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Parents Involved in Community Schools v. Seattle School District,
the case involving race in public schools, is here. Chief Justice Roberts wrote the plurality/majority opinion that had Kennedy in parts but lost him in others. Justice Kennedy concurred; according to Kennedy, Roberts' opinion went too far in some respects. Justice Breyer filed a 77-page dissent, joined by Stevens, Souter, and Ginsburg, which argues that the plurality opinion would "break the promise of Brown." Justice Thomas concurred, filing a 35-page response to Justice Breyer. Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
wt (www):
"This would have been different in my day" (Granholm, Scott v. Harris, Parents Involved) is not a viable judicial philosophy.
6.28.2007 12:19pm
Jay--:
Taken literally, that quote means Justice Stevens believes that William Rehnquist would have disagreed with the decision.
6.28.2007 12:23pm
MJG:
The Kennedy Court lives! Two Kennedy majority opinions (both 5-4) and a limiting and controlling concurrence in the race cases. What this spells for the "Roberts Court" and his goal of unanimity is unknown.

I will say it implies that Roberts holds his views above mere unanimity (as he should), though his talk of moving incrementally and approaching cases "Umpirically" has been well documented as likely simply incorrect. The only thing I know for sure is that his approach to unanimity is more Warren than Burger, as Roberts certainly has not adopted Burger's "give up and join them" approach to getting majority opinions.

In any event, this decision is disheartening, and difficult. Breyer's dissent, though overlong, is eloquent. Roberts' cabining of Grutter (wasn't really about race at all) and distortion of Brown is painful as well. And expectedly Kennedy gives us "we go too far today in saying that race can never be used, but I will leave it to everyone else to guess when I think it may be used," thus ensuring his central role for years to come.
6.28.2007 12:23pm
AntonK (mail):
I'm happy, I'm happy, I'm happy happy happy!!!!

Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Yup, just the sort of straight, logical, common-sense talk you can't get from an Angry Leftist (or Liberal, or Progressive)
6.28.2007 12:26pm
A.S.:
JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

So?
6.28.2007 12:30pm
TyWebb:
Professor Kerr:

I'm still waiting for my about-face that you referenced in response to my post yesterday. This opinion wonderfully illustrates Cover's critique of uncommitted judges. The Roberts plurality claims they are informed by the text of the opinions and law that came before this decision: they appear to give not a moment's pause to the meaning and narrative behind those words, for either side. At the end of the day, this case isn't about racial classifications. It's about (on one side) the narrative of rescuing a group of people who were denied so much for so long, and (on the other) the commitment of a family to make sure that each individual child in that family is given the best education, based on their "merit" or hard work. The law of racial classifications in this country arose and continues to arise from these narratives. The plurality acts as if it's the other way around.

The Kennedy concurrence is classic Kennedy (a judge I'm sure Cover would have absolutely eviscerated for drawing these itsy bitsy distinctions that, in the end, give comfort to no normative group in our society).

I haven't gotten to the dissent yet. Nevertheless, I'm still absolutely of the opinion that the judicial "restraint" and positivism of the Roberts Court serves a mostly apologetic function.
6.28.2007 12:30pm
Adam:
AntonK,

Too bad there was no discrimination under these plans. Every student (regardless of their color) had their race taken into account if it would upset the balance as defined under the plan. That is simply not differential treatment.
6.28.2007 12:32pm
Truth Seeker:
But what will the leftists do now to pay tribute to the god of diversity? If you can't bus blacks to white schools and whites to black schools, they'll need to find new ways to force blacks and white into the same neighborhoods.

The funny think is, once you bus the blacks to the white schools, they self-segregate and prefer to stay together away from the whites.
6.28.2007 12:32pm
Barbar:
AntonK,

I can hardly see the desirability of the outcome of the case as relevant in evaluating it. Surely only weak-minded activist liberal progressive hippy leftists would think so.
6.28.2007 12:34pm
Former Law Review Editor:
"Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories."

Yay Justice Thomas!

Also, I like how both Roberts and Thomas get some sweet burns in on Kozinski. Kozinski's opinions have been declining drastically in quality these last few years.
6.28.2007 12:40pm
anonVCfan:
"Taken literally, that quote means Justice Stevens believes that William Rehnquist would have disagreed with the decision."

I think Justice Stevens meant it literally.

On a completely separate note, I hope some of the commenters will bother to read the decisions before commenting. Whatever one thinks of affirmative action as a policy or as a normative matter, there's a lot in the decisions about how judges decide cases.
6.28.2007 12:41pm
Hoosier:
MJG--Your point in the final paragraph is so true: I'd go nuts if I were a lower-court judge trying to apply this decision in a case that looked somewhat, but not exactly, like Seattle's.

I'm not rejoicing. But I don't think it matters. I was all in favor of desegregation in my native Chicago. The result: CPS is now about 8% white. People just opt their kids out. If the 1975 Court cam back to life to vote with Stevens, the end result, in 10 years, would be racially-segregated public schools in Seattle.

Seattle is hardly a conservative city. But people "vote with their kids": no matter how liberal they believe themselves to be, parents will not accept any situation that hurts junior's chances of going Ivy.

So you might say I'm cynical.
6.28.2007 12:41pm
Hoosier:
Oops--By the way, I live in a city with failing schools, and my kids are in Catholic schools. So I don't claim to be better than anyone else.
6.28.2007 12:43pm
drewski1013:
I haven't had a chance to read the opinion or the dissents; however, one item strikes me as odd - Justice Stevens apparently feels that "no Member of the Court that I joined in 1975 would have agreed with today's decision.", and he might be correct on that score.

BUT, where does it/did it say that the court in 1975 was absolutely the final authority on anything?

Perhaps we should harken back to the court that was seated in 1805, or 1923, or whenever -- that's why we nominate the justices, provide Senatorial consent (if that's what you could call some of the last few rounds of hearings), and then let the Court opine on the matters brought before them. Stare Decisis (sp?) is a neat concept, but every once in a while, the Court needs to get a infusion of common sense and reality.
6.28.2007 12:49pm
Hoosier:
"Well, little Mr. Chief Justice! When /I/ was your age we didn't go around deciding cases like this! . . . Hey ! Hey you kids! Get off my lawn!"
6.28.2007 12:51pm
Justin (mail):
"MJG--Your point in the final paragraph is so true: I'd go nuts if I were a lower-court judge trying to apply this decision in a case that looked somewhat, but not exactly, like Seattle's.

I'm not rejoicing. But I don't think it matters. I was all in favor of desegregation in my native Chicago. The result: CPS is now about 8% white. People just opt their kids out. If the 1975 Court cam back to life to vote with Stevens, the end result, in 10 years, would be racially-segregated public schools in Seattle.

Seattle is hardly a conservative city. But people "vote with their kids": no matter how liberal they believe themselves to be, parents will not accept any situation that hurts junior's chances of going Ivy.

So you might say I'm cynical."

You are right, and it is difficult. But it is at least fair to make those citizens of a particular jurisdiction who refuse to utilize a desegregated system pay for the system and receive no benefit, rather than allowing for a segregated system based on that threat alone, or allowing them to financially opt out without leaving the jurisdiction.

Seattle, btw, can learn a lot from the actions of other state authorities who were limited in their ability to use affirmative action - a comprehensive resegregation of schools BY INCOME would truly be a phenomenal experiment.
6.28.2007 12:51pm
Justin (mail):
Stevens is once again trying to make interesting sort of points about "judicial intent," though his failure to explain the connection (that is, to explain which cases that court in 1975 decided which the court is not remaining faithful to), severely damages such a point. Still, its an interesting theory or strategy.
6.28.2007 12:53pm
SR (mail):
"BUT, where does it/did it say that the court in 1975 was absolutely the final authority on anything? "

Don't be willfully obtuse. I have only skimmed part of the opinion, but it shows Roberts demonstrating how all of the precedents involving race and education stand for the proposition that the government cannot consider race for anything, anytime, and compel the conclusion that these plans violate the equal protection clause. Stevens dissents, saying that Roberts' interpretation of these cases is of recent vintage and misrepresents Brown and its progeny up to Adarand. He finishes by saying that none of his fellow justices in 1975 would have been in the majority in this case. That's how much has changed.

He is not, using the hypothetical opinions of the OT 1975 Court as any kind of authority to support an outcome in this case, only to support his claim that Roberts et al. are not being faithful to the precedents that they claim support today's outcome.
6.28.2007 12:55pm
Andy Freeman (mail):
> It's about (on one side) the narrative of rescuing a group of people who were denied so much for so long

Except that it's not - members of that group aren't being rescued. The groups that were denied aren't involved in the current case. The vast majority are dead and the remainder are too old to be in high school.

Instead, we're talking about folks who look like members of denied groups.

Some of the folks involved are related to folks in groups that were denied, but if you're not going to allow corruption of the blood, how do you justify the inverse? (And, if we're allocating based on relationship, what happens to Clarence Thomas' children?)

Note that quite a few of the folks who benefit from these racial priorities are not related to folks who were in the denied group.
6.28.2007 1:00pm
Stephan:
On a lighter note, Justice Stevens is about seven years late on the Anatole France aphorism. Compare Parents Involved in Comm. Schs. v. Seattle Sch. Dist. No. 1, __ U.S. __ (Stevens, J., dissenting) (Bench Op. 1-2) with Hill v. Colorado, 530 U.S. 703, 744 (2000) (Scalia, J., dissenting).
6.28.2007 1:06pm
Wahoowa:
Thank God for Clarence Thomas. He absolutely excoriates the dissent in the last few pages of his brief. And his distinction between segregation and racial imbalance is spot-on and extremely relevant. Also, his point on Louisville being discharged from court supervision in 2000.
6.28.2007 1:06pm
Wahoowa:
And by "brief" I mean "concurrence" (or, alternately, "opinion")
6.28.2007 1:06pm
MJG:

He is not, using the hypothetical opinions of the OT 1975 Court as any kind of authority to support an outcome in this case, only to support his claim that Roberts et al. are not being faithful to the precedents that they claim support today's outcome.


Especially because many of these opinions (Bakke, Fullilove, etc) were not even majority opinions, and others (Metro Broadcasting, etc) represented one court view that was sharply curtailed or overruled. In somewhat unfairly broad strokes, Stevens is trying to expose Roberts's opinion as faux-doctrinalism, that this result flows inexorably from some seamless line of cases that don't say or represent what he thinks, or at minimum don't fit together quite as nicely as the Chief Justice implies.
6.28.2007 1:06pm
whackjobbbb:

"Well, little Mr. Chief Justice! When /I/ was your age we didn't go around deciding cases like this! . . . Hey ! Hey you kids! Get off my lawn!"


Good one!

It's time for Stevens to go. They've prepped the battlefield and softened Bush up, and there'll be no Bork as replacement, so Stevens should retire gracefully and in good spirit.

And if he still wants to work, and since he's the senior guy in town and has seen this all first hand, he should push for court reform, and term limitations on those judges, so they're not hanging around jaded for far too long, and going out in body bags. We would definitely hear Stevens' voice, if he gave us something to hear.
6.28.2007 1:10pm
GMUSL 3L (mail):
Funny, and here I thought it was only Brown's holding that was controlling. Who knew that "Brown's promise" had substantive legal effect?
6.28.2007 1:21pm
chris c:
I can see the dissenters' constitutional point, though I do not agree with it.

what i don't get is their olympian remove from the real world. most inner city public schools are heavily black, and nothing the S Ct did in this case would change that. so the cries about 'resegregation' come long after that horse has left the barn. (though as Thomas notes, there is nothing compelled about this separation, so labeling it resegregation is a little much.)

also, telling a 14 yr old white or asian kid that he can't go to a school he otherwise qualifies for because of his race is a very weird way of teaching that kid that race is irrelevant.

can't we focus on making schools better, and dispense with the overarching sociological notions?
6.28.2007 1:23pm
Redman:
Two thoughts.

