Blog #94 – In What Ways is the Electoral College Illegitimate Today?

Blog#94 – In What Ways is the Electoral College Illegitimate Today?
The Electoral College itself is illegitimate and vitiates a key principle of constitutional law: “one person, one vote,” grounded in part on the Equal Protection clause of the Fourteenth Amendment and arguably underlying the Fifteenth Amendment as well.[1]

Trump lost the 2016 election by a popular vote. He only won the Presidency because of the distortions of the Electoral College. The Electoral College distorts election results, and violates the principle of one-person one – vote, in the following ways:

1. Voting in the Electoral College is by states, not by counting individual votes. The number of votes a state has does not reflect the choices of its voters, but is skewed in favor of smaller states, who have three votes (paralleling the number of Senators and the minimum of one Representative each state has), and is thus skewed in favor voters in smaller states.
2. Voting in the Electoral College is by states, not by counting individual votes. In each state, all its electoral votes are cast in favor of the party with the majority of votes, and the votes of any member of the minority party in that state are disregarded, and without influence in the national result. It’s winner take all in the Electoral College vote count, which means losers’ votes don’t count at all.[2]
3. The Electoral College was provided for in the Constitution by the framers as a compromise with the interests of the slave -holding states, and with intent to insert a buffer between a popular vote and a theoretically more deliberative small body, out of an open fear of direct democracy.
4. The numbers show that the net effect of the Electoral College procedure is to give the vote of each African-American and Hispanic citizen in each state significantly less weight in the final election result compared to the vote of each of the majority white citizens. The votes of Trump voters counted more, per person, than the votes of Clinton voters.
5. The Fifteenth Amendment, passed during Reconstruction, may well be considered to void this Electoral College arrangement, opening up to questions of the legitimacy of its results in 2016.


[1.] See; “
An examination of the Supreme Court’s dilemmas and tensions as it stepped into the “political thicket” of voting and representational equality, establishing the practice of what has become a core American principle: “One person, one vote.” It has the echo of a core American belief. It rings with the same distinctively American clarion call for equality and individual empowerment that reaches back through the ages to the nation’s founding: “…of the people, by the people, for the people”, “All men are created equal” S But it wasn’t until 1963 that “One person, one vote” became a widely articulated core principle of the Constitution when it was first spoken by Chief Justice Earl Warren’s Supreme Court.”
[2.] “For example, Blacks constitute about 36 percent of the Mississippi electorate, the highest Black voter percentage in any state in the country. About 90 percent voted for Clinton. But whites are 64 percent of the state’s votes, and about 90 percent of those chose Trump. Trump therefore handily won 58 percent of the state’s total vote and all [100 percent] of its Electoral College votes. In 2016, as for decades, the Electoral College result was the same as if Blacks in all the southern states except Virginia and Maryland had not votes at all.” Bob Wing and Bill Fletcher Jr., “Rigged, The Electoral College,” Z Magazine, January 2017, p. 2.


Blog #81c – From Clinton Liberal to Sanders Progressive Responses

 Blog #81c – From Clinton  Liberal to Sanders Progressive Responses

Hillary Clinton’s over-all approach could be seen as a major example of the liberal approach  to inequality, (see Blog #81b), and  Bernie Sanders’ could then be seen  is well on what might be called  the progressive side of liberal, although  stopping short of something more radical (see Blog #81d, forthcoming.). The Liberal and the Progressive share most of the same values, but differ in their political approaches, which I believe leads also to differences in the analysis used to undergird them. The Clinton Liberal approach aims at forming a broad coalition that would move towards consensus by minimizing areas of disagreement and conflict, seeking a practical majoritarian compromise on the liberal side of key disputes. The Sanders progressive approach is more confrontational, seeking a more populist base, and accepts the necessity to confront sharp clashes of interest in achieving its objectives.

Strategically, the Clinton liberal position hopes to avoid direct and painful confrontation with the prevailing structures of power, and hopes to redress unjust inequalities in the system through progressively oriented accommodation with those in power; on the radical side of progressive, the Sanders position is willing to attack the holders of power directly in moving towards the goal of reducing inequality. The liberal view focuses on lifting the lower 99%; seeing redistribution from the top 1% as a simply a means to that end; the progressive view also addresses the disparity between the 1% and the 99%, but sees it as per se unjust and needing redress at both ends. Higher taxes on the rich are seen as a means to help the poor, in the liberal view; in the progressive view, they are also seen as a way of remedying a fundamental unjust inequality. Whether the difference in political strategy leads to a difference in in analysis, or vice versa, in not an easily resolvable or particularly useful debate.

