Last Thursday’s Supreme Court Ruling: A Setback for Civil Rights
The following commentary is by Nicole Elam, a student at Howard Law School and a summer associate in Akin Gump’s DC office. As a student at Howard, Nicole worked on an amicus brief in support of the school districts.
While studies have consistently demonstrated the benefits of racially diverse classrooms for children, the Supreme Court’s 5-4 ruling last Thursday is regressive for American ideals of equality. In his opinion, Chief Justice Roberts announced that a school district’s voluntary adoption of a student assignment plan that relies on race to determine which schools certain children may attend violates the Constitution. Because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” the plurality held, the Seattle and Louisville school districts failed to carry their burden of showing the achieved interest of racial integration: the measures are just too extreme, and the use of racial classifications was not narrowly tailored to achieve a compelling government interest. I disagree. Instead of recognizing racial integration as a compelling interest, the plurality instead issued a blow to Brown v. Board of Education – one of the high court’s most seminal cases.
In 1954, Brown sought to racially desegregate public schools as a compelling national interest. Twenty-five years of deliberate speed in desegregating public schools districts resulted in court-ordered integration and busing plans becoming law. As court decrees were removed, public school districts experienced resegregation and concentrated poverty as white students left urban school districts. Notwithstanding racial isolation, voluntary plans became the only means to effectively achieve Brown’s promise of equality in racially balanced schools.
But on Thursday the Supreme Court hammered the final nail in the coffin of Brown v. Board of Education and the dream of a desegregated America. Ironically, the plurality used Brown as a backdrop to support its decision, claiming that Brown was in fact about legally separating children on the basis of race. However, the plurality failed to acknowledge the greater promise of Brown: an equal integrated educational system. And although the plurality correctly classified Brown as addressing legal segregation, it further failed to recognize that Brown was about de jure segregation, while in the Seattle and Louisville cases the Court missed its opportunity to address de facto segregation. Instead of echoing Brown’s promise of equality, the Court instead echoed Governor George Wallace’s words, “Segregation today, segregation tomorrow, and segregation forever.”
Focusing on the minimal number of students affected by the plans, the plurality minimized the necessity of using such classifications. Focusing on the term (or rather the design and operation of the plans as) “racial balancing,” the plurality failed to recognize the asserted educational benefits of diverse classrooms. Instead, it contended, “[a]ccepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society.” But this is not the case and is in fact far too extreme. The Court does have a role in ensuring that all people have equal opportunity. As Justice Kennedy himself notes, “the pluarality is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of race.”
In effect, the plurality has changed the Equal Protection Clause from a shield of protection to a sword of defeat. No longer does it allow minorities to strive for equality, but it instead operates as a tool to advance oppression. By striking the voluntary integration plans, the Court fails to articulate how a society divided along racial lines can be integrated without considering race. Even the measures suggested by Justice Kennedy – strategic site selection, drawing attendance zones with the recognition of demographics, tracking enrollment by race, etc. – don’t get to the root of the problem. The use of race-neutral means is not an effective solution for the pervasive racial segregation in America’s schools. In fact, school districts using race-neutral means – such as Wake County and Charlotte, North Carolina, San Francisco, La Crosse, Wisconsin, and Brandywine, Delaware – to provide educationally effective and racially integrated learning environments for students have struggled to achieve racial diversity without taking race into account. A shift from race-conscious to race-neutral student assignments plans may very well lead to significant resegregation and have a negative effect on the achievement of African American and minority students.
The message from the Court rings loud and clear – racial integration is not a compelling interest recognized by this nation. As such, the door for de facto segregation has been thrust ajar. The Court’s decision has far-reaching implications beyond the classroom. Without the use of race in decision making, polarized communities, poverty concentration, minimal corporate diversity, limited minority business initiatives, and strangled affirmative action plans will become the norm. Our nation may start to look disturbingly similar to the one Brown sought to combat. What now? Civil rights advocates must now turn their attention to drafting legislation to protect minorities. It is only through legislation that Brown’s promise will remain.
