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A Factual Correction

from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:

"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France's observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting).

"Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927).

Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)

Heartless Libertarian (mail) (www):
I may be wrong, but haven't a fairly large number of the anti-affirmative action cases in the last 15-20 years been brought on behalf on Asians?

I know it was a big deal with high school assignments in SF a few years back.
6.29.2007 1:45am
Andrew J. Lazarus (mail):
The phrase "a distinction without a difference" comes to mind.
6.29.2007 2:46am
Public_Defender (mail):
The reality is that conservative have fought a largely successful 50 year war to keep white kids from having to go to school with black kids. Chief Justice Roberts is now part of that war.

Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.

The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations.
6.29.2007 7:45am
Taeyoung (mail):

I know it was a big deal with high school assignments in SF a few years back.

I don't know the statistics on actual cases, but San Francisco may be a special case -- San Francisco was one of the few locales in the US to institute segregation directed specifically against Asians. And of course, San Francisco has a much more violent history of anti-Asian bigotry and hatred than most other places in the US.
6.29.2007 8:13am
David M. Nieporent (www):
I caught the same error in Stevens' opinion, but I was also rather puzzled about his use of the term "irony." I'm not seeing it. Yes, we all understand that in Brown it was primarily anti-black discrimination, and here it affects lots of people, not just blacks. So what? Where's the irony?
6.29.2007 9:26am
NaG (mail):
I'm wondering why Justice Thomas' observations haven't been getting more attention. He points out that Brown, quite rightly, found segregation unconstitutional. However, segregation is not racial imbalancing. It seems quite clear that any law designating "black schools" and "white schools" would be unconstitutional. And if neighborhoods are forcibly split into "white neighborhoods" and "black neighborhoods," not only would the housing segregation be unconstitutional, but bussing efforts to integrate the schools would be constitutional. However, what we have here are neighborhoods where those who live in them have chosen to live there, and in some cases this will mean racial imbalancing. Does the fact that sometimes ethnic groups choose to live together suddenly raise the situation to "segregation" that is subject to Brown? The answer, it seems self-evident, is no.

Public_Defender appears to forget that, in many cases, black people don't want their kids going to schools with white kids, either. In Washington, D.C., for example, where gentrifying has caused more non-blacks to move into the city, the existing black residents aren't welcoming the change with open arms. They bemoan the loss of their black neighborhoods. Are they bad people for thinking this way?
6.29.2007 10:17am
Paleo (mail):
The irony is in using an opinion that sought to end racial segregation in schools in support of a decision, the result of which will increase segregation in schools.
6.29.2007 10:36am
Houston Lawyer:
Forced integration has resulted in white flight. In large cities, it is now common for white students to make up less than 10% of the public school population.

While race relations have improved remarkedly in the past 50 years, our public schools have suffered greatly from court-imposed regulation. It's long past time that we stopped using our public school systems as a social policy experimentation lab.
6.29.2007 10:38am
PGofHSM (mail) (www):
Sigh. I saw that objection coming when I read that part of the dissent yesterday: what about the Chinese kids? Of course, it ignores that in how people actually were treated, the black-white divide held true. If you were deemed white, you went to school with whites and had white privilege generally (aka, the absence of discrimination); if you were deemed any kind of non-white, you did not go to school with whites and were discriminated against. You didn't necessarily go to The Black School; in South Texas, the non-white schools were predominately Mexican. LBJ took up anti-racism as a cause partly due to his experiences teaching Latino children.

You'll notice that this white/nonwhite distinction is one of the things Kennedy finds objectionable about the Seattle plan.

During the days of de jure segregation, Asians fought hard to be deemed white. For the most part, they were not going for solidarity with African Americans, because they immigrated here, quickly assessed how the hierarchy worked, and didn't want to group themselves with those at the bottom. I can think of only one exception, in which being grouped as *either* white *or* African American would be advantageous: when Indian immigrant Bhagat Singh Thind sought to become a naturalized citizen, which was limited "to aliens, being free white persons, and to aliens of African nativity and to persons of African descent." Despite being acknowledged as Caucasian, Thind just wasn't quite white.

As for affirmative action lawsuits' being filed on behalf of Asians, that may be true in these school assignments, but I don't know of one at the higher education admissions level. Despite the argument of Prof. Volokh and others that Asians may get it worst in quota-type affirmative action in admissions (because they are overrepresented in higher education relative to their actual percentage in the population), I haven't seen a lawsuit filed by Asians or in which they're even included in the class. Grutter's class was limited solely to white plaintiffs. (Out of curiosity, does anyone know if, in a lawsuit regarding racial discrimination for more than one race -- say, whites and Asians -- there has to be a named plaintiff from each race?)

As a matter of fact, the Center for Individual Rights recently has begun grouping Asians among the beneficiaries of affirmative action and filing lawsuits on that basis.
6.29.2007 10:57am
Common Sense (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.


I wrote the above earlier in a thread on these cases. Is there anyone here who thinks Jim Ho's factual correction counts as a refutation of Stevens' description? (Or the point of the historical description, which is not so much that Roberts' opinion is inaccurate, but rather that it is unprincipled and dishonest?) Don't you think if your plurality seeks to overrule a directly applicable precedent, you mention it? Don't you think that if you describe a historical trend, you actually look at the history? Whether Thomas or Breyer has the better argument on policy is one thing, but I see nothing in Thomas's concurrence to lay a hand on Breyer's facts. Nor do I see anything in Roberts' plurality to lay a hand on Stevens' facts. I see rhetoric used to clothe an exercise of power; I see Roe v. Wade. Is there anyone who thinks that because Chinese people were victims of white supremacy in addition to blacks that means Roberts has described the historical trend correctly? If anything, doesn't that tend to support the white/nonwhite categorizations used by the school districts?
6.29.2007 10:59am
Snacktime (mail):
As a policy matter I'm ambivalent on busing, and I can see the argument for true race blindness. But here's what bothers me most about this decision. Scalia et al like to fancy themselves to be originalists. But by what possible understanding of the intent behind the Fourteenth Amendment could you imagine a constitutional requirement to be race blind?

Mind you, I'm not an originalist. But it pisses me off how the conservatives have spun this ridiculous story about how liberals are "activists" and conservatives "true to the text and the original intent."
6.29.2007 11:00am
Peter Young:
Yes, we all understand that in Brown it was primarily anti-black discrimination, and here it affects lots of people, not just blacks. So what? Where's the irony?

The great irony lies in the fact that the legal precedent that promised the end of racial segregation in schools is now used to perpetuate it. State laws may no longer explicitly compel racial segregation, but racial segregation in public schools remains a fact of life in the U.S.A. That governmental agencies, including school districts, are now forbidden from combatting that racial segregation by means that explicitly refer to race ensures that that segregation will continue.

A great divide in this country lies between those who see the irony and those who don't, or won't, see it. There are schools not far from where I live that have thousands of students but only a couple of dozen white students. These schools in no way measure up to schools within the same district that are predominantly white. Just as the pre-Brown promise of "separate but equal" schools for black students was illusory, so is the promise of equality in schools that are segregated in fact if not by compulsion of law.

But Brown, as read by this Supreme Court, precludes the school district from considering race in efforts to bring down the percentage of black or brown students and raise the number of white students. The promise of Brown now turns out to be an empty promise because Brown is now construed to outlaw not only using race to exclude racial minorities from the public schools but also from using race in efforts to achieve racial equality within the public schools.
6.29.2007 11:08am
Taeyoung (mail):
The great irony lies in the fact that the legal precedent that promised the end of racial segregation in schools is now used to perpetuate it.

That may be an irony, but you could say the same of precedents banning racially restrictive agreements in housing. I'm sure developers could produce the kind of "rainbow" housing patterns a certain sort of person would like to see, if only they were allowed to write into the contracts that House A shall be rented by and sold to Blacks alone, and House B by Latinos and so forth. Alas, that very same precedent that frustrated past racist developers' attempts to construct whites-only developments now frustrates these (imaginary) new diversity developers.

Honestly, there's a bit of irony there, but it's more a hoist-by-own-petard irony than anything else. The result in schools may not be ideal, but it seems to me it's mostly the outcome of individual families' choices about where to live. There may be a problem there, but this time, it's not one we can paper over by bussing children across town to create a Potemkin illusion of racial integration.
6.29.2007 11:18am
NaG (mail):
The great irony to me is that now the word "segregation" is being used as a banner to promote differential treatment based on race. Now I see Paleo and Peter Young making the exact mistake that Justice Thomas pointed out -- just because a neighborhood is racially imbalanced doesn't make it segregation. Otherwise, Brown becomes meaningless.
6.29.2007 11:24am
WHOI Jacket:
Why don't we just tell people where to live? Otherwise, there might not be a balance. When does the housing relocation start?
6.29.2007 11:31am
M. Gross (mail):
But by what possible understanding of the intent behind the Fourteenth Amendment could you imagine a constitutional requirement to be race blind?

Um, the obvious one? It was passed in 1868, long before the era of Civil Rights. It would be the better part of the century before the Brown case.
6.29.2007 11:41am
Jim Rhoads (mail):

The great irony lies in the fact that the legal precedent that promised the end of racial segregation in schools is now used to perpetuate it. State laws may no longer explicitly compel racial segregation, but racial segregation in public schools remains a fact of life in the U.S.A. That governmental agencies, including school districts, are now forbidden from combatting that racial segregation by means that explicitly refer to race ensures that that segregation will continue.


I do not see the de jure segregation addressed in Brown as the legal equivalent of the de facto "segregation" caused by voluntary residential housing patterns. But maybe I am missing something here.

I will readily admit that I may have lost the bubble over the last 40 years, but what is the legal basis for administrators "fashioning a remedy" for a lack of racial mix caused solely by voluntary residential living patterns?

Since Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in housing ownership or occupancy, shouldn't it be necessary for one to prove that the residential racial "imbalance" is sufficiently illegal under that statute, and that such imbalance has caused the racial imbalance in the school before any "remedy" for such imbalance is authorized under these statutes or, indeed constitutional?

The "remedy" seems to have been instituted by administrators without benefit of a court's determination that the problem remedied was caused by activity which is unlawful under state or federal law.
6.29.2007 11:47am
David Drake:
But by what possible understanding of the intent behind the Fourteenth Amendment could you imagine a constitutional requirement to be race blind?

I'd start with the language of the amendment: "No State shall... deny to any person within its jurisdiction the equal protection of the laws."

That seems so clear to me on its face that there is no need for "intent" to interpret it. But if intent is the issue, look at the context:

Post Civil War; adopted in a package with the Thirteenth and Fifteenth Amendments abolishing slavery and giving everyone the right to vote; Section 2 of the Amendment that says that every person within a state fully counts for apportionment of Congress (thus abolishing the language in Section 2, paragraph 3 that slaves only count for 3/4 of a person).

Finally, "That the Constitution is color-blind is our dedicated belief." --Plaintiffs' brief in Brown v. Board of Education (1954).
6.29.2007 12:07pm
VanMorganJr. (mail):
"The reality is that conservative have fought a largely successful 50 year war to keep white kids from having to go to school with black kids. Chief Justice Roberts is now part of that war.

Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.

The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations."


Oh baloney. That is simply spiteful and patently false. In my small, typical southern town we have a single high school that is open to all students within the city limits and many students from outside the city pay a nominal tuition for the privilege of attending as well. The racial composition of the student body pretty accurately reflects the racial composition of the community (35% black). Our community is the rule in our part of the world rather than the exception. Educating our children is not a liberal vs conservative issue, its a community responsibility.

Its easy to make broad sweeping generaliztions, but real world examples, if you know of any, would be a lot more persuasive.
6.29.2007 12:38pm
VanMorganJr. (mail):
"The reality is that conservative have fought a largely successful 50 year war to keep white kids from having to go to school with black kids. Chief Justice Roberts is now part of that war.

Conservatives resisted Brown tooth and nail. When de jure discrimination was barred, they organized their schools along racially conscious boundries. Then they fought any effort to get kids to cross those boundries by crying racisim.

The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations."


Oh baloney. That is simply spiteful and patently false. In my small, typical southern town we have a single high school that is open to all students within the city limits and many students from outside the city pay a nominal tuition for the privilege of attending as well. The racial composition of the student body pretty accurately reflects the racial composition of the community (35% black). Our community is the rule in our part of the world rather than the exception. Educating our children is not a liberal vs conservative issue, its a community responsibility.

Its easy to make broad sweeping generaliztions, but real world examples, if you know of any, would be a lot more persuasive.
6.29.2007 12:38pm
Mark Field (mail):

There are schools not far from where I live that have thousands of students but only a couple of dozen white students.


