In Dialogs under the Full Moon, the JUST ABOVE SUNSET crew from coast to coast ripped into the news of June 28 – and that included the Supreme Court decision on school desegregation plans. The court, it seems, ruled five to four that when devising how to encourage racial diversity in a school district, one cannot take race into account. What? What are you supposed to do then? But the ruling was clear. Taking race into account is inherently bad – that seemed to be the idea. They would have none of that.
Of course many saw this as, in effect, a reversal of the landmark 1954 Brown v. Board of Education ruling that held that racially segregated schools were actually unconstitutional – “separate but equal” was a crock, and everyone should be treated the same, even if they were black. So everyone should get a fair shot at getting a reasonable education. Getting there has been difficult at times – bussing plans to move kids around in a school district to even things out and all the rest. When you “level the playing field” there are inevitable problems, particularly if you’re part of a hillock, and not in a divot. That seemed to be the problem raised in the case decided this term – in the two districts involved, some kids didn’t get to go to the school they wanted to go to, being bounced from the school’s enrollment list by minority students. The parents called foul – pointing out that this was itself racial discrimination – and sued. When they lost in each lower court they appealed on up, and finally the Supreme Court agreed to look at the matter. The Supreme Court reversed all the lower court rulings, agreeing with the parents. White folks have rights too – everyone is always picking on them, or something to that effect.
As noted in the dialogs, the majority opinion paid lip-service to Brown v. Board of Education – it was a fine idea. The five concurring justices just held that moving certain students from one school to another – when the “other” school was crappy – because those particular students were not minority students, was simply unfair. It was blatant racial discrimination, and the school districts involved should stop doing anything of the kind. They should not consider race in any effort at racial diversity.
Rick, the News Guy in Atlanta, watched events on the network he helped build in the eighties. He saw CNN’s Jeffrey Toobin, standing in front of the steps that morning, relay an exchange between Chief Justice Roberts – who implied out loud that the white students denied their first choice in this case had been just as wronged as the black students in Brown who were denied access to white schools in the fifties – and Justice Breyer – who’s response to this was something like, “You’ve got to be kidding, comparing all this to Jim Crow!”
It sure looked like whatever Brown v. Board of Education established was dead – when you deny use of the most obvious tool to implement the thing, you make the whole concept kind of a cruel joke.
Our friend, the high-powered Wall Street attorney, wasn’t so sure Brown v. Board of Education was dead. He argued that you had to read the decision carefully, and think about it. The link is here if you wish to do so. He has, however, had second thoughts –
If I may bring the conversation back to the USSC, I want to clarify my position from yesterday regarding the case that some say overturned Browne v BOE. In further reading (though by no means a complete reading) I notice that while they did not overturn Brown they eviscerated the hell out of it.
We can’t undo what happened before the Civil War and too many people on all sides use that for their own effect. No one should get a free ride because their dad just happened to be president of the United States anymore than a person should get a free pass or feel owed because of something that happened two hundred years ago. Entitlement is wrong on both sides. What is needed is a level playing field. We can’t make it more level for some more than others to redress past grievances.
Nope, no easy answer here.
My kids certainly have a better shot than others, but as I pointed out to Samantha and Daniel, their cousins (my older sister’s kids) have no choice but to be successful because they don’t have the same economic advantage that Samantha and Daniel have. My kids don’t have as much incentive to do well because they know that a certain amount of money will always be there. That being said, Daniel is in DC at a summer program at GW this summer. Part of his activity is working at a camp for children from Iraq, Iran, and Afghanistan. Sam is working full time at a day care center looking after two year olds and taking two semesters in six weeks. They understand hard work. Does W?
Part of what Daniel will be doing is going to the Whitehouse, Pentagon, and Congress. I told him if he so much as shakes W’s hand he won’t be allowed in my house ever again! Needless to say Daniel knows his old man is crazy.
In any event, I will go back to the wonderful world of regulatory law and try to stay out of trouble such as that above. I guess I should defer to the talking heads, who have a better understanding.
Perhaps one doesn’t need talking heads. One just needs to think about it. Rick, the news Guy in Atlanta, does just that –
First of all, I would ask John Roberts how his statement, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is different from, “The way to stop murder is to stop murdering people.” My response is that I neither discriminate on the basis of race, nor do I murder people, and yet both these behaviors seem to continue unabated. I’d suppose, assuming there’s a compelling public interest in these matters, we would need laws against these things, but at the very least, I’d think some sort of governmental intervention might be called for.