Nicole:
1) Studies have NOT consistently demonstrated the benefits of school racial diversity. Authors of these studies, who tend to be liberals very much in favor of affirmative action, often CLAIM such benefits, but careful analysis of their own data usually shows that they are greatly exaggerating the alleged benefits (e.g., see my analysis of Dr. Chang’s recent study in another post to this blog).
2) You say that “As court decrees were removed, public school districts experienced resegregation …..as white students left urban school districts”.
But, it’s probably fairer to say that white parents “fled” urban districts BECAUSE of court decrees, not because those decrees were removed. White flight, either to suburbs or to private school, was a product of white parents seeking to escape from court-ordered mandatory integration/busing.
IIRC, the key SCOTUS ruling was a 1974 decision that said that a federal judge could not force suburban (and mostly white) school districts to be linked with Detroit’s (mostly black) district for purposes of mandatory busing/integration.
3) You say “Focusing on the minimal number of students affected by the plans, the plurality minimized the necessity of using such classifications.”
But didn’t Justice Roberts note that, in the case of Seattle, the schools would have still remained very “diverse” (about 40% asian, 30% black, 20% white) even without the racial classification? That hardly speaks to its “necessity”, does it?
I don’t think you do your cause much service when you use apocalyptic language such as saying the ruling echoes Governor Wallace barring the classroom doors and yelling “segregation”!
And in many other places, demographic facts dictate. For example, Prince George’s County Maryland is a very liberal, very affluent, and … very black county. Black students make up 76% of the student body, white students about 8%, with the remainder Asian/Hispanic. How can a court decree create schools that aren’t majority black?
Impossible, which is why the county recently ended its busing program – it realized it was just busing black kids around the school district to no meaningful effect.
“Racial integration” is a trivial educational issue compared to the substance of what kids (of all races) learn in class. Sure, de-jure segregation is wrong and can’t be permitted anywhere, but beyond that, the focus should be on ensuring all our kids a quality, substantive (reading, math, science, lit, etc.) education.
Comment by steve jaros — July 5, 2007 @ 11:21 am
Ms. Elam said:
“And although the plurality correctly classified Brown as addressing legal segregation, it further failed to recognize that Brown was about de jure segregation, while in the Seattle and Louisville cases the Court missed its opportunity to address de facto segregation.”
But the plurality correctly recognized that the Seattle and Louisville plans were themselves de jure segregation.
“Civil rights advocates must now turn their attention to drafting legislation to protect minorities. It is only through legislation that Brown’s promise will remain.”
But a plurality of the Court just struck down such legislation, if the intent of that legislation is to discriminate on the basis of race. So turning to the legislature won’t help.
Civil rights advocates should instead turn their attention to helping minorities achieve economic equality–and that means, among other things, access to capital–because it is only through economic equality that de facto racial segregation will eventually be eradicated.
Comment by David Drake — July 5, 2007 @ 11:44 am
Authors of these studies, who tend to be liberals very much in favor of affirmative action, often CLAIM such benefits, but careful analysis of their own data usually shows that they are greatly exaggerating the alleged benefits (e.g., see my analysis of Dr. Chang’s recent study in another post to this blog).
Steve Jaros. Man without bias. Nobly correcting experts where they have made no methodological errors.
Comment by Jacques McKenzie — July 5, 2007 @ 12:20 pm
I concur in all that Steve Jaros says, but would like to call attention to some additional points supporting the Court’s striking down Seattle’s “plan.”
First, having attended Garfield High School when it was the only diverse high school in Seattle (1960), and having taught at Franklin High School for 36 years (during which time its non-white percentage varied between 20% and 85%), I could give example after example – anecdotal evidence, if you will, but perhaps more persuasive than the equivocal research cited by both sides in these cases – of the value of adequate diversity to both the socialization of young people and the intellectual vitality of my Law and Society classes.
Second, if Seattle had presented a more narrowly-tailored plan, one designed to eliminate racial isolation at its profoundly segregated high schools- Rainier Beach, Cleveland and Sealth – rather than one that transfers students between already-diverse high schools, the force of the plurality opinion’s argument that the District’s compelling interest clearly was in “racial balancing” would have been refuted. However, few students from those three racially isolated (predominantly nonwhite), unpopular, and underachieving schools, avail themselves of the opportunity to the popular north end schools that are the ones most affected by the plan – Ballard, Roosevelt and Nathan Hale – because of the long distances involved. So they remain in profoundly segregated and under-achieving schools while the students actually affected by the plan are those shuffled between already-diverse schools.