My daughter teaches at a middle school of roughly 2000 students. There is exactly 1 (yes, ONE) non-Latino white student. That is not a typo. Two (yes, 2) Asians.

I asked this question at Balkinization. What right did the plaintiffs have which was violated here? I assume everybody agrees they have no Constitutional right to choose the school they attend. Similarly, I'm aware of no right to attend a school within a particular distance from their home. What right was violated?
6.29.2007 12:43pm
robertemmet (mail):

Post Civil War; adopted in a package with the Thirteenth and Fifteenth Amendments abolishing slavery and giving everyone the right to vote;

Unfortunately, it was not a package, even though these amendments followed on one another's heels. My high school teacher taught me the shorthand to remember what these amendments did "free citizens vote."
The 13th Amendment freed the slaves, but newly reconstructed states found that didn't necessarily make them citizens, so
The 14th Amendment made them citizens (plus said certain things about how citizens would be treated), but newly reconstructed states found that didn't necessarily give them the right to vote, so
The 15th Amendment said they had the right to vote, and if you wanted to become a reconstructed state, you had to ratify all three.
6.29.2007 1:02pm
Bruce Hayden (mail) (www):
No matter how many times the Democratic candidates for president last night classified this as desegregation, it ain't. Calling a screwdriver a hammer doesn't make it one. As Justice Thomas kept pointing out, it was government mandated racial balancing, using race as the final determinant.

A poster above pointed out the effect of the Civil Rights Act on housing. Last week, I was introduced to it, as I sat through my orientation to join the Board of Realtors. AT least in Colorado, and presumably across the country, viewing a half an hour tape on this subject is mandatory before being allowed to join. And then we had another half an hour discussion.

The tape revolved around real estate salespeople making innocent, but illegal, mistakes in steering people into or out of specific areas, etc. based on race, sex, marital status, etc. Of course you can't mention race, or that someone might feel more comfortable in one neighborhood than in another because of their race, etc. But you can't even do it indirectly by providing the material unsolicited. Rather, you can provide government (i.e. census) data upon request that shows racial, etc. makeup by neighborhood, etc. But you can't suggest it or provide it w/o request.

My point is that today, Whitey isn't steering Blacks into Black neighborhoods, and the government isn't mandating that they live in segregated neighborhoods. And most people have moved into the neighborhood in which they live after the present Civil Rights laws went into effect.

Yet, racial imbalances remain between neighborhoods. How to account for that? I think the obvious answer in most cases is that many people prefer to live around people more like them than not.

And this is the real distinction that I think that Justice Thomas was trying to make - that there is a big difference between the state, the White establishment, etc. pushing Blacks to live together, and Blacks choosing to do so on their own. In the former case, esp. when there was state action, we had segregation, that most of us would agree required in many cases mandatory desegregation. But in the later case, since the choice of where to live was voluntary, overriding this based on race, as was being done in both these cases, was state mandated racial balancing. Not desegregation.

Thus, maybe a good way to look at it is that when correcting racial balance:
- if the choice of where to live was made by someone else, esp. the state, then correcting it is desegregation (and thus typically legally required).
- but if the choice of where to live was made voluntarily, then correcting it is racial balancing (and thus typically subject to strict scrutiny).
6.29.2007 1:05pm
Dave Hardy (mail) (www):
But by what possible understanding of the intent behind the Fourteenth Amendment could you imagine a constitutional requirement to be race blind?

I suppose the same Congresses' creation of the Freedmen's Bureau does make that understanding a little more difficult. Not to mention creation of black colleges, etc..

Historical note: my research found that in certain parts of North Carolina, near some reservations, there was a three-way segregated school system. One for whites, one for blacks, and one for the Lumbee Indians.
6.29.2007 1:07pm
Peter Young:
The great irony to me is that now the word "segregation" is being used as a banner to promote differential treatment based on race. Now I see Paleo and Peter Young making the exact mistake that Justice Thomas pointed out -- just because a neighborhood is racially imbalanced doesn't make it segregation. Otherwise, Brown becomes meaningless.

The only people seeking differential treatment on the basis of race are those who support striking down efforts to minimize the discriminatory effects of racial segregation by taking race into account in school assignments.

A color-blind Constitution would be fine if we lived in a color-blind world. But we don't. And the Constitution has never been color-blind--not since its inception and the 3/5 compromise and not since the adoption of the Civil War amendments.

The fact is the status quo--racially segregated inner city schools--inevitably results in unequal treatment of black students and condemns them to a life of inequality unless they are exceptional, far beyond average. We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students. Why this society should begrudge reasonable efforts to bring the racial balance of school enrollments into line with the racial balance of the community in which the schools are located is simply beyond me.

School districts that make such efforts are engaging in wise policy; they know a harmonious and prosperous community--one free from bitterness and tension--is much more likely if everyone is given a fair and equal chance at a decent education. That the Court has now relied on Brown to strike down such efforts is both outrageous and dishonest, particularly in view of the way Brown was viewed in later Court opinions.. That the plurality opinion uses the advocacy of the plaintiffs in Brown to support its reading of Brown is disgraceful.
6.29.2007 1:08pm
Bruce Hayden (mail) (www):
I asked this question at Balkinization. What right did the plaintiffs have which was violated here? I assume everybody agrees they have no Constitutional right to choose the school they attend. Similarly, I'm aware of no right to attend a school within a particular distance from their home. What right was violated?
The right to be treated without reference to their race, or if race is going to be the deciding factor in where they go to school, that it pass strict scrutiny.
6.29.2007 1:09pm
Bruce Hayden (mail) (www):
The only people seeking differential treatment on the basis of race are those who support striking down efforts to minimize the discriminatory effects of racial segregation by taking race into account in school assignments.
Sounds nice, but you only get to "segregation" if you accept that Whites and Blacks can legally voluntarily "segregate" themselves. In other words, you are redefining the term from its earlier meaning of forced separation to include the present voluntary separation.
6.29.2007 1:12pm
therut:
I thank my lucky stars daily that I live in a rural area where the citizens have been untouched by the fights over race. Like above the school is made up of the children who live there period. The idea of bussing or of forcing a child to go to this or that school is foreign to my life. Chalk up another great thing about small town life and another reason I could not stand the STRESS of living in a city. To much government regulation of life.
6.29.2007 1:19pm
SeaDrive:
Can someone offer an interpretation? In order to meet state-mandated diversity standards, our school system has developed discontiguous school districts. (Using the popular code words, you might say we bussed black kids to white schools and white kids to black schools.) Does this decision automatically disallow that system? The white kid and his black neighbor both to to the same school. They may live across the street from one high school, but be bussed across the city to a different HS. Race is a factor in determining which neighborhood goes to each school, but is not a factor in kid-by-kid decisions.
6.29.2007 1:20pm
Lonely Capitalist (mail):
The Brown case said that the government forcing people into segregated schools was illegal. But how did this get inverted into the goverment forcing people to go to integrated schools?

When you take away the coerced segregation, you are left with allowing people to go to school where they wish. This is a good thing. Introducing new coercion forcing integration on people is as bad as forcing segregation. But this is what the left wants, forcing people to be equal.
6.29.2007 1:31pm
William Newman (mail):
Mark Field asks "What right did the plaintiffs have which was violated here?" I'm afraid any answer I made would be a guess, since I still haven't learned the specifics of the case yet. But that brings to mind a question in return: what right does MF think the plaintiffs had in Brown? (And were the plaintiffs in Brown trying to protect the right that he has in mind? Does he think it was loony for the "color-blind" phrase, quoted earlier, to have snuck into their brief?)

Equality under the law, as opposed to equality of outcome, is not just something cooked up as a dishonest tactical maneuver in modern racial politics. It's a principle going back a long time --- try reading the English Bill of Rights, e.g. Despite any number of insinuations to the contrary, many people actually sincerely believe it is important. Looking at a parallel controversy, on equality of economic opportunity vs. economic outcome, gives some evidence that it's not just a maneuver: people have been arguing for equality of opportunity continuously since before the US Civil War. And it also gives some evidence that not only is it not a maneuver, the economic opportunity side is both smart and sincere when they say it tends to be better for all, even those who are supposed to benefit from imposed equality of outcome. E.g., look at another MF who won a Nobel Prize in economics. Now that we have hindsight to see how things turned out, do you want to argue that Friedman's 1960s and 1970s cheerleading for Hong Kong's policies (and its popularity on the libertarianish part of the right) showed indifference or cluelessness about economic outcomes of the poor? Compared to his more leftish contemporaries cheerleading for the 1960s and 1970s policies of places like India, mainland China, and the Soviet bloc?

Also, Field's 1-out-of-2000 factoid is dramatic and memorable, but for me it would have more impact if it was specific about which school it is, or at least more specific about roughly what kind of situation the school is in. Is there some privacy reason to elide that?
6.29.2007 1:31pm
PGofHSM (mail) (www):
Lest we hear another paean to the beautiful racism-free small town life, I'll add my anecdote: I too went to a racially integrated public high school, which literally was the only high school available in the area. No private schools went past 8th grade; had there been any, my parents probably would have sent me there. My school district was under a desegregation order until 2000. The high school was required to remain unitary because, due to the housing patterns in the town, if there were two high schools in the area, they inevitably would have sorted by race. Those housing patterns were established partly by past legal restrictions. Though Seattle may not have such a history of enforced segregation in housing, other parts of the country (including Louisiana, where the other school district in this case was) do. The Court has said that past discrimination is a reason for remedial race-conscious measures.

Incidentally, the children of James Byrd, Jr. (the black man dragged to death behind a pickup truck the summer after I graduated from high school) were at high school with me and my little sister. While I am annoyed by the perception that there's more racism south of the Mason-Dixon line (I never heard of an unarmed black man's getting killed by the police in my area), I doubt that Byrd's kids would think there's as little racism in rural areas as the commenters above would have y'all believe.
6.29.2007 1:39pm
PGofHSM (mail) (www):
Lonely Capitalist,

"Introducing new coercion forcing integration on people is as bad as forcing segregation."

Seriously? You think that racial segregation and integration are morally equal, and the only thing that could make either immoral is coercion? Attempting to surround yourself solely with people of the same race is exactly like attempting to live in a diverse environment, and the government should be wholly neutral between the two and immediately cease promoting the latter -- even non-coercively -- as a good thing?
6.29.2007 1:48pm
Mark Field (mail):

The right to be treated without reference to their race, or if race is going to be the deciding factor in where they go to school, that it pass strict scrutiny.


I was referring to an underlying right. From your response, I assume there is none.


what right does MF think the plaintiffs had in Brown?


A fair question. They had the right not to be treated as second class citizens. I don't see that as an issue in either case here.


Equality under the law, as opposed to equality of outcome, is not just something cooked up as a dishonest tactical maneuver in modern racial politics


I agree, but surely you'd agree that in our history this was a principle honored more by the breach than the observance. Given that history, the dispute now is what should be done to structure affairs such that equality can operate fairly into the future.


Also, Field's 1-out-of-2000 factoid is dramatic and memorable, but for me it would have more impact if it was specific about which school it is, or at least more specific about roughly what kind of situation the school is in. Is there some privacy reason to elide that?


I generally am reluctant to disclose details of my daughter's life. That's her decision, not mine. I can say that it's a school in Watts.
6.29.2007 1:49pm
JBL:
In the United States, especially in some areas, there is a very strong correlation between race and other socioeconomic variables, including the quality of education.

Those who are concerned about the low quality of education in predominantly black schools are correct to point out a huge problem that urgently requires attention and that the status quo will not fix. They are incorrect to assume that the solution involves throwing race back in to our institutional standards.

A question for the lawyers: instead of using race as the criteria, would it be legal to require individual schools to reflect the income distribution of their area? Would it be legal to bus students as necessary so that every school in Cook County, IL had the same percentage of students from low- and high- income families as the county as a whole?

What about just requiring that all schools get the same (maybe local COLA-adjusted) per capita funding?
6.29.2007 2:01pm
David Drake:
Robertemmet--

Thanks for the history lesson! I am always happy when I learn that what I "know" about history is wrong. Happens a lot.

