together. The civil justice system "might" (and I emphasize the word "might") correct the occasional individual wrong but it has NO chance of doing anything more constructive than that.

Worse yet, resort to civil litigation smacks of bullying : "I can't get my way so I'll get mommy, teacher, government (you fill in the noun) to make you". The end result of that is more resentment and entrenchment of existing ideas.

Use of the CRIMINAL justice system to punish proscribed behaviors is fine, although it can be abused,too, such as with the insidious "hate crime" statutes. All crimes are hate crimes and the ethnicity, race, religion, sex or sexual orientation of the victim and culprit should have no bearing on the sentence given the culprit.

We have a long way to go in race relations - everywhere in the world actually, and while I echo Dr. King's sentiment, it will not come to fruitition through civil litigation

Posted by: Paul W Dennis | January 16, 2008 7:18 PM

What good are our laws if they're not here to protect us?

You say: "Worse yet, resort to civil litigation smacks of bullying : "I can't get my way so I'll get mommy, teacher, government (you fill in the noun) to make you". The end result of that is more resentment and entrenchment of existing ideas."

But nope, that bully-victim analogy is exactly backwards. What "smacks of bullying" is the discrimination that gives rise to the need to file a lawsuit in the first place. The children whose minds were squandered on poorly funded, segregated, educational abuse/neglect were not bullying their oppressors into anything.

Posted by: Kia | January 16, 2008 10:04 PM

No Kia, you are wrong and I stand by my analogy. Legislation through litigation is an abuse of trust and a complete discarding of democratic principles. I am not an exponent of a "the means justify the ends" philosophy. The means always matter.

You want change, work for change. Effective changes good or evil, occur through legislation

Posted by: Paul W Dennis | January 17, 2008 5:51 AM

Paul--sometimes legislation is wrong. That's where the checking power of the courts steps in to strike unconstitutional legislation off the books and restore the democratic values that our country purports to embrace. It's all interconnected, and if we have a lame duck court system that can do nothing in the face of unjust laws, then we have no substance to make those so-called "democratic principles" relevant to our daily lives.

Posted by: Kia | January 17, 2008 12:41 PM

The courts should serve as a check of the legislature; however, the courts should use their powers very sparingly. Moreover, the judiciary's powers are essentially negative - a veto, as it were, the ability to say "you cannot do this". Specifying that "you must do this " and ordering expenditures of taxpayers' money represents usurping powers the US Constitution reserves to the legislatve branches.

I know that the Constitution is an inconvenient document sometimes, but it may be all that stands between the next Democratic administration and a socialist dictatorship (just as it could someday be all that stands between a Republican administration and a fascist dictatorship)

Posted by: Paul W Dennis | January 19, 2008 6:20 PM

Yes, the Constitution may be an inconvenient document at times, which is why we can't depend on just one branch of the government to uphold it.

Sometimes our courts specify that "you must do this" so that the rights enshrined in the US Constitution actually have some place in real life. You say this power should be used "very sparingly"--perhaps. But of course the danger of using such relative language is that my "sparingly" is your "excessively." The Brown decision is the landmark example of some people thinking this was the act of "activist judges" and others recognizing that it was judges who realized that the law should transcend popular racial/racist politics. There was no way legislation was going to be passed to force America to come into the 20th century. The Court recognized the right and declared that it had to be made real for the schoolchildren who were being told every day that they were inferior becuase of the color of their skin.

Posted by: Kia | January 28, 2008 9:54 AM