Third, nothing in Brown, as I read it, would allow a student to be refused entry, based on his race, to a school where he had been admitted to a program offered nowhere else in the District. That is what happened to Andy Meeks, whose situation is described in the plurality opinion.
Fourth, I don’t think Brown anticipated students deploying racial designations for strategic advantage. Yet this is exactly what happens when students are allowed to designate two racial categories and utilize the one that will gain them admission to their desired school (and, if they so choose, change one or both of those designations at will).
Moreover, a student who is bi-racial and one of whose designations is Caucasian will be able to choose among Seattle’s over-enrolled schools while a student with only one (whether white, African American, Asian American, Native American or Latino), or with two that are “nonwhite,” will not. And Latinos all are considered “nonwhite” despite the fact that some are, and some are, in terms of racial classification, white.
Perhaps this is why Justice Kennedy refers in his concurrence to race being used “as a bargaining chip in the political process,” and a “crude measure” that “threaten[s] to reduce children to racial chits to be traded according to one school’s supply and another’s demand.”
Fifth, ontrary to what has been “reported” to Justice Thomas, Seattle’s African American Academy is not an example of the all-Black schools that have had extraordinary academic success, such as was the case with Dunbar High School in Washington, D.C. in the 1920’s and other schools discussed in Thomas Sowell’s eye-opening “Patterns of Black Excellence.” The African American Academy’s test scores are, for the most part, substantially below average, with few students attaining basic proficiency in science and math.
What Justice Thomas says in his footnote 12 best describes the situation: “if the Seattle School Board were truly committed to the notion that diversity leads directly to educational benefits, operating a school with such a high “nonwhite” enrollment would be a shocking dereliction of its duty to educate the students in that school.”
The Court itself would have been “in shocking dereliction” of its duty had it approved of so incoherent and poorly-targeted a plan.
Comment by Rick Nagel — July 5, 2007 @ 12:43 pm
Second, if Seattle had presented a more narrowly-tailored plan, one designed to eliminate racial isolation at its profoundly segregated high schools- Rainier Beach, Cleveland and Sealth – rather than one that transfers students between already-diverse high schools, the force of the plurality opinion’s argument that the District’s compelling interest clearly was in “racial balancing” would have been refuted.
I suppose we’ll just have to agree to disagree, but I think this is an inverted way of looking at the oversubscription issue that ignores choice is a key element of the transfer program.
Comment by Jacques McKenzie — July 5, 2007 @ 1:09 pm
Jacques wrote:
“Steve Jaros. Man without bias. Nobly correcting experts where they have made no methodological errors.”
Jacques, let’s say i correctly design and implement a study, the purpose of which is to determine if A>B or vice-versa. Let’s say the results show that A>B, but in writing up my report, i claim that the results show that B>A.
Since the study was designed and implemented correctly, there are no methodological errors. The error lies in the claim i have made about what the results are.
NThat’s what Chang et al. have done.
PS – how do you manage to do that quote-in-italics thing? I’d like to do it myself.
Thanks, Steve
Comment by steve jaros — July 5, 2007 @ 1:29 pm
NThat’s what Chang et al. have done.
So you say. But your argument is the equivalent of agreeing to a major premise, a minor premise, and the definition of all the terms, yet denying the conclusion is valid.
Comment by Jacques McKenzie — July 5, 2007 @ 1:44 pm
Yes, so i say – because that’s the way it is.
Whether that is equivalent to agreeing to various definitions and premises, etc. or not is irrelevant.
PS – how about cluing me in on that quote function?
Thanks, Steve
Comment by steve jaros — July 5, 2007 @ 3:18 pm
Nichole starts the whole thing off with: “While studies have consistently demonstrated the benefits of racially diverse classrooms for children”
Justice Thomas’ answers this in a way that seems quite clear:
“The Constitution enshrines principles independent of social theories.”