I'm not sure that the difference undercuts the argument, though.
6.29.2007 2:06pm
Peter Young:
Jack Balkin has a new post on "who in yesterday's decision was defending the heritage of Brown v. Board of Education, and who was seeking to dismantle and destroy it." Particularly interesting is his quotation of one of Justice Powell's opinions in which "he pointed out that so called de facto segregation was just as harmful to children as de jure segregation and that the distinction made no sense in a world of urban areas surrounded by mostly white suburbs."
6.29.2007 2:17pm
NaG (mail):
Peter Young: What is "outrageous and dishonest" is how you keep insisting on describing any form of racial imbalance as "segregation." In Brown, segregation was defined as forcible separation of the races by designating "white schools" and "black schools," and that was found to be unconstitutional -- and rightly so. Where is the forcible separation of the races happening in Louisville or elsewhere? Are you claiming that anywhere there happens to be more [insert ethnicity here] people than average, we must term it "segregation" and thus apply Brown to fix the problem? Sure sounds like it. And if so, frankly, it's an insult to everything Brown stands for to lower its standards so greatly.
6.29.2007 2:22pm
Peter Young:
Also of interest are Balkin's remarks on the opinions of Chief Justice Roberts and Justice Thomas:


In the present Court, Chief Justice Roberts-- heading the four Justice plurality-- has clearly allied himself with the "desegregation, not integration" mantra of Judge Parker. He has not the slightest sense of compunction or embarrassment in doing so. Indeed, in an amazing act of chutzpah, he cites the advocates in the original Brown litigation as supporting his position. If there is one thing that is clear, however, it is that the men and women who pushed for Brown and for black civil rights did not accept the "desegregation, not integration" slogan. They knew it as a set of excuses that white southerners offered for trying to keep in the place the old system of racial advantages using a new set of legal formulas.


***


Thomas offers an all-out attack on the ideal of an integrated society that the advocates who pushed for Brown dreamed of. In an act of Orwellian newspeak, Thomas refuses to call the separation of the races in public schools as "segregation" at all unless it can be shown to have been produced by a deliberate legal policy. In Thomas's world, the residential segregation in the United States and educational segregation that follows it have been the product of purely private choices. Moreover, Thomas insists, racial integration serves no useful functions; and it certainly does not promote democracy. Even if you put different races together in public spaces, Thomas insists, they will simply find new ways to self-segregate, and putting them together in public schools may even increase racial tension; so really, what is the point? Racial separatism, especially by blacks, is good for their interests, and good for America. There is enormous irony in the Court's single black Justice, Clarence Thomas, pushing the same ideology and mouthing the same excuses that defenders of Jim Crow once used to defend the racial status quo.
6.29.2007 2:27pm
David Drake:
Peter Young said--

We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students. Why this society should begrudge reasonable efforts to bring the racial balance of school enrollments into line with the racial balance of the community in which the schools are located is simply beyond me.

To the first sentence, Why can't we bring the quality balance of the schools more into line? I'm not arguing for "separate but equal" but for the proposition that every child is entitled to be educated to his or her best abilities.

To that end, I'd propose an expansion of the "Magnet School" concept that's used here in Dekalb County, Georgia: students with outstanding academic records or talents can transfer to "Magnet Schools" that cater to people with their abilities. As far as I know, race is not taken into account in that program.

It is, however, in the "Majority to Minority" program in which a student whose race is in the majority at the school he attends can transfer to another school in which his race is in the minority if there is an opening there. This is a pretty successful and non-coercive program here, although, as you would expect, many more blacks transfer to white schools than vice-versa. It will be interesting to see the impact of Parents Involved on this program.
6.29.2007 2:29pm
Lonely Capitalist (mail):
You think that racial segregation and integration are morally equal, and the only thing that could make either immoral is coercion?

I think that government forced segregation and government forced integration are equally wrong. People should be free to make their own choices.
6.29.2007 2:34pm
Fub:
VanMorganJr. wrote at 6.29.2007 11:38am:
[quoting Public_Defender at 6.29.2007 6:45am]
"...The conservatives have largely won. They get to keep their mostly all-white schools. Congratulations."

Oh baloney. That is simply spiteful and patently false. In my small, typical southern town we have a single high school that is open to all students within the city limits and many students from outside the city pay a nominal tuition for the privilege of attending as well. The racial composition of the student body pretty accurately reflects the racial composition of the community (35% black). Our community is the rule in our part of the world rather than the exception. Educating our children is not a liberal vs conservative issue, its a community responsibility.

Its easy to make broad sweeping generaliztions, but real world examples, if you know of any, would be a lot more persuasive.
Agreed.

I attended segregated schools in small southern towns at the time of Brown v. Board. I experienced directly the attitudes of more benighted classmates and parents as well as those who not only embraced Brown, but also had quietly hoped for it and had done what they could do in its absence. The news, whether anyone outside those communities believes it, is that the good guys won.

Today those same school districts not only have for decades been wholly technically "integrated", by virtue of only one school existing for all students in the district. But the schools also show indicia of things far more important than that. Student organizations and elected honors, including such eagerly sought honors as homecoming royalty and yearbook elected honors, show a panoply of faces of every skin tone on the planet. And, perhaps to the vexation of those driven by identity politics, the students also date and marry across lines of skin color.

For every Little Rock Central High School at the time of Brown, it's remarkably easy to find a Hoxie.
6.29.2007 2:46pm
Lonely Capitalist (mail):
In Thomas's world, the residential segregation in the United States and educational segregation that follows it have been the product of purely private choices.

Sounds like Thomas has it exactly right. Did you ever see a cafeteria at an integrated school? The blacks sit together and the whites sit together. I suppose you'd prefer there were assigned seats black/white/black/white?
6.29.2007 2:48pm
chris c:
putting the const bona fides of the decision aside for the moment, I'm surprised by the anguish of the liberal reaction to this decision.

one, any school district intent on this kind of thing can manage it by using income instead of race.

two, most school districts with high #s of black kids do not have anywhere near the number of white kids to 'balance' things. so this remedy usually won't remedy anything.

three, it would take someone lodged in 1957 mentally (or near D Souter's NH home) not to notice that whatever the schools look like, Americans in most of the nation regularly interact with people of all shades and sizes. I could have a distorted view of this, as I live in the South, but I can't recall the last public event or gathering I went to that did not have blacks, whites, etc. toss in intermarriage rates (increasing even between blacks and others) and in 50 yrs this hysteria will seem even odder.

I would agree this decision is at the least a harbinger of the end for racial preferences. but those have been fading anyway - blue states have been nixing them via initiatives for ten years - so it's not like the S Ct is barring some widely popular practice. and from a political perspective, it can only help the Dems to have the Ct do the dirty work of finally killing off this albatross.

three,
6.29.2007 2:56pm
Peter Young:
To that end, I'd propose an expansion of the "Magnet School" concept that's used here in Dekalb County, Georgia

The Los Angeles Unified School District, in which I live, has many magnet programs. According to a story in today's Los Angeles Times, "About 53,000 of the district's 708,000 students are enrolled in 162 magnet programs," with about another 30,000 on a waiting list. "Not all magnets are successful academically, but on balance they fare far better than the district as a whole," the story adds. "More than one-third of the district's 162 magnet programs have student bodies that are at least 90% black and Latino; 25 magnet schools have no white students."

The conservative Pacific Legal Foundation apparently has a suit pending challenging these magnet programs in the LAUSD, although the story was a bit vague about whether and if so to what extent race is used as a factor. The LAUSD is subject to a court desegregation order, but that order never has been formally filed. What bearing that will have on the magnet programs' legality is disputed.

The LAUSD is the nation's second largest. It has, of course, been hit by huge white flight to private schools. According to the story, "L.A. Unified is 72.8% Latino, 11.2% African American and 8.9% white."
6.29.2007 3:01pm
Taeyoung (mail):
Re: PGofHSM
Attempting to surround yourself solely with people of the same race is exactly like attempting to live in a diverse environment, and the government should be wholly neutral between the two and immediately cease promoting the latter -- even non-coercively -- as a good thing?

Breaking that down, I don't think that attempting to surround yourself solely with people of the same race and attempting to live in a "diverse" environment are exactly the same -- obviously they're different -- but morally speaking, I don't see any real difference between them. They're both species of assortive preference, and I wouldn't consider one superior to the other. De gustibus and all that.

I can, however, imagine that the government may have an interest in promoting "diverse" living, to make the culture of population more uniform, and eliminate pockets of diversity -- the little Chinatowns and barrios and the Black ghettos and White gated communities and so forth. A democratic state has an obvious interest in breaking down those kinds of distinctive, distinguishable, and culturally separate communities, in order to produce an electorate that feels itself to be a single, unitary community, with a shared culture, etc etc. So from the state perspective, promotion of integration is probably a good. From an individual perspective, though, I'd have to remain neutral as to whether it's good overall or not. Like most things, it has its good points, and it has its bad points.
6.29.2007 3:36pm
Extraneus (mail):
any school district intent on this kind of thing can manage it by using income instead of race


This in particular -- and the whole discussion itself, actually -- raises a question for me. By what right is a school, or the government in general, able to classify my kid either racially or by income, if I don't provide that data voluntarily?
6.29.2007 3:40pm
PGofHSM (mail) (www):
"By what right is a school, or the government in general, able to classify my kid either racially or by income, if I don't provide that data voluntarily?"

Which is what makes the assignment by income difficult -- you'd have to convince all parents to declare their income, information that goes only to the IRS and is supposed to be jealously guarded by same. An alternative, however, would be to go by property values, as that's what SAT scores supposedly have their closest correlation with, and that's information available to anyone who stops by City Hall. (Possibly even online nowadays thanks to those real estate websites.) Figure out how many students in the district from each grade fit into each bracket of property values, and require that each high school have roughly equal proportions of students from each bracket.
6.29.2007 3:47pm
PGofHSM (mail) (www):
Taeyoung,

I suppose I consider diversity of experience to be a beneficial thing even for the individual. I realize that there can be individual preferences in this, but frankly an interest in some kind of variety seems like a characteristic of being a grownup. Children tend to like getting chicken strips every time they go to a restaurant, whereas adults have a broader variety of tastes. I think an ability to adapt to things with which one has not always been familiar is a useful skill. Certainly this is something we recognize with regard to labor: people who have been trained to do a single task only and have not had a more liberal education get screwed when that task is done more cheaply by foreigners or machines. I think someone who has lived in diverse neighborhoods and gone to diverse schools will be better at adapting if his boss tells him to move to China. That's a benefit to the individual, not just to society.
6.29.2007 3:52pm
NaG (mail):
To look at this from another angle, if it should be technically constitutional to use race-based busing schemes to create integrated schools when the underlying neighborhoods are racially imbalanced, then why wouldn't it be similarly constitutional to prevent racial imbalancing in a neighborhood by either preventing under-represented ethnicities from being able to move out of the neighborhood, or only allowing under-represented ethnicities to move in to the neighborhood?
6.29.2007 3:52pm
PDXLawyer (mail):
JBL:

I am a lawyer, though not a Constitutional scholar. I'll answer your question based just on my law school classes, because I think the answer is pretty easy. YOu asked if discrimination by income is allowable. The short answer is "yes." I'll confine this to government discrimination, which is easier to analyze than anti-discrimination policy aimed at non-government actions (for example employment discrimination).

All laws "discriminate" in some sense. A law against murder "discriminates" against violent angry people, who are more likely to commit murder. Since prohibiting murder is necessary, "non-discrimination" is unworkable as an overreaching philosophical principle of government. What *does* work is to identify certain characteristics on which discrimination is illegitimate and/or certain types of rights which are more central than others. I have no Constitutional right to be violent, and no Constitutional right to kill others.

The Civil War amendments used both of these principles. Only certain types of rights were covered, and not all government "discrimination" in the broad sense was pro-black. For example, the US Army maintained segregated regiments in which the officers were white and the enlisted men black. The line which the drafters of these Amendments drew was probably not completely intellectually coherent, but that is not unusual in the law.

Over time, our concepts of what characteristics it is bad to discriminate on (suspect classifications) have broadened. Concerns about anti-black discrimination broadened to cover other races (Chinese, then Indians, then race as a general concept). Classification by sex came to be seen as illegitimate. Religion and national origin. Handicap. Sexual preference. Some classification is still OK, though. For example many people who think of themselves as "anti-discrimination" think that George Bush shouldn't be President because he is stupid. There is an argument that Bush isn't stupid, but no real argument that voting against someone for President because he is stupid is wrongful discrimination.

Similarly there are some rights that are perceived as more central than others. Generally, the consensus of the courts from about 1930 to the present has been that economic and property rights are less important than "personal" rights. So, the government has to be more careful about depriving you of the right to vote, for example, than about depriving you of the right to be an optomitrist. Libertarians like me think this is not a wise or tenable distinction, but our views have not prevailed.

Most lawyers see discrimination on the basis of income as unproblematic because income is not a "suspect classification" and in any event economic rights are not central. I hope this helped.
6.29.2007 4:07pm
David Drake:
Taeyoung said:

I can, however, imagine that the government may have an interest in promoting "diverse" living, to make the culture of population more uniform, and eliminate pockets of diversity -- the little Chinatowns and barrios and the Black ghettos and White gated communities and so forth. A democratic state has an obvious interest in breaking down those kinds of distinctive, distinguishable, and culturally separate communities. . .