The Progressive response thus accepts the liberal proposals but goes further. It sees gross economic inequality, measured in terms of wealth and income, as being per se unjust. It agrees that poverty should be addressed, but sees poverty as requiring redistribution from the rich to the poor. Higher taxes on the rich are needed not only to keep the middle class safely in the middle and the poor above harmful poverty, but they are also needed  because the extreme wealth of the rich is itself unjust, unjustly acquired by inheritance or exploitation or oppression or pure luck, and it is socially just to reduce it. The quantitatively measured  inequality that we see today is wrong not only because it means the poverty of the poor at the bottom but also because it is linked to the immoral power of the rich, with the top 1% now controlling more wealth than all the bottom households (the bottom 50% or more; the figures vary) taken together. The wealth of the 1% needs to be used to achieve a just and sustainable equality.

Revolution is called for by some progressives, including Sanders, but on the political side as reforms to the electoral processes, and in the end the called-for measures on the two sides differ more in language and in extent than in basic values. A higher minimum wage is supported by both, although both implicitly agree that it can not be so high as to interfere with a reasonable profitability for businesses or entrepreneurship. Abolition of the wage relationship is not suggested by either, nor a recasting of the governmental role in the economy. Public regulation is seen on the liberal side as basically an undesirable necessity to be limited as far as possible; on the progressive side, it is accepted as inevitably needed and an extension of democracy. Redistribution is centrally involved in both; higher taxes are the conventional means to that end. Exploitation is inevitable, but can be moderated. Non-economic unjust inequality is wrong, but a large part of that inequality will disappear if economic inequality is addressed. Everyone in society will not agree to that solution; the rich will object to supporting the poor at their expense. Liberals believe it can and should be reasonably compromised; progressives see consensus as thus not likely, unanimity not achievable; conflict as inevitable

To generalize, the liberal response seeks to address quantitatively measured inequality at the distribution end, after it has been created in the economy, and sees such change as feasible through the existing political processes. The progressive response to quantitatively measured inequality is to address its unjust production in the economy, but within the basic structures of the existing economy, and sees political revolution as the necessary path to undermine that unjustly created inequality.

A radical response would go even further, and seek fundamental changes in existing economic structures. Since such changes do not seem to be imminent in most of the world today, a transformative approach might be a realistic way forward today (See #blog81 d and e , forthcoming).


This blog is one of a set of five dealing with Unjust Inequality:

Blog #81a: What’s the Problem? Not Just Inequality

Blog #81b: Inequality: What’s the Answer? Economic or Racial? Conservative or Liberal-Clinton?

Blog #81c – From Clinton Liberal to Sanders Progressive Responses

Blog #81d – Inequality: A Radical Response

Blog #81e. – Towards Transformative Approaches to Unjust Inequality.

Blog 77b Why is Trumpeting Trump so Appealing

Blog 77b Why is Trumpeting Trump so appealing to so many (including himself)?

The facts of Blog 77a seem very clear, and ought to be the matter of much greater public knowledge and analysis than it is. But there is another aspect to the relationship between the Trumpeting Trump and Real Trump, one that is more speculative, but worthy of reflection. Granted that those talks and ides directly benefit Real Trump in his fundamental business activities, which in turn define his life, there is still a vehemence in the way in which Trumpeting Trump is conducting himself in public which goes beyond play-acting or deliberate self-deception.

This all deserves exploration

Real Trump may even believe at least a part of what Trumpeting Trump is telling him. But Real Trump is smart, understands the world, can see what he is and is not doing. Can he really believe that terrorism is responsible for all of what ails the world, or that keeping Muslims and Mexicans out is a good direction for public policy in the United States (he employs many Mexicans himself)?

And how can it be that so much of what he trumpets receives such an enthusiastic welcome from so many Republican voters and even some Democrats, when the evidence and logic both show that it does not serve them well. Trump says little that would help poor people or non-union workers or the elderly, or student, and yet demographic studies of his supporters show many support him Why?


