Below is my column in the Hill on a variety of proposals that could restart the "reverse discrimination" debate in the federal courts. Many of the proposals aim to adopt exclusive racial classifications that conflict with existing precedents under both the law and constitutional law. If this movement is to lead to permanent reforms, these threshold law challenges should be taken into account.
Here is the column:
In 1976, Supreme Court judge Thurgood Marshall accused the "illogic" of civil rights activists who insisted that anti-discrimination laws should protect only minorities from discrimination. The first African-American judicial and civil rights attorney stated that whites also deserve such protection. As bizarre as it may seem today, he could be denounced to make claims of "reverse discrimination" possible. However, this debate could find its way back to the Supreme Court given the numerous controversies surrounding the use of race as a threshold criterion for benefits or penalties.
The Black Lives Matter movement believed that the inequalities and abuse of African Americans should only be recognized and not a broader position in which "all life is important". The protests have convinced many of us of the importance of this recognition. But cities and states are turning to reforms where this racial exclusivity is a potentially insurmountable obstacle. Using threshold exclusions of all but one or two races could re-ignite the debate about "reverse discrimination" and what constitutes discrimination or positive action.
Marshall is an interesting figure at the crossroads of this debate. While deciding that whites are protected against racial discrimination under laws such as Title VII, he supported positive action and contradicted the 1978 decision in the Allan Bakke case to reject claims based on reverse discrimination. He claimed that much had to be done to correct the ongoing distortions of racism since the Supreme Court "had not banned the most ingenious and pervasive forms of discrimination against blacks". He said, "I cannot believe that the same constitution is an obstacle."
The question is where to draw that line and whether, as a number of commentators have asked, "reverse discrimination" is "even a thing". This problem arose when Gary Garrels, a senior curator at the San Francisco Museum of Modern Art, resigned after being denounced as a racist. The reason? Supporting the diversity of the artists featured in the famous collection, Garrels said, "We will definitely continue to collect white artists." He has also reportedly said that a ban on buying art from white artists is "reverse discrimination". A petition calling for his release said that the terms "reverse discrimination" and "reverse racism" were offensive forms of the "white supremacist and racist language".
This body highlights the limits and the ongoing debate about such distinctions. His colleagues had the right to voice their opinions on his comments, and his decision to resign was a private decision. However, his objection to the use of the breed as the exclusive criterion for collection captured the uncertainty between discrimination and diversification, a line that the Supreme Court has been dealing with for decades without a clear solution to college admission and other areas.
A possible case could occur in Seattle, where city council members have asked for the police budget to be cut by 50 percent. This would require the sacking of a significant number of police officers, which is also popular. But that puts the city council in a dilemma, since dismissing half of the department would start with the youngest officers, many of whom are minorities. Defusing the police in the name of racial justice would therefore lead to the dismissal of minority officials. According to city councilor Lisa Herbold, the solution could be simple: dismiss the white officers. Your proposal is remarkable for its illegality and popularity.
In his 1976 statement on the Santa Fe Trail Transportation Company, Marshall chose two white employees who were fired after theft. While a black employee was held responsible, only the two white employees were fired. Marshall said that discrimination against them mocked the anti-discrimination laws. In 2009, the Supreme Court ruled against New Haven after white firefighters and a Hispanic firefighter challenged the city when they refused to certify the results of promotion tests to promote black firefighters who did not perform well. The Supreme Court ruled that refusing to certify was illegal discrimination.
While the Supreme Court has allowed race to be considered a factor in college admissions in some cases, it has put down certain programs that have crossed the line on discrimination. Chief Justice John Roberts summarized the position of many judges on this issue in a 2007 decision, in which he wrote: "The way to stop racial discrimination is to stop racial discrimination."
What is natural discrimination for some is a positive act for others. The California Faculty Association has called for a wide range of reforms, including "free tuition for all black, native, and indigenous students." California lawmakers are trying to reverse the rules of "reverse discrimination," and the state senators voted to approve an election measure for the fall election, with Proposition 209, the 1996 state change that takes any consideration of Race or ethnicity in admission decisions to public universities has been revoked. Governor Gavin Newsom supports this revocation.
The California proposals could pose another set of challenges related to benefits for certain island groups and penalties for the excluded. It is easier to benefit one group of islands than to punish other groups for their race. This line can become cloudy. In previous cases, it was argued that government funds function as a zero-sum game in which increasing funds from one purpose means reducing available funds for other purposes. If the proposal to grant minority students free tuition is accepted, the loss of revenue for state schools would be substantial.
If the nation approaches concrete reforms, these criteria must be clarified in court. The exclusive reference to one or two breed groups is judicially suspected according to applicable case law. That is why we do not need a civil debate about whether reforms should be carried out, but how. It can't happen when concerns like people like Garrels are denounced as whistles or white supremacy.
Translating this important social movement into necessary legislative reforms will not be easy if it is based on threshold benefits or penalties based on a single classification or exclusion. We need to have this discussion now so that we don't waste years of unsuccessful litigation instead of using our energy to forge something that will pass the constitutional scrutiny.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University. You can find his updates online at JonathanTurley.