Leading to an incalculable and irremediable loss to the community. All "ethnic enclaves" which, with the exception of gated communities, are accessible by all citizens, in my opinion contribute immeasurably to overall quality of life.

That sort of "state interest" smacks of totalitarianism to me: Imagine an ordinance that provides: "Every residential block and multifamily housing unit in the City of X shall have an ethnic composition that reflects as closely as possible the overall ethnic composition of X." With provisions for prohibiting people from moving into a block or into an apartment building or condo if their group is in the majority in that block or condo or, even worse, compelling a reshuffling of the populace every, say five years to prevent "resegration." Similar provisions for business districts: every mall, strip mall, business area, etc., must have a range of businesses that mirrors the ethnic makeup of X and so a panaderia could not be next door to or even in the same strip mall with a Mexican restaurant.
6.29.2007 4:26pm
Taeyoung (mail):
Re: PGofHSM:
I think someone who has lived in diverse neighborhoods and gone to diverse schools will be better at adapting if his boss tells him to move to China. That's a benefit to the individual, not just to society.

Sure, it's an economic benefit . . . although, frankly, I don't think "diversity" the way people encounter in the US is an especially good preparation for actual diversity as between countries -- the Chinese-Americans or Japanese-Americans you meet here in the US are for the most part only superficially like the Chinese or Japanese you will meet in China or Japan, in most cases. So, for that matter, are the kinds of Chinese or Japanese who choose to come to US for work or education etc.

But leaving aside the economic benefits of diversity, it also makes the person receiving the benefit into a different kind of person, and that different kind of person may not be a person he wants to become. There's a powerful economic benefit to living in a consumerist technological society with cars and computers, for example, but the Amish don't seem to be particularly moved. And their choice -- though not one I would make myself -- is a perfectly decent choice. Similarly, there's a modest individual benefit to learning Spanish, if you live in LA, but there's no particular reason you should do so if you don't care to. Doesn't, of itself, make you a superior person.

Re:
I realize that there can be individual preferences in this, but frankly an interest in some kind of variety seems like a characteristic of being a grownup. Children tend to like getting chicken strips every time they go to a restaurant, whereas adults have a broader variety of tastes.

That's an easy analogy, except that adults generally don't have a much broader variety of tastes, as far as I can tell -- they just have different tastes. Adults still have their favourite restaurants and their favourite dishes, etc., even if their favourite restaurant is rather less likely to be McDonalds, and their favourite dish less likely to be a Happy Meal. Instead, they may devote themselves to the subtleties of French cuisine, say -- all French, but offering nevertheless a rich variety of dishes and tastes.

An obvious counter-analogy -- equally unpersuasive, I admit -- is that the thirst for diversity is like the thirst for novelty: a juvenile trait, an adolescent trait, and one that recedes at last with sober adulthood. Young people try out all kinds of different things, but eventually, they grow up, get married, have children, and settle down.

I don't think these kinds of analogies tell us anything about "diversity" and so forth, though, since we're talking about something rather more significant than the food-of-the-week -- although I admit, it sometimes seems that ethnic difference in the US is reduced to nothing more than differing Westernised ethnic cuisines in cute restaurants. Race and ethnicity are proxies for culture (the only sense in which I can understand "diversity" here being meaningful), and what I understand us to be discussing is the individual choice of what kind of culture(s) you want to return to, when you head back to your neighbourhood and your home. That's not a matter of sampling different flavours for dinner, but deals with a deeper and more lasting personal engagement.
6.29.2007 4:29pm
Benjamin Davis (mail):
Here is a litany of examples from one black person housing patterns as "choice".

"What has perhaps most saddened me is the implicit assumption by the Court in Parents Involved that if blacks are racially segregated in their neighborhoods and ultimately in their schools in the absence of de jure segregation, it is because of the exercise of "private" decisions about where to live and attend school, and such choices cannot and should not be addressed by government. The reality is that housing "choice" may still be a long way off, even for financially able members of minority groups. For example, data compiled by the National Fair Housing Alliance indicates that racial "steering"—the practice by real estate professionals, sellers and other involved in real estate transactions of recommending or discouraging the purchase of homes or choice of school districts to potential home buyers based on their race or national origin—is alive and well. My own anecdotal experiences seem to support this conclusion. I've bought 6 properties in various states and towns in the course of my life, all in predominantly white neighborhoods. I've placed bids on several more. All of the properties were offered by real estate professionals who were highly experienced, well known and respected in local circles. I believe that I've experienced race-based discrimination in some aspect of the process in all but one of these transactions.


In my first transaction the selling agent told me that the sellers were "nervous" about taking my offer (why?) but it would allay their fears if I made a full priced offer and put over 30% down (huh?). In my next transaction the seller's agent told me that because of credit problems (What credit problems? She didn't know me.) I had to have all cash to purchase the house (Whoever heard of that?), and she later refused to return calls placed by my agent. In another case the selling broker took my offer and sent it around to fellow agents in an effort to drum up competing bids while asking for extensions of time in which to accept my bid. Not surprisingly, I was ultimately outbid. I learned later through acquaintances of the sellers that they had no intention of considering my offer since they felt that my family didn't "fit" into the neighborhood, but they were glad to get my offer in order to start the ball rolling (the house had sat with little activity for months.) I thus became an unwitting shill. In several cases the agents never conveyed my offer to the sellers and I was forced to contact the sellers and let them know about the offer I'd made. This doesn't even begin to count the numerous times I appeared with my agent to view a property but was refused admission by a plainly visible seller who ignored the ringing doorbell or offered excuses to avoid a showing ("I know you have an appointment but this isn't a good time," "We're not sure if we're going to sell after all.")


Gee, isn't all of that stuff is illegal? Maybe. That's the problem. There are in most places some combination of local, state and federal laws barring racial discrimination. There are also typically professional codes of conduct that hold real estate brokers and agents to certain standards. But trying to hold real estate professionals accountable for violating the law or professional standards (never mind holding the sellers accountable) in such cases is all too often a losing proposition. This is especially true in housing discrimination litigation, since there is a requirement of a clear showing of discriminatory intent. This means that an action which could somehow be construed as neutral on its face may not easily be the basis of liability. Given the time, money, headaches and heartaches of litigating, even a practicing lawyer or law professor may just move on to the next deal notwithstanding suspected racial discrimination.



The Chief Justice indicated in his oral announcement of the ruling that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Seems like a no-brainer. If only it could work that way. Regrettably, the racial discrimination aimed at blacks and other racial minorities is often stealthy as well as stalwart. To assert that governmental use of race to remedy past and continuing discrimination against blacks and other racial minorities is the same as deeply entrenched, longstanding white racism seems a bizarre and disingenuous embrace of the color blind ideal. Such decisions, while purporting to disrupt racist practices, instead run the very real risk of legitimizing them. Perhaps we are doomed to return to the days before Brown."

I know - you think she is just paranoid. Her full stuff is at http://racelawinniss.blogspot.com/

Best,
Ben
6.29.2007 4:31pm
Jim Rhoads (mail):
Apparently, many here think that the voluntary/coerced distinction respecting racial balance should not be relevant or material as a matter of constitutional law.

But Brown was essentially an equitable action seeking redress of a specific constitutional deprivation caused by coerced exclusion of black children from white schools.

The relief portion of the case was argued separately from the liability portion. The liability case was the one primarily cited by Justice Roberts, and essentially adopted the "color blind" principle argued by Plaintiffs (represented by Thurgood Marshall) and explicated eloquently by John Marshall Harlan I in his dissent in Plessy.

The problem with the Seattle case is that there is no history of any sort, in the record or otherwise, of unlawful separation of any race which supports the need for a remedy. Even if there were unlawful separation of races in Seattle, the place to seek relief is not the school boards; it is in the Courts. But even if the school board was the appropriate agency to solve the problem, if it had not excluded whites from certain schools solely because of their race there would have been no case for the Supreme Court to consider.

All of the comments of systemic racism and the like simply are not proven in the record before the Court in the Seattle case. Therefore, there is no legal reason to "remedy" anything by excluding a member of a racial class by reason of race alone.
6.29.2007 5:05pm
JDE (mail):

Peter Young -
We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students.

Peter's statement is indisputable.

School districts that make such efforts are engaging in wise policy; they know a harmonious and prosperous community--one free from bitterness and tension--is much more likely if everyone is given a fair and equal chance at a decent education.

I couldn't disagree with conclusion more, however. I don't consider these policies wise, nor do I even see how this "solution" is logically related to the problem.

I'm no lawyer, but I think I know something about education. The greater problem we're dealing with has nothing to do with Brown. It has to do with the poor state of American public schools. On the whole, they flat out suck. Local governments and boards of education have failed miserably over recent decades in improving schools. Since they can't fix the schools they shift the blame. They create phantom "root causes" like racism and the like. What we are really seeing with these cases is competition for scarce resources. Unfortunately, this creates a "free rider" problem for the good schools, which are typically better funded and safer.

Lastly, 'creating harmonious and properous communities free from bitterness and tension' -- is that a measurable educational outcome? Has busing and quotas given us these desireable results?
6.29.2007 5:11pm
bittern (mail):
SeaDrive, did you get an answer? I searched for your name in later posts and did not see it. I'm not a lawyer, just following the discussion here and elsewhere. My impression is that your city's arrangement is exactly the arrangement that swing-voter Justice Kennedy would smile down upon, and would therefore it be legal. Action intended to mix student populations, without screening by the individual. On another thread, I've already hyped this posting with further explanation.
6.29.2007 5:14pm
Mark Field (mail):

putting the const bona fides of the decision aside for the moment, I'm surprised by the anguish of the liberal reaction to this decision.


I think the distress you see reflected in the comments arises from our perception that the Roberts opinion demonstrates a lack of fundamental values (or, alternatively, a preference for abhorrent values). It's the same sense of outrage regarding Guantanamo.

I happen to believe in America as a "city on a hill". Not in the sense of actually achieving that, but in the sense of a commitment to progress towards that goal. When I see a President and Court not just denying that commitment, but denying the very values themselves which make our country great, well, yeah, that upsets me. Just my patriotism, I guess.
6.29.2007 5:15pm
Taeyoung (mail):
Re: Benjamin Davis:
For example, data compiled by the National Fair Housing Alliance indicates that racial "steering"—the practice by real estate professionals, sellers and other involved in real estate transactions of recommending or discouraging the purchase of homes or choice of school districts to potential home buyers based on their race or national origin—is alive and well.

If this is the problem, though, then bussing, race preferences, and state discrimination aren't actually doing a thing to remedy the problem. They're just a make-believe fantasy papering it over. If racial "steering" is producing artificially segregated neighbourhoods that the inhabitants did not, themselves want, then racial steering is what ought to be attacked -- not the practice of having children attend local schools, and allowing children colourblind access to the schools. And as you describe it, racial steering looks like something one could legitimately attack, like any other race-discrimination case (if somewhat less direct).

Admittedly, that would not help in the case of the houseowner who decides, on discovering that his house is going to go to someone of a different race, that perhaps he's not all that interested in selling after all. But I'm not sure what could, that would not be tyrannical. Even when desegregating hotels and restaurants and so forth, the owners retained -- as far as I understand it -- the option of exiting the market entirely. They just loved money more than Jim Crow.
6.29.2007 5:21pm
Paleo (mail):
I agree that another "cruel" irony is Justice Thomas. A man who, if it were not for affirmative action, would not be where he is today, who, if he had been on the Court in 1967, would likely have voted to make his current marriage illegal, and who likely would have dissented in Brown.
6.29.2007 5:22pm
NaG (mail):
Paleo: Maybe you should keep the completely unsubstantiated race-baiting to yourself, even if it does make you feel better.

Benjamin Davis: Yeah, I read about that NFHA report. All it showed was that the number of housing discrimination complaints went up from 2003 to 2004. Didn't prove that more actual discrimination was found.
6.29.2007 5:50pm
Jim Rhoads (mail):
Nor, NAG, that provable housing discrimination was the cause of the racial imbalance in Seattle's schools.
6.29.2007 5:57pm
happylee:
Mildly off-topice, but when people ask why "hardcore" libertarians oppose school vouchers, one need look no further than the long line of completely ridiculous cases on school segregation, integration, curriculum, free speech, bla bla, for an answer. Vouchers would bring with it all this garbage -- just ask any doctor what Medicare/Medicaid, etc has done for his profession....

I'd have to emigrate if my right to choose a skool for my kids was eliminated by bureaucrats/judges/legislators, etc.
6.29.2007 6:05pm
Eliza (mail):
We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students.