=====
One other question that jumps to mind reading this discussion is: How long until we truly become a color blind society?
The answer from Nichole would seem to be: Never.
We must continue busing children against their will in order to have “diversity,” essentially, forever.
You cannot force diversity in a society and at the same time have a color blind society.
Which leads us back to Justice Roberts’ notation:“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
In this case, the white child was being forced to go to a different school simply because a) he was white and b) the school district wanted to run its social experiment of diversity.
Comment by Kent M. Ostby — July 5, 2007 @ 4:10 pm
Yes, so i say – because that’s the way it is.
http://en.wikipedia.org/wiki/Ipsedixitism
Comment by Jacques McKenzie — July 5, 2007 @ 4:30 pm
The outpouring of intellectual dishonesty in the wake of the school cases continues.
Notwithstanding that the holding of Brown was “the fundamental principle that racial discrimination in public education is unconstitutional,” Brown II, 349 U.S. 294, 298 (1955), critics of the school cases plurality – which rests on precisely that “fundamental principle” – continue to make assertions of a kin with Nicole’s claim that the decision “hammer[s] the final nail in the coffin of Brown v. Board of Education and the dream of a desegregated America.” This calls to mind something Justice Scalia wrote in his first term on the court, about Title VII – it has been “convert[ed] … from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will.” Johnson v. Tansportation Agency, 480 U.S. 616, 657 (1987) (Scalia, J., dissenting). The critics of the school cases decision, dabbling in the same alchemy, have converted Brown from a guarantee that government cannot make decisions based on race to a demand that it must.
I also continue to resent the attempt by critics of the school cases to redefine “segregated,” recasting it as no more than an antonym of “diverse” (the premise, one must think, of Nicole’s seeming assertion that there is ongoing and “pervasive racial segregation in America’s schools”) that effort insults and belittles the evil of real segregation, faced by the Brown court. As Justice Thomas notes in his concurrence, “[r]acial imbalance is not segregation, … [and] racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.”
These critics, Nicole among them, seem to be operating under the mistaken premise that Brown at once outlawed racial discrimination for bad purposes, and demanded it for good purposes (beyond, that is, its use as an extraordinary remedy for desegregation). This is not only not what Brown said, but in fact becomes incoherent once one realizes that everyone acts on what they believe are “good” motives. The people who enacted and maintained segregation believed they had “good” motives. As Justice Thomas’ concurrence notes, it does little good to say that the school districts’ motivation here is benign when “[t]he segregationists in Brown argued that their racial classifications were benign, not invidious.” Ultimately, there is little functional difference between the dissenters’ position and that which the Supreme Court ruled unanimously against in Brown – hence my bemusement at the Orwellian accusation that it is the plurality Justices who are threatening Brown. There is something profoundly ironic in that those who declare that the plurality has castrated Brown themselves diminish its import (by misrepresenting and belittling segregation) and advance a position that essentially repudiates its holding (by arguing for racial discrimination in school assignments). At least Prof. Goluboff was honest enough to admit that the only reason conservatives have been able to characterize Brown as holding that “government classifications on the basis of race” are impermissable (or in Nicole’s framework, the only reason “the plurality [could] use[] Brown as a backdrop to support its decision, [and] claim[] that Brown was in fact about legally separating children on the basis of race”) is because that’s what it actually says.
Nicole no doubt means well – but we should by now be familiar with which road is paved with good intentions. “To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.” Adarand Constructors v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).
Comment by Simon Dodd — July 5, 2007 @ 4:42 pm
Jacques wrote:
“http://en.wikipedia.org/wiki/Ipsedixitism”
er, except that my “rhetorical assertion” is supported by my analysis.
Comment by steve jaros — July 5, 2007 @ 5:01 pm
You have no analysis. You’re rejecting the conclusion of a syllogism whose premises and terms you agreed to.
Comment by Jacques McKenzie — July 5, 2007 @ 8:05 pm
Nicole no doubt means well – but we should by now be familiar with which road is paved with good intentions. “To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.” Adarand Constructors v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).
