Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. . . . From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

Although O’Connor and her colleagues upheld the constitutionality of the University of Michigan Law School’s affirmative action program at issue in Grutter, her opinion reflected a belief that affirmative action programs would draw to a close at some future point.

Data released by the College Board, the organization that administers the SAT exam, at the end of August suggests, however, that the end date for affirmative action is probably still a long way off. 

Once again, Non-Hispanic whites and Asians scored significantly higher on the SAT than African-Americans and Hispanics, and the pattern of scores provides no evidence that the gap is closing.  Over 1.5 million college-bound seniors took the test, the largest number in history.

The SAT now consists of three sections — writing, critical reading, and mathematics — each of which is scored on a scale that ranges from 200 to 800.  Since April 1995, the targeted median score on each test has been 500 (rather than 450 as it was before).  Consequently, the range of combined scores is 600 to 2400, with an “average” score being 1500.  The actual average for the 2008-09 academic year was 1504, essentially the same as it was the previous year.

For the test as a whole, Asian students scored 1633 compared to 1581 for non-Hispanic whites, with most of the disparity resulting from a significantly higher mathematics score.  Other groups did not do nearly as well.  The scores of Native Americans and Eskimos averaged 1448; Hispanics, 1364; and African-Americans, only 1273.  Males of all races, who counted for only 46.5 percent of test takers, outscored females, 1523 to 1496.

Much of the discrepancy in racial performance is due to socio-economic factors that adversely affect black and Hispanic adolescents.  Low family incomes, single-parent homes, low levels of education in the family, and the lack of role models who have achieved academic success all contribute to poor test performance. For example, students of all races with family incomes of $200,000 or more averaged 1702 on the SAT; those with family incomes of below $20,000 scored 1321.  Students whose parents had at least one graduate degree averaged 1683; those who parents had not finished high school scored only 1281.

With this kind of disparity in SAT scores, only affirmative action programs can guarantee that African-Americans and Hispanics will be proportionally represented at America’s more selective colleges and universities.  Although we may reach Justice O’Connor’s sunset at some point, right now we are clearly still in the middle of the day.

We certainly could see much of the harm unfold on the news and talk shows. Professor Gates, a highly respected scholar, gets arrested in his own home by a white officer. He (and many others) believes he has been treated unfairly because of his race. The officer, who with his fellow officers, including an African-American, believes he was doing his job because he is investigating a possible home invasion and has a man, in his opinion, who is uncooperative and verbally abusive. And we have a highly respected president, who usually is extremely careful with his words, announce that despite the fact that he does not know all the facts, that the police acted “stupidly.” Then we went on to learn that Lucia Whalen, who called in the suspicious behavior at Dr. Gates’ home, is now receiving death threats and being called racist despite the fact that she never volunteered anything about race to the 911 operator. We can then imagine the harm to the Cambridge police department, the African-American community in the Boston area, the family members of everyone involved and then of course the harm to the thousands and thousands of others who experience the renewed pain of some bad police/community member relations all over this country. We have some political pundits characterizing all police as men and women who routinely engage in racial profiling (never acknowledging that never does an entire profession engage in bad behavior so that the “good cops” are thrown into the same description as the “discriminating cops.”) Those kinds of comments not only demoralize police departments but also devastate family members of law enforcement officers. We have once again publicly displayed acts of racism (a Boston officer writing a letter describing Professor Gates as “banana-eating jungle monkey”). We know that the wounds of racism and profiling in this country are justifiably deep and painful. And we have a president, who is trying to focus on our national health care crisis, in part because of his own words, being embroiled in these events. There is not a question in my mind that this was an opportunity for all of us to watch and learn a better way to move forward other than our continuous name calling.