What the hell are you implying? To the extent it's true it's because of the way schools are funded, not because bused in white students are needed to help minority students perform better.
6.29.2007 6:12pm
Paleo (mail):
NaG, how is that "race-baiting"? An ad hominem attack, perhaps. But hardly "race-baiting" And you don't challenge any of my assertions.

As for the supposed lousy state of US public schools, as asserted above, this is simply untrue. In poorer areas, including inner cities, there are problems. But go to any middle class, or higher public school, and you'll find that they generally do a fine job.
6.29.2007 6:32pm
Dave Wangen (mail):

They had the right not to be treated as second class citizens. I don't see that as an issue in either case here.


So, Mark Field, you don't regard being rejected from a competitive program based solely on your race as being an issue? (Seattle)

Contrary to the implication in your original post, this wasn't some sort of special treatment. It was a program open to various students, including the plaintiff's child, which he was rejected from because of the color of his skin ALONE. That's racial discrimination, no matter how you try to spin it.
6.29.2007 6:35pm
Porkchop:
Contrary to popular belief, apparently, this is not the product (at least not exclusively) of white people not wanting their kids to go to school with black kids. One of the original plaintiffs in the Kentucky case (but apparently not on the cert petition) was the child of a black single mother who objected to having her child bused 10 miles each direction when there were two schools within a mile of her home. Apparently, they were "too black" for her son to attend. She did not want her son to spend three hours a day on the bus. Is she a racist? A segregationist? Maybe she just wanted what she thought was best for her kid, regardless of what someone else thought about diversity?
6.29.2007 6:55pm
K:
It seems to me that the lottery or random method of assigning all students to schools is still legal.

Most parents would hate it because the odds on your child attending the closest school fall to almost nothing. Thus nearly everyone is inconvenienced. The school day is longer. Child care can be a logistical nightmare. Busing costs increase greatly and the system can be corrupted.

But otherwise, what is the problem?
6.29.2007 6:57pm
Crunchy Frog:
Why would anyone care what race someone is who's going to buy their house? They're selling. They're not going to live there any more. As long as the escrow closes, I wouldn't give a rat's behind who bought my house. And if the neighborhood goes to hell in a handbasket, it's not my problem, is it?
6.29.2007 8:10pm
MartyB:
"it was only black schoolchildren who were so ordered"

Has anyone verified that white kids were allowed to go to black schools?

They may have been, but my guess is that they were not. I grew up under segregation in the south, and I remember clearly that those segregation rules with which I came in contact were applied to both races. For example, blacks had to sit in the balconies of movie theaters and whites in the main floor. A violation in either direction would get you kicked out by bouncers who were hired to enforce this and other behavioral rules. I don't know specifically about schools but the assertion should be verified.
6.29.2007 8:19pm
Mark Field (mail):

So, Mark Field, you don't regard being rejected from a competitive program based solely on your race as being an issue? (Seattle)

Contrary to the implication in your original post, this wasn't some sort of special treatment. It was a program open to various students, including the plaintiff's child, which he was rejected from because of the color of his skin ALONE. That's racial discrimination, no matter how you try to spin it.


This wasn't a competitive program in any usual sense. Spots were not based on "merit". This was simply a sophisticated lottery system which allocated scarce resources. Think of it as a point system like Canadian immigration. Calling it "discrimination" is begging the question. (And, to nit-pick, it's using the wrong word: every statute "discriminates" on some ground. The word you mean is "prejudice", and if you think of it that way you'll see why the program passes muster.)

My original post, in any case, didn't raise this issue. It asked, instead, if there was any underlying right violated. IOW, did the selection process deprive anyone of freedom of speech, property, or some vested right? From the silence which prevails, I assume the answer is no.
6.29.2007 8:52pm
juris_imprudent (mail):
The only people seeking differential treatment on the basis of race are those who support striking down efforts to minimize the discriminatory effects of racial segregation by taking race into account in school assignments.

That is positively Orwellian. Brilliant!

A color-blind Constitution would be fine if we lived in a color-blind world. But we don't.

Yet unlike the days when color determined what school you would attend, we should now and forever more have color decide what school you will attend. That is progress I tell ya!

We all know--and if we don't know, we should--that schools having large racial minority enrollments simply do not have anywhere near the quality of schools attended by large numbers of white students.

And the ONLY way to remedy this is to move more white students into sub-standard schools while permitting some fortunate minority students into the better quality schools of the 'burbs. [Dude- you been in one of these high-quality suburban schools lately?]
6.29.2007 9:22pm
crane (mail):
Why would anyone care what race someone is who's going to buy their house? They're selling. They're not going to live there any more. As long as the escrow closes, I wouldn't give a rat's behind who bought my house. And if the neighborhood goes to hell in a handbasket, it's not my problem, is it?


Maybe they still feel an emotional attachment to neighborhood, and want to make sure the new occupant is someone they think would fit in. Maybe the realtors don't believe a black buyer can be relied upon to pay the mortgage. Or maybe they're just out-and-out racists who would feel sullied if one of "those people" moved into their old house. You never know.
6.29.2007 10:25pm
David M. Nieporent (www):
I suppose the same Congresses' creation of the Freedmen's Bureau does make that understanding a little more difficult. Not to mention creation of black colleges, etc..
1. The Freedmen's Bureau predates the Fourteenth Amendment.
2. You'll notice it was the Freedmen's Bureau, not the Black's Bureau.
3. Even if it were the Black's Bureau, again, nobody denies that remedial measures may be race-conscious. That differs completely from what we have here, which is just about the aesthetics of the class photograph.
4. The Fourteenth Amendment doesn't apply to the federal government.
6.29.2007 10:45pm
David M. Nieporent (www):
what right does MF think the plaintiffs had in Brown?

A fair question. They had the right not to be treated as second class citizens. I don't see that as an issue in either case here.
If the right is merely "not to be treated as second class citizens," then you're effectively endorsing Plessy. It's not government discrimination that's the problem; it's just inequality. So separate-but-equal is perfectly okay; that wouldn't violate anybody's rights at all.


Putting that aside, what stands out most about the denunciations of this decision and the cries of impending doom is (as Roberts noted) how trivial these programs were. How does shuffling a few percent of the students around solve the educational problems of black students?
6.29.2007 10:56pm
Grey (mail):
I think the obvious answer in most cases is that many people prefer to live around people more like them than not.

By far the most insulting thing in these comments is the notion that black people are "not like" white people, and vice-versa.
6.29.2007 11:38pm
Mark Field (mail):

If the right is merely "not to be treated as second class citizens," then you're effectively endorsing Plessy. It's not government discrimination that's the problem; it's just inequality. So separate-but-equal is perfectly okay; that wouldn't violate anybody's rights at all.


You can say this only if you ignore the single most famous sentence in Brown. Tell you what David: when I decide to endorse Plessy, I'll be the first to let you know.
6.29.2007 11:47pm
Truth Seeker:
By far the most insulting thing in these comments is the notion that black people are "not like" white people, and vice-versa.

Well then why do black students self-segregate in most schools? Maybe they have different music, role models, etc., etc. to talk about. Maybe a slightly different culture.
6.30.2007 12:01am
Truth Seeker:
Crunchy Frog:
Why would anyone care what race someone is who's going to buy their house? They're selling. They're not going to live there any more. As long as the escrow closes, I wouldn't give a rat's behind who bought my house. And if the neighborhood goes to hell in a handbasket, it's not my problem, is it?


Maybe not everyone is not quite so self-obsessed as yourself.
6.30.2007 12:03am
Truth Seeker:
Not that the result is good behavior in this case mind you.
6.30.2007 12:05am
Dave Wangen (mail):

My original post, in any case, didn't raise this issue. It asked, instead, if there was any underlying right violated. IOW, did the selection process deprive anyone of freedom of speech, property, or some vested right?


And, as everyone and their brother has been saying since well before that, "Equal Protection under the law".
6.30.2007 3:11am
Peter Young:
putting the const bona fides of the decision aside for the moment, I'm surprised by the anguish of the liberal reaction to this decision.

Mark Field responded:

I think the distress you see reflected in the comments arises from our perception that the Roberts opinion demonstrates a lack of fundamental values (or, alternatively, a preference for abhorrent values). It's the same sense of outrage regarding Guantanamo.

I happen to believe in America as a "city on a hill". Not in the sense of actually achieving that, but in the sense of a commitment to progress towards that goal. When I see a President and Court not just denying that commitment, but denying the very values themselves which make our country great, well, yeah, that upsets me. Just my patriotism, I guess.


I haven't considered myself a liberal since JFK was President, and I don't think you really can distinguish between my reaction and the constitutional bona fides of the decision, but, as a leftist, I join Mark's comments.

Fifty years ago this September 29, my family, which had arrived in Canada from England four years earlier, crossed the border at Port Huron, Michigan and, after a short stay with relatives in Kalamazoo, we journeyed across the country on old Route 66 to our new home in California. We listened to the radio and bought the daily newspapers as we crossed this magnificent land; it was the week of the Little Rock School crisis.

My reactions as one who had just turned 14 were mixed. I could not understand the hatred in the faces of white adults as they spewed their venom at young black students dressed in their Sunday best for their entry into Little Rock High School. As the troops came in to ensure the students' safety, I marveled at what a great country we were joining. It did the right thing, mobilizing all its great powers even for the least of us in the pursuit of justice.

I was not a particularly politically aware 14-year-old, but ever since, the U.S.A. has been for me a shining citadel on a mountain top in the sense that Mark refers to. It held to great ideals and it was committed to trying to achieve them even if it did not always do so. It represents the best in human endeavors. It stands as a beacon of inspiration for the rest of the world.

We found almost 100 percent de facto segregation in residence, schools and employment in the then small city in which we settled, Fresno, California. Over the next few years, all these barriers broke down, one by one. The first black teacher ever at Fresno High School taught me typing. Black families moved across the railroad tracks to homes in the suburbs. Black students began to attend the overwhelmingly white high schools (although not until after I was graduated, in 1960.) Black faces appeared among the employees of downtown banks and stores.

I saw a nation doing its best to redeem itself. The changes were visible in daily life. It was a thrilling reaffirmation of the lesson I had taken from my first week in this country.

The road was never smooth. There was resistance to integration. I moved to Los Angeles after college in 1965, and, after three years back east for law school, went to work as a poverty lawyer in Watts in 1969. In Lyndon Johnson's War on Poverty, money was thrown at the problem without much thought, as if money without more was the solution, and, predictably, it was largely squandered. Police brutality remained intractable, and two huge civil disturbances racked Los Angeles, in 1965 and 1993. (There were other disturbances in other cities, too, of course, but I wasn't there for them.) Presidents were elected whose commitment to civil rights was perhaps dubious. But through all this, the nation's commitment to the ideal remained if only because the promise of Brown remained intact, if only as an ideal.

What upsets me is the profound betrayal of this commitment to the ideal so evident in yesterday's plurality opinion. In the face of the history of the struggle for civil rights in this country, to use Brown to strike down these local attempts to secure racial balance and a modicum of racial equality in schools is disgraceful. The result is one with which I strongly disagree. But the reliance on Brown, including the appalling effort to coopt the advocacy of the lawyers who represented the plaintiffs in Brown, is morally repugnant.

And Mark is right to equate the reaction to Guantanamo in its largest sense. The shining citadel, if it still exists, has been terribly tarnished, and yesterday's decision severely diminishes what remains of its lustre. We know it and the rest of the world knows it.
6.30.2007 3:30am
David M. Nieporent (www):
I think the distress you see reflected in the comments arises from our perception that the Roberts opinion demonstrates a lack of fundamental values (or, alternatively, a preference for abhorrent values).
If being opposed to racial discrimination is abhorrent to you, I think that says a lot about you but not much about Roberts.

You can say this only if you ignore the single most famous sentence in Brown.
I can say it because you're ignoring the holding of Brown, and the message of Brown, in favor of the message of Plessy.
Tell you what David: when I decide to endorse Plessy, I'll be the first to let you know.
If the shoe fits...

You're trying to rewrite Brown from an anti-racism decision to a anti-racism-you-don't-like decision. Brown said that discrimination was "inherently" wrong (*) -- not that it was wrong if it happened to produce outcomes which judges disliked.



(*) Fortunately, because when it ventured away from that, it relied upon bogus psychological studies, so if it had been making the mere empirical claim you wish to limit it to, it would be vulnerable.
6.30.2007 8:39am
David M. Nieporent (www):
My question, which I still haven't heard answered by liberals who think that Parents Involved is basically Jim Crow 2.0, is this: if racial balancing is a compelling government interest, such that race-conscious methods are perfectly justified, then what principle limits it to schools?

