Separate for the Sake of Being Equal?

Dan Filler has an interesting post about a push for a "minority student lounge" at NYU Law:

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.

One of the comments to this post is particularly interesting and thoughtful:

My law school has a minority population component, that though well-integrated in general activities with students of varying backgrounds, is also a closely guarded and tight-knit group amongst the minority students themselves. In fact, there is an appreciable difference between the behavior of these minority students when interacting with the student population as a whole, and then again within the smaller, private, minority group. I do not think this difference harmful, however. These students are professionals among their peers and professors; they do not appear inhibited from interaction. It is in their down-time they seek comfort and camaraderie with people that can recognize and identify with their issues and interest. My friends with kids do not call me to complain about their kid-issues > I have no context to help them resolve such, or even empathize. Perhaps an attenuated example, but I think the logic is the same > this is a social comfort thing, not an institutional malaise.

You closed your post by intimating you feel institutions are better off when both "integrated and inclusive." While an admirable gesture, it is one guided by the deciding majority's perception of what both those terms mean. The group to be "integrated" could very well have a radically different perception of what it would take to accomplish that than the majority group which is not only making the gesture, but deciding the parameters, method, and form of that integration.

I find both responses thought-provoking, heartfelt, and persuasive. Maybe because I'm so conflicted myself.

In college, my fellow feminists and I campaigned hard to keep our "Center for Women and Gender Education" from being shut down by the Administration. We called ourselves "Daphne's Advocates," since Daphne, for whatever reason, was the mascot for the center (there's a big mural of her in the lobby). This of course, is weird and problematic, because as any Greek mythology buff (ahem) knows, while the Dryad Daphne escaped being raped by the sun god Apollo to preserve her virginity, she only did so by turning into a tree. The laurel tree to be precise, whose leaves Apollo then appropriated to form his laudatory laurel wreaths, and thus some part of her was taken anyway--worse yet, kept as the ultimate prize and trophy. Ewww, you know? Greek mythology was always messed up and misogynistic. ( I won't get into how my beloved feminist newspaper was forced into a name change from Protest Against Patriarchy (PAP) for sounding to gynecological (WTF?!) to "Elektra," intended to be a reclaimation of that weird daddy complex girl but just sounding creepy in the end.) But at any rate, I digress. My fellow feminists and I passed out flyers, staged protests, did a radio show, sent letters to the Admnistration (and oh how they loved us for it) . Why? Because we felt that we deserved a separate space on campus to congregate, feel safe, seek each other's company and comfort. That's why we were so offended when, after all our efforts, they did preserve the center, but renamed it "The Center for Women and Men." You know, like the center for everybody, thus defeating the notion we were fighting for--a room one's own, a center devoted to feminism and gender studies. But it was more than a study lounge--it offered rape crisis counseling, a team of on the spot peer counselors for victims of sexual assault, lots of workshops and lectures (many organized by yours truly and her friends). In other words, it wasn't just a place to hang out--we had a separate practical and pedagogical function.

Is it that separate function that makes me feel, to this day, justified in supporting the idea of "separateness" and difference? In law school, I was very much involved in "Asian Law Student" activities--a student org, a clinic, and a law journal. I loved the law journal best, but all had their important functions. We wrote amici brief, volunteered our legal services for victims of domestic violence, published important research and held symposia on cutting edge immigration issues in a post-9/11 world. Thus, while it was cool to have a "safe space" to hang out with people "of my own kind," there were definite practical and pedagogical functions to each of my activities. If there weren't, I'd have never joined. I hate purely social groups, and I don't think the "I need to hang out with people like me" is a sufficient reason for dedicating time to something--you need to help the community somehow, whether it be a community of scholars, practioners, or jurists. But that's just me. Maybe it was mostly social for the other members. Maybe it was their "Asian lounge," (except for my friend MD, who's the only white guy I know in all the Asian clubs, and my friend SS, the only white Jewish guy in La Raza). But in terms of my feeling comfortable with these activities, and not viewing them as exclusive, self-segregating, isolationist activities, it was definitely the broader legal and pedagogical functions that helped me feel that I was not retreating, but was instead funneling my efforts to help the community in a focused way. Some people help AIDs patients or low-income housing tenants, I happen to focus on domestic violence using my personal language skills. Also, the organizations are broad, social groups that interact with each other--the Asian orgs worked closely with the Black law students and La Raza on joint goals. Plenty of non-minorities were a part of such efforts. So to me, a "separate space" or a "separate function" is okay so long as it serves some macro goal that aids all and contributes to the goal of diversity, public interest law, and community service.

