Parlow and Pilon Rumble in Room 325

Posted on Categories Race & Law, Speakers at Marquette

Yeah, that doesn’t quite recall the Ali-Foreman fight, but there was still a pretty good conversation between Dr. Roger Pilon and our own Professor Matt Parlow yesterday. Dr. Pilon argued that public sector affirmative action encroached upon libertarian principles (he does not believe that such efforts should be prohibited in the private sector) and the idea of equal protection. Professor Parlow argued for  such efforts, emphasizing the need, not only for diversity but, as the Supreme Court has not allowed, to ameliorate the impact of past discrimination. Thanks are in order to the Federalist Society and American Constitution Society for sponsoring the event.

3 thoughts on “Parlow and Pilon Rumble in Room 325”

  1. I understand that Prof. Parlow may have been playing devil’s advocate to a certain degree, but one thing I did intend to ask him, and never got around to, was whether it would be permissible, in his view, for government to take race into account in contexts other than affirmative action. To give an example: if it is not a violation of equal protection for government to take race into account when determining what private-sector business is to get a government contract, then how is it a violation of equal protection for the government to take race into account when conducting airport security screenings or other law enforcement activities? And if the latter is not constitutionally acceptable (and I do not believe that it is), then what is the basis for distinguishing between the two acts? Perhaps the justification rooted in remedying past racial discrimination could serve as that basis, but as Prof. Parlow pointed out, the Supreme Court has rejected that rationale. Similarly, if the desire for diversity can be a compelling interest, then it seems to me that law enforcement could make out a fairly persuasive case for the utility of racial profiling.

    So in sum, (A) can government, consistent with the Fourteenth Amendment, take race into account for some purposes but not others; and (B) if so, how do you distinguish the legitimate purposes from the illegitimate ones? Since I didn’t get around to asking this of Prof. Parlow, I’m interested to hear anyone’s thoughts on the matter.

  2. I also very much appreciated the debate between Dr. Pilon and Prof. Parlow. What I wish I had thought to ask was whether the gentlemen would agree that, if the Court had endorsed the purpose of “remedying past injustices,” they think such a position would have (1) given affirmative action a firmer rational basis and (2) forced the remedy to be temporary. Remedies have harms they are supposed to address; if the harm is not mitigated or eliminated, then the remedy is jettisoned in favor of something that will work. Affirmative action is on the path to becoming a permanent social program and seems immune to the kind of evaluation that would determine if it’s working and, if not, what to replace it with. Wishing it would become unnecessary is a pipe dream if we have no standard by which we determine when that laudable goal has been reached.

  3. I suspect that the difference between profiling and consideration of race for purposes of diversity is that the latter is or could be premised on invidious stereotypes while the latter seeks to remedy past discrimination or to achieve some objectives thought to flow from integration.

    Mr. Samis raises an interesting point. My sense is that Justice O’Connor’s pronouncement that affirmative action would end in 25 years (only 19 to go) was premised on the assumption that it would remedy the effects of past discrimination.

    But the extant evidence is not encouraging, suggesting that the diversity rationale will become more powerful. While it makes me nervous for a number of reasons, I am also not sanguine about the prospect of doing nothing. I do not want, for example, to look out on the first day of class and see nothing but white faces. While I believe (or maybe, mor accurately, I hope) that this can be avoided without racial preferences, the situation on the ground is complicated.

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