Isn't the argument that mere desegregation isn't enough, because of unbalanced residential housing patterns? So shouldn't we also send people to live in different communities on the basis of race? Shouldn't we tell a white person that he can only move to a neighborhood, or even municipality, that isn't "too white," and a black person that he must stay in a white neighborhood? This would create a lot more "diversity" than merely busing a few kids a few hours to get to school, wouldn't it? (Indeed, we would no longer have to bus, which would be beneficial to kids.) It would create more racially balanced schools, parks, supermarkets, malls, movie theaters, churches, libraries...

Is there any constitutional principle, according to the left, that would forbid this?
6.30.2007 8:52am
NaG (mail):
Nieporent: That was precisely my question on 6/29 at 2:52 p.m. And no, nobody has managed to answer that challenge.

Paleo: Effectively screaming "Uncle Tom" at Justice Thomas (which is race-baiting, I'll have you know) is so base and meritless that it is not worth wasting bandwidth responding to in substance.

Peter Young: You have given us a lot of anecdotal warm fuzzies, but you still haven't answered why Brown, an anti-segregation decision, should be applied when there is no actual segregation. If Chinese immigrants choose to live together in a "Chinatown," Brown would clearly not apply to either force that Chinatown to split apart or to bus the Chinese students to different schools. So why does it apply in these decisions? Is it just because we're dealing with "black people"?
6.30.2007 9:20am
Paleo (mail):
NaG, I'm not screaming Uncle Tom at Thomas. I'm screaming hypocrisy.

As for what constitutional principle would restrict integration to schools, education is treated differently for purposes of constitutional analysis by the courts in many respects. Free speech is limited, and presumption of potential religious indoctrination is higher, to just name two. As part of the education and socialization process inherent in public schooling, seeking to end segregation, whether de jure or de facto, may be considered a compelling interest.
6.30.2007 10:52am
Peter Young:
Peter Young: You have given us a lot of anecdotal warm fuzzies, but you still haven't answered why Brown, an anti-segregation decision, should be applied when there is no actual segregation.

NaG: I and/or the articles to which I linked have answered your question, and if you can't see that, nothing can help you see it.

Your denigration of my experience of the civil rights struggle--given in answer to the question someone posed as to why the decision so upset me and others--as "anecdotal warm fuzzies" demonstrates there is little purpose in continuing any exchanges with you on this. That struggle was made of guts and grit and sacrifice--lots of selfless and courageous hard work over many decades. I doubt you know what any of that is.

Fortunately, the last word from the Court on this has not been written. I look forward to a future time when justices more attuned to the real world and what goes on there, less ignorant of history and more conscientious in their use of precedent form a majority. All it will take is a one-justice shift in the makeup of the Court, and if that happens, this week's decision will not survive. It certainly wouldn't get the respect that recent precedent normally gets.
6.30.2007 11:06am
Peter Young:
My question, which I still haven't heard answered by liberals who think that Parents Involved is basically Jim Crow 2.0, is this: if racial balancing is a compelling government interest, such that race-conscious methods are perfectly justified, then what principle limits it to schools?

For one thing, the government owns and operates public schools; it doesn't own and operate neighborhoods. It may legitimately do all kinds of things in the schools that it could not legitimately do with respect to private residential areas. It can tell students not to eat and not to sleep in class and put them in detention if they disobey. Heck, it can even punish students for posting signs saying "Bong Hits for Jesus" in or around schools, but it couldn't do that elsewhere.

For another, arguably people generally have a constitutional right to live where they want to live, but students do not have a constitutional right to go to the public school of their choice. A federal circuit court of appeals recently rejected the existence of a right to live where one wants in the context of a law prohibiting convicted sex offenders from residing within a certain distance of schools, but that is not the last word on this subject.

Finally, and perhaps most important, an interest may be compelling in one context but not another. Exposure to racial diversity in the learning context is a much more compelling interest than exposure to racial diversity in private living arrangements. One learns more and different things from experiencing the diverse in the school setting. Racial balance also ensures racial equality in quality of education.

Neither of these interests are present in the private living arrangement context. As far as I know, we have never supposed that exposure to diversity in private living arrangements furthers a legitimate governmental interest, much less a compelling one. And the same is true with respect to achieving equality in private living arrangements.
6.30.2007 11:39am
Mark Field (mail):
DMN: Blaming the victim isn't very persuasive and doesn't require any response.
6.30.2007 12:22pm
Truth Seeker:
As part of the education and socialization process inherent in public schooling, seeking to end segregation, whether de jure or de facto, may be considered a compelling interest.

For the left, forcing blacks and whites to integrate is a compelling state interest. For the rest of us, freedom to make our own choices and to be free from government tyranny is a compelling interest.

It's a simple choice, should the government decide what's best or should we keep that freedom?
6.30.2007 4:14pm
Eliza (mail):
Exposure to racial diversity in the learning context is a much more compelling interest than exposure to racial diversity in private living arrangements. One learns more and different things from experiencing the diverse in the school setting.

How do you know? Have you had black roommates? From your consistently patronizing tone, I'd guess not. And according to your own account you went to a segregated high school. All this mawkish nostalgia for 1960s America--you actually miss it. Oh yes, those were the good ole days for race relations and the lives of black people. And the Twenty First Century is a benighted era of hatred and discrimination where the Supreme Court goes around demolishing the "shining citadel" because they don't want "racial equality in schools." It's perverse.

And frankly, all the moral huff and puff is comical coming from someone who can be found up-thread expressing views Charles Murray would applaud.
6.30.2007 6:02pm
David M. Nieporent (www):
Mark: I have no idea where you see any "blaming the victim" in anything I wrote. Who's the victim? Victim of what? What blame?

The point here is that there is a betrayal of Brown and American ideals wrt that "shining city" -- but it was from the dissenters, not the majority, in Parents Involved.

Affirmative action has been perverted over the last few decades, but when LBJ issued his famous executive order on the subject, it required that people be treated without regard to race. Whatever one thinks about an originalist interpretation of the 14th amendment, the Civil Rights Act explicitly forbids racial discrimination, whether for so-called "benign" motives or not.


Peter:
Finally, and perhaps most important, an interest may be compelling in one context but not another. Exposure to racial diversity in the learning context is a much more compelling interest than exposure to racial diversity in private living arrangements. One learns more and different things from experiencing the diverse in the school setting. Racial balance also ensures racial equality in quality of education.
That's a lot of ipse dixit. Why is exposure in a "learning context" "more compelling" than exposure in "living arrangements"? One gets, as I noted, a lot more exposure to people if one lives alongside them than if one is merely bused across town to spend a few hours a day in school with them. And does any of what you said constitute legal argument, or just policy argument?

And as for having a "constitutional right" to live where one chooses, one has a constitutional right not to be discriminated against on the basis of race. The whole point of the "compelling interest" framework is that it can be used to abrogate constitutional rights. So that argument doesn't provide a principle for not enacting a residential-diversity policy.
6.30.2007 7:52pm
Mark Field (mail):

Mark: I have no idea where you see any "blaming the victim" in anything I wrote. Who's the victim? Victim of what? What blame?

The point here is that there is a betrayal of Brown and American ideals wrt that "shining city" -- but it was from the dissenters, not the majority, in Parents Involved.


All you're doing is blaming the other side for conduct which you, yourself, are guilty of. It's cute -- well, it's cute if you think Karl Rove is a cuddly teddy bear -- but it's a 5 year old's argument and not worthy a response.


Affirmative action has been perverted over the last few decades


I love how people who've opposed AA from day one now think they can tell those of us who support it what it originally meant.


Whatever one thinks about an originalist interpretation of the 14th amendment, the Civil Rights Act explicitly forbids racial discrimination, whether for so-called "benign" motives or not.


The originalist argument won't get you very far. I linked, in this thread or the other one, to the historians' amicus brief. You're simply wrong if you think that the evidence confirms a race-neutral reading of the EPC. That's no problem for non-originalists, of course, but it's a major problem for those who claim to be. Hint.
6.30.2007 9:25pm
NaG (mail):
Peter Young: All you've linked to is a study on magnet schools and Prof. Balkin's post on his blog, which most certainly did not address the issue of whether private residential choices are properly labeled as "segregation" that would be covered under Brown. In fact, the left has consistently slung around the "segregation" label on things that are most certainly NOT segregation, at least if that term is to retain any meaning at all. And all of this harkening back to your past...it's like you're claiming the right to change the meaning of the term as it suits you. You were involved in the civil rights movement, so if you call it segregation, it really must be. Never mind that, as Justice Thomas points out, Brown expressly defined segregation for us. So either you think Brown stands for something it doesn't, or you're trying to change what it stands for to suit your purposes. Either way, it's not fair ball.

"...[B]ut students don't have a constitutional right to go to the school of their choice." -- Yes, this is quite unfortunate. Considering the lefties have been able to find a plethora of rights in various penumbras and emanations of this and that, you'd think they would have been compassionate enough to grant those poor inner-city minority children the pithy right to pick which school their child shall apply to. But no-o-o-o...we've got failing public school administrators to prop up! Normally, I'd expect lefties to label any institution that consistently underserved blacks ever since the inception of the institution to be racist, but somehow the public schools got a pass.
7.1.2007 2:18am
David M. Nieporent (www):
All you're doing is blaming the other side for conduct which you, yourself, are guilty of. It's cute -- well, it's cute if you think Karl Rove is a cuddly teddy bear -- but it's a 5 year old's argument and not worthy a response.
And all you're doing is self-righteously denying reality. Calling people racists doesn't make an indefensible position stronger.

Fortunately, more and more people see through that, which is why even in blue states, racial preferences are resoundingly rejected by the public -- despite opposition from all of the establishment -- when they're allowed to vote.
I love how people who've opposed AA from day one now think they can tell those of us who support it what it originally meant.
Well, I wasn't alive from "day one," and I was a knee-jerk liberal until college, so I don't think the description applies to me. But in any case, I can read. The term was first used by JFK and LBJ in Executive Orders which said that federal contractors were to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Color-blind. Not race-conscious-for-the-purpose-of-diversity, but without regard for race.
The originalist argument won't get you very far. I linked, in this thread or the other one, to the historians' amicus brief. You're simply wrong if you think that the evidence confirms a race-neutral reading of the EPC. That's no problem for non-originalists, of course, but it's a major problem for those who claim to be. Hint.
Putting aside the question of whether a few historians get to determine history, you completely ignored what I wrote, which was that it really doesn't matter whether the 14th outlaws all race-conscious policies, because the Civil Rights Act explicitly does so. (Yes, I know some members of the Supreme Court decided to ignore the text in Bakke.)
7.1.2007 5:05am
Peter Young:
All you've linked to is a study on magnet schools and Prof. Balkin's post on his blog, which most certainly did not address the issue of whether private residential choices are properly labeled as "segregation" that would be covered under Brown. In fact, the left has consistently slung around the "segregation" label on things that are most certainly NOT segregation, at least if that term is to retain any meaning at all. And all of this harkening back to your past...it's like you're claiming the right to change the meaning of the term as it suits you. You were involved in the civil rights movement, so if you call it segregation, it really must be. Never mind that, as Justice Thomas points out, Brown expressly defined segregation for us. So either you think Brown stands for something it doesn't, or you're trying to change what it stands for to suit your purposes. Either way, it's not fair ball.

NaG, I can assure you that I personally did not invent the terms "de jure segregation" and "de facto segregation." Nor did leftists. Both are racial segregation, and as Justice Powell--the conservative Southern justice who actually served on a school board--noted in his partial concurrence in Keyes v. School District No. 1, there is no difference between them in terms of damage to the students. The distinction between de jure and de facto segregation was part of the heretofore unsuccessful efforts to limit the reach of Brown, much like the distinction drawn between segregation and integration, as noted by Jack Balkin in his article quoting Justice Powell. Take a look at Powell's opinion; it traces Supreme Court's treatment of this issue through 1973 pretty thoroughly and fairly.

If you want to maintain that a school containing 2000 students with 1990 black or brown and 10 white is not racially segregated because there is no law in place compelling racial segregation, you have that privilege. Do not expect me or many others who pay attention to the real world to agree with you.

It must be reassuring to have a view of history in which racially segregated residential areas are the product solely of voluntary choice. I suppose you think it entirely happenstance that the boundaries of school districts were perfectly aligned with the boundaries of these residential areas? Justice Powell touches briefly on this, too. For more on these intriguing--yet in your view irrelevant matters--see pieces by Scott Lemieux and Simon Lazarus.

What we're getting from your side--racial segregation is not racial segregation because there's no state action compelling it and race may not be considered in efforts to counter racial segregation--is not reassuring to me.

