from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:
"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France’s observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting).
"Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927).
Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)
I know it was a big deal with high school assignments in SF a few years back.
Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.
The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations.
I don't know the statistics on actual cases, but San Francisco may be a special case -- San Francisco was one of the few locales in the US to institute segregation directed specifically against Asians. And of course, San Francisco has a much more violent history of anti-Asian bigotry and hatred than most other places in the US.
Public_Defender appears to forget that, in many cases, black people don't want their kids going to schools with white kids, either. In Washington, D.C., for example, where gentrifying has caused more non-blacks to move into the city, the existing black residents aren't welcoming the change with open arms. They bemoan the loss of their black neighborhoods. Are they bad people for thinking this way?
While race relations have improved remarkedly in the past 50 years, our public schools have suffered greatly from court-imposed regulation. It's long past time that we stopped using our public school systems as a social policy experimentation lab.
You'll notice that this white/nonwhite distinction is one of the things Kennedy finds objectionable about the Seattle plan.
During the days of de jure segregation, Asians fought hard to be deemed white. For the most part, they were not going for solidarity with African Americans, because they immigrated here, quickly assessed how the hierarchy worked, and didn't want to group themselves with those at the bottom. I can think of only one exception, in which being grouped as *either* white *or* African American would be advantageous: when Indian immigrant Bhagat Singh Thind sought to become a naturalized citizen, which was limited "to aliens, being free white persons, and to aliens of African nativity and to persons of African descent." Despite being acknowledged as Caucasian, Thind just wasn't quite white.
As for affirmative action lawsuits' being filed on behalf of Asians, that may be true in these school assignments, but I don't know of one at the higher education admissions level. Despite the argument of Prof. Volokh and others that Asians may get it worst in quota-type affirmative action in admissions (because they are overrepresented in higher education relative to their actual percentage in the population), I haven't seen a lawsuit filed by Asians or in which they're even included in the class. Grutter's class was limited solely to white plaintiffs. (Out of curiosity, does anyone know if, in a lawsuit regarding racial discrimination for more than one race -- say, whites and Asians -- there has to be a named plaintiff from each race?)
As a matter of fact, the Center for Individual Rights recently has begun grouping Asians among the beneficiaries of affirmative action and filing lawsuits on that basis.
I wrote the above earlier in a thread on these cases. Is there anyone here who thinks Jim Ho's factual correction counts as a refutation of Stevens' description? (Or the point of the historical description, which is not so much that Roberts' opinion is inaccurate, but rather that it is unprincipled and dishonest?) Don't you think if your plurality seeks to overrule a directly applicable precedent, you mention it? Don't you think that if you describe a historical trend, you actually look at the history? Whether Thomas or Breyer has the better argument on policy is one thing, but I see nothing in Thomas's concurrence to lay a hand on Breyer's facts. Nor do I see anything in Roberts' plurality to lay a hand on Stevens' facts. I see rhetoric used to clothe an exercise of power; I see Roe v. Wade. Is there anyone who thinks that because Chinese people were victims of white supremacy in addition to blacks that means Roberts has described the historical trend correctly? If anything, doesn't that tend to support the white/nonwhite categorizations used by the school districts?
Mind you, I'm not an originalist. But it pisses me off how the conservatives have spun this ridiculous story about how liberals are "activists" and conservatives "true to the text and the original intent."
The great irony lies in the fact that the legal precedent that promised the end of racial segregation in schools is now used to perpetuate it. State laws may no longer explicitly compel racial segregation, but racial segregation in public schools remains a fact of life in the U.S.A. That governmental agencies, including school districts, are now forbidden from combatting that racial segregation by means that explicitly refer to race ensures that that segregation will continue.
A great divide in this country lies between those who see the irony and those who don't, or won't, see it. There are schools not far from where I live that have thousands of students but only a couple of dozen white students. These schools in no way measure up to schools within the same district that are predominantly white. Just as the pre-Brown promise of "separate but equal" schools for black students was illusory, so is the promise of equality in schools that are segregated in fact if not by compulsion of law.
But Brown, as read by this Supreme Court, precludes the school district from considering race in efforts to bring down the percentage of black or brown students and raise the number of white students. The promise of Brown now turns out to be an empty promise because Brown is now construed to outlaw not only using race to exclude racial minorities from the public schools but also from using race in efforts to achieve racial equality within the public schools.
That may be an irony, but you could say the same of precedents banning racially restrictive agreements in housing. I'm sure developers could produce the kind of "rainbow" housing patterns a certain sort of person would like to see, if only they were allowed to write into the contracts that House A shall be rented by and sold to Blacks alone, and House B by Latinos and so forth. Alas, that very same precedent that frustrated past racist developers' attempts to construct whites-only developments now frustrates these (imaginary) new diversity developers.
Honestly, there's a bit of irony there, but it's more a hoist-by-own-petard irony than anything else. The result in schools may not be ideal, but it seems to me it's mostly the outcome of individual families' choices about where to live. There may be a problem there, but this time, it's not one we can paper over by bussing children across town to create a Potemkin illusion of racial integration.
Um, the obvious one? It was passed in 1868, long before the era of Civil Rights. It would be the better part of the century before the Brown case.
I do not see the de jure segregation addressed in Brown as the legal equivalent of the de facto "segregation" caused by voluntary residential housing patterns. But maybe I am missing something here.
I will readily admit that I may have lost the bubble over the last 40 years, but what is the legal basis for administrators "fashioning a remedy" for a lack of racial mix caused solely by voluntary residential living patterns?