Restorative justice practices involve people who have been harmed having the opportunity to be heard by those they believe played a role in harming them. In our MULS restorative justice program, we routinely have victims, or family members of victims of crimes of severe violence request a meeting with the perpetrators (including murderers, rapists, and robbers) so that they can tell them, across a table, how deeply they have been harmed by what the other person did. Unlike the White House meeting, these dialogues can often take up much of a day. A victim/survivor can describe the pain that was caused and the “ripple effect” of the other’s actions. The offender learns the depth and breadth of impact of his or her actions on a myriad of people. The dialogue then often continues so that the victim can ask the offender about his or her life and how it is that this person came to harm him or her. What life experiences brought the offender to that moment? Most offenders apologize for their behavior. (We do not conduct these dialogues unless the offender admits at least some of the alleged criminal conduct.) Hearing about people’s life stories humanizes them and helps us understand (but not necessarily approve) of why others have acted in a certain way. From that place of understanding, we, as community, can better find ways to move forward in a positive way.

On a very regular basis, our MULS Safe Streets community coordinators, Ron Johnson and Paulina de Haan, conduct restorative justice talking circles in Milwaukee’s central city with victims, neighbors, police, offenders, prosecutors, church members, offenders and other community members. I have watched these groups of people weep as a Milwaukee police officer describes finding a two year little girl with a bullet hole in her forehead and quickly picking her up. He told all of us that the little girl took her last breath in his arms and that her death has haunted him since that moment. He looked at the others in the circle and said, “I never go to a call for a shooting without taking her with me.” I believe that there is no one who was there that day that still believes that “all police don’t care.” On another occasion, we had a gang member describe that when he was 7 he was sitting on the kitchen counter watching his mother prepare the Thanksgiving turkey. All of sudden tires were screeching and he heard the sound of gun shots. His mother threw him down onto the ground and then fell dead in front of him with three bullet holes in her back. He then was placed with family members in the Chicago projects where he grew up in violence. No one will ever condone what he has done, but after the circle a police officer went up to him and told him that he now had a better understanding of how he got there. We have seen officers actually go out and help serious offenders find employment after they have heard the stories in the circle.

Finally one older African American man told his story of calling the police about shooting on his street. He told them that he would be sitting on his porch in his white shirt waiting for them. When police arrived, the police pointed guns at him and told him to get up and then lay down on the ground. It took quite some time for them to acknowledge (without apology) that he was the person that had called for help. The police in that room truly got to hear what that horrible experience was like for that older man. That story telling and more important listening (and truly hearing) by others brings much healing and new understanding to everyone in the room and hopefully more sensitivity in the future. What happens during these dialogues or circles is that everyone present learns more about people’s experiences and perspectives. Invariably, people will see that in our humanness we are all much more alike than different. We all have had terrible experiences in our lives (obviously some much worse than others). People who hear those stories will often ask themselves, “what would I have done under those circumstances?” or “how would I feel about what I have done if I had lived that other person’s life?” From that understanding we can build human bridges of understanding that help “good and progress come from the bad.”

I do have some regrets about the way the White House handled this dialogue. I wish they had asked Lucia Whalen to join the discussion. She was an integral part of what happened and may be the only one who appears to have done everything right. Her voice should have also been heard at that meeting. She could have told them that each of their actions has led to more people calling her a racist and accusing her of causing national turmoil. Although her actions of calling 911 certainly set this series of events into action, she was just being a good citizen and reporting a potential problem in her neighborhood. She never volunteered the race of the men she saw and in fact when asked told the dispatcher that she was not sure of their ethnicity. It would have been good for these three men (including the president) to hear how their actions in all of this have made her life very difficult.

I also regret that the White House did not get a trained neutral restorative justice facilitator to shape the discussion. As good as the president is at bringing people together, he was not neutral in this incident. He was friends with Professor Gates and his words had certainly contributed to the harm from the events, particularly to the Cambridge Police Department. Although the image of the men sitting around the table in the White House garden was a good one, it would have been helpful for us in the greater community to learn more about what each of them learned from the discussion. Professor Gates and Sergeant Crowley have indicated that they will continue to talk. Hopefully they will bring in the community into that dialogue.