By the way, I'm not sure I deserve to be considered a member of the civil rights movement, although I certainly supported it. I took part in some minor demonstrations and picket lines in California and wrote supportive pieces, but I never went to the South to register voters.
7.1.2007 7:45am
Peter Young:
How do you know? Have you had black roommates? From your consistently patronizing tone, I'd guess not. And according to your own account you went to a segregated high school. All this mawkish nostalgia for 1960s America--you actually miss it. Oh yes, those were the good ole days for race relations and the lives of black people. And the Twenty First Century is a benighted era of hatred and discrimination where the Supreme Court goes around demolishing the "shining citadel" because they don't want "racial equality in schools." It's perverse.

And frankly, all the moral huff and puff is comical coming from someone who can be found up-thread expressing views Charles Murray would applaud.


I hope you feel better now you've gotten this bit of hate-filled speculative bile out of your system. By the way, it's false on every point. In fact, you couldn't be more wrong if you tried.

Yes, I've had black roommates, including the same one for the past 18 years. I went to a high school that was segregated because I had no choice. Neither do many of today's students under this week's Supreme Court decision. Your linking me by virtue of something unspecified that I wrote "upthread" with the ideas of Charles Murray is both spectacularly unfair and defamatory.

The Sixties were an experience I wouldn't wish on anyone. We may have had to go through them to get where we are, but they were years filled with trauma--assassinations of political figures whom the young most admired (Medgar Evers, JFK, Malcolm X, MLK, RFK), violence in the cities and on campuses, a war that took a huge toll in human life and vicious repression of people of color attempting to exercise their rights.
7.1.2007 8:17am
Paleo (mail):


For the left, forcing blacks and whites to integrate is a compelling state interest. For the rest of us, freedom to make our own choices and to be free from government tyranny is a compelling interest.

It's a simple choice, should the government decide what's best or should we keep that freedom?


i.e., segregation is no one's business.

You're "free" to send your kids to private school. And I'm sure you'd consider it part of your "freedom" to sell your house only to someone of your own race and religion. After all, why should the government be allowed to tell who you can and can't sell to? And it's part of your "freedom" to hire only people of your race. After all, why should government be allowed to tell you who you can and cannot hire?

Yeah, I get it now. The right wants to throw out all civil rights laws.
7.1.2007 9:32am
Peter Young:
That's a lot of ipse dixit. Why is exposure in a "learning context" "more compelling" than exposure in "living arrangements"? One gets, as I noted, a lot more exposure to people if one lives alongside them than if one is merely bused across town to spend a few hours a day in school with them. And does any of what you said constitute legal argument, or just policy argument?

They are the opinions of the school administrators who place a high value on racial diversity within the school. They are the people with the expertise about what is a compelling interest in the school setting.

To the extent my personal experience is relevant, it differs from yours. I was exposed far more to teachers and classmates than I was to the neighbors where I lived, and I learned far more at school than I did from neighbors. In fact, I learned hardly anything from neighbors, other than those neighbors who were classmates. That I took in more at school is hardly strange; school is the primary place for learning.

And as for having a "constitutional right" to live where one chooses, one has a constitutional right not to be discriminated against on the basis of race. The whole point of the "compelling interest" framework is that it can be used to abrogate constitutional rights. So that argument doesn't provide a principle for not enacting a residential-diversity policy.

The three points I made were meant to be taken together, not in isolation. But my judgment is that to justify telling the general population where they can and cannot live, you'll need, in practice if not in theory, a lot more than an interest that is sufficient to justify telling students where they can and cannot go to public school.

In the case of students, you've got to justify infringement of a single constitutional interest, equal protection of the laws, sufficiently to remove the racial classification from the arbitrary or invidious category. In the case of living arrangements, you've got to justify infringement of two constitutional interests, not only the equal protection infringement of racial classification, but also direct abrogation of the substantive right to live where one wants to live.

You've got one precedent that I know of that might offer you a little support--Korematsu. I don't think you'd get very far.
7.1.2007 10:25am
Peter Young:
Here is the link to Justice Powell's concurring and dissenting opinion in Keyes v. School District No. 1, a link I failed to include in my earlier comment.
7.1.2007 10:42am
Mark Field (mail):

Calling people racists doesn't make an indefensible position stronger.


Pot, meet kettle. I'm not the one accusing others of believing in Plessy.


racial preferences are resoundingly rejected by the public -- despite opposition from all of the establishment -- when they're allowed to vote.


And of course the Court, reflecting good conservative doctrine, defers to local elected officials precisely for this reason.

Oh, wait....


you completely ignored what I wrote, which was that it really doesn't matter whether the 14th outlaws all race-conscious policies, because the Civil Rights Act explicitly does so.


So, in your view, Congress could mandate race-conscious policies?
7.1.2007 12:03pm
Mike S.:
If I may cut to the underlying reality behind the legal theorizing, the matter is fairly simple. After all, any school district that wants to make sure school assignments reflect the racial and ethnic make up of the district can do so consistent with last week's decision. Just make all asignments by lottery. Or by alphabetical order, or day of the week born, or by any other criterion uncorrelated to race. The problem stems from the following circumstances:

1) Even with housing discrimination outlawed mixed race neighborhoods are rare. This is to some extent due to illegal housing discrimination, to a somewhat greater extent to voluntary choice, and to a still greater extent to racial imbalances in income.

2) Given a choice, both Black and White parents feel that having the kids' school close to home is more important than the racial mix of their classmates.

3) That leads large school districs to abandon district-wide random assignments in favor of methods that tinker with neighborhood schooling around the edges. For these to work, they pretty much have to be race-conscious.

It seems to me that the Court is not in a happy place. To justify overiding the parental preference expressed in 2, one would have to find, it seems to me, that racially identifiable neighborhoods are largely the result of discriminatory housing practices. That was easy 50 years ago; it is harder today. That would still leave the question of why, if the basic violation is in housing, the remedy is to be found in school assignments.

Also as interethnic and interrracial marriage has become more common, it gets harder to tell who's White and who's Black without a scorecard (indeed, this subject has already been litigated in the context of civil service exams) Government racial ID cards should offend everyone.

That leaves me thinking that the court could not really win here; the choices are continued racial assignments despite both the preferences of the citizenry of all races and the unpleasantness (and facially clear violation of the 14th Amendment) of Government decisions on what race one belongs to, or allowing increased de facto segregation. Neither one is very appealing.
7.1.2007 7:29pm
David M. Nieporent (www):
To be clear, Mark, I did not say that you had the same motives as the majority in Plessy. I said that you had no problem with the essential logic of Plessy. Discrimination isn't your concern; equality is. The only quarrel you have with the Plessy majority is their subjective motives, rather than their objective position. Discrimination is only bad to the extent it is engaged in by people you dislike and leads to outcomes you dislike, not because there's anything wrong with treating people as mere involuntary members of a group rather than as individuals, based on irrelevant characteristics.

If the Louisville and Seattle school boards had trotted out credible social science showing that single-race education was the best way to help black achievement -- and you believed them to be sincere -- you'd be right on board with them (you'd have to be, because you've made it clear you have no principled objection to racial classifications) because their hearts were in the right place. Even if they had to force it on both white and black students.
7.2.2007 6:31am
chris c:
Mark and Peter, put aside the Constitutional question for the moment - why do you think this decision matters, from a practical standpoint? You know racial preferences are a losing cause; you know most inner city schools have practically no white or Asian kids. Even assuming the Court was 100% wrong, aren't we in no blood no foul territory?

Also, assume the Court took your approach and Oked these programs. when would the compelling interest to balance end? or would it continue until there was perfect residential racial balance, ie forever?
7.2.2007 12:07pm
Mark Field (mail):

Mark and Peter, put aside the Constitutional question for the moment - why do you think this decision matters, from a practical standpoint? You know racial preferences are a losing cause; you know most inner city schools have practically no white or Asian kids. Even assuming the Court was 100% wrong, aren't we in no blood no foul territory?


From a practical standpoint, the decision is the nail in the coffin of integration as public policy. The Roberts opinion (I know it's not the majority) disavows integration as a goal. That's what saddens me -- integration is a goal I believe in. Under Roberts' view, it's something that might or might not happen, oh well.


Also, assume the Court took your approach and Oked these programs. when would the compelling interest to balance end?


In my view, it takes roughly 3 generations for families to reach the point of equal competition once the conditions holding them down are removed. My personal expectation is based on this rough guideline.


To be clear, Mark, I did not say that you had the same motives as the majority in Plessy.


To coin a phrase I heard all too often when I was younger, that's mighty white of you.


I said that you had no problem with the essential logic of Plessy.


And, as I pointed out, you're wrong. The essential aspect of Plessy was not "equal", it was "separate". That was why Brown expressly stated that "Separate but equal is inherently unequal."

In point of fact, it's conservatives who have no problem with separate. Today, at least, they give lip service to "equal" (but, then, they did that under Plessy too). But it wouldn't matter to them if all blacks lived in one neighborhood and all whites in another, each group attending its own school, as long as conditions were "equal". That's the fundamental logic of Plessy and it's the logic of Parents Involved.


Discrimination is only bad to the extent it is engaged in by people you dislike and leads to outcomes you dislike, not because there's anything wrong with treating people as mere involuntary members of a group rather than as individuals, based on irrelevant characteristics.


Like Roberts, you're simply misusing the word "discrimination". Every law "discriminates". The issue is whether it does so in some wrongful way.

The issue here is not and never has been "discrimination" in that sense. The issue is whether government policy can be used to correct private actions which treat people as mere involuntary members of a group rather than as individuals, based on irrelevant characteristics. You're willing to allow such treatment to persist, I want to correct it.


If the Louisville and Seattle school boards had trotted out credible social science showing that single-race education was the best way to help black achievement -- and you believed them to be sincere -- you'd be right on board with them (you'd have to be, because you've made it clear you have no principled objection to racial classifications) because their hearts were in the right place.


Do they teach this rhetorical bullshit in some school for conservatives? I mean, really, who do you think you can persuade with this crap? Next time I want to know what I actually think (instead of what I think I think), I'll ask you first.
7.2.2007 1:34pm
chris c:
Mark, we're at the 3 generations point now. The kids of the 50s and even 60s are now grandparents.

I agree that we should work towards a society in which skin color matters as much as eye color. But I can't see how picking and choosing who gets to go to what school based on race furthers that goal.
7.2.2007 2:23pm
K:
Mark Field: I don't really understand what you are saying here. (The dense text is not all yours, you were replying to someone else.)

"The issue is whether government policy can be used to correct private actions which treat people as mere involuntary members of a group rather than as individuals, based on irrelevant characteristics. ..I want to correct it."

I tried to simply it and got this:

'Government policy can be used to correct private actions which treat people as involuntary members of a group based on irrelevant characteristics.'

If I changed the meaning it was a mistake in trying to edit.

Would you name some such private actions and what you would do to correct them if you had that power. (with one constraint, subtle variations of Seattle plan are off the table, that ruling has been made).
7.2.2007 2:46pm
Mark Field (mail):

Mark, we're at the 3 generations point now. The kids of the 50s and even 60s are now grandparents.


In my view, the conditions holding down blacks didn't really start to disappear until the 80s, at the earliest. The era before that was the era of resistance, not acceptance.


I agree that we should work towards a society in which skin color matters as much as eye color. But I can't see how picking and choosing who gets to go to what school based on race furthers that goal.


I don't see the programs here as doing that. The Louisville program came into effect only when someone applied to a school other than his/her neighborhood school. The District had to allocate those spots -- spots to which no one had any "right" -- in some way. It's method didn't treat one class as "preferred". That clearly furthers the goal of integration without infringing on anyone's rights.

There is a post at Balkinization which I like and which I'll quote in full:

"Affirmative action and similar policies attempt to remedy massive disparities in education and employment directly attributable to centuries of subaltern status. Opponents of such programs suffer from a triumvirate of mistaken impressions: opportunity is a zero-sum game, wealth and resources are finite and unchanging, and racism is just a social attitude (perhaps changeable, perhaps not) that has little real bearing on people's lives.

Race, of course, is a social category. We aren't different species, we have the same mental and physical abilities, we can interbreed, etc. Phenotype simply does not determine the ability of a person to learn or do a job. People categorize other people by phenotype all over the world, and our system is unique to our situation.

However, economic analysis using our categories finds that members of certain groups are disproportionately disadvantaged in terms of employment and education.

We know it's not the color of our skin making us disadvantaged--it has no bearing on our inherent abilities--so surely it must be something outside of ourselves, something social.