Yeah, because it’s not dishonest to take a case about government contracting and apply it to K-!@ public schooling as though the contexts are identical. Talk about intellectual dishonesty driven by intentions.
Comment by Jacques McKenzie — July 5, 2007 @ 8:10 pm
K-12, rather! :)
Comment by Jacques McKenzie — July 5, 2007 @ 8:11 pm
Jacques, the principal enunciated in that language is not limited to the facts of Adarand, or even to similar facts. It applies as readily to K-12 schools as it does to, say, law school admissions. If one believes that the 14th Amendment demands a colorblind government, that is so no matter what government activity is at issue, and that principal applies to all cases arising from government discrimination, no matter their facts. (I would in fact go further even than Scalia down that road – Leesville Concrete Co., for example, is one of the few cases I totally disagree with him.)
Comment by Simon Dodd — July 5, 2007 @ 8:41 pm
Simon, how do you feel about the FDA approving BiDil for black people only? Clinical studies show a dramatic decrease in mortality after cardiac arrest for black people, with no observable impact on white people. I ask only because my gut tells me that a colorblind government would be the most just, yet in this case it would seem pointless for the government to ignore clinical data about racial distinctions that could potentially save thousands of lives. I do not have a good way of resolving this particular tension.
Comment by Ben Kennedy — July 5, 2007 @ 9:21 pm
Jacques wrote:
“You have no analysis. You’re rejecting the conclusion of a syllogism whose premises and terms you agreed to.”
er, no i’m not, because agreeing that the researchers defined their terms and conducted their study properly automatically mean that they interpreted their data correctly. Correct data interpretation doesn’t necessarily follow from a correct methodology – and the Chang study is a good example.
beyond that, anyone can see that i did indeed provide an analysis that showed that they misinterpreted their data.
sorry if you struggle with that, but …
Comment by steve jaros — July 5, 2007 @ 9:28 pm
er, meant to say
“agreeing that the researchers defined their terms and conducted their study properly DOES NOT automatically mean that they interpreted their data correctly….
i get sloppy in the evening. :)
Comment by steve jaros — July 5, 2007 @ 9:30 pm
Ben, What does the “F” stand for in FDA?
(I write this with a broad grin, I’m not trying to be an ass, just a smartass.)
Comment by Simon Dodd — July 5, 2007 @ 9:49 pm
Simon, I’m not sure how “food” answers my question… as an agency of the executive branch, it too would need to act “colorblind” if that is what the Constitution demands
Comment by Ben Kennedy — July 5, 2007 @ 10:10 pm
Ben – ah heck. LOL. Okay, red faces here, I will cite a long day and lack of caffeine. That’ll teach me to try and be a smartass. ;) The point I was trying to make is that the FDA is a Federal agency, and the equal protection clause provides only that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). I think Bolling was wrongly-decided, and that the 14th Amendment means what it says – it governs state governments, not the federal government. So while I acknowledge that, if the equal protection clause applied to the FDA you’d present a thorny problem here, nevertheless, under my view of the 14th amendment it’s an academic point. :)
Comment by Simon Dodd — July 5, 2007 @ 10:23 pm
Simon, fair enough – but how then would you dispute the obviously unjust results in Korematsu and Hirabayashi – deprivation of liberty without due process under the 5th amendment?
Comment by Ben Kennedy — July 5, 2007 @ 10:56 pm
If one believes that the 14th Amendment demands a colorblind government, that is so no matter what government activity is at issue, and that principal applies to all cases arising from government discrimination, no matter their facts.
Fine. I assume you follow your arguments to their rational conclusion, unlike Steve Jaros. You believe in a colorblind Constitution. How does that square with the census? The census is provided for in the text of the Constitution, and your favorite Justice, Justice Scalia, has noted that the census takes account of race by isolating Indians who are not a part of tribes, i.e., it classifies individuals on the basis of race. Do you think that the census is unconstitutional?
