Breyer statement on school decisions
Supreme Court Justice Stephen G. Breyer has released the bench statement he made on Thursday, dissenting from the Court’s ruling in the Seattle and Louisville school integration cases. (The blog has sought release of other bench statements made on Thursday). The Breyer statement can be found at this link.
On the first page, Justice Breyer states that Louisville’s and Seattle’s schools were “racially segregated.” The court’s opinion stated that the cases involved “public school [districts] that had not operated legally segregated schools or has been found to be unitary.” Did Seattle ever operate racially segregated schools, as SGB accuses them of here? That is, segregation as that term is ordinarily used, as southern school districts prior to Brown were segregated?
Comment by Simon Dodd — July 2, 2007 @ 5:48 pm
No, Seattle did not operate segregated schools.
In fact, Seattle was an unusually racially tolerant city during the era of Jim Crow.
The University of Washington’s law school in Seattle had black students as far back as 1900, even though there were few black people in the Pacific Northwest then.
The 1964 Civil Rights Act defines segregation, in a way diametrically opposite to how Justice Breyer conceives it, rejecting the idea that racial “imbalances” constitute segregation.
Section 401 of the Civil Rights Act expressly says that “desegregation” has nothing to with remedying “racial imbalance” or using race to achieve racial balance, but rather involves “assignment” of students to schools “without regard” to their race.
The 1964 Civil Rights Act (in Title IV, Section 401(b)) declares that:
“‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”
Similarly, the Supreme Court has stated that “racial balance is not to be achieved for its own sake” in Freeman v. Pitts (1992), and that “racial balancing” is “patently unconstitutional” in Grutter v. Bollinger (2003).
And Title VI of the Civil Rights Act bans treating individuals differently based on their race. Its text does not contain any exceptions for racial balancing, diversity, or affirmative action.
The plaintiffs in the Seattle case sought the same thing that the plaintiffs sought in the celebrated Brown v. Board of Education case: the right to attend their preferred school without being excluded on the basis of race.
The complaint of Linda Brown, the Topeka elementary-school student who gave the Brown decision its name, was that she was barred from attending her neighborhood school and forced to attend a distant school because of her race.
Ethel Louise Belton, whose case was consolidated with Brown’s, was assigned to a school nine miles away from her home, rather than being allowed to attend a school a short walk from her home, because of her race.
Similarly, the 1971 Swann case, commonly cited in support of race-based busing, actually began when James Swann was not allowed to attend the school closest to his home because of his race.
Desegregation is about being able to attend your neighborhood school without regard to your color, not about being assigned or bussed to a particular school based on your skin color to achieve “racial balance.”
So the Seattle School District’s use of race to promote “racial balance” in student assignment is flatly contradicted by multiple sections of the 1964 Civil Rights Act.
The plurality of Chief Justice Roberts, and Justices Scalia, Thomas, and Alito, correctly applied the Civil Rights Act and the Constitution in striking down the Seattle School District’s use of race.
Comment by Hans Bader — July 2, 2007 @ 6:19 pm
Yes, Seattle did operate segregated schools. It had a policy of segregation in teacher assignments. It had a policy of segregation in location of school buildings. It had a policy of segregation in establishing attendance districts. Legal definitions of racial boundaries (as here in Atlanta), racial covenants, real estate broker codes which prohibited “block-breaking”, and the establishment of “private streets” (maybe a Missouri peculiarity) or tiny towns whose borders prevent the entrance of racial minorities into the polity all existed and created segregated schools. Hans Bader has never acknowledged any governmental responsibility for residential segregation, but geography is not a neutral principle.
Comment by Roger Friedman — July 2, 2007 @ 8:45 pm
Roger, I was about to reply that in view of Hans’ comment, one is left to conclude that Justice Breyer is operating under a different definition of “segregation” to everyone else, but he isn’t alone, it seems. You write that “Hans Bader has never acknowledged any governmental responsibility for residential segregation” - are you asserting that the government of Seattle (or Washington state) is “responsibl[e]” for segregating its housing? That it has established legal rules governing which races may buy houses in given neighbourhoods? Or are you instead asserting the suddenly-fashionable recasting of the adjective “[racially] segregated” as an antonym of “[racially] diverse”?
Comment by Simon Dodd — July 2, 2007 @ 9:58 pm
Simon, counting as school segregation only de jure racially-based pupil assignment within a single school district is to be blind to the entire social-political-economic structure which maintained the American apartheid system. Yes, I am asserting that governments within the Seattle area and maintained segregated housing.
The other day in Slate, Dahlia Lithwick asked Walter Dellinger to describe life in the segregated United States. It was a shock to me, but undeniably true that a majority of Americans have no personal memories of segregation. But I certainly do.