When it is all said and done, it does not really matter who drank what beer. It does not matter who wore what to the meeting. But hopefully we all will learn from this high profile meeting at a round table (like a circle) that when people have caused harm to each other by having made certain choices or are in serious conflict, it is important for everyone to slow down, ratchet down the level of anger, accusations and name calling…from “racist, to immoral to stupid to evil to without conscience” and actually create an environment where people can have a meaningful dialogue about what has happened, how everyone sees the situation and how they and all of us can work together in a positive way to prevent future harm. If we can do that, then we are good students learning from that proffered “teachable moment.”

The forty contributors vary considerably by gender, race, and ethnicity.  A majority, but only a majority, grew up in states where legally segregated schools existed at the time of the Brown decision.  Some are old enough to have remembered the day that the decision was handed down; others were born after it was already the law of the land.  But all, to one extent or another, believe that their personal and professional lives have been profoundly shaped by the Brown decision.

I read Law Touched Our Hearts with great interest. 

Although I am too young to remember the actual announcing of the Brown decision — it was handed down two weeks before my second birthday — it was clearly a defining event in my life.  In 1956, my family moved from Giles County, Virginia, where I was born, to White Sulphur Springs, West Virginia.  Two years earlier, after an attempt to integrate the White Sulphur schools in response to Brown, the town and nation witnessed the first post-Brown, anti-integration riot in the United States which led the county school board to cancel the integration experiment after only one week.  In 1956, integration occurred a second time, this time as the result of a federal court order.  My mother started teaching at White Sulphur Elementary that fall, and when I started school there two years later the fate of integrated education seemed anything but certain.  In 1959, we moved back to Virginia where the schools were completely segregated, and I experienced integration a second time in 1964, when Giles County decided to voluntarily close its black schools and incorporate the entire black and white population into a single school system.  (Incredibly, Giles County was the first county in Virginia to do this.)

I was also interested in Law Touched Our Hearts because eight of the contributors are good friends of mine.  I can say, though, without fear of contradiction, that the most moving and most poignant essay in the entire collection is the one written by my Marquette colleague Phoebe Williams.  Phoebe’s essay, titled “Segregation in Memphis,” tells the story of her experiences as an 8-year old school child in segregated Memphis schools when the Brown decision was handed down.  Although the Brown edict was to be adopted with “all deliberate speed,” the “promises of Brown,” as Phoebe puts it “remained unrealized” in Memphis.  There had been no school integration in Memphis when Phoebe graduated from high school in 1963, and there would be none for years to come.  Her first experience with integrated education came when she enrolled at Marquette as an undergraduate.

Phoebe’s essay wonderfully captured the spirit of optimism that arose with the handing down of the Brown decision, as well as the disappointment that accompanied the failure of southern states to live up to its mandates.

I was already familiar with much of Phoebe’s account because of an appearance she made several years ago in a class on the History of the Civil Rights Movement that I was teaching in the College of Arts and Sciences.  I invited Phoebe to come speak to the class about her experiences growing in the era of segregation.  The students in the class were riveted by her presentation, even though most were northerners and had been born more than two decades after the Brown decision.  Many students later told me that Phoebe’s presentation was the highlight of the class.

I strongly recommend Law Touched Our Hearts to anyone interested in the history of civil rights in the United States, but I insist that anyone with any sort of Marquette connection should read Phoebe Williams’ contribution to the collection (pp. 123-134).

McMath’s jury-selection claim centered on alleged racial bias in the prosecutor’s use of peremptory strikes.  In Batson v. Kentucky, of course, the Supreme Court made clear that prosecutors are prohibited from removing potential jurors from a case on account of their race.  Here are the relevant facts from McMath:

There were two African-Americans on the panel from which McMath’s jury was selected, and the prosecutor removed one of them.  McMath’s lawyer objected, arguing that there was little information available about the potential juror other than that he was a retired janitor, and there seemed no race-neutral reason to strike him on that basis (”There’s other jurors left on this jury that are retired.”).  The prosecutor responded, “Race neutral factor is expression on his face.  That’s all I can say.  He looked angry and not happy to be here.”  McMath’s lawyer replied, “I think pretty much the whole jury looked like that.”  Prosecutor: “I disagree.  I didn’t see that expression.”  My guess is that if the prosecutor did not see some other potential jurors who looked unhappy to be there, she was not looking very hard.  In any event, following this colloquy, the judge denied the Batson challenge without explanation.

