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Misunderstanding Racial Justice

Publication Date: 
November 14, 2011
The New York Times - Sunday Book Review
Jeffrey Rosen

Professor Richard Thompson Ford’s newest book “Rights Gone Wrong: How Law Corrupts the Struggle for Equality" is reviewed by the New York Times' Jeffrey Rosen in the below article, "Misunderstanding Racial Justice."

There’s no more polarizing legal battle in America today than the one over the meaning of discrimination. On the left, many progressives insist that any policies and practices that disadvantage people on the basis of race, sex, age or disability should be illegal, and some have carried this principle to illogical extremes — suing to block ladies’ nights at singles bars, for example, or even to forbid Mother’s Day. On the right, many conservatives insist that the Constitution is so colorblind that the government may never take race into account under any circumstances, and the Supreme Court under Chief Justice John Roberts has carried this principle to similarly illogical extremes — claiming that policies designed to integrate public schools, for example, are impossible to distinguish from those designed to segregate them.

In “Rights Gone Wrong,” Richard Thompson Ford, a law professor at Stanford, argues that both the progressive left and the colorblind right are guilty of the same error: defining discrimination too abstractly and condemning it too categorically, with similarly perverse results. According to Ford, the urge to condemn discrimination in all its forms — a legacy of the civil rights movement — has led people on the left and the right to reject “reasonable, prudent and innocent distinctions.” It has also led activists, judges and government officials to concentrate on eliminating even trivial forms of discrimination at the expense of more effective means to social justice, like expanding economic opportunities for the poor.


In fact, Ford says, it’s simplistic and wrongheaded to claim that very different social problems — from the overrepresentation of black men in prisons to the fact that the lines for women’s restrooms are longer than those for men’s — all involve bigotry that can be eradicated by making the bigots pay. He argues that age discrimination law and the elimination of mandatory retirement have become “a perk for the privileged,” benefiting relatively well-off older workers with jobs rather than the unemployed older workers who can’t get hired in the first place. And he believes that old-style class action lawsuits are ill equipped to fight contemporary forms of sex discrimination. Ford criticizes the landmark sex discrimination suit against Wal-Mart in terms similar to those that the conservative justices on the Roberts court recently invoked when they blocked the suit by a 5-4 vote. “The Wal-Mart plaintiffs came close to insisting that decentralization and subjective job criteria are inherently discriminatory,” Ford writes. “This was the weakest part of their case: these are legitimate and effective management styles. A company shouldn’t be punished for adopting them, nor should we presume that they are a cloak for bias.”

But Ford, the author of “The Race Card,” doesn’t bash only liberals; in the second half of the book, he is just as withering about the overconfident abstractions of the conservative justices. He criticizes Chief Justice Roberts for holding, in 2007, that the landmark precedent of Brown v. Board of Education, which banned school segregation, should be extended to prohibit policies designed to achieve integration. Roberts warned that judges shouldn’t be too confident in their own ability “to distinguish good from harmful . . . uses of racial criteria,” but Ford maintains that Roberts is carried away by his own bloodless abstractions. “Is it really so hard to tell the difference between defensible and pernicious uses of race?” he asks. “ ‘Racial classification’ . . . is a lawyer’s construction that covers a host of very different policies: de jure segregation and affirmative action, racial profiling by police and the use of race in the census.” It’s hardly obvious, Ford argues, that courts should treat all of these policies alike.


Ford ends his stimulating polemic by arguing for a more “nuanced” approach to civil rights. He calls for the return of thoughtful, pragmatic judges who will take the time to distinguish justified from unjustified acts of discrimination, rejecting selfish or perverse claims of “rights gone wrong” while protecting people from truly invidious indignities. As Ford’s book demonstrates, these kinds of nuanced judges are in short supply today: our judicial politics have become so polarized, and our activists so suspicious of judicial discretion, that both liberal and conservative judges have rushed to embrace legalistic abstractions about rights rather than making complicated, case-by-case determinations. If President Obama is defeated, the Supreme Court will swing even more sharply to the right on questions involving discrimination; if he is re-elected, the current polarization over civil rights seems likely to continue. But while Ford may be too optimistic in imagining a remedy for the excesses of civil rights law, his book is invaluable in diagnosing the disease. “Like an overprescribed anti­biotic that kills beneficial micro-­organisms,” he writes, “the civil rights approach to social justice, once a miracle cure, now threatens to do more harm than good.”