One answer may be that those ideas appeal particularly to those who are discontented with their own positions in real life, who see Trump’s withering complaints about the status quo as reflecting and indeed justifying their own situations. Bigotry is thus a possible reaction to material problems: laying the blame on others, different from themselves, immigrants, black and brown people, intellectuals, and government administrators, for their own difficulties. Having a candidate for President articulating similar views legitimates their own reactions. Hence Trump’s apparent success in the polls so far. (Although rich people also support Trump because he’s good for them.)

Both Trumpeting Trump and his followers are using their rhetoric – let us call it, admittedly oversimplified, bigotry – as a substitute for revealing other feelings, reactions, circumstances with which they are deeply unhappy. It may be a stretch, but is it not possible that, deep inside, Real Trump has doubts about what he is doing, about how satisfying pursuing ever more wealth accumulation is, what he can do with all that money except acquire more? Is it not possible that ultimately he has a need, as a human being, for feelings of solidarity, of support, of compassion, of kindness, perchance of love, values that go beyond the brute pursuit of wealth, of greed, which one might unkindly term the dominant value being pursued by Real Trump and endorsed and validated by Trumpeting Trump?

And might not Trumpeting Trump ’s vehemence in the expression of his ideas be, oddly enough, an upside-down form of the same bigotry and scapegoating, blaming all he looks down on for his own having to be so hurtful, so scathing, to those that make him act as he does, legitimating his own self-serving exploitation of others?

Or, perhaps less naively, might it not be that, just as Trump’s bigotry serves him as a legitimation of greed and the power that successful greed brings, .e.g. to say “you ’re fired” to even more people, by escalating the quest for not only private but also public powerIn a society in which the open defense of wealth accumulation – “greed is good” – is frowned on by most, the pursuit of political power is still accepted asa perfectly natural driving force for aggressive action, can serve as a moral cover for actions that, in reality, are driven by greed, a greed for money and for both as inseparable twins?

As to the Trumpeters enthusiastic followers, might it not be that they find in it an explanation and legitimation of their own difficulties, real difficulties in making a living, in finding rewarding work, in finding security, in finding desirable housing, getting an affordable education, enjoying life as they would like to life it? Then hearing Trumpeting Trump blame blacks, or Mexicans, or those of minority sexualities, for what is keeping America from being great is in a sense a validation of their own fears of others, of the way things are, of the government, validating their own tendencies at the blaming bigotry because here this eloquent forceful widely heard and shown and listened to leader, is saying what they are themselves tempted to say but are afraid to?

Material conditions, specifically the facts of class, race, gender, determine what Trump does in real life and has his façade say, and they produce a need for a legitimating vision, a rationale, for doing what he does: blame it on the world. In parallel fashion, the facts of class, race, gender for many of Trump’s followers underlies own their frustrations and insecurities, and hearing Trump express his views legitimates their own holding of those views as a way to endure and justify their position –blame it on the world. . Trump’s bigotry covers his need to defend the greed and lust for power, with their lack of morality in Real Trump’s real life , and Trumpeting Trump’s follower’s bigotry covers their need to a rationale for why they do not have the lives that their own visons would lead them to desire.

The material and the social-psychological come together to produce what we see every day on our screens. It is not the product of an aberrant mind nor are his followers stupid, but what both he and his followers say and do results from a very painful and very real material historical logic.




Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks

This Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks Is A Cop-0ut,” argues responsibility rests in three areas: Individual perpetrators (the policeman, in the case of the killing of minorities ), the social institutions (police departments, the criminal justice system, and the underlying social, economic, and political system. All need to be named and addressed. They will not all be resolved at once, but transformative measures may begin to address them within the existing system
In a recent The New York Times opinion piece ii, Professor Mullainathan, in “Police Killings of Blacks: What the Data Says” seems to be joining liberals, and even radicals. He argues that the data shows that, although African-Americans are only 13.2% of the population, they are 28.9% of those arrested by the police, and 31.8% of those shot by police. As possible explanations he points to the risks of living in “a high-poverty neighborhood,” the social institutions that “tie race to crime,” the economic policies that limited opportunities.” He concludes “removing police racial bias will have little effect on the killing rate,” presumably because of all these other factors.
“. . [After]… accounting for why some of these encounters [of police with blacks] turn into killings, [racial bias] is swamped by other, bigger problems that plague our society, our economy, and our criminal justice system.”
So far so good.
But he ends the piece with
“…there are also [my italics] structural problems underpinning these killings. We are all responsible for those. “
“We are all responsible.” What started out as a fairly radical move to enlarge the approach to the problem beyond the mere bias of individual policemen, ranging over a whole set of social institutions, and finally pointing to the bigger problems that plague our society, ends up with no idea about what is to be done, no conclusions about what it is that produces these plagues, no allocation of responsibility to any human agency. If we are all responsible, no one, no group, no interests, are responsible, no specific forces “plague our societies.” The system is not wrong; it is plagued by a disease. The disease is not named. The sub-headline for the piece summaries it as “finding some blame in persistent systemic issues.” The system is to blame. The system remains anonymous, incorporeal, inhuman, somehow natural, just there. It is not named or addressed. Blaming it is a cop-out.
The formulation “we are all responsible” is simply wrong. Some benefit from it; others suffer under it. It is man-made (less woman-made), defined by those with power, power which is very unevenly distributed. The 99% are not responsible for it, the 1% are. The formulation “blame in persistent systemic issues” is not a radical criticism of the system, but rather a cop-out,iii undercutting efforts to identify who is actually responsible, avoiding identifying the real changes that might address the roots of the problem the data identifies.
Going beyond the cop-out of blaming “the system,” three actions are needed: first, the actors that implement it need to be specified, second, the institutions that are the framework of their actions need to be confronted, and thirdly the system that underlies their actions needs to be named. Finally, of course, the purpose of all this is to formulate a viable political responses to change he present patterns.
We may look at the human agents responsible for these killing of blacks at three levels:
1) the individual perpetrator, the policeman firing the shots in our case;
2) the social institutions which directly produce, promote and constrain the individual perpetrator’s behavior, in our case the police departments, the criminal justice system, the schools, the housing, and
3) the underlying system, economic, social, political, cultural, which for present purposes I would name the racist/capitalist system (more on its definition below).
1. Firstly, as to the individual responsibility:
it is true that it is “too large a problem to pin on any specific individual officers.”iv But it is individual officers that do the shooting. They are at the flashpoint where the damage is done. Do they have the intent to kill blacks? Perhaps not. They are indeed constrained and subordinate to the system. Yet they have a certain amount of free will. But it is not a matter of an intent to kill blacks, but rather of the actual and predictable and known impact of they actually knowingly dov. In Fair Housing legislation, the law prohibits not only actions undertaken with the “intent to discriminate” but also actions “having a disparate impact” on members of the protected group. The standard for a police officer should be no lower than the standard for a planner or zoning administrator or developer. Certainly, the individual police officer is also subject to the social institutions and agencies– the courts, the legislatures, the schools, and the overall set of criminal justice policies, budget cuts, and social patterns. And is further moulded by the underlying system, with its inequalities, its insecurities and fears and perverse incentives. But holding the single individuals responsible for the direct result of their actions when they have in fact a realistic choice would surely be fair and a major help in avoiding those results. The courts are an appropriate institution to do the fact-finding and the balancing of individual choice against the social and constitution constraint required to deal with the specifics of individual situations, and if they are biased, the tools to deal with that bias are certainly known and in general available.
2. Secondly, as to the social institutions:
If, as Mullainathan and many others properly argue, more or better education is required, it should be provided, if the courts are not doing their jobs as they should, then the judicial system should be reformed; if police departments were reformed and trained, controlled, incentivized, not to shoot and kill, there would be less killing; if a gun culture is partly responsible, it should be addressed by appropriate legislation and civil society condemnation. Such reforms will certainly not be adopted without conflict. There are vested interests, both public and private, behind the institutions as they are, and serious reforms will meet serious opposition from powerful opponents. The distribution of power, rather than the search for justice, makes the fair resolution of these issues difficult. But these institutions have been made by human beings, and they can be changed by them.
While underlying systemic factors mould both the actions of specific actors and of specific institutions, placing some blame for their result properly points to the complexity of the problem, “blaming the system” is no reason not press for remedial actions and reforms, which could ameliorate even the most difficult of the issues involved .. They are not all structural systemic, and it is counter-productive to assume they are, or to think they cannot be significantly alleviated even with the existing underlying system.
3. But, thirdly, as to the underlying systemic issues
Systemic structural issues clearly are involved. There are some problems arising from the underlying system that cannot be solved by simple piece-meal reforms, problems such as inequality, poverty, exploitation, and oppression along class or racial or national or cultural lines, perhaps climate change and environmental degradation. The difficulties even of piece-meal reforms, reformist reforms, are immense as the conflicts about racial segregation
Even the Catholic Church, to the extent that Pope Francis today speaks for it, acknowledges that