Since Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in housing ownership or occupancy, shouldn't it be necessary for one to prove that the residential racial "imbalance" is sufficiently illegal under that statute, and that such imbalance has caused the racial imbalance in the school before any "remedy" for such imbalance is authorized under these statutes or, indeed constitutional?
The "remedy" seems to have been instituted by administrators without benefit of a court's determination that the problem remedied was caused by activity which is unlawful under state or federal law.
I'd start with the language of the amendment: "No State shall... deny to any person within its jurisdiction the equal protection of the laws."
That seems so clear to me on its face that there is no need for "intent" to interpret it. But if intent is the issue, look at the context:
Post Civil War; adopted in a package with the Thirteenth and Fifteenth Amendments abolishing slavery and giving everyone the right to vote; Section 2 of the Amendment that says that every person within a state fully counts for apportionment of Congress (thus abolishing the language in Section 2, paragraph 3 that slaves only count for 3/4 of a person).
Finally, "That the Constitution is color-blind is our dedicated belief." --Plaintiffs' brief in Brown v. Board of Education (1954).
Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.
The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations."
Oh baloney. That is simply spiteful and patently false. In my small, typical southern town we have a single high school that is open to all students within the city limits and many students from outside the city pay a nominal tuition for the privilege of attending as well. The racial composition of the student body pretty accurately reflects the racial composition of the community (35% black). Our community is the rule in our part of the world rather than the exception. Educating our children is not a liberal vs conservative issue, its a community responsibility.
Its easy to make broad sweeping generaliztions, but real world examples, if you know of any, would be a lot more persuasive.
Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.
The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations."
Oh baloney. That is simply spiteful and patently false. In my small, typical southern town we have a single high school that is open to all students within the city limits and many students from outside the city pay a nominal tuition for the privilege of attending as well. The racial composition of the student body pretty accurately reflects the racial composition of the community (35% black). Our community is the rule in our part of the world rather than the exception. Educating our children is not a liberal vs conservative issue, its a community responsibility.
Its easy to make broad sweeping generaliztions, but real world examples, if you know of any, would be a lot more persuasive.
My daughter teaches at a middle school of roughly 2000 students. There is exactly 1 (yes, ONE) non-Latino white student. That is not a typo. Two (yes, 2) Asians.
I asked this question at Balkinization. What right did the plaintiffs have which was violated here? I assume everybody agrees they have no Constitutional right to choose the school they attend. Similarly, I'm aware of no right to attend a school within a particular distance from their home. What right was violated?
Unfortunately, it was not a package, even though these amendments followed on one another's heels. My high school teacher taught me the shorthand to remember what these amendments did "free citizens vote."
The 13th Amendment freed the slaves, but newly reconstructed states found that didn't necessarily make them citizens, so
The 14th Amendment made them citizens (plus said certain things about how citizens would be treated), but newly reconstructed states found that didn't necessarily give them the right to vote, so
The 15th Amendment said they had the right to vote, and if you wanted to become a reconstructed state, you had to ratify all three.
A poster above pointed out the effect of the Civil Rights Act on housing. Last week, I was introduced to it, as I sat through my orientation to join the Board of Realtors. AT least in Colorado, and presumably across the country, viewing a half an hour tape on this subject is mandatory before being allowed to join. And then we had another half an hour discussion.
The tape revolved around real estate salespeople making innocent, but illegal, mistakes in steering people into or out of specific areas, etc. based on race, sex, marital status, etc. Of course you can't mention race, or that someone might feel more comfortable in one neighborhood than in another because of their race, etc. But you can't even do it indirectly by providing the material unsolicited. Rather, you can provide government (i.e. census) data upon request that shows racial, etc. makeup by neighborhood, etc. But you can't suggest it or provide it w/o request.
My point is that today, Whitey isn't steering Blacks into Black neighborhoods, and the government isn't mandating that they live in segregated neighborhoods. And most people have moved into the neighborhood in which they live after the present Civil Rights laws went into effect.
Yet, racial imbalances remain between neighborhoods. How to account for that? I think the obvious answer in most cases is that many people prefer to live around people more like them than not.
And this is the real distinction that I think that Justice Thomas was trying to make - that there is a big difference between the state, the White establishment, etc. pushing Blacks to live together, and Blacks choosing to do so on their own. In the former case, esp. when there was state action, we had segregation, that most of us would agree required in many cases mandatory desegregation. But in the later case, since the choice of where to live was voluntary, overriding this based on race, as was being done in both these cases, was state mandated racial balancing. Not desegregation.
Thus, maybe a good way to look at it is that when correcting racial balance:
- if the choice of where to live was made by someone else, esp. the state, then correcting it is desegregation (and thus typically legally required).
- but if the choice of where to live was made voluntarily, then correcting it is racial balancing (and thus typically subject to strict scrutiny).
I suppose the same Congresses' creation of the Freedmen's Bureau does make that understanding a little more difficult. Not to mention creation of black colleges, etc..
Historical note: my research found that in certain parts of North Carolina, near some reservations, there was a three-way segregated school system. One for whites, one for blacks, and one for the Lumbee Indians.
The only people seeking differential treatment on the basis of race are those who support striking down efforts to minimize the discriminatory effects of racial segregation by taking race into account in school assignments.
A color-blind Constitution would be fine if we lived in a color-blind world. But we don't. And the Constitution has never been color-blind--not since its inception and the 3/5 compromise and not since the adoption of the Civil War amendments.