Comment by Jacques McKenzie — July 6, 2007 @ 12:17 am
Ben – off the top of my head, I don’t know – I’ve not read those cases for a while so I’d have to go back and look. Either way, though, I’m sure there’s a parade of horribles that can be wheeled out to illustrate why the consequences of any decision is problematic, but I’m not a big fan of consequentialism in judicial decisionmaking, except when you’re talking about genuinely absurd results, not merely undesirable results. (I should take the opportunity to promote Andrew Gold’s article reconciling textualism with the absurdity doctrine, which I think’s very good.) The bottom line, for me, is that if the framers of the 14th Amendment had understood “due process of law” demanded by the 5th Amendment to include the so-called “equal protection component,” it would have been superfluous for the 14th amendment to demand it separately fromits demand that states accord due process. That may have bad consequences, but it’s the fairest reading of the text, indeed, the only faithful reading of the text, really.
Which also furnishes a reply to Jacques – the census is taken by the Federal government, and thus isn’t subject to equal protection scrutiny. Even if it were, I’m not sure I understand how it’s a “rational conclusion” that equal protection – which demands neutrality as to race in government decisionmaking – would forbid government data gathering that noted the race of respondents.
Comment by Simon Dodd — July 6, 2007 @ 8:20 am
Jacques wrote:
“I assume you follow your arguments to their rational conclusion, unlike Steve Jaros.”
er, what are you talking about?
Comment by steve jaros — July 6, 2007 @ 9:04 am
Simon, thanks for the article pointer, it was informative
Comment by Ben Kennedy — July 6, 2007 @ 11:15 am
Ben–
I would have the FDA approve the drug, but to note (for physicians) that it appears to work for African-Americans only. If it has NO effect on others, then it is not harmful. And the fact that it helps some people would permit it to pass FDA scrutiny.
Even if it were a state action, I’d say that the fact that it benefits some without harming any makes the action Constitutional, as well as wise under a utilitarian calculus. A law that makes some people better off but none worse off does not seem to me to deny the latter “equal protection of the law.” Otherwise, it would be hard to find ANY law that would pass muster.
Comment by David Drake — July 6, 2007 @ 1:29 pm
Which also furnishes a reply to Jacques – the census is taken by the Federal government, and thus isn’t subject to equal protection scrutiny. Even if it were, I’m not sure I understand how it’s a “rational conclusion” that equal protection – which demands neutrality as to race in government decisionmaking – would forbid government data gathering that noted the race of respondents.
Except that distinction is nowhere in the plurality opinion. The plurality opinion says that the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. The Federal Government isn’t passively gathering data: it actively creates the racial classifications before it asks respondents to check a box. That is “discrimination on the basis of race” — distinguishing between X and Y on the basis of race. Whether the distinction between X and Y actually exists in reality is debatable, e.g., when your categories are “white/nonwhite” or “black/other”. Do you know any “nonwhite” individuals? Any “others”? Sounds pernicious, except the school districts literally borrowed the racial categories that the Federal Government uses. Your out, it seems, is to claim that the Federal government is off the hook because the Equal Protection clause isn’t in the Fifth Amendment Due Process clause. It is a fine enough position, but it means that the Federal Government can maintain segregated facilities or racially discriminate against its workers. That is a proposition more radical than espoused by the plurality in its opinion, precisely because it would overrule precedent that holds to the contrary by incorporating the Equal Protection clause into the Due Process clause of the Fifth Amendment. Indeed, it would overrule Brown and all its progeny, which the plurality claimed not to do. It would also prevent the Government from taking the census — in direct conflict with the text of the Constitution — because the Federal Government creates racial categories for any number of purposes that aid in discrimination (i.e., choosing between policy alternative 1 and policy alternative 2, or decision-making) “on the basis of race”.
If you dislike the chain of irrational equivocations in the above argument, blame the plurality opinion.
Comment by Jacques McKenzie — July 9, 2007 @ 12:49 pm
To “discriminate” – at least in the ordinary sense of the word in the context of racial discrimination or gender discrimination – is not merely to “distinguish” or to “classify” – it is to do these things and then award special treatment (for good or ill) based on that distinction. To be sure, there is an auxilliary definition that makes them all-but synonyms, but I think a word ought to be read to mean its ordinary meaning, not the enscription on its casket in Judge Easterbrook’s mausoleum. See Easterbrook, Judicial Discretion in Statutory Interpretation, 57 Okl. L. Rev. 1 (2004) at 18 n.43 and accompanying text.