If the system is to be properly blamed and then addressed, it must first be named and its key characteristics understood. Karl Marx had a comprehensive analysis, and would simply call the system capitalism. In today’s discussion, movements such as Occupyvii and Pope Francis have somewhat similar approaches:
“While the earnings of a minority are growing exponentially, that of the majority is crumbling. This imbalance results from ideologies which uphold the absolute autonomy of markets and financial speculation, and thus deny the right of control to States, which are themselves charged with providing for the common good.viii.”
“When money, instead of man, is at the center of the system, when money becomes an idol, men and women are reduced to simple instruments of a social and economic system.”ix
“[S]ome people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naive trust in the goodness of those wielding majority from the prosperity enjoyed by those happy few. This imbalance is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation. Consequently, they reject the right of states, charged with vigilance economic power and in the sacralised workings of the prevailing economic system.”x
The issues raised here, and underlying the Occupy movements 1%/99% cry, are truly systemic: the level of inequality, the ideology of the free marketplace, the limits on the power of democracy over the state, the role of economic power, the lack of inclusiveness among peoples and groups, are deeply embedded in the system, whichever name is used for it. It is not any old “system” that has the characterisitics of ours today, and should be blamed, but a very specific one that is responsible..
It might take an old-fashioned revolution really to get at the roots of these problems, to do it comprehensively, for they are all interlocked, as the current discussion of intersectionality stresses.
And a revolution is perhaps a theoretical possibility in this period. The new left of the 60’s certainly thought it was fifty years agoxi; the Black Panthers saw themselves as “Vanguards of the Revolution”. Many social activists and their theoretical supporters, from anarchists to Marxists, believed that the seeds of profound change were here then, and their reasoning might well apply today. Today’s systemic economic crisis would provide some grounds for such an expectation. But a revolution does not seem exactly in the cards right now; indeed, one from the right seems much more likely than one from the left, in many places in the world.
The reason revolution is not likely deserves extensive examination, much more than there is room for here xii Those with a vested interest in the present underlying system are powerful, and have convinced many, probably the majority, that they benefit from lt also. The system seems to be producing the goods, as Herbert Marcuse formulated it. But it does not follow that, because we can’t have a revolution right now, nothing can be done to change things as they are, and perhaps even move today to a point in time where the radical changes implied by a revolution could indeed be brought about.
Nor does it help to say: “We are all responsible” for these system-based ills that we are all to blame for them. “We”xiii are not all to blame, at least not in anything like equal measure, and ignoring that fact is both wrong and counter –productive in dealing with the issues. There are specific interests , specific groups, perhaps classes, perhaps the 1% or the .1%, that stand behind the institutions needing change that block that change, block reform. Ignoring their identity undercuts the process of dealing with those who are in fact responsible and to blame for the problem: Their identities are not obscure: the anti—regulators, the low-wage employers in manufacturing and services, the real estate ghetto builders and maintainers, the politicians still seeing advantage in their bigotry, hedge funds and financial speculators. Yes, “we” certainly need to act to change the system, but to get there we need to hold accountable those that are in fact responsible for it’s being the way it is. Much can be reformed within the existing underlying system, even if it is not easy to do and inevitably will be controversial
4. Formulating Responses: Transformative Goals.
But the system is not God-given, nor a natural beast, but one of a number of alternate systems, which may have their own pros and cons, be variably achievable and sustainable, but can be actively pursued here and now by those ill served by the present system. It may take a revolution to achieve the major changes necessary to go to one or another of the alternatives, but it can be done. Legislatures are likely to be the sites of many of these
battles, and the normal mechanisms of liberal democracy, including particularly the electoral procedures, which would need to be used strategically to the fullest extent possible.
“Transformative” is a useful term for the kinds of demands and approaches that bridge the need to deal with all three levels of responsibility outlined above.xiv Two complementary avenues might be envisioned: one pursuing loaded reforms, the other exemplary reforms.
Loaded reforms address directly individual perpetrators and social institutions but stressing their connection with the underlying causes and pointing in the direction of change, pointing out causes, exposing, not only what is happening but why it is happening, who the actors are for and against, what the lines of struggle ultimately are, just who the 1% are, what power they hold and how they benefit from the system, who the 99% are and how they suffer from it. Their hallmarks are seeking the immediately feasible within the system but naming the obstacles to real success: the remaining inequalities and the long-orange systemic alternatives that are ultimately needed for real success.
Such reforms are loaded in the sense that they acknowledge their own limitation, at the same time pointing to the further changes that would be required for substantial structural change. In the shootings of African-Americans by police, reforms in the training of police, in the punishment of offenders, in the availability of guns, etc; but reforms acknowledging that poverty, frustration, misunderstood but real grievances, a search for security as well as safety in the system as a whole, are causes of the police actions and the judicial systems responses that also need to be addressed.
Exemplary reforms bring into existence relationships among individuals and groups , patterns of organization and doing business, rules of behaviour, that pre-figure within the existing system possibilities that can only be fully developed beyond it, but can have real if limited impact within it. Projects such as worker-owned cooperatives, community land trusts, radical educational offerings, participatory budgeting, will not produce structural change by themselves, but will show that real alternatives are available to existing structures and behaviours.
Again, in the police treatment of minorities, projects such as community control of the piece, Planned diversity in housing, full citizenship rights for all residents, are examples that can support movements for more wide-spread and deeper extensions of such approaches.
Blaming “the system,” without naming it, without going beyond addressing individual ills as isolated unrelated problems, will not do. It will not go far to address underlying social issues. Seeing who is responsible for social ills, who benefits from their existence, what institutions need change, are all necessary, and beyond that, pressing for solutions that are transformative, policies that are loaded progressively and exemplary in reality, are needed.