1. All Supreme Court decisions are political. With some exceptions, increasingly rare these days, liberal justices are nominated by democrats and conservatives by republicans. Occasionally you get a Souter, but then Bush 41 was not a conservative president. Liberals naturally want their political ideas to endure and to be put into practice, as do conservatives. It is such folly that we have to wade through 150+ pages when, in fact, (except for the result of Kennedy's coin toss) the result was pre ordained. Is there a soul over 40 who did not know how the other 8 justices were going to vote?

2. It is scary, to reverse the CJ's remark, that 4 supreme court justices believe the way to end racial discrimination is to continue to hire, fire, admit, exclude, promote, demote, move, grant, and deny on the basis of race.
6.28.2007 1:29pm
Mark Field (mail):
Thank God we don't have judges legislating from the bench any more! Now the good conservatives defer to decisions made on the local level, where people can actually govern themselves instead of having everything forced into the ideology box of 5 old men in Washington.

Oh, wait...
6.28.2007 1:31pm
David M. Nieporent (www):
This Kennedy decision reminds me of his O'Connoresqe decision in the partisan redistricting case: "This is unconstitutional, but I'm unwilling to actually lay down a firm rule saying that this is always unconstitutional. Maybe I'll find a situation someday where I'll change my mind. Maybe not. Everyone try to guess what I'm thinking, okay?"
6.28.2007 1:34pm
whackjobbbb:
Yes, the dissent is all about the "promise", and not the law, as I read it. Breyer ends with a nice bit of historical wrap-up, which exemplifies this (emphasis mine).


Finally, what of the hope and promise of Brown? For
much of this Nation’s history, the races remained divided.
It was not long ago that people of different races drank
from separate fountains, rode on separate buses, and
studied in separate schools. In this Court’s finest hour,
Brown v. Board of Education challenged this history and
helped to change it. For Brown held out a promise. It was
a promise embodied in three Amendments designed to
make citizens of slaves. It was the promise of true racial
equality—not as a matter of fine words on paper, but as a
matter of everyday life in the Nation’s cities and schools.
It was about the nature of a democracy that must work for
all Americans. It sought one law, one Nation, one people,
not simply as a matter of legal principle but in terms of
how we actually live.
68 PARENTS INVOLVED IN COMMUNITY SCHOOLS v.
SEATTLE SCHOOL DIST. NO. 1
BREYER, J., dissenting
Not everyone welcomed this Court’s decision in Brown.
Three years after that decision was handed down, the
Governor of Arkansas ordered state militia to block the
doors of a white schoolhouse so that black children could
not enter. The President of the United States dispatched
the 101st Airborne Division to Little Rock, Arkansas, and
federal troops were needed to enforce a desegregation
decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today,
almost 50 years later, attitudes toward race in this Nation
have changed dramatically. Many parents, white and
black alike, want their children to attend schools with
children of different races. Indeed, the very school districts
that once spurned integration now strive for it. The
long history of their efforts reveals the complexities and
difficulties they have faced. And in light of those challenges,
they have asked us not to take from their hands
the instruments they have used to rid their schools of
racial segregation, instruments that they believe are
needed to overcome the problems of cities divided by race
and poverty. The plurality would decline their modest
request.
The plurality is wrong to do so. The last half-century
has witnessed great strides toward racial equality, but we
have not yet realized the promise of Brown. To invalidate
the plans under review is to threaten the promise of
Brown. The plurality’s position, I fear, would break that
promise. This is a decision that the Court and the Nation
will come to regret.

I must dissent.





Steve, the instrument we used to rid the schools of racial segregation was the law, backed up by the 101st Airborne. "Promises" had nothing to do with it.

Stevens reproaches these young whippersnappers, and Breyer augurs apocalypse for our nation. This is just too much.
6.28.2007 1:37pm
TruthInAdvertising:
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

What? That's all it takes? Why didn't someone say this 50 years ago? Just think of all of the time, energy and lives lost in the civil rights struggle when the answer was so easy it could be condensed down to one line.
6.28.2007 1:41pm
DiverDan (mail):
Breyer's Dissent is "eloquent"? Frankly, Thomas hit this dead on -- Breyer will go to any lengths, distorting precedent, making up facts unsupported by the record, and conflating "segregation" with "racial imbalance" to support his view that "benign" race-based policies are not only constitutionally permissible, but morally imperative. And his view that the C.J.'s opinion constituted a betrayal of Brown v. Board of Education is simply ludicrous; he must believe that the legacy of Brown was not just to abolish de jure segregation, but to impose an affirmative duty to achieve de jure racial balancing. Breyer's philosophy completely eliminates the concept of individual right to be free from discrimination, and replaces it with a group right to achieve absolute equality of outcomes, and individual choices be damned. Is this Breyer's concept of "Active Liberty"? Seems damned short on "Liberty" to me.
6.28.2007 1:43pm
GMUSL 3L (mail):
Yes Mark, and if locals in Seattle want to start up slavery for non-Blacks, but just as a local measure, to compensate for Black slavery, then it's the good conservative thing to do to defer to it, right?

WRONG. Federalism is a pragmatic principle -- when stuff is in equipoise, or even close, then you favor the localities. It will be like the 1860 Election all over again, only with racist states and non-racist states instead of slave and free.
6.28.2007 1:45pm
JRL:
I like the fact that Roberts opens with a Stevens quote in support of the decision. Those little jabs are such fun!
6.28.2007 1:48pm
whackjobbbb:
Roberts might just as well have left that arrow in his quiver. He can make his point quite well without pointing out a dissenting quote from his peer.
6.28.2007 1:54pm
Mark Arnold (mail):
I can name one justice who, at least in 1978, would have agreed with this opinion: John Paul Stevens. He wrote the opinion disagreeing with Justice Powell's view that universities could consider race as a plus factor because the 1964 Civil Rights Act required government to be color blind. 438 U.S. at 416.
6.28.2007 1:55pm
Carolina:
Adam,

Surely you cannot really believe Equal Protection is satisfied merely because each and every child "had their race taken into account." Jim Crow laws in the south most definitely took race into account.

Loved Thomas' point that the minority is obfuscating the critical distinction between legal discrimination by the gov't and mere "racial imbalances" caused by the choices citizens make (such as where to live).
6.28.2007 1:59pm
Rex:
Technical question (having not had a chance to read the whole thing): to what extent is Kennedy's opinion controlling going forward?
6.28.2007 1:59pm
Mark Field (mail):

Federalism is a pragmatic principle -- when stuff is in equipoise, or even close, then you favor the localities.


WRONG. "Federalism" is a buzz word conservatives use to impose their preferred political results. The hypocrisy would be laughable if it weren't actually despicable.
6.28.2007 2:06pm
The General:
I really don't worry about how lower courts will treat this decision. The lefties on the bench will approve any school plan that promotes "diversity" to screw over little white kids in favor of little black or little hispanic or little whatever kids.

They'll use the same arguments they always have: Diversity Now, Diversity Tomorrow, Diversity Forever!
6.28.2007 2:11pm
David Drake:
Mark Fields--

The reason for SCOTUS involvement here is that the 14th Amendment's Equal Protection Clause was aimed directly at stopping race-based state action. Unfortunately, it was soon corrupted to be impotent vis a vis the very actions the Amendment was meant to remedy--racial segreation. It took a long time--until Brown--to turn the Amendment back to its intended purpose. After the "turning" process, SCOTUS may have overshot the mark somethat in the other direction, which is understandable under the circumstances of the fight some of the states waged from the start against the idea of equal protection, culminating in the fight against Brown itself. The result here is a healthy step toward making the Constitution really color-blind, which was the aim of the 14th Amendment, the early civil rights leaders, and Brown.
6.28.2007 2:12pm
Justin (mail):
David Drake,

It's fascinating that you can speak up for Jack Greenburg. And here I am thinking that Jack Greenberg (who argued Brown) was quite able to speak for himself on such a case. If you want to know what "the early civil rights leaders" were aiming for, why don't you ask them? Many of them are still around, ya know.
6.28.2007 2:30pm
Bpbatista (mail):
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Pace Justice Stevens, from the mouths of babes . . .
6.28.2007 2:32pm
JRL:
I've finished the Roberts opinion and I am struck by how many pages he devoted to mocking and deriding Breyer. Granted, the mockery is clearly warranted, but for some reason I didn't expect it from Roberts. Part of me wishes he should stoop to Breyer's level, but a bigger part enjoys seeing Breyer ripped to shreds.
6.28.2007 2:35pm
ABC (mail):
Racial imbalance without state action is not segregation.

The dissent does not apply strict scrutiny.

The dissent does not follow Grutter.

This was really a very easy case which should have been unanimous.
6.28.2007 2:38pm
Mark Field (mail):
Speaking of Jack Greenberg...

He submitted an amicus brief in the case (available here) which demonstrates that David Drake's historical assertions are simply wrong. Whatever the merits of the "race neutral" interpretation of the EPC as a matter of text or policy, it has no basis whatsoever in originalism (another conservative shell game).
6.28.2007 2:38pm
JRL:
"he must believe that the legacy of Brown was not just to abolish de jure segregation, but to impose an affirmative duty to achieve de jure racial balancing"

That's what they tried to teach us in law school.
6.28.2007 2:41pm
chris c:
Mark, I'm curious - if 14th Am equal protection of the laws does not mean that the govt must treat us the same regardless of race, what does it mean?
6.28.2007 2:45pm
Andy Freeman (mail):
> Speaking of Jack Greenberg

Greenberg shows that folks who were injured by before-then legal segregation were given preferential treatment. That's not true of any of the students of the school district in question.

If my ancestors were victimized by Vikings, is any local govt entitled to give me preferential treatment over folks who look like the decendants of Vikings? How about if I just look like folks who were victimized by Vikings?
6.28.2007 2:49pm
MJG:

Technical question (having not had a chance to read the whole thing): to what extent is Kennedy's opinion controlling going forward?


His opinion controls. The Chief Justice's opinion controls as for the earlier parts, with Kennedy not agreeing with the parts of the CJ's opinion that state that race can never be a compelling interest.

See Tom Goldstein's post on scotusblog. He says the way to read the case is to think of it like Grutter except without an actual case upholding the use of a race-conscious measure. So maybe it is kind of like Bakke 2 in this regard, except with less tangible guidance than Powell's paean to the Harvard plan.
6.28.2007 2:51pm
Anonymous Commenter (mail):
I'm trying to think of something from the Court that's smarmier and more disingenuous than this line: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." I'm not succeeding.

But set that aside (though it's rapidly becoming a Roberts trademark; kind of remarkable for a guy everyone expected to be a scrupulous and honest analyst, albeit with a conservative thumb on the scale in close calls). Bottom line: how can anyone believe that the same Congress which passed race-conscious ameliorative statutes would have also passed a constitutional amendment requiring those statutes to be struck down. It's just not remotely a serious historical reading. **EASILY** up there with the most outrageous flourishings of the Warren Court. (And arguably much worse because it doesn't even have the excuse of coming from good intentions.)