The fact is the status quo--racially segregated inner city schools--inevitably results in unequal treatment of black students and condemns them to a life of inequality unless they are exceptional, far beyond average. We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students. Why this society should begrudge reasonable efforts to bring the racial balance of school enrollments into line with the racial balance of the community in which the schools are located is simply beyond me.
School districts that make such efforts are engaging in wise policy; they know a harmonious and prosperous community--one free from bitterness and tension--is much more likely if everyone is given a fair and equal chance at a decent education. That the Court has now relied on Brown to strike down such efforts is both outrageous and dishonest, particularly in view of the way Brown was viewed in later Court opinions.. That the plurality opinion uses the advocacy of the plaintiffs in Brown to support its reading of Brown is disgraceful.
When you take away the coerced segregation, you are left with allowing people to go to school where they wish. This is a good thing. Introducing new coercion forcing integration on people is as bad as forcing segregation. But this is what the left wants, forcing people to be equal.
Equality under the law, as opposed to equality of outcome, is not just something cooked up as a dishonest tactical maneuver in modern racial politics. It's a principle going back a long time --- try reading the English Bill of Rights, e.g. Despite any number of insinuations to the contrary, many people actually sincerely believe it is important. Looking at a parallel controversy, on equality of economic opportunity vs. economic outcome, gives some evidence that it's not just a maneuver: people have been arguing for equality of opportunity continuously since before the US Civil War. And it also gives some evidence that not only is it not a maneuver, the economic opportunity side is both smart and sincere when they say it tends to be better for all, even those who are supposed to benefit from imposed equality of outcome. E.g., look at another MF who won a Nobel Prize in economics. Now that we have hindsight to see how things turned out, do you want to argue that Friedman's 1960s and 1970s cheerleading for Hong Kong's policies (and its popularity on the libertarianish part of the right) showed indifference or cluelessness about economic outcomes of the poor? Compared to his more leftish contemporaries cheerleading for the 1960s and 1970s policies of places like India, mainland China, and the Soviet bloc?
Also, Field's 1-out-of-2000 factoid is dramatic and memorable, but for me it would have more impact if it was specific about which school it is, or at least more specific about roughly what kind of situation the school is in. Is there some privacy reason to elide that?
Incidentally, the children of James Byrd, Jr. (the black man dragged to death behind a pickup truck the summer after I graduated from high school) were at high school with me and my little sister. While I am annoyed by the perception that there's more racism south of the Mason-Dixon line (I never heard of an unarmed black man's getting killed by the police in my area), I doubt that Byrd's kids would think there's as little racism in rural areas as the commenters above would have y'all believe.
"Introducing new coercion forcing integration on people is as bad as forcing segregation."
Seriously? You think that racial segregation and integration are morally equal, and the only thing that could make either immoral is coercion? Attempting to surround yourself solely with people of the same race is exactly like attempting to live in a diverse environment, and the government should be wholly neutral between the two and immediately cease promoting the latter -- even non-coercively -- as a good thing?
I was referring to an underlying right. From your response, I assume there is none.
A fair question. They had the right not to be treated as second class citizens. I don't see that as an issue in either case here.
I agree, but surely you'd agree that in our history this was a principle honored more by the breach than the observance. Given that history, the dispute now is what should be done to structure affairs such that equality can operate fairly into the future.
I generally am reluctant to disclose details of my daughter's life. That's her decision, not mine. I can say that it's a school in Watts.
Those who are concerned about the low quality of education in predominantly black schools are correct to point out a huge problem that urgently requires attention and that the status quo will not fix. They are incorrect to assume that the solution involves throwing race back in to our institutional standards.
A question for the lawyers: instead of using race as the criteria, would it be legal to require individual schools to reflect the income distribution of their area? Would it be legal to bus students as necessary so that every school in Cook County, IL had the same percentage of students from low- and high- income families as the county as a whole?
What about just requiring that all schools get the same (maybe local COLA-adjusted) per capita funding?
Thanks for the history lesson! I am always happy when I learn that what I "know" about history is wrong. Happens a lot.
I'm not sure that the difference undercuts the argument, though.
***
We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students. Why this society should begrudge reasonable efforts to bring the racial balance of school enrollments into line with the racial balance of the community in which the schools are located is simply beyond me.
To the first sentence, Why can't we bring the quality balance of the schools more into line? I'm not arguing for "separate but equal" but for the proposition that every child is entitled to be educated to his or her best abilities.
To that end, I'd propose an expansion of the "Magnet School" concept that's used here in Dekalb County, Georgia: students with outstanding academic records or talents can transfer to "Magnet Schools" that cater to people with their abilities. As far as I know, race is not taken into account in that program.
It is, however, in the "Majority to Minority" program in which a student whose race is in the majority at the school he attends can transfer to another school in which his race is in the minority if there is an opening there. This is a pretty successful and non-coercive program here, although, as you would expect, many more blacks transfer to white schools than vice-versa. It will be interesting to see the impact of Parents Involved on this program.
I think that government forced segregation and government forced integration are equally wrong. People should be free to make their own choices.
Agreed.
I attended segregated schools in small southern towns at the time of Brown v. Board. I experienced directly the attitudes of more benighted classmates and parents as well as those who not only embraced Brown, but also had quietly hoped for it and had done what they could do in its absence. The news, whether anyone outside those communities believes it, is that the good guys won.
