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.