著者

秋葉 丈志

出版者

日本法社会学会

雑誌

法社会学 (ISSN:04376161)

巻号頁・発行日

vol.2016, no.82, pp.290-296, 2016 (Released:2021-05-05)

著者

秋葉 丈志

出版者

日本法社会学会

雑誌

法社会学 (ISSN:04376161)

巻号頁・発行日

vol.2012, no.77, pp.35-64, 2012 (Released:2021-04-19)

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The article examines the constitutional debate surrounding racial minorities in the United States, especially segregation and affirmative action, in light of social realities as evidenced in the San Francisco Bay area (especially Berkeley, Oakland, and Piedmont). It examines census data regarding socio-economic status, as well as standardized test scores, and finds a consistent pattern of racial segregation and racial disparity in the area. The article then looks at systematic factors that are not evidently related to race, but still has an impact on race. These include 1) the system of local government in the United States, which enable local residents to establish city boundaries and then to create zoning regulations within those boundaries, as well as 2) the financing mechanism of local governments that tends to result in disparities in school funding. These factors, combined with the U.S. Supreme Court’s reluctance to expand the reach of its integration decisions to de facto segregation, or to remedies beyond district borders, have made it difficult for integration to be implemented on the ground. In the end, the dominant tendency to distinguish official discrimination and segregation with disparity as a result of “individual choices”; and an aversion to recognizing persons on the basis of group attributes such as race or gender, delineates the limits of the power of law to improve the status of minority groups in the case of the United States. This could also be observed in the case of the debate over affirmative action, where the initial purpose of improving the status of minorities (as a group) in the educational setting have been replaced with the rhetoric of equal opportunity among individuals or benefits to the larger society (not the minority groups). Whether the law can go beyond the confines of narrowly delineated cause-and-effect and reach into the confluence of structural and institutional factors that result in disparity may be the key to a jurisprudence of minority rights.