Friday, June 29, 2007

Blind Justice

In 1861, soon after the Civil War began, President Lincoln declared a blockade of the rebellious South. It proved to be one of the North's most effective weapons. Owners of several ships seized by the US Navy sued, claiming that the blockade was illegal, because it was an act of war and Congress had not declared a state of war to exist. In The Prize Cases, the Supreme Court upheld the blockade. Writing for the Court, Justice Grier observed that the the war was "a fact which the Court is bound to notice and to know."

Yesterday, a majority of today's Court turned a blind eye to reality (although Justice Kennedy gave a least a nod in its direction), ruling that school assignment plans in Seattle and Louisville are unconstitutional. The four reactionary members of the court would hold that any consideration of race in school assignment violates the Constitution. They had the gall to cite Brown v. Board of Education in their opinion.

Brown was decided because of a problem--racial discrimination. Its declaration that separate but equal is inherently unequal recognized that the law may appear to say one thing while doing another. Segregated schools were said to be equal; that was the rationale that had been adopted to keep the races apart. But--as the Court recognized in 1954--that equality was false. Yesterday, the majority turned that rationale on its head, saying, in Chief Justice Roberts' words, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," as a justification for striking down measures to secure integration. The Chief Justice is no fool; he must have known that the court's decision would aid, not cure, racial discrimination.

Conservatives have been very clever in using legalisms--that is, legal principles divorced from the context of the real world--to reverse more than half a century of racial progress in this country. In this effort, they have used the separation between private and public actions to their advantage.

When Brown was decided, segregation was enforced by law. Under the 14th Amendment, government action to cause or enforce distinction on the basis of race is unlawful. Traditional Anglo-American law takes a very different view of private action, however. The classic attitude was, as one wag put it,

Thou shalt not kill, yet needst not strive
Officiously to keep alive.

The much-beloved Prof. Clark Byse, of Harvard Law School, described the common law view this way: "Suppose I'm sitting by the river, smoking my cigar, and a baby comes floating by. As long as I don't flick my ashes in baby's face, I have no obligation to do anything." (In some cases, laws have been passed to impose a duty to act in such situations, but they are rare.)

A person's choice of where to live is private, and the perhaps-natural desire to live with people who look the same as we do, or worship in the same church or synagogue or otherwise seem like us (which some might call prejudice) has been left largely unfettered. (When one person won't sell or rent to a person because of race, national origin, religion or the like, government does get involved, even though those may be private choices.) So, we have come to the point where private choices have led to segregated neighborhoods--often more segregated than they were half a century ago, and the courts take refuge behind the concept of color-blindness to preserve the re-segregation of our schools.

It's not quite as simple as that, actually. Back in the '70's, the Supreme Court was faced with the question of whether a federal court could order city and suburban school districts combined in order to achieve integration. The court decided that that was beyond the purview of federal law. How different things would be today had that case gone the other way.

Is segregation "a fact which the Court is bound to notice and to know?" Today, apparently not. But someday, with different judges, the question may be answered differently. Let's hope so.


Nashay said...

I completely agree with your astute assessment of the "Supreme" Courts decision. Ignoring the reality of educational disparities based upon the re-segregation of US society / won't make the fact of it go away. With the globalization of the world, the US is moving toward the polarization of its children - thus ensuring that they are only homogenous exposure to lifestyles and cultures.

Anonymous said...

Is voluntary segregation acceptable?

Has the societal/educational climate remained stationary since Brown vs. Board Of Education, or has society changed in such a way as to more readily guarantee equality of opportunity regardless of the predominant race in a particular school?

Is there any contradiction in contending that the "Supreme Law of the Land" (which includes clear cut and definitive provisions for amending or changing it) is flexible, fluid and open to interpretation, while insisting that decisions based solely upon demonstrably partisan legal opinions and regarding contentious or unclear areas of law are considered inflexible and only improperly reversed?

Ignoring the reality of educational disparities based upon the re-segregation of US society / won't make the fact of it go away.

Do you mean disparities in educational OPPORTUNITY or disparities in educational OUTCOME? They are completely different things.

The Old New Englander said...

There are disparities in both opportunity and outcome. Urban schools--predominantly minority-attended in many if not most large cities--do not have the resources that suburban districts do. Some have argued that this is more a matter of class than race; there is much to that. While I do not believe that class is the whole explanation, an alliance across racial and ethnic lines to unite poor and working-class citizens would be a big step toward making things better in many, many respects.

Finally, let me quote from Justice Stevens' dissent last week: "There is cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: 'Before Brown, school children were told where they could and could not go to school based on the color of their skin.' This sentence reminds me of Anatole France's observation: 'The majestic equality of the law forbids 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."

Anonymous said...

Sorry for the delay, I've been very busy lately.

How did I know you were going to go there?

Here's the thing: Both of my kids attended urban, majority black schools. My son attended a "magnet" elementary school wherein, two years running, he was the only white kid in his class.

Both of my kids graduated high school with honors, My daughter went on to Virginia Tech, My son will be starting his junior year at Old Dominion University this fall.

I have pictures and video of their high school graduation ceremonies. The honors students were the first to receive their diplomas. If you only watch the first 20 minutes or so, you would swear that the ratio was about 80% white, say 15% black and 5% oriental.

If you only watch the remaining 40 minutes...when the non-honors graduates crossed the stage, you would get the impression that the mix was more like 95% black, 5% white and no asians. That doesn't even take into consideration the quite significant number of students who never graduated.

At my son's MIDDLE school graduation, Several of the black parents had big parties, hired limos...wore tuxes, bought extravagant gifts for their graduates. I wore jeans and a polo shirt. When I voiced my amazement at the ridiculously lavish (in my opinion) celebrations, my wife put me in my place with this wise, but sad observation: "This is the only graduation many of these kids will ever have."

The problem is NOT with the least in my admittedly anecdotal experience. The opportunities are there for the students who choose to take advantage of them.

Before you start screaming "racist" at me...the problem isn't lack of ability in certain races either. The problem is cultural.

My kids went to schools where the prevailing culture said that getting an education made you a "sell-out" or an "uncle tom" or an "oreo". Much more emphasis was placed on how baggy your pants were, how much you spent on your shoes later flashy the "spinners" were on the $500 piece of crap car you drove.

Every time my kids even hinted that they were picking up the smallest little bit of that culture, I squashed it immediately. Not by forbidding explaining why that culture is self-destructive and a dead end...and then mercilessly ridiculing any of their friends who didn't speak proper English or had no concept of the proper sizing of clothing articles.

They quickly got the idea and stopped hanging out with those kinds of people. Most of my kid's friends were black, but they spoke properly, dressed appropriately, got good grades, participated in after school activities, got jobs, and were basically, good kids. Almost all of them went on to college.

The problem is NOT the schools, the problem is NOT the race of the individual students...the was fairly recently pointed out by Bill Cosby among the culture that teaches people that the world owes them something...that they are not responsible for their own success or failure...that learning to function in American society is treason to their heritage...that educational effort and success is not worth it because the only way they'll ever "succeed" in the world is if they win the lottery or become sports superstars...or criminals.

The cruel irony is that back in the day, when blacks wanted to go to majority white schools that they felt were superior...we wouldn't let them. Now, when blacks want to go to majority black schools that they feel are superior...either because they are closer to home, or better reflect their own demographics and culture, or whatever the reason...we won't let them.

Over 100 years after the end of slavery and whites are still forcing blacks to do what we want them to do rather than what they want for themselves.

Now THAT's Irony.