Today those same school districts not only have for decades been wholly technically "integrated", by virtue of only one school existing for all students in the district. But the schools also show indicia of things far more important than that. Student organizations and elected honors, including such eagerly sought honors as homecoming royalty and yearbook elected honors, show a panoply of faces of every skin tone on the planet. And, perhaps to the vexation of those driven by identity politics, the students also date and marry across lines of skin color.
For every Little Rock Central High School at the time of Brown, it's remarkably easy to find a Hoxie.
Sounds like Thomas has it exactly right. Did you ever see a cafeteria at an integrated school? The blacks sit together and the whites sit together. I suppose you'd prefer there were assigned seats black/white/black/white?
one, any school district intent on this kind of thing can manage it by using income instead of race.
two, most school districts with high #s of black kids do not have anywhere near the number of white kids to 'balance' things. so this remedy usually won't remedy anything.
three, it would take someone lodged in 1957 mentally (or near D Souter's NH home) not to notice that whatever the schools look like, Americans in most of the nation regularly interact with people of all shades and sizes. I could have a distorted view of this, as I live in the South, but I can't recall the last public event or gathering I went to that did not have blacks, whites, etc. toss in intermarriage rates (increasing even between blacks and others) and in 50 yrs this hysteria will seem even odder.
I would agree this decision is at the least a harbinger of the end for racial preferences. but those have been fading anyway - blue states have been nixing them via initiatives for ten years - so it's not like the S Ct is barring some widely popular practice. and from a political perspective, it can only help the Dems to have the Ct do the dirty work of finally killing off this albatross.
three,
The Los Angeles Unified School District, in which I live, has many magnet programs. According to a story in today's Los Angeles Times, "About 53,000 of the district's 708,000 students are enrolled in 162 magnet programs," with about another 30,000 on a waiting list. "Not all magnets are successful academically, but on balance they fare far better than the district as a whole," the story adds. "More than one-third of the district's 162 magnet programs have student bodies that are at least 90% black and Latino; 25 magnet schools have no white students."
The conservative Pacific Legal Foundation apparently has a suit pending challenging these magnet programs in the LAUSD, although the story was a bit vague about whether and if so to what extent race is used as a factor. The LAUSD is subject to a court desegregation order, but that order never has been formally filed. What bearing that will have on the magnet programs' legality is disputed.
The LAUSD is the nation's second largest. It has, of course, been hit by huge white flight to private schools. According to the story, "L.A. Unified is 72.8% Latino, 11.2% African American and 8.9% white."
Breaking that down, I don't think that attempting to surround yourself solely with people of the same race and attempting to live in a "diverse" environment are exactly the same -- obviously they're different -- but morally speaking, I don't see any real difference between them. They're both species of assortive preference, and I wouldn't consider one superior to the other. De gustibus and all that.
I can, however, imagine that the government may have an interest in promoting "diverse" living, to make the culture of population more uniform, and eliminate pockets of diversity -- the little Chinatowns and barrios and the Black ghettos and White gated communities and so forth. A democratic state has an obvious interest in breaking down those kinds of distinctive, distinguishable, and culturally separate communities, in order to produce an electorate that feels itself to be a single, unitary community, with a shared culture, etc etc. So from the state perspective, promotion of integration is probably a good. From an individual perspective, though, I'd have to remain neutral as to whether it's good overall or not. Like most things, it has its good points, and it has its bad points.
This in particular -- and the whole discussion itself, actually -- raises a question for me. By what right is a school, or the government in general, able to classify my kid either racially or by income, if I don't provide that data voluntarily?
Which is what makes the assignment by income difficult -- you'd have to convince all parents to declare their income, information that goes only to the IRS and is supposed to be jealously guarded by same. An alternative, however, would be to go by property values, as that's what SAT scores supposedly have their closest correlation with, and that's information available to anyone who stops by City Hall. (Possibly even online nowadays thanks to those real estate websites.) Figure out how many students in the district from each grade fit into each bracket of property values, and require that each high school have roughly equal proportions of students from each bracket.
I suppose I consider diversity of experience to be a beneficial thing even for the individual. I realize that there can be individual preferences in this, but frankly an interest in some kind of variety seems like a characteristic of being a grownup. Children tend to like getting chicken strips every time they go to a restaurant, whereas adults have a broader variety of tastes. I think an ability to adapt to things with which one has not always been familiar is a useful skill. Certainly this is something we recognize with regard to labor: people who have been trained to do a single task only and have not had a more liberal education get screwed when that task is done more cheaply by foreigners or machines. I think someone who has lived in diverse neighborhoods and gone to diverse schools will be better at adapting if his boss tells him to move to China. That's a benefit to the individual, not just to society.
I am a lawyer, though not a Constitutional scholar. I'll answer your question based just on my law school classes, because I think the answer is pretty easy. YOu asked if discrimination by income is allowable. The short answer is "yes." I'll confine this to government discrimination, which is easier to analyze than anti-discrimination policy aimed at non-government actions (for example employment discrimination).
All laws "discriminate" in some sense. A law against murder "discriminates" against violent angry people, who are more likely to commit murder. Since prohibiting murder is necessary, "non-discrimination" is unworkable as an overreaching philosophical principle of government. What *does* work is to identify certain characteristics on which discrimination is illegitimate and/or certain types of rights which are more central than others. I have no Constitutional right to be violent, and no Constitutional right to kill others.