In order to understand the Seventh Circuit’s analysis in McMath, one must be familiar with the three-step process prescribed by the Supreme Court for Batson claims: (1) the defendant must present a prima facie case of racial discrimination in the exercise of peremptory strikes, (2) the prosecutor must respond with a race-neutral explanation for the challenged strike(s), and (3) the court must decided whether the defendant has carried his burden of proving improper discrimination.

On appeal, the government argued that the defendant failed to carry his step-one burden of making out a prima facie case.  However, the Seventh Circuit (per Judge Flaum) indicated the issue was moot because, “at the time of the challenge, the prosecution provided a race-neutral reason and the district court ruled on the Batson challenge.”  The message for prosecutors seems to be this: if you want a ruling on the defendant’s prima facie case, you need to get it from the trial judge before offering your race-neutral explanation.

Despite its suggestion that the issue was moot, the Seventh Circuit also indicated that McMath actually did succeed in making out a prima facie case, emphasizing how low the burden was:

[A] defendant need only produce evidence sufficient to permit an inference of discrimination in order to satisfy the first step of the Batson analysis.  The test is not rigorous: suspicion even less than “more likely than not” suffices. . . .

Here, the defendant met this threshold. . . . While it is true that it would not have been sufficient for defense counsel merely to point to the stricken juror’s race, defense counsel’s statement that jurors sharing Juror 7’s only other known characteristic, his status as a retiree, had been retained by the prosecution pointed out a relevant circumstance that was sufficient to permit an inference of discrimination . . . .

Since McMath made out a prima facie case, the burden shifted to the prosecution to produce a race-neutral reason.  This burden was carried, though, when the prosecution invoked the stricken juror’s demeanor.  The trial court was thus required, under step three of the Batson analysis, to determine whether discrimination had been adequately proven.  The trial court indicated it found no discrimination, but offered no explanation for this conclusion.

The Seventh Circuit held, however, that Snyder required more than this bare rejection of McMath’s claim.  In Snyder, as in McMath, the prosecutor relied on a stricken juror’s demeanor for a race-neutral explanation.  Demeanor is a troubling as an explanation, though, because it is so subjective and ephemeral.  The trial judge may have difficulty recollecting for himself or herself how a prospective juror looked during voir dire, while the appellate court has no ability at all to review this type of evidence.  This is not to say that demeanor is necessarily a false race-neutral explanation, but it is to say that demeanor will generally provide a safe and convenient out for a prosecutor who lacks a good race-neutral explanation.  Snyder recognized the problem, and indicated that trial judges should make clear findings as to demeanor issues when they are raised in the Batson context.

The Seventh Circuit thus relied on Snyder in remanding McMath for explicit fact-finding on the Batson issue: “Snyder makes clear that a summary denial does not allow us to assume that the prosecution’s reason was credible; rather, the district court’s silence leaves a void in the record that does not allow us to affirm the denial.”

Although agreeing with McMath’s Batson argument, the Seventh Circuit rejected his claim that he was entitled to a new trial because of improper arguments made by the prosecutor to the jury.  Reading carefully, though, one finds some real criticism of the prosecutor’s conduct:

• “the prosecutor should not have commented directly on the officers’ credibility”
• “it was improper for the prosecutor to say that the officers would lose their jobs if they lied”
• “the prosecutor probably should not have said that she ‘knew’ McMath did not want to admit his guilt”
• “even if the comments shaded into impermissible commentary”

In denying McMath’s claim of prosecutorial misconduct, the court emphasized that — due to the failure of McMath’s lawyer to object at the time to the prosecutor’s questionable comments — it was using the deferential plain error standard of review.  In effect, it seems that the mistake of the defendant’s lawyer excuses the mistakes of the government’s lawyer.

The gentle treatment in McMath of the prosecutor’s “improper” statements contrasts sharply with the direct, personal criticism leveled by the Seventh Circuit at a prosecutor just one week earlier in Farinella, which I blogged about here.  I’ll let readers judge for themselves whether the prosecutor’s improper statements in Farinella really were so much more egregious than the challenged statements in McMath.