I'm not even close to sold on affirmative action as a policy matter. But pretending that the Constitution requires color blindness is . . . absurd. Bespeaks results-driven dishonesty of the worst kind. And, no, that's not hyperbole.
6.28.2007 2:51pm
Jon Rowe (mail) (www):

Whatever the merits of the "race neutral" interpretation of the EPC as a matter of text or policy, it has no basis whatsoever in originalism (another conservative shell game).


I think this is 1/2 right. The original expected application of the text of the EPC permitted some, arguably many forms of racial discrimination against blacks. (And logic therefore suggests racial discrimination against whites would also be constitutionally permitted.) However, at the very least, the original meaning of the Clause required equal application of whatever general rules of law happen to be on the books, be they statutes against murder or theft, the legal ability to enter contract, give evidence or sue or be sued, or even take advantage of substantive legal rules that come from Court decisions.

If it is going to be a matter of constituional law that all purposeful government discrimination against blacks violates the EPC (something perhaps not within the original meaning but that all of the liberals and conservatives agree on now), then the original meaning of the EPC likewise requires that such expanded meaning equally protect whites and other races.

In other words, whatever degree of protection "the law" decides to give, the EPC requires it be given equally to all persons without regard to race. When the EPC was originally ratified, "the law" simply granted a lower level of protection. It didn't grant blacks (or whites) rights against government policies which took race into account; but now "the law" does, at least for blacks, it does. Government must, therefore, protect all races within this general rule against racial discrimination. Otherwise, the way the liberals would have it, we end up with a rule where blacks get greater constitutional protection under the EPC than whites or other races. And that outcome is impossible to square with the original meaning of the text.

I don't think any of us want to "go back" to the proper original expected application of the text of the EPC which arguably permitted racial segregation and without question permitted bans of micegenation. But given that is out of the realm of possiblities, the way Thomas and Scalia interpret the EPC as requiring race neutrality for all is the next closest thing to an originalist outcome.
6.28.2007 3:02pm
happylee:
Brown needs to be overturned and Breyer needs to retire.

And Sunnunu should be burned at a stake for giving us Souter.
6.28.2007 3:08pm
Anonymous Commenter (mail):
Even a dog knows the difference between tripped over and being kicked.

Goofy.
6.28.2007 3:11pm
Federal Dog:
"Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."


Who cares?
6.28.2007 3:12pm
JerryS:
I see the bright line distinction between majority 4 and dissenting 4 as applying the 14th Amend either as an individual right or a group right. It is unequivocal that every relevant case including especially Brown v Bd of Ed relied on the individual right construct. The group right view, which appears to have morphed after Brown, would empower the school board to make up its own rules and the Consitution would be satisfied anytime the Board's motives appeared pure enough. The dissent itself only faintly masks such a result, which should be offensive to all thinking citizens. It doesn't leave much of a right for you and me, does it? I'll take the individual right anytime.
As to Robert's takedown of Breyer, I agree it comes off a bit too personal and is unexpected. Could it be that the good Senators' media lynching of judicial nominees pushes them harder to the right?
6.28.2007 3:14pm
U.Va. 2L:
Brown needs to be overturned

Two points for honesty, I guess.
6.28.2007 3:28pm
Justin (mail):
Wow, I didn't know Greenburg filed a brief (though I was pretty sure I knew which way he'd go). Seems that Drake really shouldn't be speaking for those early civil rights leaders or Brown. Makes you wonder how authoritive Drake is on the viewpoints of those who crafted the Fourteenth Amendment, too.
6.28.2007 3:46pm
dougjnn (mail):
Those above who say that Kennedy's crucial majority making opinion amounts to saying "this affirmative action plan goes too far in taking race into account but I'm not going to tell you want doesn't" are mostly right. He sure doesn't define any really clear principles about just where to draw the line.

It's notable as well that Kennedy flat out rejects the one sentence of Robert's majority opinion that's being widely quoted in the press as what the decision stands for:

The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis ofrace is to stop discriminating on the basis of race," ante, at 40--41, is not sufficient to decide these cases.


Since essential swing vote Kennedy explicitly rejects that formulation, it's idiotic to use that as what the majority opinion stands for.

This is indeed now the Kennedy court on affirmative action cases. The whole game will be divining what he's ok with.
6.28.2007 3:50pm
wooga:
bottom line: how can anyone believe that the same Congress which passed race-conscious ameliorative statutes would have also passed a constitutional amendment requiring those statutes to be struck down. It's just not remotely a serious historical reading.

Anonymous,
That's why Scalia &Co are not arguing for "original intent," but for "originalism". It doesn't matter what members of Congress intended, proclaimed in floor debates, or say on their deathbeds. All that matters is what the words of the law ARE. When there is an ambiguity, you can then look to see "what did those words mean at the time they were enacted?" (this is where originalism and textualism vary). Intent never comes into play.

It's perfectly reasonable to debate what the 14th means, but any attempt to "divine congressional intent" is an invitation for unchecked judicial authority.
6.28.2007 3:52pm
Clayton E. Cramer (mail) (www):

I'm not even close to sold on affirmative action as a policy matter. But pretending that the Constitution requires color blindness is . . . absurd.
Existing precedents, such as Brown, however, did take that position. There are precedents that agree with you that the Constitution doesn't require color blindness...like Plessy v. Ferguson (1896).

If you really want to abolish the concept of the law as color blind, then on what basis does de jure segregation go down the tubes? Based on inequality of the schools? Part of why plaintiffs in Brown argued for color blindness is because previous decisions were forcing segregated school systems towards a rough equality in conditions and funding for black and white schools. They were not there yet, but Brown was decided based on color blindness precisely because it was apparent that the improvements that were being made would soon render inequality of schools a moot point.

I understand that a lot liberals really, really want racial discrimination to continue, as long as it benefits racial minorities. That's an understandable public policy goal--after all, that way we don't have to listen to well known white supremacists such as Bill Cosby talk about the severe cultural problems that have destroyed the education and success ethic in much of black America. But that's not a legitimate basis for law, anymore than white racial superiority was.
6.28.2007 3:54pm
JosephSlater (mail):
Justin:

Well, for that matter, Martin Luther King favored affirmative action too. Affirmative action is a complicated issue, as a matter of law and policy. But it's at best dishonest to watch conservatives/right-wingers pretend that they come from a line of thought endorsed by "early civil rights leaders," when in fact (i) early civil rights leaders generally endorsed affirmative action-type measures, and (ii) conservatives/right-wingers come from a line of thought that was arguing that property rights and the "right of association" trumped the ruling in Brown and basic, color-blind anti-discrimination laws like Title VII.
6.28.2007 3:54pm
David M. Nieporent (www):
Bottom line: how can anyone believe that the same Congress which passed race-conscious ameliorative statutes would have also passed a constitutional amendment requiring those statutes to be struck down. It's just not remotely a serious historical reading.
1) If we required politicians to be consistent, there'd be 535 empty seats in Congress right now.
2) Nobody -- not one of the nine justices on the court now, or anybody else -- suggests that the 14th amendment bans race-conscious remedial measures. That isn't what we're talking about. Neither the Seattle nor Louisville programs were remedial. The laws that they were passing in the post-civil-war era were.
3) Even putting that aside, the constitutional amendment they passed would not have required that those statutes be struck down, because the 14th amendment does not apply to the federal government.
**EASILY** up there with the most outrageous flourishings of the Warren Court. (And arguably much worse because it doesn't even have the excuse of coming from good intentions.)
Of course not. Because conservatives are evil. Only liberals have good intentions. Roberts, Alito, Scalia, Kennedy and Thomas wrote/signed onto this opinion because they hate black people. Everyone knows that.
6.28.2007 3:56pm
wooga:
Incidentally, I would say that the 13th Amendment would allow some level of race conscious laws, and the 14th Amendment can't be applied in this context without at least a token acknowledgment of the 13th. As I have not yet read this opinion, I hope that at least one of the dissenters made a good faith effort to defend affirmative action on 13th grounds.
6.28.2007 3:57pm
wooga:
To clarify, the "13th" argument involves invoking the implied authority to eradicate the "badges and incidents of slavery." Not exactly kosher with originalism, but there it is.
6.28.2007 4:03pm
whackjobbbb:
Yeah, Slater, and you come from a "line of thought" that celebrates the gulag.

This is a fun game, right?
6.28.2007 4:07pm
dougjnn (mail):
Kennedy's standard is explicitly NOT race blindness in school admissions. Instead he says schools can try to achieve diversity, including racial diversity, as long as it doesn't look to much like a quota.

In the administration of public schools by the state andlocal authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387--388 (KENNEDY, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.


He gives as examples race conscious measures that would be OK various kinds of outreach and recruitment programs and school siting decisions:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.


He also avoids saying that he is overruling Grutter, the Michigan Law school affirmative action case of 2003, where the majority found the program not an impermissibly rigid racial quota system but rather a permissibly complex "factoring in race", even though he dissented in that case. Whether he would vote to overrule Grutter at this stage is very much up in the air. What he does say is that he considers his opinion here as in conformity with Grutter -- that is he considers these high school affirmative action cases as smelling too much like quotas, and he chides Breyer's minority opinion for saying the opposite.

He does give a hint that he might overrule Grutter though when he cites Stevens in saying that in "matters of doctrine" it's permissible to continue to vote your belief's in subsequent decisions despite stare decisis.
6.28.2007 4:13pm
JosephSlater (mail):
Whackjob:

No, because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism. As did mainstream U.S. liberalism. On the other hand, mainstream U.S. conservativism took a long time to come to grips with Brown and anti-discrimination laws. Heck, you can see opposition to on this blog still to anti-discrimination laws, in principle.

In any event, I was mainly helping others correct the factually incorrect statement made about what "early civil rights leaders" believed about affirmative action. You do care about historical truth, right?
6.28.2007 4:13pm
U.Va. 2L:
FWIW, I'd recommend that anyone who wants to check out originalism, the 14th, and school desegregation in some detail start with Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955), then move on to the more modern perspective (with some additional history thrown in) provided by Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995); Michael J. Klarman, Brown, Originalism, And Constitutional Theory: A Response To Professor Mcconnell, 81 Va. L. Rev. 1881 (1995); and Michael W. McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman, 81 Va. L. Rev. 1937 (1995)
6.28.2007 4:14pm
Mark Field (mail):

Mark, I'm curious - if 14th Am equal protection of the laws does not mean that the govt must treat us the same regardless of race, what does it mean?


I'll answer this below, but I want to say first that I'm puzzled at the question. I haven't said here that the race neutral view is wrong. What I've done is point out the fallacy of two common conservative claims about the jurisprudence of the "Roberts 4 (5?)".

Now, to answer your question, let me ask one in return. If you think that the EPC requires a race-neutral application, do you also think it requires a gender-neutral one? Do you think, for example, that Congress violated the EPC when it restricted women to certain roles in the armed forces? Do you believe single gender schools are permissible?

I expect that nobody here, liberal or conservative, actually expects a rigidly enforced gender-neutral interpretation. Yet, from the text alone, it's hard to come up with a reason for that distinction. One way to avoid the problem is by reference to history. That, however, creates still more difficulties: history pretty strongly supports the use of race to assign pupils. More embarrassing still, it VERY strongly supports miscegenation statutes.