But of course, Roberts is not so much talking about “race discrimination” as he’s talking about “Affirmative Action.” Although the two are related, they are not the same thing and, I’d argue, should not be confused with one another.
“After all,” the argument goes, “we put federal laws on the books in the 1960s concerning voting rights and hiring and whatnot, so doesn’t that mean we’re off the hook?”
Not quite. Why not? Because it gives us white Americans an unfair head start.
Think of it this way: Imagine your great- great- great-grandparents were kidnapped from Africa and forced to come to this country, then forced to work as slaves and not allowed to learn to read or write, much less continue to live as a family as their siblings and spouses are sold off to other slave owners, and then, with emancipation, forced out onto the streets as “freemen,” but not allowed to send their kids to school – or at least to schools as good as the white kids got to go to – and therefore can’t get a proper job, even if they’re qualified for it.
How much encouragement would they likely give to their kids – to get a good education and get a good job and work hard is the way to get ahead in America? And how much encouragement will those give to their kids? And they to theirs?
And now that Jim Crow laws are outlawed, who would be naive enough to think the playing field has now been leveled? I learned from my parents, who learned from theirs, who learned from theirs, and so on, that if you learn hard and work hard, you can do quite well in America; but what if my ancestors had been slaves? I might not be sitting here now, writing these things.
True, depending on what they learn from their parents, not all kids – whether white or black – get the same level playing field that other kids get. But if it’s not level because of the doings of a country – such as allowing slavery to be legal, and later, allowing Jim Crow laws to exist – it’s that country’s duty to try its best to not only correct the errors of its past but to address the modern consequences of those errors.
With all our thinking that letting “the chips fall where they may” is the fair approach, we need to realize that doing so seems, statistically, to work against the descendants of slaves and other blacks who were officially held down in early America, and also that we whites are the present day beneficiaries of those same past injustices.
The big question is how to fix this.
So-called “Affirmative Action” programs tried to address the problem of “institutional” or “systemic” discrimination – that is, not necessarily specific and concrete cases of someone not getting into a school because they’re the wrong color, but because they come from a community school system still struggling to correct the consequences of its history. A hiring manager may not specifically turn down a person because she’s black, it’s just that this is a company that’s just not used to hiring people who have not been recommended by someone who already works here – and, of course, all who already work here just happen to be white males.
Are these problems that need to be addressed? I think so, although how to solve them is beyond me.
But I do think we at least need to be aware of them, and I’m just not convinced that John Roberts, and those that put him in his present job, are.
No, they are not. And add to that the sense of being a victim – that everyone is always picking on white males and evangelical Christians and all that sort of thing, when they, individually, have done nothing wrong at all, and feel they are the best of the best Americans, getting things done, building wealth, doing what Jesus really wants, and thus making America what it should be. The slow change over the last six years in the temperament and viewpoint of the justices appointed to serve in the federal district courts, appellate courts, and now the Supreme Court, made this week’s decision on “diversity” inevitable. Not only are they fighting back, they’ve won.
It seems a victory for the oppressed white folks. Is there another way to see it?
From our attorney in New York –
“It seems a victory for the oppressed white folks. Is there another way to see it?”
My hope is that this may be the turning point of the pendulum to start swinging back towards the center. I would like to think that most Americans will be quite horrified with the details here. Perhaps enough so to “through da bums out” as they like to say in certain parts of NYC. We can individually do what we can, but society is still probably 50 to 100 years from where it has to be. I agree with Rick that I don’t have the answers. This is a problem that resurfaces in many countries in many ways. I wonder what Martin Luther King would say. As I recall he wanted his kids to be known not for the color of their skin but for the content of their character. The problem is applying a bright line test. One size does not fit all. I’m not sure one size fits more than one situation. The problem is that the Roberts Court is perverting precedent and in the process taking the country further back to a time which damn near destroyed it. My fear is that the pendulum has not yet finished its present swing.
We have a long way down to go before we hit bottom.
That’s cheery thought, isn’t it?
