Srader ans Mancuso
Fri Jun 19 23:46:43 CDT 1998
> > From: Steve Mancuso
> > Sent: Thursday, June 18, 1998 1:57 PM
> > My original resolution only included education an employment. I think
> > these are two very broad areas, but I like several other areas as well.
> > I would have no opposition to adding additional discrimination areas to
> > a resolution like mine.
If I remember right, it was Ede who suggested that housing discrimination was
a fairly tight knot of controversy reserved to a few suggested reforms and
just to race, mostly. People don't usually redline and say "Lots of women
here, stay out!" And, as others have pointed out, a predominantly gay
neighborhood often means an upscale, high-income neighborhood. My point is
that if housing is included, a core race controversy is added without the
range of the topic getting that much bigger.
> > The quality which I think is most important for the resolution that I
> > proposed is that it specifies the LEGAL/POLICY STRATEGY which the
> > affirmative must use. It is this specification that preserves negative
> > ground which is not dependent on agent counterplans. My resolution, by
> > specifying "race and or gender based remedies" leaves the negative the
> > ground of color-blindness or neutrality. That is arguably the status
> > quo, but there are also many counterplans which are neutral.
Steve's expressed to me his concern that there are small affirmatives galore
available under my proposed wordings. I respectfully disagree about the courts
topic. Backing off from the Adarand move to strict scrutiny in all group-based
classifications would be explosive. Negative ground would be ample.
As for the "Let people win more discrimination suits" topics (1 & 2), this
might be a serious problem. There's no shortage of writings about these modes
of relief, and as Steve pointed out, one law review article could make an
affirmative. Marcia's initial backchannel reaction to me is that the negative
would have a meaty economy debate, which it seems to me is a very germane
issue to be discussing in antidiscrimination law: the burdens on employers.
I'm willing to admit that the antidiscrimination suit wordings might need to
include some "terms of scale" to limit affirmative options. But I don't think
the small affirmatives problem is as much of a concern with the courts topic.
> > For example the affirmative might propose a plan that offers payment for
> > child care only for single mothers, claiming to solve poverty among
> > these families. The negative could counterplan with general anti
> > poverty programs, general tax relief, expansion of community colleges
> > etc.
> > Another example: the affirmative might propose a set aside program for
> > minority contractors at the federal level, claiming to solve racial
> > discrimination. The negative could counterplan with netural policies
> > such as changing the standard or burden of proof necessary to win a
> > discrimination suit. Doyle's new topic suggestion would encompass many
> > of these neutral strategies.
> > "Race and or gender BASED" requires the affirmative plan to apply on the
> > basis of one's race or gender. The test: If a white person or male could
> > take advantage of the plan, then it would not be topical. This creates
> > subtantial negative ground directly from the civil rights literature.
Even having seen Sean's research, I've done some of my own, and I really
don't think this phrase has the valence Steve thinks it does. This controversy
is still very much in flux, and even the vocabulary is terribly unsettled. My
suggestions for including "racist" and "sexist," although opening other cans
of worms, were attempts to require the crafting of proposals that white males
could NOT appropriate. I'm just not as confident as Steve that any currently
available traces of literature suggesting that "race based" means nonwhite
only would trump the cynics that are inverting every linguistic turn of their
adversaries through the "reverse-discrimination"-type moves. I'm reminded of
Shaun Martin's insistence that "recognize" meant "upheld," a strong phrasing
that looked powerful at first, but sprung a ton of leaks right away. The
one-way valence of "racism" and "sexism" has a body of scholarship stretching
back a couple of decades.
That does leave the binary opposites of "race-based" and "colorblind" stll as
the two sides' guaranteed ground. If affirmatives could run rollback
positions, they'd still have to extend special preference to white males.
Race-neutral alternatives would still seem to compete.
> > Resolutions that simply require increased protections for groups do not
> > create the same sort of civil-rights literature clash. Proponents of
> > these types of resolutions have turned only to agent counterplans as a
> > way of preserving negative ground. Under those kind of resolutions, we
> > would end up having to debate about Clinton, Gingrich and Rehnquist -
> > hardly the oppressed people that the advocates of the civil rights topic
> > wanted to discuss.
> > "Race and or gender based" is not limited to legal policies, such as
> > affirmative action. Policies that provided cash income or services to
> > women or racial minorities would be remedies based upon discrimination.
> > I think the resolution would prove to be much broader than affirmative
> > action. Sean Harris' work is, again, outstanding in conveying this.
Again, proponents of these remedies label them "remedies" in an offhand
manner, for the nice-sounding phrase. More pedantic legal scholars have a
tighter definition of "remedy". Maybe it's a good thing that negatives could
keep this topic trimmed to the bone if they stoked up on that argument. More
likely, I think it would result in the kind of bizarre imbalance that came
about on the privacy topic, wherein affirmatives could overrule decisions like
"Bowers" that had insisted, in the first line of the majority opinion, that
the case was NOT about privacy, while negatives could exclude all search and
seizure cases based on the tenure-scrabbling blither of some law professors
about the distinction between the constitutional right to privacy (Griswold
line) and the privacy rights (search and seizure).
> > Resolved: that the USFG should reduce discrimination in the areas of
> > employment, housing and/or education through one or more of the
> > following: race-based remedies, gender-based remedies, privacy-based
> > protection of homosexuals.
I *have* to point out: the last of the three is the only one that has a
valence. The first two are easily appropriated by people who want to roll back
affirmative action programs. Neutral programs may compete or may not: I think
the people saying the counterplans are permutable were out in front at last
check. But it's dicey.
> > A few quick comments about specific wording choices:
> > I think "race-CONSCIOUS remedies" seems more slippery than "race-BASED
> > remedies". One could be conscious of race when designing neutral
> > policies. How would a negative question what was in the consciousness
> > of the affirmative mind or plan? Both "consciousness" and "based" are
> > used widely in policy literature.
Race-conscious is actually more widely used, and is pretty much always opposed
to "colorblind." Steve's and Sean's points about race-*based* requiring more
than race-*conscious* are well-taken, but the opposition to race-neutral
policies would apply to either term.
Director of Forensics
Arizona State University
"We make of the quarrel with others, rhetoric,
but of the quarrel with ourselves, poetry."
-- W.B. Yeats, "Anima Hominis," _Essays_, 1924
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