The Civil War amendments used both of these principles. Only certain types of rights were covered, and not all government "discrimination" in the broad sense was pro-black. For example, the US Army maintained segregated regiments in which the officers were white and the enlisted men black. The line which the drafters of these Amendments drew was probably not completely intellectually coherent, but that is not unusual in the law.
Over time, our concepts of what characteristics it is bad to discriminate on (suspect classifications) have broadened. Concerns about anti-black discrimination broadened to cover other races (Chinese, then Indians, then race as a general concept). Classification by sex came to be seen as illegitimate. Religion and national origin. Handicap. Sexual preference. Some classification is still OK, though. For example many people who think of themselves as "anti-discrimination" think that George Bush shouldn't be President because he is stupid. There is an argument that Bush isn't stupid, but no real argument that voting against someone for President because he is stupid is wrongful discrimination.
Similarly there are some rights that are perceived as more central than others. Generally, the consensus of the courts from about 1930 to the present has been that economic and property rights are less important than "personal" rights. So, the government has to be more careful about depriving you of the right to vote, for example, than about depriving you of the right to be an optomitrist. Libertarians like me think this is not a wise or tenable distinction, but our views have not prevailed.
Most lawyers see discrimination on the basis of income as unproblematic because income is not a "suspect classification" and in any event economic rights are not central. I hope this helped.
I can, however, imagine that the government may have an interest in promoting "diverse" living, to make the culture of population more uniform, and eliminate pockets of diversity -- the little Chinatowns and barrios and the Black ghettos and White gated communities and so forth. A democratic state has an obvious interest in breaking down those kinds of distinctive, distinguishable, and culturally separate communities. . .
Leading to an incalculable and irremediable loss to the community. All "ethnic enclaves" which, with the exception of gated communities, are accessible by all citizens, in my opinion contribute immeasurably to overall quality of life.
That sort of "state interest" smacks of totalitarianism to me: Imagine an ordinance that provides: "Every residential block and multifamily housing unit in the City of X shall have an ethnic composition that reflects as closely as possible the overall ethnic composition of X." With provisions for prohibiting people from moving into a block or into an apartment building or condo if their group is in the majority in that block or condo or, even worse, compelling a reshuffling of the populace every, say five years to prevent "resegration." Similar provisions for business districts: every mall, strip mall, business area, etc., must have a range of businesses that mirrors the ethnic makeup of X and so a panaderia could not be next door to or even in the same strip mall with a Mexican restaurant.
Sure, it's an economic benefit . . . although, frankly, I don't think "diversity" the way people encounter in the US is an especially good preparation for actual diversity as between countries -- the Chinese-Americans or Japanese-Americans you meet here in the US are for the most part only superficially like the Chinese or Japanese you will meet in China or Japan, in most cases. So, for that matter, are the kinds of Chinese or Japanese who choose to come to US for work or education etc.
But leaving aside the economic benefits of diversity, it also makes the person receiving the benefit into a different kind of person, and that different kind of person may not be a person he wants to become. There's a powerful economic benefit to living in a consumerist technological society with cars and computers, for example, but the Amish don't seem to be particularly moved. And their choice -- though not one I would make myself -- is a perfectly decent choice. Similarly, there's a modest individual benefit to learning Spanish, if you live in LA, but there's no particular reason you should do so if you don't care to. Doesn't, of itself, make you a superior person.
Re:
That's an easy analogy, except that adults generally don't have a much broader variety of tastes, as far as I can tell -- they just have different tastes. Adults still have their favourite restaurants and their favourite dishes, etc., even if their favourite restaurant is rather less likely to be McDonalds, and their favourite dish less likely to be a Happy Meal. Instead, they may devote themselves to the subtleties of French cuisine, say -- all French, but offering nevertheless a rich variety of dishes and tastes.
An obvious counter-analogy -- equally unpersuasive, I admit -- is that the thirst for diversity is like the thirst for novelty: a juvenile trait, an adolescent trait, and one that recedes at last with sober adulthood. Young people try out all kinds of different things, but eventually, they grow up, get married, have children, and settle down.
I don't think these kinds of analogies tell us anything about "diversity" and so forth, though, since we're talking about something rather more significant than the food-of-the-week -- although I admit, it sometimes seems that ethnic difference in the US is reduced to nothing more than differing Westernised ethnic cuisines in cute restaurants. Race and ethnicity are proxies for culture (the only sense in which I can understand "diversity" here being meaningful), and what I understand us to be discussing is the individual choice of what kind of culture(s) you want to return to, when you head back to your neighbourhood and your home. That's not a matter of sampling different flavours for dinner, but deals with a deeper and more lasting personal engagement.
"What has perhaps most saddened me is the implicit assumption by the Court in Parents Involved that if blacks are racially segregated in their neighborhoods and ultimately in their schools in the absence of de jure segregation, it is because of the exercise of “private” decisions about where to live and attend school, and such choices cannot and should not be addressed by government. The reality is that housing "choice" may still be a long way off, even for financially able members of minority groups. For example, data compiled by the National Fair Housing Alliance indicates that racial “steering”—the practice by real estate professionals, sellers and other involved in real estate transactions of recommending or discouraging the purchase of homes or choice of school districts to potential home buyers based on their race or national origin—is alive and well. My own anecdotal experiences seem to support this conclusion. I've bought 6 properties in various states and towns in the course of my life, all in predominantly white neighborhoods. I've placed bids on several more. All of the properties were offered by real estate professionals who were highly experienced, well known and respected in local circles. I believe that I’ve experienced race-based discrimination in some aspect of the process in all but one of these transactions.