The question is: does government have the right to intervene on the basis of racial categories when there is a demonstrable imbalance in opportunity that is attributable to cultural dispositions towards segregation, or at least, hiring like-skinned people?

How does one change the "hearts of men" at the nation level without state support? Will "National Equal Hiring Practice Day" be a suitable replacement for attempts to make education opportunities equal across the board?

One study done in the Milwaukee area showed that a young black HS graduate with a clean record had less chance to obtain a callback on entry-level jobs than a young white HS graduate with a conviction for cocaine possession with the intent to sell.

Another study showed that identical resumes with names associated with white people were more likely to get callbacks than those considered to be "black" names. ("A white name yielded as many more callbacks as an additional eight years of experience.") This discrimination was evident in all job sectors, including positions which were "Equal Opportunity Employers."

So, whole groups of people are identified by race and are subjected to different hiring standards. It's a systemic problem in society, and hasn't been solved by outlawing discrimination (even so-called EOEs have same level of discrimination as other employers), pithy quotes ("way to stop discriminating is to stop discriminating"), changing people's hearts (a la Brett), or simply refuting the problem altogether ("woo hoo, count me in with the miscreants, suck it!").

Somebody who is applauding the decision please tell me: what has society really gained by ending practices intended to alleviate such problems?"
7.2.2007 2:50pm
Mark Field (mail):
K, I think you restated it correctly.


Would you name some such private actions and what you would do to correct them if you had that power. (with one constraint, subtle variations of Seattle plan are off the table, that ruling has been made).


Sure. As the quoted passage in my quote above demonstrates, there remains persistent discrimination in employment. Government should devote greater resources to ending that. I also don't have any problem with government using race as one factor in allocating government contracts; the sad truth is, that happens now to the detriment of blacks and other minorities. The same is true for housing. Again, more enforcement would help. In addition, government might offer more favorable loan terms for those who integrate neighborhoods.

These are just examples. Obviously I can't do much more than that in this quick response.
7.2.2007 2:56pm
K:
MF: very courteous response. Your answers clarified.

Where we differ. I think of employment as a public function - excluding perhaps things such as a baby sitter. Hiring for business, government, etc. is what I think you referred to.

Housing discrimination divides into private actions - a person wants a neighborhood to have X properties - and public - what agents, sellers, developers, etc. are permitted to do.

I don't reply about allocating government contracts except to say if that is a private action we are using words differently. (I don't dispute that the decision can be called private in the sense that someone within government makes it.)

Favorable government loans would not be a private act IMO. It would encourage certain private acts (buying here not there). In effect encouraging people to buy in one area and not another by giving them money. There have been worse schemes, and will be again.

IMO the drift of words is killing us. Some consider 'discrimination' must be present when outcomes are different. Others only when some outcomes are different. For some when outcomes are sufficiently equal the discrimination is hidden or covert but still present.

Some use 'segregation' only for government mandated separation. Others use it to mean any separation whatever. Some use it to mean enough separation (they know it when they see it).

One can sense the frustration of CT when he almost shouts that racial inbalance is not segregation.* He knows his words will mean only what he reader prefers them to mean and hence settle nothing at all.

*or something to the effect, I can't seem to find the quote.
7.2.2007 4:47pm
Peter Young:
Mark and Peter, put aside the Constitutional question for the moment - why do you think this decision matters, from a practical standpoint? You know racial preferences are a losing cause; you know most inner city schools have practically no white or Asian kids. Even assuming the Court was 100% wrong, aren't we in no blood no foul territory?

To what Mark has said, I will add only one thing, and that is that two things are noxious about last week's decision in my view.

The first is that the result embodies the very view you put forward, the view that racial segregation in our public schools must be accepted as the consequence of entirely private choices freely made, that racial segregation is what the vast majority of people of all races want, that racial desegregation of the public schools is an ideal whose time has come and gone and a battle lost. That view has horrid implications for our society as a whole as it becomes increasingly multi-racial. The decision was truly saddening on that level as the abandonment of the ideal.

The second is that the opinion relied on Brown, the very decision that sought to desegregate our public schools and to make public education available on equal terms to all, as the basis for perpetuation of racial segregation and thus racial inequality in our schools. As Mark notes, Brown was correct in holding that separate is inherently unequal. Last week's decision turned the efforts of the civil rights pioneers back on them. This was despicable and unforgivable.

To those on this forum who believe all this is moral huff and puff, all that I say is that, after other experiences here, I did not expect to win you over. Your position is here for people to see, and I wanted to help make sure the other view was registered, too. It has been.

The struggle for justice and fairness is never-ending, and last week's decision is merely another stage in that struggle. As always, there is much more to come.
7.2.2007 5:01pm
Mark Field (mail):

Where we differ. I think of employment as a public function - excluding perhaps things such as a baby sitter. Hiring for business, government, etc. is what I think you referred to.

Housing discrimination divides into private actions - a person wants a neighborhood to have X properties - and public - what agents, sellers, developers, etc. are permitted to do.


I may be wrong, but I believe most posters here refer to all of these as "private". When I urge greater enforcement of, say, non-discrimination in employment, I see that as government regulation of what would otherwise be treated by most as a "private" transaction. The same is true of housing.


Favorable government loans would not be a private act IMO. It would encourage certain private acts (buying here not there). In effect encouraging people to buy in one area and not another by giving them money.


I think that's a reasonable way to see it.


Some consider 'discrimination' must be present when outcomes are different. Others only when some outcomes are different. For some when outcomes are sufficiently equal the discrimination is hidden or covert but still present.


Your third sentence expresses my view (I assume you meant "unequal" where you wrote "equal").
7.2.2007 5:42pm
chris c:
Peter, I think you are putting far too much stress on schools as the make or break ground for overcoming racism in this country, and in the process overlooking all the other places where people interact - work, play, even families (intermarriage rates continue to climb).

that mixing will go on, and increase, even if the local elem school has almost all white or black kids.

to the extent schools worry you, as several of us have noted there are various nonracial grounds govt may rely on without running afoul of this decision, such as property values.
7.2.2007 5:50pm
David M. Nieporent (www):
And, as I pointed out, you're wrong. The essential aspect of Plessy was not "equal", it was "separate". That was why Brown expressly stated that "Separate but equal is inherently unequal."
That's not an essential aspect of Plessy; that's an essential aspect of the subjective views of the Plessy majority. Separate but equal is not "inherently" unequal; it was unequal only in practice, because the people who endorsed it were not acting in good faith. (And the Brown court had to use bogus psychological research in order to support its statement.)

In point of fact, it's conservatives who have no problem with separate. Today, at least, they give lip service to "equal" (but, then, they did that under Plessy too). But it wouldn't matter to them if all blacks lived in one neighborhood and all whites in another, each group attending its own school, as long as conditions were "equal". That's the fundamental logic of Plessy and it's the logic of Parents Involved.
In fact, that's wrong. It wouldn't matter if all blacks lived in one neighborhood and all whites in another, as long as there was no government compulsion in those living arrangements. That's what Parents Involved said, but is not what Plessy said. What Plessy said -- and what the dissent in Parents Involved said -- was that race-conscious government compulsion was fine, as long as the schools were equal.
7.2.2007 6:19pm
Mark Field (mail):

In fact, that's wrong. It wouldn't matter if all blacks lived in one neighborhood and all whites in another, as long as there was no government compulsion in those living arrangements.


Agreed. I consider you just conceded the whole dispute.


What Plessy said -- and what the dissent in Parents Involved said -- was that race-conscious government compulsion was fine, as long as the schools were equal.


No, this misstates the dissent.
7.2.2007 8:43pm
juris imprudent (mail):
Peter Young-

as the basis for perpetuation of racial segregation and thus racial inequality in our schools.

I'm confused; were either Seattle or Louisville segregating their schools? How is it that everyone seems to have missed that - or is this a figment of your imagination? Is there indeed a school system in this country that sustains a vibrant policy of segregation? If not, then your statement is utterly bogus and speaks volumes on the intellectual vacuity of the 'progressive' position.
7.2.2007 8:46pm
K:
Mark: 'I assume you meant unequal.."

I should have written that sentence thus:

'For some when outcomes are sorta equal the discrimination is hidden or covert but still present."

I SORTA can't think of a formal word that works better.

Touching just a moment on public and private. I look upon employment as public because for all practical purposes it is for business or government. There is no doubt government can and does regulate business activity.

Housing? Well we probably agree that any agent or professional involved is in business and should follow the law. The law is the ever present third party because real estate - both sales and rentals -is a business. I think that makes public the better word.

Truly private sales where the seller does not advertise and a buyer expresses nothing publicly about what he desires are pretty rare. I pass on that because I am not sure what can be or should be done.

Anyway, I learned what that originally dense text meant. Good enough!
7.2.2007 8:49pm
David M. Nieporent (www):
Agreed. I consider you just conceded the whole dispute.
I don't see how I "conceded" the point, when you claimed the logic of Plessy and Parents Involved were the same and I pointed out that you omitted a key fact that completely undermined the similarity.

It's astonishing to me that you think there's a huge difference between denying children the right to attend a school based on their race and denying children the right to attend a school based on their race (based solely on the subjective motivations of the school board), but think there's no significant difference between people choosing to live apart and the government forcing them to live apart.

No, this misstates the dissent.
True; the dissent didn't even require that the schools be equal. The dissent in Parents Involved said that it was okay as long as the people doing the racial discrimination were well intentioned.


And speaking of which, you vehemently denounced my interpretation of your statements, so you tell me: assume for the sake of argument that there was legitimate, credible, compelling social science which proved that diversity was actually harmful, that single-race schools did a better job educating students.

Now assume that a mixed-race, democratically-elected school board in a district with serious racial-educational deficits unanimously agreed, after reviewing this evidence, that this science provided a blueprint for a superior educational model, and they adopted a mandatory racial-assignment policy to implement it. Now, no wiggling out of the hypothetical; assume you're 100% convinced that the school board's motives are benign. All school facilities are identical, all staff is equally qualified, and all schools are given the same budget.

Do you think there's a constitutional bar -- I'm not asking about Brown here, but about the constitution -- to "voluntarily" implementing such a proposal?
7.3.2007 8:12am
Mark Field (mail):
What's amusing about your silly hypothetical is this: the decision in Brown specifically held that "separate but equal is inherently unequal". Let's assume that the sociological evidence supports this convincingly. It's clear, nevertheless, that you would oppose the government's use of racial criteria to achieve integration of schools in order to improve education because the government didn't, in your opinion, "cause" the problem.

And that's really the difference between us (I feel like Lincoln talking to Douglas here): your only concern is the government's (non)involvement; you don't care if the schools are integrated. I do care.
7.3.2007 12:57pm
SG:
Mark Field:

The schools racial imbalance only reflects the racial imbalance of the surrounding neighborhooods. Why doesn't that justify government involvement too? Racially based housing subsidies, racially based property taxes, refusal to permit title transfers if the racial balance gets sufficiently out of whack; there's all sorts of things a well-intentioned local government could do to create the "right" racial balance in neighborhood, and not incongruous with what school boards attempt to do. And certainly housing discrimination (redlining, restrictive covenants, etc.) have as rich a history as segregated schools.

Would you find these racial balancing intiatives constitutional if applied to housing? Would you support these sort of initiatives as a matter of policy? Why or why not? And if not, can I assume that you don't care if neighborhoods are integrated?
7.3.2007 2:56pm
SG:
To be clear, while there's some snark in my last question, my point is that racial integration can be a goal, but that doesn't mean it takes precedence over all other values. People of good character can differ over priorities.

An as an aside, if blacks (or any other group for that matter) face as much pervasive discrimination as you suggest, I wouldn't find if surprising if they would intentionally choose not to be limited to only 12% of any given population. Should the goal of integration override even the desires of the members of the oppressed group?
7.3.2007 3:08pm
Mark Field (mail):

The schools racial imbalance only reflects the racial imbalance of the surrounding neighborhooods. Why doesn't that justify government involvement too?


It does. That doesn't mean integration takes precedence over all other issues, particularly rights. I already made that point earlier in this thread. It does mean that government has a legitimate role to play in constructing an equal society.
7.3.2007 4:33pm
SG:
Mark:

I think we all agree that government has a legitimate role to play in constructing an equal society. The question here is twofold: 1) when do other rights override that legitimate role, and 2) does having the government make racial distinctions further or detract from that legitimate role. These are questions with no obvious right anwer. Of course, it's much easier to simply assert the purity of your motives versus the malignance of others ("[Y]ou don't care if the schools are integrated. I do care."), but your assertion doesn't actually prove anything.

And you didn't answer my basic question: Can and should local governments force neighborhoods to be integrated?
7.3.2007 7:24pm