ii October 18, 2015, The Upshot, p. B6
iii I only realized the pun after I used the term: it lets the cop out of responsibility…
iv Mullainathan, supra.
v A paraphrase of the general sense of what creates liability in civil law, on a continuum with culpability in criminal law. For a concise discussion, see Paul H. Robison, Mens Rea, at
vi See blog #70 – The Causes of Discrimination. And they are global in scope, on segregation alone see most recently
vii See Blogs #1-10, supra
x And quotes collected at
xi See Herbert Marcuse, Essay on Liberation, and Peter-Erwin Jansen and Charles Reitz, eds. 2015, Herbert Marcuse’s 1974 Lectures at Vincennes University.
xii See also, even more briefly, Blog #74 – On the Relevance of Herbert Marcuse
xiii See Blog #35 – Watch your Language, Krugman, and the Rest of Us, and Blog #37 – Lopsided Language.
xiv See Blog #30: Transformative Proposals in Nine Areas, at

Blog #52 – Place, Not Race: The Slippery Slope of Non-Affirmative Action

Place, Not Race: The Slippery Slope of Non-Affirmative Action

Sheryll Cashin argues that “we should use place, rather than race, in diversity programming” – specifically, in admissions policies to higher education.[1] She admits that that there is “an achievement gap that has made race-based affirmative action necessary,” but, because ”affirmative action is on life support” in the present Court, she argues that “the use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure.” But she is on a slippery slope, where justified disappointment with the Supreme Court’s decision in the Schuette case and efforts to get around it lead acceptance of it as permanent public policy and to a questionable legal strategy of injecting place, seeing it as race at one remove as a substitute, mistaking a spatial indicator of the existence of racism for racism itself, and in the process abandoning the political recognition of racism as an ongoing evil still needing to be fought by all possible means, including affirmative action itself. A possible legal ply because rationalized as an empirically justified retreat from the recognition of racism as an evil in itself.

Cashin’s suggestion of the greater emphasis on place, theoretically by-passing the Supreme Court’s objects to using race per se, is certainly a possibility lawyers can explore where affirmative action is actually the goal but seems legally blocked. But it is itself a vulnerable approach. Logically, if racial composition of an applicant’s place of residence is i one of the factors considered in defining what characteristics of a place should give be given extra weight in judging an application of admission, then race is indeed still being taken into account, and the approach will fall victim to the Supreme Court’s present slim majority’s apparent dedication to color-blindness. Indeed, HUD’s interest in mapping that “combines basic demographic data (age, race, disability status, English proficiency, and poverty)” is explicit in the reference to race, and may yet be successfully challenged before the present Supreme Court.[2]

The very title of Cashin’s book and subsequent article reveals the problem: “Place, not Race.” “Place Reveals Race” would be defensible, added to an already substantial body of scholarship showing the ongoing existence of discrimination and segregation by race in shaping geographic patterns. Instead, the proposal substitutes place equity for racial equity. Inequity of place is certainly statistically correlated to inequities of race, but the causal path goes from racism to spatial pattern, not vice versa.[3]