In my view, the correct answer is that the EPC establishes a policy (a value, if you prefer) of an integrated society. That means we move towards that goal as much as possible.

Now, this does NOT mean that an integrated society is the ONLY value. I certainly understand that there are other values (free speech, due process, property rights, etc.) which may at times be affected by efforts at integration. What it does mean is that when those other values are not implicated -- and they certainly were not in these programs -- considerations of race designed to progress towards an integrated society are permissible.

I'd add, as well, that I disagree with the distinction suggested above that post-Civil War actions were remedial only for the direct victims of slavery. This is false, on the one hand: for example, pensions for black veterans included pensions for those who were free before the War (many of them had never been slaves). On the other hand, it's wrong today to suggest that all the pernicious effects of segregation have been eliminated from society. We can argue about the extent of progress (and it's substantial), but I have no problem with programs which recognize the residual effects of segregation (and even slavery). And those programs will, of necessity, take race into account.
6.28.2007 4:17pm
Benjamin Davis (mail):
I read gloating on the right.

I would like to remind everyone of a little skullduggery. Remember, prior to Roberts' confirmation, the effort to look at the memos he had written during his years in the Reagan Administration Justice Department? Remember the government types went out to the Reagan library in Simi Valley to look up his memos and took notes? Remember that there was a memo in which Roberts had opined on affirmative action? Remember that memo could not be found after the government types left? Remember the government types regretted the disappearance and offered their (of course neutral) notes? All through the confirmation hearings Roberts knew what he wrote, the government types knew, but none of the Senators or any of us knew. Now we can guess at what Roberts wrote. And now, in part due to that skullduggery, he gets to put it in place. Similar thing with his membership in the Federalist Society. But, hey, that is all principled because it got Roberts in, right?

In this brave new EPC world, I guess I am not to worry about segregation when I am the only black person in a room and just chalk it up to private choice of racial imbalance.

I guess I am to look around neighborhoods and just understand that they are the way they are because of private choice of racial imbalance.

I guess I am to look at the disparities between schools in inner city neighborhoods as compared to others and just understand that they are the way they are because of private choice of racial imbalance.

As long as the racism is in the market place through private choices then it appears Roberts has no problem with it. These are just racial imbalances from private choice.

The state's Anatole Frankish studied neutrality is the essence.

As Bill O'Reilly said, you can drink that Kool-Aid if you want to. The struggle that has been going on for 400 years will continue.

I think it is a 5-4 against minorities and specifically against poor minority kids. As Maurice Dyson of Thomas Jefferson Law School has written other places - why is the Grutter goal of integration after 18 less important before 18 in the K-12 period?

And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation? Brown was not just about non-discrimination but also about integration.

President Johnson "got this" back in the 60's.

Heaven forbid that the Supreme Court might let the state do something that might be even slightly oriented to reach down to help poor minority kids get a better deal than the raw deal that has been dealt for 400 years. That the state fight the hydraulic pressures that keeps them down rather than giving into those pressures. But, that remains too much to hope for.

Best,
Ben
6.28.2007 4:27pm
Michael B (mail):
"... because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism. As did mainstream U.S. liberalism."

Hardly, and most certainly not after '68. Prior to '68, referencing JFK and Truman, they both fall within neo-con outlooks, if but broadly conceived at the initial stages of the Cold War.
6.28.2007 4:27pm
JRL:
"In any event, I was mainly helping others correct the factually incorrect statement made about what "early civil rights leaders" believed about affirmative action. You do care about historical truth, right?"

Yes, and you cited so much authority for your position and avoided blanket terms like "generally."

"No, because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism."

I suppose somebody might believe that if they hadn't read anything you've written, be it "scholarly" or here at the VC.
6.28.2007 4:30pm
eddy:
Mark Field -- you stated:

In my view, the correct answer is that the EPC establishes a policy (a value, if you prefer) of an integrated society.


But doesn't this "integrated society" approach totally abandon individual rights in favor of group results? What possible individual rights might survive your interpretation of the EPC?
6.28.2007 4:57pm
Mark Field (mail):

But doesn't this "integrated society" approach totally abandon individual rights in favor of group results? What possible individual rights might survive your interpretation of the EPC?


I don't understand this question. I specifically said: "Now, this does NOT mean that an integrated society is the ONLY value. I certainly understand that there are other values (free speech, due process, property rights, etc.) which may at times be affected by efforts at integration. What it does mean is that when those other values are not implicated -- and they certainly were not in these programs -- considerations of race designed to progress towards an integrated society are permissible."
6.28.2007 5:02pm
Clerking in the Sun:
Community Schools 185 pages summed up as "school assignment based on race alone is bad vs. diversity in schools is good" or "the goverment cannot make decisions on race alone vs. the goverment can make decisions based on race alone"
6.28.2007 5:04pm
Happyshooter:
I think it is a 5-4 against minorities and specifically against poor minority kids. As Maurice Dyson of Thomas Jefferson Law School has written other places - why is the Grutter goal of integration after 18 less important before 18 in the K-12 period?

Honestly? Because black doctors' and bankers' kids go to private K-12 schools, but they want to go to Michigan Law even though it is public because it is still a top 10.

They need/want a little boost, and the school wants to give it to them because by letting in the black doctors' kids below the cut they can keep out the white factory workers' kids (they are icky-poo and not our kind of people).
6.28.2007 5:13pm
Arthur Owens (mail):
Mark,

The original expected application of the text of the EPC arguably grants no protection to gender whatsover.
6.28.2007 5:14pm
whackjobbbb:
Relax, Slater. I'm just giving you the business, and yes, I appreciate every bit of history you bring to the discussion. Just bring it forward to us in the present as is, rather than fashioning it into a club.
6.28.2007 5:17pm
chris c:
Mark, I don't think sex and race are analogous in the context of govt action or otherwise, for many reasons. men and women are quite different in many inherent ways; I don't think diff races are.

we disagree as well to what the EPC stands for. the EPC concerns govt action, period. if people freely choose to live among others who share this or that trait, and schools reflect that fact, that is none of the govt's business. (I'm not excusing any govt or corp steps that encourage such separation - if there is redlining or whatever, by all means go after it.)

I know we still have hurdles to overcome from segregation and slavery. there are race neutral ways to address this. but tipping the scales to favor one group not only flies in the face of the plain language of the EPC, but seems guaranteed only to encourage a sense of racially based separateness and hostility.
6.28.2007 5:18pm
KeithK (mail):

In my view, the correct answer is that the EPC establishes a policy (a value, if you prefer) of an integrated society. That means we move towards that goal as much as possible.


Mark, this perfectly illustrates why the "liberal" and "conservative" views on this issue differ. You see the EPC establishing a goal. Race based mechanisms are therefore acceptable if they appear to move us toward that goal. This view is results driven. OTOH, I see the EPC as establishing a rule that is consistent with the goal. This view is process driven and works at the individual level.

I support the process view because I don't believe that government action can solve this (or other) societal problems. The best bet is set up rules that are fair at the individual level and let society work it out from there. Thus "[t]he way to stop discrimination on the basis ofrace is to stop discriminating on the basis of race."

Both sides come to this issue with good intentions. But because of this fundamental difference in world view we end up talking past each other.
6.28.2007 5:18pm
Arthur Owens (mail):
Ben,

I might desire an integrated society as well, but, after removing FORMAL barriers to integregration that existed pre-Brown, when government tries to force outcomes while meddling with what otherwise would have occured under private choices and voluntary sorting, more often than not, more harm than good occurs.

People generally want to be around other folks with whom they have things in common. In white communities, voluntary sorting also occurs along class lines which are more subcultural than economic (the yuppies who wear khaki pants v. the folks who drive pick up trucks with gun racks on the back).

Blacks who have mostly white friends and whites who have mostly black friends are often called unfair names which I won't repeat here. But the kernel of truth underlying that categorization is that such folks adapt their preferences so they better "fit" in with the other group. And once they do, the different social groups can surprisingly accepting.

Blacks and whites (and hispanics and asians) certainly do affect one another's subcultures. Preferences that begin in one group often migrate to the other.

The only way to see greater black/white social integration done naturally and voluntarily without government interferences which cause more harm than good is to see those preferences converge and subcultural differences disappate or disappear. There would have to be a "melting pot" effect where each group surrenders some of its racial identity. Given that whites are a majority, blacks will probably have to do much more surrendering than whites.

Plus many if not most blacks prefer to live in neighborhoods with more than 12 or 13% blacks. To suit those preferences, algebraically, there must also be white, hispanic, or asian neighborhoods with less than 12 or 13% black.
6.28.2007 5:20pm
KeithK (mail):

And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation?


I don't believe that if and when this nation completely integrates it will not be because of government action. It will be because society has changed. Government can and should curb the most flagrant abuses (and in most cases has already done so). But trying to force complete integration is a losing battle and causes additional anger and resentment.
6.28.2007 5:21pm
JosephSlater (mail):
Whackjobb: Fair enough.

JRL: If this thread were about me, I might ask for support for your bizarre implication that something I've written here or elsewhere supports Soviet Communism. But this thread isn't about me, so I'll just note that your implication is false and dishonest, and I'll let those interested in my work read it for themselves.

Getting back to the main point, about this case, does this mean that "diversity" is now a compelling interest in law schools, but not elementary schools? If so, what about high schools? Colleges?
6.28.2007 5:44pm
Bruce Hayden (mail) (www):
And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation?
A race blind government.

It sure can't work worse than what we have now, which is to some extent benign paternalism on the part of those trying to force racial balancing by using race as a primary selector. What was proposed here was to use over racial discrimination in the name of racial balancing.

One thing that has to be kept in mind here is that there is a whole industry, a whole political and economic set of players whose primary purpose in life is to extort racial spoils. Think of the Revs. Jackson and Sharpton, much of the Congressional Black Caucus, etc. These people are fanning the flames of race in order to further their own positions, and using the law to this end. If nothing else, removing the legal means for them to do so should reduce both their incentives and their ability to fan these racial flames.
6.28.2007 5:55pm
Mark Field (mail):

The original expected application of the text of the EPC arguably grants no protection to gender whatsover.


Agreed. But the original expected application of the text of the EPC arguably supports the use of race to accomplish integration. And it's hardly even arguable that the original expected application of the EPC permits miscegenation statutes.

KeithK, I think your post fairly encapsulates the different positions. I'll raise an interesting point, though. Someone on one of the threads below (the Lithwick one, I think; don't have time to search for it now) suggested that one difference between conservatives and liberals in criminal cases was that conservatives cared more about the result -- was the person guilty? -- and liberals cared more about the process. Do you agree?
6.28.2007 5:59pm
Bruce Hayden (mail) (www):
Getting back to the main point, about this case, does this mean that "diversity" is now a compelling interest in law schools, but not elementary schools? If so, what about high schools? Colleges?
The first answer is that it is not a compelling state interest. Someone, likely Thomas, pointed that out. I think that you might be able to justify it at the public college level, depending on the college and circumstances, but not below that.

Secondly though, this was never about "diversity", but rather racial balancing. The argument was never made that the purpose of this was diversity.

