Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, April 5, 2012

"Confusion about Discrimination"

I have a short essay, here, at Public Discourse, about the application of Vanderbilt's "nondiscrimination" policy, and about discrimination -- and when and why it is, and is not, wrong -- called "Confusion about Discrimination."  A bit:

. . . We believe that “discrimination” is wrong. And, because “discrimination” is wrong, we believe that governments such as ours—secular, liberal, constitutional governments—should take steps to prevent, discourage, and denounce it. We are right to believe these things. The proposition that it is not only true, but “self-evidently” true, that all human persons are “created equal” is foundational for us. The principle of equal citizenship holds near-universal appeal, even though we often disagree about that principle’s particular applications.

At the same time, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it—say, through its expression and spending—even when it is wrong. “Discrimination,” after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria. We do and should “discriminate”—we draw lines, identify limits, make judgments, act on the basis of preferences—all the time. As Alexander has put it, “All of us well-socialized Westerners know that discrimination against other human beings is wrong. Yet we also realize, if we think about it at all, that we discriminate against others routinely and inevitably.” The practice is ubiquitous and unremarkable: We don’t blame someone for drinking Brunello rather than Boone’s Farm or for preferring The French Laundry to Arby’s.

It is an obvious point, but still worth making: It is not “discrimination” that is wrong; instead, it is wrongful discrimination that is wrong. . . .


Garnett, Rick | Permalink

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The problem with saying that "discrimination" is not wrong, only wrongful discrimination is wrong is that one of the dictionary definitions of "discrimination" is as follows: "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit {discriminate in favor of your friends} {habitually discriminate against a certain nationality}." And this sense of the word "discrimination" is not new; it goes back to 1866. To a great many people, and I include myself, adding "wrongful" or "unjust" to modify "discrimination" is redundant, and trying to restore what seems to me a largely outdated sense of the word "discrimination" can *seem* like an attempt to drain the word "discrimination" of its justly deserved negative connotation.

Whether Vanderbilt's policy is defensible is another issue. I am just discussing what I think the word "discrimination" means to most people. It might make more sense in making a case about the word "discrimination" to use a modifier to indicate when "discrimination" is *not* wrongful and accept that the word "discrimination" unmodified implies something wrongful.

Posted by: David Nickol | Apr 5, 2012 10:09:55 AM

David, your comment -- it seems to me -- simply confirms what I pointed out (and what I argue is a mistake), namely, that people too often assume that "discrimination" is "wrongful discrimination" (and therefore to-be-remedied-or-prohibited-by-law) when, sometimes, it is not. I do not see why the course you advise in the last sentence is preferable.

Posted by: Rick Garnett | Apr 5, 2012 10:15:55 AM

A discriminating palate. A discriminating taste in wine. A discriminating artistic sensibility. "Is his mind sufficiently discriminating mind to know the difference between a real argument and an ipse dixit?"

Posted by: Marc DeGirolami | Apr 5, 2012 10:44:58 AM

"[I]t is not true that “discrimination” is always or necessarily wrong."

Much to the initial dismay of my fellow students, that was the main point my Constitutional Law professor (no conservative by any means) made when starting his lecture on Equal Protection.

Posted by: ctd | Apr 5, 2012 12:55:05 PM

Rick and ctd,

But my point is that for over 150 years, one of the meanings of "discriminate"—it's in the dictionary!—is of something we consider wrong: "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit {discriminate in favor of your friends} {habitually discriminate against a certain nationality}." That is a perfectly valid way to use the word "discriminate." And if you use the word in that sense, then discrimination is always wrong. I would argue that most people use the word in that sense, and they are not wrong to do so. When a word has more than one definition in the dictionary, you can't choose which one is the right one and which one is the wrong one. I understand your point. In your understanding of the word "discrimination," it is discrimination to, say, allow only Catholics to receive communion at a Catholic mass. It is discrimination to audition only black actors and actresses when casting the title roles in Porgy and Bess. But for me, and I think for the majority of people, those aren't examples of discrimination in the way we use the words.

If you say discrimination is not always wrong without making it clear that you are referring to the "neutral" definition of "discrimination," you will be seen as trying to justify discrimination in the way I think most people think of it, which is "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit."