The issue of racism, and of affirmative action as among possible remedies, is not simply a legal issue. It is inherently political. Cashin’s defense for dropping consideration of race in college admissions is that including it “raises the question of whether the marginal benefits of getting more blacks into elite institutions… are worth the political costs of continued racial division.”[4] She advocates “race-neutral reforms” as the path to creating a racially diverse politics in which “white working class whites and people of color share a common agenda,” an eminently desirable goal, but until it is reached ducking the question of racism is not race-neutral, but supports the status quo.

To suggest that it can be avoided by measures dealing with poverty, “neighborhood characteristics,” “oppositional culture,” or other characteristics of place, should be recognized as questionable policy. Justice Sotomayor’s dissent in the Schuette case is eloquent testimony to the continued importance of race. Taking race out of the equation diminishes the opportunity to address racism. Cashin’s implicit legitimation of the practice is counter-productive.

A New York Times story,[5] seen after I wrote the above, reinforces the point. It compares an “economic diversity” approach with a “racial diversity” approach, favoring the latter as an alternative to affirmative action in college admissions, and citing the Cashin book as a source. The article doesn’t pretend to compare either approach to an affirmative action approach. In the figures it presents, black/Hispanic comes out at 10% of admissions, in “racial diversity”, using income as a factor, and 16% with “economic diversity,” using income as a factor. Even completely randomizing, Black/Hispanic are at least 30%. There’s no doubt affirmative action would produce a much higher result.

But beyond that, the logic is treacherous. The “economic diversity” approach includes “parents’ income education, and occupation.” Blacks and Hispanics are of course disproportionately in the low end of those categories include a majority of whites. If race were also taken into account, the proportion of blacks admitted would be substantially higher, and if race were the sole factor, even much higher.

Logically, the argument is strange. It is in the first place passing strange to hold that race, a constitutionally protected category, cannot be considered and positively addressed in admissions policies, but parentage or occupation, not constitutionally protected, can.[6] And if the standard of success is indeed measured by the proportion of black/Hisp in the student body under the different approaches, and if it is accepted, as it should be, that race enters clearly into parents’ income, education, and occupation, then if one wants to remedy the injustices of racism, one has to isolate it as a factor in income, education, and occupation as well as in applications for college admission. The best indicator of how racism has affected the lot of applicants to college is to look at the percentage of black/Hisp admissions compared to their percentage in the population as a whole. Assuming the good will of college admissions officers, using parents’ incomes as a criteria in admissions indeed favors blacks/Hisp, because race affects income, but so do other factors; it’s not a 100% correlation. If one want to deal with the impact of race, one needs to deal with race, not just with one partial correlative of race. Adding other partial correlatives, e.g. place, or occupation or education, helps only marginally.

Lawyers in constitutional litigation of course have to deal with Justice Roberts’ vacuous proclamation:

“The way to stop discrimination on the basis of race is to stoop discriminating on the basis of race” [1].

as best they can. But perhaps the court will one day go back to Justice Blackmun’s “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.” [8]

In the meantime, it should be remembered, certainly by social scientists and professors, that the purpose of affirmative action is not simply to get more black/Hispanic applicants into universities, but to help end racism, the unconstitutional discrimination against individuals because of their race.

[1] “Place, Not Race: Affirmative Action and the Geography of Opportunity.” Poverty and Race Research Action Council, vol. 23, No. 3, May-June 2014.

[2] Indeed, another well-reasoned argument for “Community-Driven Exclusion Mapping” by Peter Gilbert, in the same issue cited above, is explicit in its advocacy of racial composition and segregation in viewing patterns of housing use.

[3] It is unclear if Cashin shares this view. She writes: “…racial and economic segregation beget racial inequality,” p, 2. “Beget” may simply be an unfortunate choice of words.

[4] Op. cit., p. 10.

[5] David Leonhardt, “If Affirmative Action is Doomed, What’s Next?” New York Times, June 17, 2014, p.3.

[6] Countless anti-discrimination laws explicitly list race as a protected category, and a statistical evidence showing impact by race is widely allowed in evidence to help judge the existence of an impermissible disparate racial impact.

[7] Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

[8] Regents of the University of California v. Bakke, 438 U.S. 265 (11978)