Thus, in general, my beliefs align with Dan Filler's--designating separate spaces with no other function than to simply exist as a place to congregate with one's own kind would exacerbate problems. If minorities truly feel uncomfortable hanging out in the public common areas, that's a big problem, and should be addressed by administration in ways other than designating a separate area for their problems. And yes, I do think separate spaces should be strictly scrutinized. This, mind you, coming from a scholar who believes that the "strict scrutiny" test should be applied only to invidious discrimination against a historically oppressed minority, but not to benign racial classifications designed to promote the interests of those minorities (e.g., affirmative action). In theory, my typical line of reasoning would suggest that I should be all for creating separate hang out places for students of color. Just as, for instance, I would generally support a "women's lounge"or even more specifically a "mother's lounge" for nursing mothers to nurse in privacy.

But creating separate spaces, with no other purpose than to pool people of a certain characteristic, can be very problematic. Imagine the way segregation has typically been deployed--separating whites from "coloreds," ostensibly to separate the races and yes, to protect the women folk. In this way, minorities claiming they need separate space serves the same pernicious idea. Affirmative action is a flawed, but justified tool for dismantling centuries of oppression, and so any claims of "reverse racism" simply do not have the same traction, and thus there should be no equivalence in the constitutional tests applied to invidious racial discrimination (limiting quotas) and benign racial classifications designed to promote minority intersts (affirmative action programs to achieve a "critical mass" of underrepresented minorities because diversity is a compelling governmental interest). I simply can't hold having a separate "just for comfort" study lounge to be of the same compelling interest as diversity and the remedying of past racial discrimination.

Plus, I can't say that the "just for comfort" idea doesn't compel equivalence in analysis between efforts by whites and minorities. It's the same reason. If the motivations for limiting minorities through quotas and using affirmative action to promote minority admission are completely different, can we say the same about separate, segregated, facilities? Granted, minorities are seeking "safe space" that is not found in most law school classrooms, while a white group claiming the same right would be echoing segregation. But in the end, both are making an argument for separateness, and I'm not sure I like it. I fear the repercussions of minority groups reinstantiating the same separate-but-equal, Sweatt v. Painter notion of a "gentleman's club" and "the riff-raff." Thus, While I don't doubt the good intentions of the students seeking this separate space, I'm not sure I can support it. It's a dangerous idea, and doesn't serve the same compelling goals as affirmative action, reparations, or other worthy race-conscious remedies. If anything, it takes us back to an idea of segregation as a problem-solving tactic, and rather than being a "remedy," it's an ill-fitting bandage that will only cause the wound to fester. I fear schools around the nation thinking "we'll just create a "women's lounge" and a "students of color lounge" and solve our problems. Creating separate spaces will not solve the problems of the underenrollment of minorities, the achievement gap, and racial tensions in a white male dominated profession and institution. If anything, it will exacerbate them. What will help is an honest discussion of the racial and gender bias implicit in the law and legal pedagogy, and earnest efforts to restructure the classroom dialogue and discussion space. I think adminstrations need to deal with the low numbers of minorities and the "achievement gap" and the problems of inclusion. Like Dan, I tend to agree that institutions are better when they're integrated and inclusive.

What do you think?