Also, in the law school case, race wasn't the deciding factor, but one factor. Here, race was the deciding factor.
6.28.2007 6:00pm
Bruce Hayden (mail) (www):
Let me rephrase that last post: at least according to one of the opinions, diversity is not a compelling state interest at the K-12 level. But that is dicta, and likely from Thomas (without rereading the opinion), since it was not at issue in the case.
6.28.2007 6:02pm
wooga:
And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation?

Benjamin,
My proposal is for:
(1) more vigorous adoption of economic based affirmative action in colleges. Help all poor folk, regardless of skin color (i.e., Bill Cosby's kids don't need affirmative action).
(2) K-12 school vouchers in major cities. Give black children an opportunity to escape the government monopoly on crappy education. Let blacks go to the good elementary schools, so they will start out on the right foot and not need college level affirmative action to "catch up."

Both of these will options will help minorities integrate through their own merits, and will avoid imposing on them a stigma of being a "token quota black."
6.28.2007 6:12pm
JosephSlater (mail):
Bruce:

Right. I probably should have clarified that what I was asking was this: independent of whether you, I, Thomas, or anyone else likes it or not, according to current court doctrine, (unless/until Grutter is overruled), diversity is a compelling state interest that can justify certain types of affirmative action.

Assuming your second point is correct, I wonder why the school didn't argue the purpose was diversity. Wouldn't that be an important justification for racial balancing?

Which gets me back to my question. Is the law now that diversity is a compelling state interest for some levels of schooling and not others?

As to your third point, race being the deciding factor, that is a valid distinction between this case and Grutter. That would go to the "narrowly tailored" prong, I think.
6.28.2007 6:16pm
Michael B (mail):
Many of the social/political and legal disagreements fall under the rubric of a basic confusion: confusing equality of opportunity with equality of (forced) outcome. If I recall correctly, when early civil rights leaders favored affirmative action they did so in a manner that stipulated an initial, if decades-long phase employing AA in order to 1) help "jump start" integration and 2) as a (still temporary) means of rectifying some past injustices. They nonetheless stayed within MLK's vision "... where [people] will not be judged by the color of their skin but by the content of their character."

(As to the Truman and JFK reference earlier and though it's ot, witness JFK's inaugural, January, 1961 and contrast that with the '71 and '73 "liberal" Congresses or with varied and sundry "liberal" forces contra Reagan's anti-Soviet initiatives. It is worth recalling - in part because such facts are so often pushed into the background - that "Jack Kennedy was killed by a Marxist show-off, as it happens, just like his brother Bobby was killed by a Palestinian zealot.")
6.28.2007 6:17pm
Steven:
One of conservatives solutions for the plight of American public schools is a voucher system. Within its public school system, Seattle effectively had this system. Any student within the district could apply to any school. The problem thus arises: what if more students apply to one school than that school has capacity? Seattle used a number of "tie breakers", one of which was race. That practice is now violative of the 14th Amendment. So a question for conservatives: what does today's decision due to voucher programs? If race can't be used as a tiebreaker, how will black or Latino kids from impoverished areas with poor schools be able to use their voucher to attend schools in whiter, more affluent areas where we all know the schools are better? Can districts use parental income as a tie breaker?
6.28.2007 7:14pm
nunzio:
This decision is a victory for integration b/c Kennedy said the importance of integrating schools allows the use of race.

Seattle could just divide up its high schools into geographic regions based on race, let kids apply, and pull their names out of a hat.

And since the state of Michigan no longer allows consideration of race in public schools etc., the University of Michigan can set a baseline of qualifications, say a 3.2 undergrad GPA and LSAT of 158, let everyone apply and pick the names out of a hat.

I don't think it's that hard to integrate institutions.
6.28.2007 7:15pm
Simpleton (mail):
Benjamin,
These "hydraulic pressures" that are keeping poor minority kids down, pray tell, are they the same ones that allow these kids to attend quality colleges and law schools with embarrassingly subpar grades and test scores? Are these the same pressures that give companies who hire minorities, or that are owned by minorites, preferential treatment and monetary grants? Are these the same pressures that make white people spinelessly apologetic at the very thought of even seeming the slightest bit racist?

As much as this disappoints your liberal friends (because now they have nowhere to direct that ubiquitous sense of indiscriminate pity they always seem to be carrying around), it's 2007 and 'real' discrimination is thankfully isolated to a few pathetic and desparate insular areas (when I broach the subject with black friends [yes I have surprisingly many despite my overt 'racism'], none can really point out any concrete situations where they've been victims of blatant racial discrimination). The people who suffered real oppression in this country, your parents and grandparents (I'm just guessing your age), are probably humiliated by the way race is abused as a crutch in this country today. And despite what the rhetoric on the left proclaims, this is the most accepting and welcoming society in the world. You want to see real oppression of minorities? Try Africa, try Malaysia, try even the Soviet Union a few years back.

What about the minorities that have had it severely worse than blacks do in this country today and have still excelled? The Jews in the Soviet Union, the Chinese in Southeast Asia, the Japanese in Brazil at the turn of the 20th century. None of these groups got preferential treatment the likes of which we see today but still succeeded. Read a basic economics textbook or just look at history: When people get handouts and special treatment, sure they tread water for a while but they are doomed to fail. It's the whole 'teach a man to fish' concept. But I probably don't know what I'm talking about, it's too simple. And the fact that it has been consistently successful, historically, while the leftist methodology and rhetoric have been proven over and over to be colossal failures is also inapposite.

I know it's tough for an individual to look at himself and put his own failure squarely on his own shoulders and not those of mommy &daddy, the federal government, or a vast conspiratorial group of white men sitting in a giant corporate office and laughing about the subjugation of the "coloreds." I still don't think I can say that I fully believe my successes and failures are based on my own merit. And I can see the difficulty in doing that for a group that had a valid reason for believing they couldn't do that. But once external factors are taken out of the equation, you have to start looking at internal, cultural reasons. The answer often lies there.

And I think this was the spirit of the SC's decision. Despite how simple Roberts' tongue-in-cheek truism really seems, Occam's razor is perfectly applicable to the situation. Let's end the doublespeak, the endless logical contortions to justify something that's not only unconstitutional (am I crazy to think the wording of the 14th Amendment isn't hopelessly complicated?) but is a disastrous clusterf*%$ when put into effect. Let the pot call the kettle black without the Rev. Sharpton proclaiming that it should be boycotted for being a racist.
6.28.2007 7:28pm
wooga:
If race can't be used as a tiebreaker, how will black or Latino kids from impoverished areas with poor schools be able to use their voucher to attend schools in whiter, more affluent areas where we all know the schools are better? Can districts use parental income as a tie breaker?
Steven,
Market forces would remedy this shortage pretty quickly. In the interim, however, economic discrimination would be ideal: it's both a piece of cake to get through constitutional scrutiny, and a method to address poverty.
6.28.2007 7:48pm
Benjamin Davis (mail):
Thanks folks. I am 51.

I have been around this country a long time - I have had the opportunity to see some of the highest heights and some of the lowest lows in those years. I have also worked overseas. I have worked with lots of different kinds of people.

Trust me - racism is real and out there. There are good people too obviously but that does not mean that racism is eradicated.

What can I say to you? I guess I can say that I do not drink the Kool Aid that makes a decision that says as long as there is no direct state action - racial imbalances are constitutional. Maybe that is a nice artful dodge to allow folks to sleep well at night. But to me, it is an artful dodge when you walk the streets of this country, go into the offices, and see the neighborhoods. I find it a bit passive aggressive.

I would remind you of a guy named Frank Walwer who was Associate Dean of Admissions at Columbia Law School in 1961. He looked out and saw that the country needed more black lawyers. So he increased the size of the class, went down to historically black colleges, and admitted a few students.

I am from the action school of changing the country for the better and not from the school that appears here that trust inaction and the status quo to get us to an integrated country in the "sweet by and by".

Vouchers are pie in the sky. The price for the nice schools will be bid up and price discrimination will be done.

You folks appear not to remember the case of a K-12 down in Texas whose principal segregated kids last year to keep whites in the system and pushed hispanics into English as a Second Language and blacks into other tracks to keep the all white classes. I guess you think that is an aberrant reaction. I would like to think so, but given the virulence out there sometimes and maybe because I have been around the block a little - I simply do not buy it that some magic new day has happened.

Maybe it is because I have been the "one and only" for so much of my entire adult life.

Best,
Ben




Best,
Ben
6.28.2007 8:09pm
Michael B (mail):
Benjamin Davis,

Excepting. Excepting no one is forwarding vouchers as the one and only solution. Excepting it was minority black parents who were among the primary initiators of voucher programs, for example in Milwaukee, Wisconsin. Excepting many are still willing to consider when the horizon for "action," as in affirmative action, should be considered, while also emphasizing the elemental importance of that horizon as such. Excepting many who do argue that horizon is now, or even past, do so on cogently argued grounds, not emotionally or with racialist motives in mind - even to the contrary, including among minority polities. Excepting patronizing dismissals do not form a cogent aspect of any argument, pro or con.

Excepting one aspect of what needs consideration is not the totality of what needs to be considered, neither Constitutionally nor in yet more practical terms still, such as the terms those Milwaukee parents were voicing.
6.28.2007 8:41pm
Steven:
Wooga~

Market forces? In K-12 education for poor minority students? I'd love to hear more about how those market forces are going to work.
6.28.2007 8:42pm
Arthur Owens (mail):

I guess I can say that I do not drink the Kool Aid that makes a decision that says as long as there is no direct state action - racial imbalances are constitutional.


Conversely then even absent state action, racial imbalances are "unconstitutional?" Or it's a good idea for government to try and remedy racial imbalances?

I would ask, to what end? So that every area of life sees 12% blacks? Every neighborhood in America should be "racially balanced" according population demographics. 1) How can outcomes such as this possibly be achieved? And 2) do the overwhelming majority of blacks even want to live in such an outcome? Many blacks want to live in neighborhoods where they constitute more than 12 or 13% of the overall population.

The only way to achieve such perfect racial balance is for the races to truly come together and perfectly assimilate in to one another -- not something I have a problem with. Though in a few generations, blacks would disappear as whites, as a group grew a shade or two darker.
6.28.2007 8:43pm
wooga:
Vouchers are pie in the sky. The price for the nice schools will be bid up and price discrimination will be done.

Ben,
Tell that to the majority of Americans, strong majority of blacks, and overwhelming majority of blacks under 35. Vouchers are wanted. Vouchers work.

Vouchers are opposed by those with (1) a vested interest in a state run monopoly on education, or (2) a vested interest in keeping black kids uneducated.
6.28.2007 8:44pm
wooga:
Market forces? In K-12 education for poor minority students? I'd love to hear more about how those market forces are going to work.
Uh, it's real simple:
1. Vouchers = $.
2. Private schools will have access to these vouchers.
3. People like $.
4. People will open up new schools to get in on voucher $.

Private business are generally more efficient than government programs. The public schools in DC are horribly in efficient, and we might as well be flushing dollars bills down the toilet. Spend half as much money sending a DC kid to a private school, and you get (1) smarter students, and (2) lower costs to the government. The people who lose out are the ones on the corrupt public school teat.
6.28.2007 8:49pm
David M. Nieporent (www):
And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation?
As you mean "integrate," my proposal is none whatsoever. It is not the government's job to shuffle people around to fit someone's vision of what society should look like. It's the government's job to protect individual rights.