Footnote:
Walter Dellinger, an attorney in DC and the Douglas B. Maggs professor of law at Duke, sees things Rick’s way –
I woke up at 4 this morning to the realization that I cannot begin to understand how Chief Justice John Roberts and his colleagues could really think that the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together is anything remotely like the system of racial apartheid, subjugation, and servitude practiced in the American South. His concluding sentence, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” equates two such fundamentally different practices that it leaves me stunned.
I want to try to convey a sense of how profoundly misguided and ahistorical that conflation is. Let me return to the most rhetorically powerful argument against the two school-district plans in this case: the fact that they would require some parents to say to a child, “You can’t go to that school because of your race,” just as black parents had to say to their children in the South before Brown.
Think first about being a black parent explaining race to a child in North Carolina in 1963. That year, Gov. Terry Sanford went on statewide television to urge an end to segregation in public accommodations and read a letter from a black soldier stationed at Fort Bragg describing what it was like to drive his children from eastern North Carolina to visit their grandparents in Texas. It was a harrowing experience, he wrote. Planning that trip was like a military operation; every supply that might be needed had to be packed and stuffed in the car for a trip of more than 1,000 miles. When they were hungry, they could not buy food. When they were tired, they knew they would be turned away from the motel. They traveled in fear that a child would become sick on the trip. Day after day they would drive by tourist sites and amusement parks that they could not enter; gas stations at which the children were barred from the restroom. How do you explain to a child why she can’t go to the swimming pool, play in the park, or go to the movie? At home or on the road, this was an experience a child of color had repeatedly every day. Every day. And the reason: The child was an inferior being whose very presence in a place would be repulsive to the community.
Is that what happens under the Louisville or Seattle plans? What some parents will sometimes have to say to their children under these plans is something like this: “You will be going to PS 111 instead of PS 109 this year, and here’s why: Our community is trying to make sure that we get over the racial separation that has been such a troubled part of our history. So we want to make sure we have a pretty good number of white and black children in all of our schools. It’s important, even though it sometimes means you don’t get your first choice of a school assignment this year.” As I read the record, that is unlikely ever to happen more than once to any child white or black. What is the big deal?
Why is it so critical that we “get beyond race” in every possible way? Get beyond despising or disliking people because of their race, yes. Get beyond oppressing people because of their race, yes. But avoiding any consideration of race as though it were toxic? I don’t understand that.
The court’s decision is everything conservatives should abhor. It is a form of social engineering dictated from Washington. It ignores the principle of local control of schools. It sets aside the judgment of elected officials, even though nothing in the text of the Constitution requires that result, and the original understanding at the time of drafting of the 14th Amendment is solidly against it. It equates the well-intentioned and inclusive programs supported by both white and black people in Louisville and Seattle with the whole grotesquerie of racially oppressive practices which came down, as Charles Black once said, in apostolic succession from slavery and the Black Codes.
The plurality opinion is elegantly reasoned and reads as if it could have been written by a law review president. But it fails the very first lesson taught to preschoolers who watch Sesame Street: “Which of These Things Is Not Like the Others?”
… [You can] invokes the specter of saying to a child: “Sorry, you’re the wrong color.” But it is a fundamentally different matter to say, as the South did before Brown, “Sorry, you’re the wrong color because you are an inferior being whose presence would contaminate the school,” and to say, “Sorry, you’re the wrong color for this school assignment because we are attempting to bring the races of our city together and it’s important to have a lot of kids of different color.” It’s very different, especially when it is a very occasional event, not part of a systemic, pervasive regime of subjugation. In its bottom line, Justice Kennedy’s opinion declares it unconstitutional for a school district to use the most effective means of achieving an integrated school system. Finding that this violates the 14th Amendment belies both text and history, and turns Brown upside down.
See also Dahlia Lithwick – same discussion earlier –
I’m not surprised the dissenters are pissed. What Roberts holds out as a dispassionate, mechanistic, and apolitical legal project is in fact an ideological and immoderate attack on a principle they believed to be inviolate. And I imagine it’s insulting after a while for the dissenting justices to be cast in the role of irrational hysterics. Someone pointed me today to the most amazing portion of Breyer’s dissent, in which he says the problem with the plurality’s logic “lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today’s decision. Law is not an exercise in mathematical logic.”
And so it goes.