For esample, racial covenants (see Shelley v. Kraemer) were very common, there was one on my childhood home in Washington, DC. A real estate broker really could lose his license for showing a house in a white block to a black family. Setting political boundaries in the post-War expansion was done along racial lines (see Gomillion v. Lightfoot) so that whites’ taxes would go to white schools. I do not know the political history of Seattle, but when I see an “island” town, like Lake Forest Park, my immediate thought is racial (and often religious as well) segregation. I know that in Atlanta the City Council did pass laws officially declaring black and white neighborhoods.
In one of the early Burger Court opinions, segregation in housing patterns, even de jure, were taken off the table in school desegregation cases. But that did not erase them from history. The larger question, as Breyer points out, is whether the promise of Brown was desegregation or integration. May a school board work to achieve integration, or to prevent the segregative force of housing patterns from undoing 50 years of effort? White-bread Roberts and Arayan Bader say no.
Comment by Roger Friedman — July 3, 2007 @ 6:50 am
Roger, let us assume that your premise is correct, and that the current racial patterns are a result of both de jure and de facto segregation policies. We now have a situation where some very unjust things have happened in the past, and an unfortunate present situation that was a direct consequence of that past. What now?
I don’t think that there is any disagreement that the government can take steps to remedy the situation. Even Justice Thomas agrees that the use of race-base classifications was fine to remedy de jure segregation, as it passed the test of strict scrutiny. Then where is the conflict?
To me, it seems that the divide begins where the steps to remedy the past situation injures parties that were not directly or indirectly responsible for the underlying injustice. For example, in these school plans, the precise thing happening to the students in Topeka was happening to some students in Seattle. I grant that the scale was not the same, but some students were being discriminated on the basis of race. The underlying principle being endorsed is disconcerting - not only is it acceptable for the government to injure innocent third parties to remedy events of the past, they can be inflicted with the exact same injustice that is supposedly being addressed! Thus the irony noted by Justice Thomas.
The other pathway is that the best way to move forward from an era of de jure racial segregation is to make the law color-blind when it comes to individual classifications of race. I don’t think that most people would disagree that this should be the endpoint. I don’t know about you, but my stomach churns every time I receive a form to fill out with “race” in it. The question is, how do we get there from here. An “Active Remedy” approach that injures innocent third parties is not the answer - it is only perpetuating (and widening) the racial divide.
Comment by Ben Kennedy — July 3, 2007 @ 8:43 am
To me, it seems that the divide begins where the steps to remedy the past situation injures parties that were not directly or indirectly responsible for the underlying injustice.
This might have some force as an argument if the harm alleged were anything more than psychic.
Comment by Jacques McKenzie — July 3, 2007 @ 12:09 pm
Are bench statements usually published, or is this fairly unusual?
Thank you.
-Andy Grewal
Comment by Andy Grewal — July 3, 2007 @ 4:44 pm
Jacques wrote:
“This might have some force as an argument if the harm alleged were anything more than psychic.”
Justice Breyer writes that the Seattle schools are all roughly equal in quality. If so, then probably the best idea would be to send each kid to their closest school and thereby minimize travel time.
But some kids were bussed far from home to meet racial balancing requirements, and spending lots of time on a bus isn’t “psychic” harm.
To justify that, you’d seemingly have to come up with a better reason than, say, was demonstrated in Dr. Chang’s “expert” study on cross-racial interaction, right?
Comment by steve jaros — July 3, 2007 @ 5:55 pm
In reviewing the history of SCOTUS jurisprudence in this area, Justice Breyer hits what i believe is the nail of the problem on the head:
“Indeed, the cases uniformly recognize a critical Equal protection Clause difference between, on the one hand, exclusionary racial discrimination that seeks to divide us ….; and inclusive “race
conscious^ plans that seek to bring the races
together.”
Problem is, the actual EPC, the one in the Constitution the SCOTUS is supposed to abide by, doesn’t make this distinction. It has been fabricated by the courts. Time to say good riddance to it … ?
Comment by steve jaros — July 3, 2007 @ 6:13 pm
To reply to Andy Grewal’s inquiry, Justice Ginsburg provides copies of her bench statements for distribution through the public information office. She’s followed that practice for as long as I can recall. No other justice has done so. Others in the press corps might know whether any requests have been made in the past.
Comment by Ken Jost — July 5, 2007 @ 8:38 am
Racial discrimination does not always mean there was a violation of equal protection. Consider BiDil, a drug that is amazingly effective at saving the lives of black people in cardiac arrest, though is largely ineffective on those of other races. It would be a pointless waste of life for the FDA to leave the drug unapproved for black patients because it doesn’t happen to work for people on other races. Plus, no non-black people are harmed by approving BiDil for black people only (and the mortality of heart attacks drops an astounding 43%!)
