Racial Separation

Yesterday’s NY Times included an article about separate drunk driving courts in Phoenix for Spanish-speakers and Native Americans. I wasn’t particularly troubled about having special courts for Spanish speakers. As a practical matter, such courts will operate more quickly and efficiently because they will not need translators. At the same time, it seems likely that the proceedings will be, and will be perceived by to be, fairer. This is because Spanish speakers will presumably understand much more of what is occurring in the courtroom. (For example, defendants may benefit from understanding the proceedings in other cases, as well as from understanding the informal courtroom patter that would otherwise go untranslated.)

Creating special courts for Native Americans is different. On one hand, specialty courts are neither new nor troubling. As I’ve written, drug courts and mental health courts provide special benefits because the feature judges with specialized knowledge, as well as a more developed support staff trained to address particularly challenging personal problems. There are reasons to believe such courts may reduce recidivism because their sentences are more effective. But why couldn’t a specialized drunk-driving court provide that sort of individualized treatment plan for both Native Americans and non-Native Americans?

It seems to me that the only basis for having a separate race-based tribunal is if the use of a general tribunal itself prevents effective treatment. Thus we should ask whether there is something about having a special venue that changes the experience for the defendants. That is, do many Native Americans speak more openly in the Native American court? Do they acknowledge their problems more easily there? Do they follow court orders more frequently in such courts? Do lawyers advocate more aggressively in these courts? Even if the answers are yes, I’m not at all sure that I’d support these race-based courts. There are broad social costs to creating race-segregated courts; it seems far wiser to build a single inclusive tribunal.

On a separate note, I’ve been thinking a bit about recent happenings at NYU Law. As some others have noted, students at my alma mater are petitioning the Dean for creation of a “minority lounge.” The space would be open to all members of the community but according to one student, “it should be understood that this is a place where students of color can go to feel comfortable, to talk without hesitation, to be surrounded by those that understand or are more open to understanding their experience in law school.”


At best, I have mixed feelings about this proposal. To the degree that it reflects an energized political community seeking recognition and services, I respect it. I also know that people choose their friends based on a variety of factors, including shared experiences and perspectives. Nothing wrong with that. But New York, and the ever-expanding NYU Law School, have many different spaces for people to gather. If students of color at NYU cannot find existing places to feel comfortable within the building and cannot talk without hesitation in these areas, the law school has a real problem. The administration must figure out how to build an inclusive home for all of its students – whether that means addressing matters of faculty, students, curriculum, or services. I’m not sure that designating a special lounge for students of color is the first step of this project and I fear that it may exacerbate, rather than solve, existing difficulties.

Separate facilities and programs may sometimes be necessary but it seems to me that they require the closest of scrutiny. In my own view, society is generally better off when our institutions are both integrated and inclusive.

UPDATE: Belle Lettre has a thoughtful and substantial analysis of the separate lounge issue over at Law and Letters, which continue here.

You may also like...

7 Responses

  1. jd politely declines says:

    Provoking post – thanks. I do not have a resolution to the scenario, but wanted to comment:

    (i). My law school has a minority population component, that though well-integrated in general activities with students of varying backgrounds, is also a closely guarded and tight-knit group amongst the minority students themselves. In fact, there is an appreciable difference between the behavior of these minority students when interacting with the student population as a whole, and then again within the smaller, private, minority group. I do not think this difference harmful, however. These students are professionals among their peers and professors; they do not appear inhibited from interaction. It is in their down-time they seek comfort and camaraderie with people that can recognize and identify with their issues and interest. My friends with kids do not call me to complain about their kid-issues > I have no context to help them resolve such, or even empathize. Perhaps an attenuated example, but I think the logic is the same > this is a social comfort thing, not an institutional malaise.

    (ii). You closed your post by intimating you feel institutions are better off when both “integrated and inclusive.” While an admirable gesture, it is one guided by the deciding majority’s perception of what both those terms mean. The group to be “integrated” could very well have a radically different perception of what it would take to accomplish that than the majority group which is not only making the gesture, but deciding the parameters, method, and form of that integration.