If diversity or integration or whatever sophistic term is being used nowadays is so important, why limit it to schools? Why not order people to live in certain communities to fulfill the chosen racial quotas -- er, "balances" in those communities (and in those communities' schools)? Why not order people to join certain community organizations or work for certain employers or send their kids to certain sports leagues to achieve this goal? You don't have any principled reason why not; the only argument you might give is that it goes "too far."

(Which is a policy judgment, not a judicial one, and leaves it entirely up to the whim of the judge. As Thomas points out, one man's "benign" discrimination is another's malign, and the fact that Breyer happens to be good-intentioned does not mean all judges will be.)

Heaven forbid that the Supreme Court might let the state do something that might be even slightly oriented to reach down to help poor minority kids get a better deal than the raw deal that has been dealt for 400 years.
What does assigning kids to schools based on their race have to do with "helping poor minority kids? (None of whom, incidentally, have been alive for "400 years," and few of whose ancestors have been in this country that long, either?)
6.28.2007 9:04pm
Steven:
wooga~

That's a nice set of economic equations. Which one of those equations addresses the quality of education?
6.28.2007 9:28pm
Elliot123 (mail):
Mark Field: "We can argue about the extent of progress (and it's substantial), but I have no problem with programs which recognize the residual effects of segregation (and even slavery). And those programs will, of necessity, take race into account."

What are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle?
6.28.2007 9:37pm
wooga:
That's a nice set of economic equations. Which one of those equations addresses the quality of education?
Steven, I thought that issue was self-obvious. Only schools with some ability to demonstrate competence are going to attract the voucher business. Think about it: if you have a voucher and you want to get out of a crappy school, are you going to use the voucher to go to another crappy school?
6.28.2007 9:46pm
Scientists, Mathematicians, Engineers (mail):
Is there anyone here who can refute the historical description of the relevant precedent in Justice Stevens' dissent? (And, don't bring up Justice Thomas's concurrence, because that was aimed at Justice Breyer and ignored Justice Stevens.) Anyone care to explain why Justice Rehnquist would -- based on, say, the Civil Rights Act of 1964 -- overturn a 1967 decision he affirmed in 1978 on the basis of the 14th Amendment? Is there any way -- based on the specifically applicable precedent that Justice Stevens cites in his dissent -- that CJ Roberts' plurality is not raw judicial activism? I like Roberts, but this looks pretty bad.
6.28.2007 10:23pm
Gaius Marius:
So J. Breyer would prefer that a kid spend at least an hour a day commuting to school for the sole purpose of furthering "diversity" instead of letting that same kid attend the school of his choice that happens to be within one mile of home. Perhaps if J. Ginsburg and J. Souter had kids, they would have appreciated the parents' desire to avoid such long commutes.
6.28.2007 10:25pm
ReaderY:
The idea that or sexual racial choices or preferances are always inherently evil may be a fine moral idea. But it is it the business of the Supreme Court to be legislating morality?

I have no problem with legislating morality, so long as legislation is left to legislatures.

I honestly do not believe this moral idea is in any way inherent in the 14th Amendment. Strict scrutiny is appropriate where, in addition to having a legal case, the plaintiff has a very substantial showing of harm. Being almost completely excluded from society is a very serious harm; not being able to go to ones preferred school is a relatively minor one.

It was wrong of the Court in the 1970s to extend Brown into Judicial control over school and vast intrusion into people's lives. It is equally wrong for the Court to declare affirmative unconstitutional solely because its members, reading through the 14th Amendment's penumbra's and emenations, wish to impose a moral principle on their country.

So far as the judiciary is concerned, unless it causes harm, racial preference is no more inherently evil than sexual preference.
6.28.2007 10:48pm
whit:
you cannot simultaneously have equal treatment/opportunity and equal results. the very idea is absurd. everybody in this post keeps the implicit assumption that minorities are underrepresented. which minorities? certainly not asians (especially in engineering departments i might add), specifically japanese americans. if racism is so invidious, why does THIS minority do much BETTER than the majority (whites) in nearly every category - education, income, etc?


and why should we care about opportunities for poor MINORITIES vs. just poor people. should a poor white kid be ignored because he's not the right race?

i have personally been the victim of racial discrimination. i'm not denying it exists, but it shouldn't be govt. policy either, which was the case in seattle before this decision.

i accept that if people are treated equally, we will have disparate results. minorities that tend towards overachievement will be overrepresented.

in the zero sum game of college admissions and local school choice, you necessarily harm somebody when you give them preference over another.
6.28.2007 10:55pm
Michael B (mail):
As to "legislating morality," morality is the only thing that is legislated; there is simply no need to legislate pure abstractions (that which has no moral grounding or import). Or put differently, what of consequence is legislated that does not have moral import, whether narrowly or broadly conceived, whether directly or indirectly?

Legislation consists - precisely, while almost always imperfectly - in that subset of society's moral concerns that is deemed worthy of enforcement via the various coercive mechanisms of the law.
6.28.2007 11:28pm
Benjamin Davis (mail):
Folks - fortunately some of those who argued Brown are still alive. Here are quotes from a NY Times article today. First is good ole boy Roberts talking about Brown and after that are the people who are still alive who represented the plaintiffs in that case. Just so you understand that the non-discrimination AND integration are at the heart of what was sought.

CJ Roberts and those who think his writing is so edifying are hiding behind principle - even if deeply but erroneously held - and promoting subjugation of blacks.

If you still have a doubt about vicious deep racism in this country after the pictures you saw about Katrina, then I fear it is hopeless to try to reach you.

"Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.

"We have one fundamental contention," a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. "No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens."

Chief Justice Roberts added yesterday, "There is no ambiguity in that statement."

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice's characterization in an interview yesterday.

"All that race was used for at that point in time was to deny equal opportunity to black people," Judge Carter said of the 1950s. "It's to stand that argument on its head to use race the way they use is now."

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice's interpretation "preposterous."

"The plaintiffs in Brown were concerned with the marginalization and subjugation of black people," Professor Greenberg said. "They said you can't consider race, but that's how race was being used."

William T. Coleman Jr., another lawyer who worked on Brown, said, "The majority opinion is 100 percent wrong."

"It's dirty pool," said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, "to say that the people Brown was supposed to protect are the people it's now not going to protect." "

Best,
Ben
6.29.2007 12:00am
Steve:
What are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle?

Seriously?

Do conservatives actually believe large numbers of black people live in poverty today because the stigma of affirmative action keeps them down? Or did they all just draw an unlucky lottery number?
6.29.2007 12:28am
Arthur Owens (mail):
Regardless of whom Brown was supposed to protect, the 14th Amendment protects everyone of every race equally. Otherwise we end up with a blatant constitutional double standard where blacks receive greater constitutional protection under the EPC. What an absurd, outrageous, illiberal, and erroneous interpretation of the Constitution. Civil rights liberals surely are better than that.
6.29.2007 12:30am
whit:
"If you still have a doubt about vicious deep racism in this country after the pictures you saw about Katrina, then I fear it is hopeless to try to reach you."

wow.

talk about fooled by the media.

new orleans happens to have a very high %age black population. thus, footage from new orleans happened to show a very large (and disproportionate relative to the US population) amount of black people suffering through natural disaster combined with govt. incompetence (mayor, governor and feds).

however, the media chose to concentrate on new orleans. millions of people suffered from katrina and in many areas, it was predominantly poor whites, not poor blacks.

the affected gulf region was huge and it was not just indigent blacks in new orleans that suffered.

new orleans as of the last census data i checked prior to katrina was about 65% black population. katrina affected FAR FAR more than just new orleans.

you let the media feed you selective outrage. try a little critical thinking.
6.29.2007 1:02am
David M. Nieporent (www):
"All that race was used for at that point in time was to deny equal opportunity to black people," Judge Carter said of the 1950s. "It's to stand that argument on its head to use race the way they use is now."
So he said it, but he didn't really mean it. He meant "No state has any authority to use under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens, unless it has a reason for doing so that he approves of."

Perhaps he should have said so. Or, perhaps he shouldn't have, since it would clearly have undermined the moral authority of his position had he phrased it that way.

"It's dirty pool," said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, "to say that the people Brown was supposed to protect are the people it's now not going to protect." "
Huh? Where in the opinion did he find the claim that Brown was "now not going to protect" black people?
6.29.2007 2:18am
KeithK (mail):
<blockquote>
I'll raise an interesting point, though. Someone on one of the threads below (the Lithwick one, I think; don't have time to search for it now) suggested that one difference between conservatives and liberals in criminal cases was that conservatives cared more about the result -- was the person guilty? -- and liberals cared more about the process. Do you agree?
</blockquote>

Mark. I think that is basically true. Why the reversal for the criminal arena? I suspect its a question of what each side is willing to trust government to do. I think that, broadly speaking, conservatives accept that governments are capable of prosecuting criminals fairly while they are skeptical of governments ability to solve societal problems. Liberals are more wary of government in the criminal arena and accepting of it's "social" power. Good point and worthy of some more thought.
6.29.2007 2:52am
eddy:
Benjamin Davis -- I'm curious about why you believe that this ruling hurts blacks but not whites or other groups. Aren't there plenty of black parents relieved to avoid hours of cross-town bussing?

You seem to imply that predominantly black schools are inherently inferior to predominantly white schools even within the same school district. I wonder if the reason black-interest groups consider this a setback is because they can no longer extort integration plans from school boards dealing with black underachievement.
6.29.2007 2:57am
Michael B (mail):
"If you still have a doubt about vicious deep racism in this country after the pictures you saw about Katrina, then I fear it is hopeless to try to reach you."

As already suggested, no one has forwarded numbers that reveal racism within the N.O. and Katrina scenario, to the contrary it has been shown that whites were disproportionately impacted when compared to a general per capita representation.
6.29.2007 3:15am
ReaderY:
Integration may be immoral, it may be bad policy, but does it violate the Constitution? That's the only question the Supreme Court needs to decide. What they think of the thing is beside the point.

A principled approach to judicial restraint requires that courts intervene only where necessary, and that courts disrupt and agreed societal way of proceeding only where the constitution clearly commands it.

It is simply not clear that the constituion requires complete color-blindness. Pre-Adarand precedent clearly doesn't demand it, and post-Adarand precedent didn't require it in the context of schools.

It is as important that the Judiciary restrain themselves when conservative principles are at stake as when liberal ones are. The judiciary are not roving knights-errant to right all perceived wrongs. The Equal Protection Clause is not an empty vessel to be filled the Judiciary's personal concepts of fairness, just as the Due Process Clause is not an empty vessel to be filled with the Judiaciary's personal concepts of reasons.
6.29.2007 4:11am
Elliot123 (mail):
Steve: "Seriously? Do conservatives actually believe large numbers of black people live in poverty today because the stigma of affirmative action keeps them down? Or did they all just draw an unlucky lottery number?"

I am very serious in asking what are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle. What are they?
6.29.2007 12:24pm
eddie (mail):
Michael: You link to a bastion of "unbiased" reporting. But more importantly, the article you cite was restricting to statistical analysis of deaths (and not to overall impact of losing one's home, etc.

To think that there are no residual effects to more than a century and a half of actual slavery and an additional near century of government sanctioned discrimination (see, e.g., Jim Crow) (see also recent news reports from the "Whites only shade tree" in Jena, LA) is simply willfully blind. And for the court to suggest that there must be a "non-discriminatory" manner that can provide remedies to such effect is plainly not common sense. The court appears to be saying that the government cannot even describe discrimination because that would be discriminatory.