In these cases, as Steve points out, forcing students to travel further to go to school is actual injury. Suppose it takes an extra 15 minutes one way - thats 180 school days * 2 trips a day * 15 minutes = 3.75 continuous days on a bus. Thats enough time go from from New York to Los Angeles and back. Justice Scalia mocks “psychic injury” in Hein, describing it as solely “mental displeasure” - but here, it is actual injury.
Comment by Ben Kennedy — July 5, 2007 @ 10:35 am
spending lots of time on a bus
Ooh. The harm. I see that right there in my copy of the Constitution beneath the word “abortion”.
Comment by Jacques McKenzie — July 5, 2007 @ 12:18 pm
Ooh. The harm. I see that right there in my copy of the Constitution beneath the word “abortion”.
It’s called “equal protection”. Consider the students in this case who could not attend a school of their choice on account of their race - was that government racial discrimination?
Comment by Ben Kennedy — July 5, 2007 @ 7:23 pm
Yes, and there still must be equal protection of something. Rights protect interests. And the interest you are saying we all have equal protection to is the interest not to ride on a bus too much to go to high school. I don’t see such a subjective “right” in my Constitution, just like I don’t see standing for trees to sue in environmental cases in Article III. Or anywhere in the history of the nation.
Comment by Jacques McKenzie — July 5, 2007 @ 8:02 pm
And the interest you are saying we all have equal protection to is the interest not to ride on a bus too much to go to high school.
Justice Stone in Hirabayashi (1943):
“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.”
In that case, wartime hysteria got the better of the court. However, in the present cases, this principle was upheld. The biggest problem with Brown was that is was propped up by a lot of social science - none of that should have been necessary, merely the principle stated above.
You also never indicated if the experience of the students who lost the “racial tiebreaker” were examples of government-sponsored racial discrimination - an important point to work through.
Comment by Ben Kennedy — July 5, 2007 @ 8:27 pm
Ben Kennedy wrote:
“The biggest problem with Brown was that is was propped up by a lot of social science..”
Bad, poorly executed social science, i might add. Worse even than the social science cited to buttress the Grutter decision.
Beyond that, riding on a bus for a long period of time is a cost to be borne. It’s not equal to being tortured on the rack or whatnot, but it’s nontrivial nonetheless.
Surely if we’re going to breach the plain meaning of equal protection *and* make the kids bear that cost, it should be for a very good reason - reason enough to justify the breach and the cost. And it should be the burden of these race-conscious policy advocates to show that the reason does justify the breach and cost.
… and so far they haven’t met that burden.
Comment by steve jaros — July 5, 2007 @ 10:48 pm
Wow, Ben Kennedy. Nothing you wrote has any force or relevance whatsoever. And I mean that as someone who considered your arguments seriously.
Comment by Jacques McKenzie — July 6, 2007 @ 12:20 am
Beyond that, riding on a bus for a long period of time is a cost to be borne.
Not really. Ben Kennedy talked about 15 minutes extra a day. When I went to my LOCAL school, I had to travel 45 minutes. It wasn’t a big deal. It certainly isn’t much in comparison to slavery or Jim Crow. That you would suggest as much is a joke.
Comment by Jacques McKenzie — July 6, 2007 @ 12:26 am
Wow, Ben Kennedy. Nothing you wrote has any force or relevance whatsoever. And I mean that as someone who considered your arguments seriously.
Jacques, yet you cannot assent to the simple proposition that racial discrimination has occurred. Both myself and other posters feel that this is a crucial distinction. If you don’t think the school plans were examples state-sponsored racial discrimination, just say so. Or if you think that the point is too obivous to bear mentioning, humor me.
Comment by Ben Kennedy — July 6, 2007 @ 7:37 am
Jacques, when did i suggest that riding a bus for 45 minutes was comparable to slavery or jim crow? you lose credibility when you make stuff up like this. sheesh.
Comment by steve jaros — July 6, 2007 @ 12:12 pm
Jacques, when did i suggest that riding a bus for 45 minutes was comparable to slavery or jim crow?
The comparison is relevant because the precedent at issue in the cases was Brown, which overruled Plessy by interpreting the 14th Amendment, which was passed in the wake of the abolition of slavery. The question is what harms does the Equal Protection prevent. I am quite clearly mocking the de minimis harms you claim as so infinitesimal to warrant no constitutional protection, whether Ben Kennedy thinks they amount to “racial discrimination” or not.
Comment by Jacques McKenzie — July 9, 2007 @ 12:56 pm