In my first transaction the selling agent told me that the sellers were “nervous” about taking my offer (why?) but it would allay their fears if I made a full priced offer and put over 30% down (huh?). In my next transaction the seller's agent told me that because of credit problems (What credit problems? She didn’t know me.) I had to have all cash to purchase the house (Whoever heard of that?), and she later refused to return calls placed by my agent. In another case the selling broker took my offer and sent it around to fellow agents in an effort to drum up competing bids while asking for extensions of time in which to accept my bid. Not surprisingly, I was ultimately outbid. I learned later through acquaintances of the sellers that they had no intention of considering my offer since they felt that my family didn’t “fit” into the neighborhood, but they were glad to get my offer in order to start the ball rolling (the house had sat with little activity for months.) I thus became an unwitting shill. In several cases the agents never conveyed my offer to the sellers and I was forced to contact the sellers and let them know about the offer I'd made. This doesn’t even begin to count the numerous times I appeared with my agent to view a property but was refused admission by a plainly visible seller who ignored the ringing doorbell or offered excuses to avoid a showing (“I know you have an appointment but this isn’t a good time,” “We’re not sure if we’re going to sell after all.”)
Gee, isn’t all of that stuff is illegal? Maybe. That’s the problem. There are in most places some combination of local, state and federal laws barring racial discrimination. There are also typically professional codes of conduct that hold real estate brokers and agents to certain standards. But trying to hold real estate professionals accountable for violating the law or professional standards (never mind holding the sellers accountable) in such cases is all too often a losing proposition. This is especially true in housing discrimination litigation, since there is a requirement of a clear showing of discriminatory intent. This means that an action which could somehow be construed as neutral on its face may not easily be the basis of liability. Given the time, money, headaches and heartaches of litigating, even a practicing lawyer or law professor may just move on to the next deal notwithstanding suspected racial discrimination.
The Chief Justice indicated in his oral announcement of the ruling that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Seems like a no-brainer. If only it could work that way. Regrettably, the racial discrimination aimed at blacks and other racial minorities is often stealthy as well as stalwart. To assert that governmental use of race to remedy past and continuing discrimination against blacks and other racial minorities is the same as deeply entrenched, longstanding white racism seems a bizarre and disingenuous embrace of the color blind ideal. Such decisions, while purporting to disrupt racist practices, instead run the very real risk of legitimizing them. Perhaps we are doomed to return to the days before Brown."
I know - you think she is just paranoid. Her full stuff is at http://racelawinniss.blogspot.com/
Best,
Ben
But Brown was essentially an equitable action seeking redress of a specific constitutional deprivation caused by coerced exclusion of black children from white schools.
The relief portion of the case was argued separately from the liability portion. The liability case was the one primarily cited by Justice Roberts, and essentially adopted the "color blind" principle argued by Plaintiffs (represented by Thurgood Marshall) and explicated eloquently by John Marshall Harlan I in his dissent in Plessy.
The problem with the Seattle case is that there is no history of any sort, in the record or otherwise, of unlawful separation of any race which supports the need for a remedy. Even if there were unlawful separation of races in Seattle, the place to seek relief is not the school boards; it is in the Courts. But even if the school board was the appropriate agency to solve the problem, if it had not excluded whites from certain schools solely because of their race there would have been no case for the Supreme Court to consider.
All of the comments of systemic racism and the like simply are not proven in the record before the Court in the Seattle case. Therefore, there is no legal reason to "remedy" anything by excluding a member of a racial class by reason of race alone.
Peter's statement is indisputable.
I couldn't disagree with conclusion more, however. I don't consider these policies wise, nor do I even see how this "solution" is logically related to the problem.
I'm no lawyer, but I think I know something about education. The greater problem we're dealing with has nothing to do with Brown. It has to do with the poor state of American public schools. On the whole, they flat out suck. Local governments and boards of education have failed miserably over recent decades in improving schools. Since they can't fix the schools they shift the blame. They create phantom "root causes" like racism and the like. What we are really seeing with these cases is competition for scarce resources. Unfortunately, this creates a "free rider" problem for the good schools, which are typically better funded and safer.
Lastly, 'creating harmonious and properous communities free from bitterness and tension' -- is that a measurable educational outcome? Has busing and quotas given us these desireable results?
I think the distress you see reflected in the comments arises from our perception that the Roberts opinion demonstrates a lack of fundamental values (or, alternatively, a preference for abhorrent values). It's the same sense of outrage regarding Guantanamo.
I happen to believe in America as a "city on a hill". Not in the sense of actually achieving that, but in the sense of a commitment to progress towards that goal. When I see a President and Court not just denying that commitment, but denying the very values themselves which make our country great, well, yeah, that upsets me. Just my patriotism, I guess.
If this is the problem, though, then bussing, race preferences, and state discrimination aren't actually doing a thing to remedy the problem. They're just a make-believe fantasy papering it over. If racial "steering" is producing artificially segregated neighbourhoods that the inhabitants did not, themselves want, then racial steering is what ought to be attacked -- not the practice of having children attend local schools, and allowing children colourblind access to the schools. And as you describe it, racial steering looks like something one could legitimately attack, like any other race-discrimination case (if somewhat less direct).
Admittedly, that would not help in the case of the houseowner who decides, on discovering that his house is going to go to someone of a different race, that perhaps he's not all that interested in selling after all. But I'm not sure what could, that would not be tyrannical. Even when desegregating hotels and restaurants and so forth, the owners retained -- as far as I understand it -- the option of exiting the market entirely. They just loved money more than Jim Crow.
