Égalité

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread.

-- Anatole France (1844-1924)

The Supreme Court is struggling with Equal Protection again. One faction wants what is being called “formal”--I might say “literal”--equal protection of the laws, which means what it sounds like: no group can be singled out for better or worse treatment than another: black or white, straight or gay. The other faction urges a “dynamic” view of equality, under which in compelling circumstances a disadvantaged group can be given a leg up, even if that means discriminating against those who are not disadvantaged.

Adam Liptak reported in The New York Times on Sunday that the “formal equality” approach would likely produce good news for those seeking marriage equality and bad news for supporters of race-based affirmative action. As to affirmative action, we will have to wait for at least another year to see if that’s true, because the Court ducked today, sending the case before it back to the lower court to apply the review standard mandated by the high court ten years ago. This was a win--or at least not a loss--for fans of affirmative action.

For now, promoting student-body diversity continues to be a Constitutionally acceptable goal for a university. Important though this may be, it is a distant moral cousin to the lofty objective that gave birth to affirmative action generations ago: helping blacks recover from the privations of slavery and Jim Crow. No one even argues that notion to the Court anymore. As David Strauss, a University of Chicago law professor put it, blacks are now viewed by many as “just another interest group.” As a society we seem to be worn out with trying to atone for slavery.

Some believe that if schools want to help those in need they should focus on a more objective indicator of disadvantage: low income. Economic affirmative action, if you will, would indeed lift up many. Some would be black, some would be white. What troubles me is that I fear that many opponents of affirmative action don’t want it on any basis. They view it as just another government handout to people who are undeserving. In the case of college admissions, the kids are undeserving because they don’t have as good an academic record as those whose slots they are taking. If you apply that same logic to government assistance programs, the poor don’t deserve welfare because they are poor.

We are a proud and independent people. We like to stand on our own two feet. We think everyone should. I think it’s just hard for us to realize that not everyone can, that no matter how great their will, no matter how sterling their character, some people just don’t have the opportunity to achieve what others do. We are likely to help a stranger change a tire. We have empathy for his predicament. Abstract empathy is something of an oxymoron. Think of the politicians who have changed their minds on gay rights because a child has come out. Suddenly they understood. Suddenly they felt empathy. Not too many politicians have kids who are destitute, though.

I believe in self-reliance, but I don’t like to see us turn our backs on the poor. I don’t like to see Mitch McConnell oppose tax hikes to fund President Obama’s plan to provide high-quality preschool for poor children. I don’t like to see Sam Brownback, the governor of Kansas, work to scrap the state income tax and replace it with a sales tax, which by its nature hits the poor harder than the rich. And I really don’t like to see the governors of twenty five states, mostly Republican, refuse to expand Medicaid in the their states under the Affordable Care Act even though doing so would both save them money and provide health care for their poorest citizens.

Our hardened--or hard-hearted--self-styled fiscal conservatives have lost empathy. Cloistered in marble corridors and offices, they can no longer imagine the desperation and hopelessness of endemic poverty. I suppose it doesn’t help for me to use demeaning labels, any more than Mitt Romney’s “Entitled 47%” helped his cause. In this case, motives don’t matter. Without our help, the poor will remain poor. Their kids will be poor. The cycle will continue, and over the long term we will all bear the burden, moral and economic, of uneducated and unproductive citizens.