The other two cases from last week merit less extended discussion.

In United States v. Groves (No. 07-2227), the court (per Judge Sykes) held that suppression of evidence was not required where it was obtained after a stop based on an anonymous tip.  The Seventh Circuit has had a number of anonymous tip cases recently.  (I noted one just last week here.)  In Groves, the court observed, “Although an anonymous tip is generally insufficient to support an investigative stop, there was more supporting this stop than just an anonymous tip.”  A wrinkle here is that the police dispatcher incorrectly informed the responding officers that there was an outstanding warrant for Groves’ arrest.  However, the court relied on the Supreme Court’s very recent decision in Herring v. United States, 129 S. Ct. 695 (2009), to hold that “a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule.”

The Groves court also affirmed the reasonableness of the sentence, 240 months, notwithstanding a sentencing guidelines range of 151-188 months.

In United States v. Shah (No. 07-1306), the court (per Judge Posner) reversed the defendant’s conviction for violating 18 U.S.C. § 2314, which prohibits the transportation of people across state lines for purposes of executing or concealing a scheme to defraud.  Shah’s conviction was apparently based on his dispatching a courier across state lines in order to further his fraudulent scheme.  The Seventh Circuit ruled, however, that the statute requires that an intended victim be the person who is transported.  It was not enough for the government to rely on the transportation of an agent of the defendant’s.

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the “war on drugs,” with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation’s prison population – disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a “do-no-harm” innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes. Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders. Although treatment may be part of such a program, the real centerpiece is the “community conferencing” process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives. Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

The article is forthcoming in the Stanford Law & Policy Review.

I recently made a similar argument that the same sorts of benefits might be derived from prosecutors paying more attention to procedural justice in plea bargaining.  (A copy of my article is available here.) 

As Tracey indicated in her talk, there is plenty of evidence indicating that deterrence has limited value as a crime-control strategy. 

This is not to deny that punishment may produce some deterrence effects, but it is to say that merely increasing punishment in order to reduce persistently high crime rates is not likely to be the most effective strategy, and may even become counterproductive at some level of punishment severity.  (Indeed, such a point of negative marginal returns has arguably been reached in some high-crime, high-incarceration urban neighborhoods.)  There is also plenty of evidence to support the hypothesis that, when people interact with the police, their views of the police are shaped at least as much by how respectfully they are treated as by the outcome of the interaction.  All of this lends plausibility to Tracey’s view that procedural justice has played an important role in the success of Project Safe Neighborhoods.

Like Tracey, my plea-bargaining article also emphasizes the potential crime-control benefits of procedural justice.  But I think it is also important to note there is an ethical dimension to procedural justice.  Regardless of what a person has done or is suspected of doing, it is necessary to separate the misconduct from the person, and to recognize that the person has an essential worth — that basic dignity that inheres in all human beings – that must always be respected.  Of course, police officers must be given the authority to protect themselves and the communities they serve, but unnecessary degradation of others should always be avoided – regardless of whether respectful treatment also happens to produce a crime-reduction benefit.  Likewise, an excessive reliance on deterrence-based approaches also raises important ethical concerns.  When punishment reaches a level of gross disproportionality to the severity of the crime — see, for example, California’s notorious “three-strikes” law, which has imposed sentences of 25 years to life on shoplifters — then punishment can no longer be viewed as something that is morally deserved by the offender.  And if the punishment is backed merely by dubious theories of deterrence (or incapacitation), then it appears we are imposing the sort of needless suffering on others that is inconsistent with respect for their equal dignity as fellow human beings.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

Tom is correct that this is the standard the majority announced. But is it the right standard? The majority cites no authority for it, and the cases (from outside Wisconsin) seem to have been based on the perceptions of a reasonable observer and not a reasonable observer in the position of the defendant.

More fundamentally, should the question be whether, to use the majority’s language, “there is a risk” that a defendant or a generic observer “might” infer that the judge improperly considered race?