Posted by: David Nickol | Apr 5, 2012 2:16:23 PM

Rick: Although I don't disagree with you on the semantic point, I think the "discrimination" kerfuffle reflects a basic category error: The function of the Vanderbilt policy is not to identify "when a group is engaged in wrongdoing." It is, instead, to shape part of the *school-sponsored* and school-subsidized educational experience that Vanderbilt endeavors to provide its students.

The policy in question provides that school-registered student organizations "must be open to all students as members and must permit all members in good standing to seek leadership posts." To that end, as the Dean's letter explains, "Vanderbilt’s nondiscrimination policy embodies our commitment to sustaining and nurturing a community in which all students may participate fully in the Vanderbilt experience. Our policy requires that all students are presumed to be eligible for membership in registered student organizations and that all organization members in good standing are eligible to compete for leadership positions, though it is up to each organization to select its own leaders."

In other words, Vanderbilt will only allow official "registration" of groups that are open to all students, just as all of its classes are open to all students. And what does registration provide? "Certain privileges, including the use of the Vanderbilt University name to signify their institutional affiliation; eligibility to apply for funding from various sources; participation in the University-sponsored student organization recruitment fair; use of listservs, group mail, and URLs administered by the University; and other resources."

In other words, Vanderbilt is ensuring that its *benefits,* like its curriculum, are available to all students equally.

This isn't the only policy a school such as Vanderbilt might adopt, or even necessarily the best policy. Another school might well view registered student groups as being much more independent of the school and its pedagogic objectives, not as part and parcel of the educational experience the school is trying to provide. But Vanderbilt's objective--basically the same as that described in greater detail in the Ginsburg and Kennedy opinions in CLS v. Martinez-- is surely a legitimate reason for a policy of conferring the benefits of University registration only on groups open to all of the students who are paying their tuition dollars to attend the university.

In Mike's column, he alleges that Vanderbilt has decided Christian groups are "not welcome on campus" or "not valid"; that Vandy is "hostile to orthodox Christianity" and endeavors "suppress its faithful exercise on its campus"; that the school wishes to "exclude or suppress the expression of religious views"; that the University is "discriminat[ing] against religion"; that it is "protecting its community from improper influences"; and that its open access policy is akin to its past exclusion of black students.

As Mike undoubtedly knows, these hyperbolic claims have virtually nothing to do with Vanderbilt's all-students policy and the reasons it was adopted for purposes of conferring school benefits. Indeed, the policy expressly provides that "student groups that are not registered are welcome to meet on campus informally or to rent spaces through the Office of Reservations and Events. Also, non-registered student groups may also communicate with students via email (including University email), social media (e.g., Facebook), and certain bulletin boards and kiosks on campus." And as the Dean emphasized, "we recognize that some groups, including some religious student organizations, may decide not to register. We will respect any such decisions and hope that those groups will continue to be actively engaged with our students and community, albeit without the rights and privileges accorded registered student organizations."

Does that sound like an attempt to "suppress [the] faithful exercise [of religion] on its campus"? to "exclude or suppress the expression of religious views"? Analogous to admitting only white students?

Posted by: Marty Lederman | Apr 5, 2012 3:00:03 PM

Marty Lederman,

What a completely different perspective on the Vanderbilt policy! (And with facts, too.)

I have read the Public Discourse article "Vanderbilt’s Right to Despise Christianity" by Michael Stokes Paulsen, and many things in it are as mind boggling as it's title.

Posted by: David Nickol | Apr 5, 2012 7:12:10 PM

To separate a particular religious group from that particular religious group's principles, would result in a religious group in name only, which is more analogous to misrepresentation of that particular religion and can actually be worse than a suppression of religious views.

Posted by: N.D. | Apr 6, 2012 10:30:30 AM


It's a nice story that Vandy's officials tell and you credit. But do you have any attractive explanation for their policy of exempting single-sex organizations--above all, Greek organizations--from their goal of ensuring "that all students may participate fully in the Vanderbilt experience"? Even looking beyond the sex criterion, which group's membership criteria have a more exclusionary or stratifying effect, the average fraternity/sorority's or the average Christian students' fellowship's? Why should we not conclude that this is more about which groups Vanderbilt takes seriously than about a principled commitment to inclusion?

(I also don't understand the assertion that "all of [Vanderbilt's] classes are open to all students." There are no prerequisite courses? No "majors only" courses? No "by permission of instructor" courses? As was the case in CLS, it's difficult to take seriously the university's assertion that it believes in accepting "all comers.")

Posted by: Tom Berg | Apr 9, 2012 3:54:20 AM