Benjamin Davis: Yeah, I read about that NFHA report. All it showed was that the number of housing discrimination complaints went up from 2003 to 2004. Didn't prove that more actual discrimination was found.
I'd have to emigrate if my right to choose a skool for my kids was eliminated by bureaucrats/judges/legislators, etc.
What the hell are you implying? To the extent it's true it's because of the way schools are funded, not because bused in white students are needed to help minority students perform better.
As for the supposed lousy state of US public schools, as asserted above, this is simply untrue. In poorer areas, including inner cities, there are problems. But go to any middle class, or higher public school, and you'll find that they generally do a fine job.
So, Mark Field, you don't regard being rejected from a competitive program based solely on your race as being an issue? (Seattle)
Contrary to the implication in your original post, this wasn't some sort of special treatment. It was a program open to various students, including the plaintiff's child, which he was rejected from because of the color of his skin ALONE. That's racial discrimination, no matter how you try to spin it.
Most parents would hate it because the odds on your child attending the closest school fall to almost nothing. Thus nearly everyone is inconvenienced. The school day is longer. Child care can be a logistical nightmare. Busing costs increase greatly and the system can be corrupted.
But otherwise, what is the problem?
Has anyone verified that white kids were allowed to go to black schools?
They may have been, but my guess is that they were not. I grew up under segregation in the south, and I remember clearly that those segregation rules with which I came in contact were applied to both races. For example, blacks had to sit in the balconies of movie theaters and whites in the main floor. A violation in either direction would get you kicked out by bouncers who were hired to enforce this and other behavioral rules. I don't know specifically about schools but the assertion should be verified.
This wasn't a competitive program in any usual sense. Spots were not based on "merit". This was simply a sophisticated lottery system which allocated scarce resources. Think of it as a point system like Canadian immigration. Calling it "discrimination" is begging the question. (And, to nit-pick, it's using the wrong word: every statute "discriminates" on some ground. The word you mean is "prejudice", and if you think of it that way you'll see why the program passes muster.)
My original post, in any case, didn't raise this issue. It asked, instead, if there was any underlying right violated. IOW, did the selection process deprive anyone of freedom of speech, property, or some vested right? From the silence which prevails, I assume the answer is no.
That is positively Orwellian. Brilliant!
A color-blind Constitution would be fine if we lived in a color-blind world. But we don't.
Yet unlike the days when color determined what school you would attend, we should now and forever more have color decide what school you will attend. That is progress I tell ya!
We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students.
And the ONLY way to remedy this is to move more white students into sub-standard schools while permitting some fortunate minority students into the better quality schools of the 'burbs. [Dude- you been in one of these high-quality suburban schools lately?]
Maybe they still feel an emotional attachment to neighborhood, and want to make sure the new occupant is someone they think would fit in. Maybe the realtors don't believe a black buyer can be relied upon to pay the mortgage. Or maybe they're just out-and-out racists who would feel sullied if one of "those people" moved into their old house. You never know.
2. You'll notice it was the Freedmen's Bureau, not the Black's Bureau.
3. Even if it were the Black's Bureau, again, nobody denies that remedial measures may be race-conscious. That differs completely from what we have here, which is just about the aesthetics of the class photograph.
4. The Fourteenth Amendment doesn't apply to the federal government.
Putting that aside, what stands out most about the denunciations of this decision and the cries of impending doom is (as Roberts noted) how trivial these programs were. How does shuffling a few percent of the students around solve the educational problems of black students?
By far the most insulting thing in these comments is the notion that black people are "not like" white people, and vice-versa.
You can say this only if you ignore the single most famous sentence in Brown. Tell you what David: when I decide to endorse Plessy, I'll be the first to let you know.
Well then why do black students self-segregate in most schools? Maybe they have different music, role models, etc., etc. to talk about. Maybe a slightly different culture.
Why would anyone care what race someone is who's going to buy their house? They're selling. They're not going to live there any more. As long as the escrow closes, I wouldn't give a rat's behind who bought my house. And if the neighborhood goes to hell in a handbasket, it's not my problem, is it?
Maybe not everyone is not quite so self-obsessed as yourself.
And, as everyone and their brother has been saying since well before that, "Equal Protection under the law".
Mark Field responded:
I think the distress you see reflected in the comments arises from our perception that the Roberts opinion demonstrates a lack of fundamental values (or, alternatively, a preference for abhorrent values). It's the same sense of outrage regarding Guantanamo.
I happen to believe in America as a "city on a hill". Not in the sense of actually achieving that, but in the sense of a commitment to progress towards that goal. When I see a President and Court not just denying that commitment, but denying the very values themselves which make our country great, well, yeah, that upsets me. Just my patriotism, I guess.
I haven’t considered myself a liberal since JFK was President, and I don’t think you really can distinguish between my reaction and the constitutional bona fides of the decision, but, as a leftist, I join Mark’s comments.
Fifty years ago this September 29, my family, which had arrived in Canada from England four years earlier, crossed the border at Port Huron, Michigan and, after a short stay with relatives in Kalamazoo, we journeyed across the country on old Route 66 to our new home in California. We listened to the radio and bought the daily newspapers as we crossed this magnificent land; it was the week of the Little Rock School crisis.