  2. Doug H. says:

    I agree with your sentiments. While I can respect trying to create an atmosphere that makes all students feel comfortable, I tend to think creating a separate minority lounge will makes things worse. I fear over time it could make the minority students feel more isolated and less integrated with the law school community as a whole.

    I could also see it leading to unintended future controversies. “Why is the minority lounge inferior to the other lounges”, etc.

  3. Belle Lettre says:

    While I don’t doubt the good intentions of the students seeking this separate space, I’m not sure I can support it. It’s a dangerous idea, and doesn’t serve the same compelling goals as affirmative action, reparations, or other worthy race-conscious remedies. If anything, it takes us back to an idea of segregation as a problem-solving tactic, and rather than being a “remedy,” it’s an ill-fitting bandage that will only cause the wound to fester. I fear schools around the nation thinking “we’ll just create a “women’s lounge” and a “students of color lounge” and solve our problems. Creating separate spaces will not solve the problems of the underenrollment of minorities, the achievement gap, and racial tensions in a white male dominated profession and institution. If anything, it will exacerbate them. What will help is an honest discussion of the racial and gender bias implicit in the law and legal pedagogy, and earnest efforts to restructure the classroom dialogue and discussion space. I think adminstrations need to deal with the low numbers of minorities and the “achievement gap” and the problems of inclusion. Like Dan, I tend to agree that institutions are better when they’re integrated and inclusive.

    http://lawandletters.blogspot.com/2006/03/separate-for-sake-of-being-equal.html

  4. Chapin Cimino Cody says:

    Dan, thank you for such a thought-provoking post. Your observation that “separate facilities and programs may sometimes be necessary but . . . they require the closest of scrutiny” caught my eye. There is something inherently squeamish about the notion of “separate” facilities. Historically, separate has been awful. But is this lounge really separate? I don’t think so. Rather, this lounge would be a supplemental, not a separate, facility. I think there is a difference.

    If you do too, then I’m curious as to whether a supplemental, as opposed to a separate, facility still seems as instinctively off-putting as it did before. It doesn’t to me. (Even if it is, who is potentially harmed? That harm is a subject I’m interested in and writing about…)

    Or, what if the students used a proxy for the status of being a minority, and pitched the same lounge to the dean under a different name? Would it make us less squeamish then, if we didn’t explicitly acknowledge that the lounge was intended to “benefit” certain students on the basis of race or ethnicity? (Again, who would be harmed by it?)

  5. I get the sense that most think it’s not a good idea but don’t want to say so outright….instead, just pretend some conservative Republican proposed a separate lounge where Ronald Reagon pictures adorned the wall and the TV was always tuned to Fox News. Where Justice Thomas was spoken of with respect and the Federalist Society was seen as a resume enhancer. Of course, this lounge would be open to anyone but they should realize “that this is a place where students of conservative inklings can go to feel comfortable, to talk without hesitation, to be surrounded by those that understand or are more open to understanding their experience in law school.”……now you can answer.

  6. willow ufgood says:

    I certainly do not know the answer to this, but could it be that there is a special Native-American DUI court because of the jurisdictional and sovereignty issues between the state of Arizona and its Native American tribes?? Perhaps because of these issues it is easier to create a serperate court.

  7. Much can be learned about race from a new science at http://www.nodrift.com explaining how Earth, Moon, Mars were configured by super huge impacts.

    An important corroboration of this planetary meta-geology is its scientific explanation of how so-called Black, White, Yellow races; Old World, New World, Original World and other human characteristics came to be distributed across the globe in similarly simple, meta-geological ways:

    Earth’s Impact Hemisphere (IH), antipodal Africa (AA), & Intermediate Region (IR) correlate with the New World/Oceania, Original World, & Old World, respectively, and the distribution of Yellow, Black, & White coarse race categories respectively, before an ~500 year period of world colonisation which has been undoing these probably causal associations and so on. Hyperlink to http://www.nodrift.com paper 5.1 (Volume 5, paper 1) via its homepage Contents at a Glance.