Judge Brennan, in her dissent, comes at it in a different way, citing Wisconsin law that places upon the defendant the burden of proving that an improper factor influenced the sentence. Now, of course, one way to prove that is through the judge’s remarks. But here’s the thing: Not one of the three judges concluded that Judge Wall improperly considered race. Even the majority says that “[h]aving examined the entire sentencing transcript, we are satisfied that the trial court did not harbor bias against Harris because of his race.”

The majority seems to want to enforce a certain sentencing etiquette and I understand what’s behind that. There is resentment in the black community for the justice system and, while we can disagree about the extent to which it is justified or whether it is counterproductive, it ought to be seen as a reality that requires a response.

But sentencing judges are exposed to a parade of defendants who, and, again, we can argue about why, live irresponsible lives that are destructive of themselves and their families. It is reasonable to expect them to, from time to time, comment on that fact. If, in a particular venue, a disproportionate number of those defendants are African-American, it may be possible, as was done here, to tease those remarks and to place upon them a negative construction that might suggest racial bias. But won’t too much sensitivity lead to too many false positives and inefficiency? Where, as here. everyone seems to agree that race was not taken into account by the sentencing judge, is there really any value in vacating the sentence because the judge’s remarks might be susceptible to being taken in the wrong way?

Cross posted at Shark and Shepherd

So pieces like Matt LaBash’s recent cover piece for the Weekly Standard disturb me. Websites like this one are fascinating and frightening chronicles of how bad urban decay can get. I have always thought that a conservatism that has no concern for places like the inner-city of Detroit is not a conservatism that I want to be part of.

But one cannot, I think, make a great city by litigation or subsidy. Here in Milwaukee, the ACLU has filed a complaint with the Federal Department of Transportation alleging that actions of the Wisconsin Department of Transportation in approving the certain aspects of the reconstruction of I-94, including the partial closure of a city interchange and the construction of a new suburban interchange, violate the anti-discrimination provisions of Title VI and its implementing regulations. It also complains of a decision to widen the freeway (which runs through the city) from six to eight lanes instead of using the money for commuter rail.

What interests me about the complaint is that it is based upon highly contested propositions of what will best serve minority communities in the city of Milwaukee. The proposed changes, it says, discourage development in the city closer to the areas in which minorities live (although the interchange to be partially closed is in a predominantly white part of the city) and, since minorities are less likely to have cars, they are less likely to benefit from freeway construction.

Title VI does have broad anti-discrimination provisions but applying them here would seem to require resort to standards that the statute does not supply. Are minorities hurt or helped by greater access to and from outlying areas. There is a body of thought that holds that, if you make it harder to get in and out of the city, the city will prosper.

While that may have been an effective argument in 1956, I am not so sure that it works any longer, and  Detroit, it seems, provides some evidence for my skepticism.

While today we think of the demise of Detroit with the fall of the auto industry, the death of the former preceded the decline of the latter. Detroit long ago became the hole in a metropolitan donut.  As Labash reports, a thriving Chrysler left the city’s Highland Park for Auburn Hills because, among other things, the occasional bullet would whiz across its property. The tragedy, of course, is that while Chrysler left, the bullets still fly. Transportation policy could not have prevented and cannot reverse what happened.

Of course, that doesn’t mean that transportation policy can’t have an impact on metropolitan areas.

But I’m interested in the larger question that the complaint raises about the use of anti-discrimination laws in this way. It is one thing to interpret anti-discrimination laws to prevent the exclusion of minorities and quite another to interpret them to compel policies that are thought to serve the interests of minority groups as envisioned by a certain set of ideological presuppositions. I understand that you can call the failure to do so “discrimination” and “advancing minority interests” is a standard of sorts.

But it does not seem to be one that is capable of judicial application without essentially calling upon judges to act in accordance with their individual policy preferences. Returning to my earlier remark about a conservative urbanism, a conservative judge might find another set of policies — i.e., those thought to discourage marriage or to inhibit effective law enforcement – as disserving the interests of minorities.

Cross posted at PrawfsBlawg and Shark and Shepherd.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.