My reactions as one who had just turned 14 were mixed. I could not understand the hatred in the faces of white adults as they spewed their venom at young black students dressed in their Sunday best for their entry into Little Rock High School. As the troops came in to ensure the students’ safety, I marveled at what a great country we were joining. It did the right thing, mobilizing all its great powers even for the least of us in the pursuit of justice.
I was not a particularly politically aware 14-year-old, but ever since, the U.S.A. has been for me a shining citadel on a mountain top in the sense that Mark refers to. It held to great ideals and it was committed to trying to achieve them even if it did not always do so. It represents the best in human endeavors. It stands as a beacon of inspiration for the rest of the world.
We found almost 100 percent de facto segregation in residence, schools and employment in the then small city in which we settled, Fresno, California. Over the next few years, all these barriers broke down, one by one. The first black teacher ever at Fresno High School taught me typing. Black families moved across the railroad tracks to homes in the suburbs. Black students began to attend the overwhelmingly white high schools (although not until after I was graduated, in 1960.) Black faces appeared among the employees of downtown banks and stores.
I saw a nation doing its best to redeem itself. The changes were visible in daily life. It was a thrilling reaffirmation of the lesson I had taken from my first week in this country.
The road was never smooth. There was resistance to integration. I moved to Los Angeles after college in 1965, and, after three years back east for law school, went to work as a poverty lawyer in Watts in 1969. In Lyndon Johnson’s War on Poverty, money was thrown at the problem without much thought, as if money without more was the solution, and, predictably, it was largely squandered. Police brutality remained intractable, and two huge civil disturbances racked Los Angeles, in 1965 and 1993. (There were other disturbances in other cities, too, of course, but I wasn’t there for them.) Presidents were elected whose commitment to civil rights was perhaps dubious. But through all this, the nation’s commitment to the ideal remained if only because the promise of Brown remained intact, if only as an ideal.
What upsets me is the profound betrayal of this commitment to the ideal so evident in yesterday’s plurality opinion. In the face of the history of the struggle for civil rights in this country, to use Brown to strike down these local attempts to secure racial balance and a modicum of racial equality in schools is disgraceful. The result is one with which I strongly disagree. But the reliance on Brown, including the appalling effort to coopt the advocacy of the lawyers who represented the plaintiffs in Brown, is morally repugnant.
And Mark is right to equate the reaction to Guantanamo in its largest sense. The shining citadel, if it still exists, has been terribly tarnished, and yesterday's decision severely diminishes what remains of its lustre. We know it and the rest of the world knows it.
I can say it because you're ignoring the holding of Brown, and the message of Brown, in favor of the message of Plessy.If the shoe fits...
You're trying to rewrite Brown from an anti-racism decision to a anti-racism-you-don't-like decision. Brown said that discrimination was "inherently" wrong (*) -- not that it was wrong if it happened to produce outcomes which judges disliked.
(*) Fortunately, because when it ventured away from that, it relied upon bogus psychological studies, so if it had been making the mere empirical claim you wish to limit it to, it would be vulnerable.
Isn't the argument that mere desegregation isn't enough, because of unbalanced residential housing patterns? So shouldn't we also send people to live in different communities on the basis of race? Shouldn't we tell a white person that he can only move to a neighborhood, or even municipality, that isn't "too white," and a black person that he must stay in a white neighborhood? This would create a lot more "diversity" than merely busing a few kids a few hours to get to school, wouldn't it? (Indeed, we would no longer have to bus, which would be beneficial to kids.) It would create more racially balanced schools, parks, supermarkets, malls, movie theaters, churches, libraries...
Is there any constitutional principle, according to the left, that would forbid this?
Paleo: Effectively screaming "Uncle Tom" at Justice Thomas (which is race-baiting, I'll have you know) is so base and meritless that it is not worth wasting bandwidth responding to in substance.
Peter Young: You have given us a lot of anecdotal warm fuzzies, but you still haven't answered why Brown, an anti-segregation decision, should be applied when there is no actual segregation. If Chinese immigrants choose to live together in a "Chinatown," Brown would clearly not apply to either force that Chinatown to split apart or to bus the Chinese students to different schools. So why does it apply in these decisions? Is it just because we're dealing with "black people"?
As for what constitutional principle would restrict integration to schools, education is treated differently for purposes of constitutional analysis by the courts in many respects. Free speech is limited, and presumption of potential religious indoctrination is higher, to just name two. As part of the education and socialization process inherent in public schooling, seeking to end segregation, whether de jure or de facto, may be considered a compelling interest.
NaG: I and/or the articles to which I linked have answered your question, and if you can't see that, nothing can help you see it.
Your denigration of my experience of the civil rights struggle--given in answer to the question someone posed as to why the decision so upset me and others--as "anecdotal warm fuzzies" demonstrates there is little purpose in continuing any exchanges with you on this. That struggle was made of guts and grit and sacrifice--lots of selfless and courageous hard work over many decades. I doubt you know what any of that is.
Fortunately, the last word from the Court on this has not been written. I look forward to a future time when justices more attuned to the real world and what goes on there, less ignorant of history and more conscientious in their use of precedent form a majority. All it will take is a one-justice shift in the makeup of the Court, and if that happens, this week's decision will not survive. It certainly wouldn't get the respect that recent precedent normally gets.
For one thing, the government owns and operates public schools; it doesn't own and operate neighborhoods. It may legitimately do all kinds of things in the schools that it could not legitimately do with respect to private residential areas. It can tell students not to eat and not to sleep in class and put them in detention if they disobey. Heck, it can even punish students for posting signs saying "Bong Hits for Jesus