First, this is a kick ass set of posts.
Second, the obvious way to split up discussion of these posts is to focus on Brown and more general issues first, and focus more specifically on issues surrounding affirmative action, the affirmative action court cases, and distributive vs corrective justice, afterwards. This means focusing in particular first on the posts by:
Wills: democracy, bias, and the South Africa comparison.
Amari: Brown and the role of the judiciary.
Alexis: Evolution of whiteness
Tara: Brown, and judicial overreach/underreach
And subsequently on the posts by:
Sarah, Cam, Jess, and Olivia: Corrective Justice, Distributive Justice, and Counterfactuals
Daniel K: Relevance of the past
Daniel H: Unbiased implementation (cool tie ins with Wills' arguments)
Thomas: Bakke
Josh: Merit
Jess: Equal Protection and Equity
Two things to keep in mind going forward:
First, with respect to affirmative action and the role of the judiciary, several questions need to be disambiguated:
Are certain forms of affirmative action justified?
Are certain forms of affirmative action constitutionally required?
Are certain forms of affirmative action constitutionally permitted?
Are certain forms of affirmative action constitutionally prohibited?
The fourth question is about what legislatures CAN do, whether or not you think they SHOULD do it (I think many pieces of legislation are idiotic, and shouldn't be passed, but I don't for a moment doubt that the legislature can validly pass them) All of the cases from Bakke on are rulings that limit what legislative bodies CAN do -- that take various efforts by legislative bodies to address inequalities resulting from legally enforced property interests in whiteness to be constitutionally PROHIBITED. In particular, they restrict legislative discretion to utilize affirmative action. Isn't this the central focus of Harris's arguments here that the law continues to defend a property interest in whiteness?, e.g. her arguments concerning colorblindness, strict scrutiny, and corrective vs distributive justice? Shouldn't we focus on these arguments? Isn't it interesting that none of us has?
Second, with respect to equal protection of the law vs equity, a distinction Jess invokes. This is a common distinction, and I am glad that she invokes it. But it is important to ask what the appeal to "equity" means in these contexts? Why is this taken to be the relevant -- or even a helpful or coherent -- opposition? Here are some relevant equalities/equities:
Equal rights
Equal protection under the law (Formal EP vs Substantive EP)
Equal opportunity (Formal E of O vs Substantive E of O)
Equality of resources (actually invoked by Harris)
Equal well-being
Equal welfare
Equality of outcomes
Certain of these commitments to equality can be held along with others, many of them are inconsistent with others. For example, if you endorse equality of resources, you reject equality of outcomes, at least as they are typically understood. Rights are not opportunities, opportunities are not resources, resources are not well-being, well-being is not welfare, welfare may well be a form of outcomes, but it seems obviously to be an implausible form. Which of these, which nexus of these, is "equity"? Which of these does the commitment to "equity" rule out? I have no idea, and I suspect many people who use the term often have no idea either, or perhaps do equate it with one of these, in which case the contrast between equal protection and equity is highly misleading, obscuring a range of views under a false dichotomy. Which ones of these equalities/equities are endorsed by Harris (besides equality of resources and equal protection under the law)?
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