And let's all please stop bowing down at the altar of "free market" solutions to the education problem: Unless you are willing to abolish all public schooling and take the consequences for such disruption. The false assumption on this theory is that there are unlimited spots for anyone carrying the vouchers. There aren't and then what happens to those who have the voucher in hand and no place to go.

It's all well and good to talk theoretically about the law, but most of us live in the real world and in that world there is discrimination which is being sanctioned (through omission and through commission) by the government.
6.29.2007 12:59pm
Elliot123 (mail):
eddie: "To think that there are no residual effects to more than a century and a half of actual slavery and an additional near century of government sanctioned discrimination (see, e.g., Jim Crow) (see also recent news reports from the "Whites only shade tree" in Jena, LA) is simply willfully blind."

What are the residual effects on the average 13-year-old black kid in Seattle?
6.29.2007 2:21pm
whackjobbbb:
You take an absolutist position on vouchers, eddie. Don't. Nobody's talking about abolishing public schools. And there doesn't need to be an "unlimited" number of spots available for those carrying vouchers. There needs to be as many spots as are required, in either public or private schools, as the holders choose.

--


If you still have a doubt about vicious deep racism in this country after the pictures you saw about Katrina, then I fear it is hopeless to try to reach you.


Davis,

300 years of failed public policy, most of it within the last 75 years, resulted in hundreds of thousands of people living below sea level... in a river delta... on land that subsides 1" per year, including the dikes, btw.

Tell me one other place in the world where hundreds of thousands of people are living on a subsiding river delta, scores of feet below the ocean. I've asked that often, and nobody's given a satisfactory answer.

This is the lesson of Katrina... longterm failed government. I suggest we review public policy, and that the discussion be far broader than just another racial diatribe.

Same with the Seattle schools, and all others. We can improve them, but that means we must jetison much of our past failed policies... and do it before the hurricane hits.
6.29.2007 2:30pm
Michael B (mail):
eddie,

What I linked to was a single report that, yes, reported on deaths and is but one indicator. I didn't suggest otherwise. If you have contrary or contrasting data, link to it and/or otherwise substantiate the argument you're seeking to forward. Likewise, I wasn't praising a specific reporting agency in general terms, I linked to a single report. Again, if you can refute the data on more substantial grounds, do so, I'm amenable to a sound argument. Are you?

As to the "real world," I had previously remarked upon the fact that many of the initiators of voucher programs were black, specifically noting the Milwaukee, Wisconsin initiative (which implicitly reflects upon the power of teachers unions, along with other societal changes since Brown, 1951/54). And again, no one is suggesting "free market" solutions are the only solution, but they do help to redress some teacher union and other deleterious dynamics.

As to "residual effects," what is more pointedly being addressed is this specific SCOTUS decision in 2007, not the entirety of race relations and history in the U.S. since the founding era when Washington and Jefferson owned slaves. For example, in contrast to the plaintiffs in the '54 Brown decision, which were uniformly black, the appx. three hundred plaintiffs in the Seattle case, while consisting of a majority of whites, is mixed nonetheless according to the two or three reports I've read. In general terms, this present case does not parallel Brown in any critical respect; this present case has a different focus and is framed within a different set of dynamics.

This is 2007, not 1951/54 or any time prior to that. Race is still, certainly, a viable issue and concern and should not be unduly slighted, but society's dynamics have changed dramatically and at fundamental levels, other issues and other dynamics are at play compared to earlier eras. You and others have failed to appreciate those changed and evolving dynamics in so much as a token fashion, much less more fully.

Finally, serious legal commentators, including those who lean left, have appreciated the arguments Kennedy brought to bear in this recent decision.
6.29.2007 2:56pm
Brian G (mail) (www):
As usual, Thomas has the most brilliant opinion of all of them.

It is reasons like this my kids attend private school. And their Christian school is quite diverse without the need for the know-it-all elites to make it so.
6.29.2007 3:26pm
Benjamin Davis (mail):
Look folks. Here is a 12 step program for righties in denial to cover 45 years of my life.

1) When my folks sought to put me in a private school in New Jersey in 1961 - they had to get a consent decree to get me admitted. When my dad and mom brought my older sister into schools they said she had a learning deficiency in English. She was tested by the local school board and, of course, was found to be fine. The "nice" principal would say, "if it was up to me, I would be happy to enroll her but I will have problems with my board." In case some of you do not understand that code, let me put it in words of one syllable - we do not really want blacks here.

BTW, in the 1940's when my uncle wanted to study drama and set building at Carnegie Mellon the "kindly" Dean then wrote to dissuade him as the "experience with the audiences with black actors was not good". He suggested my uncle go to a program at a historically black college in the south. My uncle had the white owner of a playhouse at which he had worked basically tell the Dean "he is "our" kind of Negro, he is not interested in being out front and he will be quiet in the back so admit him" He got in but only by demeaning himself this way. BTW, I have the letters from the Carnegie Mellon dean to my uncle and letters from my dad about the experience with my sister.

2) As recorded in the history the school did of those times, when I went to Sidwell Friends School in Washington DC there had been extreme resistance from the white families at the school (so called elites, not all Quakers, right) to black kids being admitted. It was a years long battle and really the first ones were in late 67-68 (i.e. 12-3 years after Brown).

3) On intimidation, when we moved into a predominantly white neighborhood in 1967 in NorthWest DC someone one day got the brilliant idea to paint "KKK" on our garage door in very large letters. I guess that is the "welcome wagon".

4) When in 1973 I was visiting Brown i Providence to interview and asked directions from the police officer - his immediate question was "What? You looking for welfare?'

5) During the busing days in Boston, my freshman year, I was in a bar and was attacked by some white kids for no apparent reason.

6) Was it in my junior or senior year at college that a white "friend" said, "Look please understand I can not take you with me to the finals club (the fraternity) because they do not like blacks"? I guess this is that good ole "Chariots of Fire" kind of racism.

7) During college in the 70's, I was a door to door salesman in Arizona and Texas. Whenever I worked in a white neighborhood it was inevitable that the police would be called out to check on my credentials several times a day. The cops and I became friends. "Oh Ben, you'll be working here today?" The craziest day was when I followed another black salesman around in a white neighborhood. The number of times we had to show our credentials was astounding. This did not happen in black or hispanic neighborhoods. Just trying to work our way through school on straight commission.

8) When I was in Law School, we did a negotiation exercise at a fraternity and my teammate pointed out the fraternity membership with one Asian guy saying "He is our ethnic." I guess that is elite openmindedness.

9) I guess I got up to the late 70's here. I will fast forward here through the "problem with black people" discussions (or the white boss who confused me inevitably with the other black bank examiner and then - miracle - with the Vietnamese-American bank examiner (!)) during the next few years to the end of the century. Just to keep it domestic, I will not talk of the experience with white American lawyers (and other what I term primacists) in international arbitration in France - I have written about that in the American Review of International Arbitration.

10) In 2000-2002, enough times to make it hurt I was standing at a busstop in Fort Worth Texas, and some young white man would drive by and yell "nigger" at me as I waited for the bus.

11) I can remember looking to rent houses and feeling a distinct lack of comfort coming off of the person who was showing the house to me in the 2003 period here in Toledo.

12) I am a nice guy and I am extraordinarily privileged.

Now I am simply not sure what you all will think about this litany that essentially covers 45 of the 51 years of my life with a few anecdotes that of course could never be statistically significant. But what I hope it does is help you understand that nothing is benign about the way black people are treated in this country. Thurgood Marshall understood what he was doing when he worked on Brown. White people fought tooth and nail to block the promise of Brown all through my childhood - others of good will fought for the integration promise.

Of course, there will always be someone to say that this or that is the way to go - like Thomas or Juan Williams or others.

But, folks, I will take Thurgood over Thomas every day.

As to what people were doing when they were in their adult years, it seems to me that Roberts did not have to go to the Justice Department during the Reagan years and write lots of memos trying to resist civil rights enforcement under Brdaford Reynolds. The government could have weighed in with those who were trying to encourage integration. Please understand that Bakke is a failure and certainly was experiences as such - not a success as it may have been taught to some of you - in terms of building integration.

Robert and Alito for that matter could have done lots of things like supporting integration. So they made choices, just like Rehnquist did in his day to challenge hispanics who were trying to vote in Arizona when he was a young lawyer.

I hope this does not sound like a rant. Just trying to share with the people my truth.

And to the question about the 13 year old in Seattle - I have a 16 year old here in Toledo and as long as the originalists go back 200 years for their ideas to keep him down I will go back to Benjamin Harrison who signed the declaration of independence and remind people that he owned my ancestor (her name was Barbary) and so I have a personal objection to some of those Framers and Founders and their ideas. At least Washington had the decency to free his slaves. For you Feddies with Madison on your cover - Madison did not sell his, now did he? What a great American.

Peace,
Ben
6.29.2007 5:23pm
Elliot123 (mail):
Behjamin Davis,

Does your 16-year-old suffer from any specific residual effects of slavery or segregation? Specifically, what are they? Also, exactly how are originalists trying to keep him down? What are they actually doing to him?
6.29.2007 5:52pm
Lycurgus (mail):
Ben -- your personal history is compelling. I don't know that any other poster here can claim the same life experience if they're not AA. But other citizens have also been exposed to hate, intolerance or just plain meanness. I am close to your age and grew up in the same times. I was physically attacked by native americans on an Indian reservation in the the late 60's. I was surrounded by a group of AA's after a football game around 1970, approached with a broken bottle and asked what I was doing in their neighborhood. In the early 70's I was beaten up in a Montana town by a group of cowboys who didn't like my "eastern" looks.

As a caucasion American I'm sure I haven't faced the obstacles you did, but what do our disparate experiences have to do with the Seatle case? Not much, except to affirm that there's a lot of hate, intolerance, stupidity and sometimes, misplaced fears or interpretations of the intentions of people that don't look like us. What the 14th Amendment should require, however, and what Brown stands for, is that the government, of all people, should never be judging, acting or determining outcomes on the basis of race. The 14th Amendment doesn't outlaw privately held racial prejudices -- as you well know, thats a road still being travelled, but it does prohibit the state from treating its citizens differently on the basis of race or color. That's why Roberts, and Thomas, have got it right. JMO
6.29.2007 6:34pm
Clayton E. Cramer (mail) (www):


Do conservatives actually believe large numbers of black people live in poverty today because the stigma of affirmative action keeps them down? Or did they all just draw an unlucky lottery number?
From what I have read, blacks in America made enormous progress economically until 1964. There are those who argue that the Great Society pretty well ended the progress.
6.29.2007 7:15pm
Clayton E. Cramer (mail) (www):

I am very serious in asking what are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle. What are they?
Here's the harder question: If segregation and slavery are the problem, shouldn't those problems be declining as we get farther away from them? Slavery has been over for 140 years. There isn't a single living freedmen; there are very, very few people who were the children of freedmen. A black kid growing up Seattle is as many generations removed from slavery as Americans Jews are removed from being non-citizens of the European countries in which they resided.

Segregation is more recent, and there are a lot of people who definitely suffer from the consequences of this today. Thomas Sowell points out that until 1948, many Southern school districts provided only 2/3 the hours of instruction for black students as whites. Blacks with an eighth grade education were at a distinct educational disadvantage compared to whites with an eighth grade education.

Still, what is the problem today? There isn't a school district in this country that makes an effort to keep blacks down; if anything, there is more of a tendency to go the other direction because of white liberal guilt.

If anything is holding blacks back in school now it is:

1. Poverty--which needs an economic response, not a racial one.

2. The development of a black ghetto culture that denigrates education. My wife was soaked in her classes in leftist crap making excuses for this. There's a reason that the children of Asian immigrants from poverty level families are outscoring black kids from middle class homes, and it isn't racism.
6.29.2007 8:14pm
Benjamin Davis (mail):
I understand what you are saying - I tried to only give examples from education, employment, housing or transportation in which I experienced directly white racism. I left out the rocks being thrown at me by the white kids in the white neighborhood nearby back when I was 8-10.

As to my 16 year old, the comment from blacks in the community about his old school has already been made to me that his prior private school has a pattern of excluding people of color. At his current public school, he has noted the disparate treatment of black kids who act up as compared to white kids who act up. That kind of stuff has a long lineage that goes right back to slavery my friends.

A couple of years back, when my kid jumped in a lake and landed on his best friend in some roughhousing on a school trip down in Texas, his tooth banged on his best friend's head. This happened on a Wednesday. My wife and I - his parents - were not told about this until just by happenstance the parents of his white friend asked how he was doing after the accident when we were waiting to pick him up on Friday. Their son who is white had received a series of stitches and was taken to the hospital. My son was looked at cursorily. Of course the school called the white parents immediately on the Wednesday but no call to me about the exact same accident. I was BALLISTIC when his bus arrived at the school that friday asking them why they did not call me immediately. Then there was that wonderful silence. There is no excuse but it was patently clear that my son was not considered of as much value as his white friend and my concern as a parent was not considered as important as the concern of his white friend's parents. We got him to a dentist quickly to see if there was any risk to his tooth. Fortunately, while injured it was not broken.

The point of this is that the efforts to integrate schools as exemplified in Seattle and Louisville are conscious efforts by communities not to keep people of color down, but to help integrate schools for the benefit of those kids and all. It is an effort to keep all communities committed to the public schools to get a quality education. It is an effort to do the real equality (the thing not the word) that was at the heart of Brown.

The originalists every step of the way from what I have seen have been working over time to make the efforts at integration so cramped and narrow. You take our friend Roberts in Adarand and the court then, Bakke, the anti-affirmative action campaigns in various states, the positions in Grutter and Gratz - you take the whole area. At none of these points have I seen originalists take a position that had any openness to the underlying spirit or letter of what Thurgood Marshall was trying to do. There emphasis on rigidity is just about maintaining the slowest pace for change in the name of property rights, federalism or formal equality.

It is not a coincidence that as I came out of college my father saw Reagan coming to power and emphasized how hard it would be for me to move ahead in that kind of environment. It is not a surprise that I talked with a black father today who immediately said that our kids will have to be even better now because the effort is quite in the open to prevent any progress for black people. That effort is being led by the originalists - so all these things go directly to my son's life chances. The door is being pushed harder towards being shut.


Take Thomas praising Dunbar High School. It seems pretty evident to me that one of the reasons that was such an excellent school was that black Ph'd's were not able to get jobs at universities etc where their white counterparts were able to procure teaching positions. So these highly educated people gravitated to the best jobs available which were in the black high schools. The students benefited from that - but it was based on blacks being segregated and black job opportunities being restricted in the black community. So to say this one school was so great is to mask that the reason it was so great is that the pool of opportunities was so restricted for black people who should have not been prevented from doing better than being high school teachers.

The originalists in a kind of smug superficiatlty seem to always (intentionally) fail to get to the real story. It reminds me of someone looking at the surface and saying that is the reality. Roberts and Thomas sound wonderful - but these are like incantations from elites on high. It is powerful even masterful stuff to read but when you come to the crunch and see it on the streets it turns out to be regressive and repressive.

The voter fraud efforts by those espousing the virtues of originalism are barely masked efforts to disenfranchise poor black and other minority voters who do not vote Republican. Do you really think it is anything else? It is the kind of action that the Voting Rights Act was put in place to prevent but - of course - is now being done by the Civil Rights Division and its minions. The game is to approve changres in the states subject to the Voting Rights Act that will have the effect of disenfranchising minorities in an effort to preserve Republican seats and power. Just ask your friend Karl Rove.

Take deference to the Executive. Anybody think that such deference in war is automatic or is there implied in it some expectation as to the lawfulness of the Executive's acts. Watching the Military Commission Act passage and the habeas stripping decisions and it is amazing to watch the willingness of the originalists judicial power to have itself be so narrowly constrained by the Executive in a transparent effort for the Executive and Legislative to keep us from hearing the appalling things that they have allowed to go forward. And the Judiciary ties itself in not not for principle but to get out of the way of the Executive that reinforces the hierarchy in this society that keeps some on top and some on the bottom.

As to black progress, I am not an expert on the economics but the understanding I read was that it was going forward through the late 70's and then started to regress. Improved in the Clinton years and has been going backward dramatically since 2000 (the one statistic touted is minority ownership of housing).

But, now I fear I am departing from the topic.

Peace,
Ben
6.29.2007 8:52pm
wooga:
I left out the rocks being thrown at me by the white kids in the white neighborhood nearby back when I was 8-10.


Hmmm. I had rocks thrown at me by the black kids in the black neighborhood where I lived back in 2000 Cincinnati. When I complained to the police, they told me that I should get used to it or move, because it happened to cops cars all the time in the area. They then warned me never to drive through this 9 block section of town, because not even the cops would regularly patrol it anymore. The problem was that anytime the cops tried to arrest a black person, a racist anti-cop mob would form and harass the police.

I now live in an overwhelmingly hispanic neighborhood, and haven't had any such problems. Except for the time when a black kid from the nearby Section 8 project smashed my car windshield. And no, my car is not painted like the General Lee.

Forgive me for not being sympathetic to the sort of pandering "soft bigotry" that excuses the horrendous social breakdown in the black urban community. It's not the "fault of whitey." But if white-guilt liberals continue to enforce the stereotype that "blacks can't make it in this world without governmental assistance," then the stereotype will become reality.

However, if we abolish the "soft bigotry of low expectations," and stop using skin color as an excuse for criminal and anti-education behavior, perhaps people will start acting like grown ups, take responsibility for their own lives, and make something of themselves. It seems to have worked for every other minority group in America.

The affirmative action exception for the black community is essentially treating blacks like the retarded kid in the Special Olympics. It's insulting and racist.
6.29.2007 9:16pm
Elliot123 (mail):
Banjamin Davis,

People may comment about your son's school, but obviously it's his school and he has been admitted. So, what's the beef with originalists keeping your son down?

And two kids collided while swimming and one had to get stitches while the other was not injured? So what? What's the beef? You are claiming a racial bigotry because the parents of the injured kid were called while the parents of the uninjured kid were not?

And this is what you call keeping your son down? All he has to do is stand up and he will easily see nothing is keeping him. The truth is nobody really cares enough about him to bother to keep him down.
6.30.2007 2:42am
markm (mail):

I'm trying to think of something from the Court that's smarmier and more disingenuous than this line: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." I'm not succeeding.

And I'm trying to think of a position as stupid as, "We're going to teach whites not to discriminate by discriminating against them." I did succeed: "We'll win the hearts and minds of Vietnamese villagers by randomly dropping napalm on their homes." I just don't see how anyone who spent 30 seconds thinking about it could adopt either position - unless their real intent in case 1 was to perpetuate racism, and in case 2 to lose the war slowly...
6.30.2007 9:09am
markm (mail):
eddie: When are those "residual effects" going to end? Is it a certain number of generations, or some attitude change? If the latter, are the policies you advocate going to encourage the attitude change, or delay or negate it?

It looks to me like the main thing holding blacks back now is a culture that exalts "gangstas" and denigrates education and hard work. A secondary problem is that this culture gives people some cause to worry about blacks moving into their neighborhood, attending their schools, or taking a job at their workplace. It's not just white people; Jesse Jackson admits that he gets worried when he's on the street at night and sees a group of young black men. It sounds like Benjamin's son works as hard in school as most young white men, and is no more likely to mug you - yet if all you know about him is his age and race, statistically he does seem to be a high risk...

A third thing that can make people more reluctant to hire blacks or admit them to a school: we've all met a black person who twists every event that does not go well for them into an encounter with racism. Two kids bumped heads, one was bleeding and the other had no visible injuries. Of course they called the parents of the one who was bleeding. Perhaps they should have done a better job of checking out the other kid, but it's easy to assume that no visible injuries = no injuries, and school personnel are not medics, nor for the most part geniuses of any sort. But to Benjamin, that proves they don't value the black kid as much. It's very wearing to deal with that sort of attitude day in and day out.

Perhaps the ghetto culture and seeing discrimination everywhere are residual effects of segregation. However, these problems are never going to end or even be reduced as long as the government subsidizes the ghetto culture through welfare, universities set blacks up for failure by admitting underqualified ones, and black leaders as well as white liberals keep telling blacks that their failures are not their fault. To end these problems, we must make each individual responsible for his own actions and performance, no excuses.

But if we do that, "liberal" politicians won't be able to garner votes from white guilt and black resentment...
6.30.2007 2:06pm
Mark Field (mail):

It is reasons like this my kids attend private school. And their Christian school is quite diverse without the need for the know-it-all elites to make it so.


Said, amazingly, without the slightest sense of irony.
6.30.2007 2:28pm
Michael B (mail):
And not so amazingly, Mark Field - indeed, all too predictably - your pretension and arrogation of superior "knowing" is announced w/o the least sense of irony. A bluster of insinuating contempt, absent substance, is precisely and only that.
6.30.2007 3:31pm
Benjamin Davis (mail):
Thanks for the feedback folks. Well, I have done my best to explain why I think the decision is wrong and why - from my experience - I know racism still exists. Some of you will believe me, some of you will not. So be it. The fight for equality continues.
Best,
Ben
6.30.2007 5:13pm
dougjnn (mail):
It's been widely commented upon that the concurrence of Kennedy is of crucial importance in understanding what the affirmative action or diversity standards will be moving forward, certainly for K-12 public schools, but probably also much more widely than that.

However, Kennedy's language in his Grutter dissent (the case which narrowly found the Univ. of Michigan's affirmative action program permissible) is also of crucial importance. In fact under those facts Kennedy found that Michigan Law's program weighted race too heavily and that it was in actual fact a rough quota system masking under different name and pretext.

He wrote in his Grutter dissent:

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. ***

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.


Following Grutter the conventional wisdom arose that as long as universities mouthed slogans such as "one factor among many" and perhaps had complex individual weighing admissions programs, then admissions goals for certain minorities could in fact work as rough minimum quotas. Such a approach is very unlikely to get Kennedy's support in any future Supreme Court case considering permissible diversity programs including by universities.

It definitely looks to me like Grutter's going to be very significantly parred back. The Supremes are going to continue to allow diversity as a goal, but will increasingly knock down rigid formulas or I think formulas which weight racial considerations too heavily. I.e. I think most actual diversity programs would fail Kennedy's tests and hence be rejected by the Supremes in the future.
6.30.2007 5:58pm
markm (mail):
Wake County, NC public schools are trying for another kind of diversity - economic.
6.30.2007 7:19pm
markm (mail):
Wake County, NC public schools are trying for another kind of diversity - economic.
6.30.2007 7:19pm