You’re left to argue that the Constitution permits the federal government to do bad things, Jacques – to which the answer is “yes, it can.” The federal government can do a lot of things that are unwise. It can raise taxes up the wazoo; it could abolish the federal reserve, reduce the Supreme Court to one member, abolish all lower federal courts, and eliminate most of the cabinet departments. It can even do morally repugnant things: it can permit abortion in DC and the military, for example, or abolish federal laws against all manner of crimes. The range of constitutionally-permissable yet stupid or invidious actions that the Constitution doesn’t prohibit is broad and deep, which leaves you point as amounting to little more than one more item on the immeasurable heap of things that Congress can do (subject to being turfed out of office by the voters, of course), but shouldn’t and won’t, either out of innate good sense, common decency, or fear of the voters, which is a healthy thing, ofttimes. The old aphorism is that you can lead a man to Congress but you can’t make him think, but even an unthinking man knows that the existence of a power by no means implies that it ought to be used or that as a practical matter it can be (just as Britain’s monarch retains the theoretical power to veto any bill, including a budget, it is a power that is beyond exercise, not even a paper tiger).
I seriously doubt that Roberts and Alito have any interest in overruling Bolling. Indeed, although I think Thomas might, I’m not even sure Scalia would overrule it at this point, preferring to call it “water over the dam” and write it off to stare decisis. And y’know, there might be some mileage in that. I only said that it was wrongly-decided, not whether I’d overrule it.
I see a lot of language about doing such and such would “overrule Brown” hurled around lately. The School Cases don’t overrule Brown – indeed, the only serious argument that can be made against them is whether or not they adhere more closely to its letter than its spirit. Brown did not address segregation or racial discrimination or inequality or any of that stuff, however you want to characterize it, by the Federal government, and if it had then there wouldn’t have been an opinion in Bolling. That is a separate case, and even if I were advocating overruling Bolling, that in no way threatens or challenges the underpinnings of Brown.
Comment by Simon Dodd — July 10, 2007 @ 8:30 pm
1. The logic underpinning Bolling and Brown is indistinct.
2. Learn to read. I did not accuse the plurality of overturning Brown. The logic of your position, which goes further than the plurality opinion’s would overrule Brown. That is one reason why no one on the Court adopted your view and you will never be on the Court.
3. My argument is not that proper interpretation of the Constitution always leads to good outcomes. My argument is that the bad outcomes you say the Constitution permits are disallowed as a matter of precedent. The only way to get to the bad outcomes you seek is to overturn that precedent. See point 1.
4. The equivocation between discriminate and discriminate is in more than one brief filed in Parents Involved. The distinction between Discrimination A and Discrimination B you insist is commonsensical does not appear in the plurality as a constraint on future interpreters of the plurality’s text, which confirms the shoddiness of the plurality opinion and leaves you with, at best, an ambiguity. Moreover, the same right-wing public interest firms that filed those briefs argue that any classification of race by the government — even data-gathering — violates the Constitution. The text of the Constitution — the part concerning the census — is an external check that blocks that interpretation from being valid unless the passage of the 14th Amendment substantively altered Article I to the contrary. This, of course, is not an absolutely absurd argument if you know your history — which you do not — because the 14th Amendment removed the 3/5ths fractionalism from Article I. Indeed, given that the 14th Amendment altered some portion of the pre-14th Amendment Constitution (unless you claim blacks have only 60% of a vote), the question is why you think it so ridiculous that the Equal Protection Clause of the 14th Amendment Clause hasn’t been incorporated to the 5th Amendment Due Process Clause. Certainly the structural Constitution is more fundamental than the Bill of Rights. It came first.
5. So the question isn’t whether the Federal Government can do bad things. But, rather, why you want it to. There is constitutional text, constitutional history, precedent, and logic standing in your way. The plurality — as bad as it is — does not come as close to being as terrible as you desire it to be.
Comment by Jacques McKenzie — July 10, 2007 @ 11:08 pm
That statement might be true if the Fifth Amendment contained an equal-protection clause (I say “might” only because the Fifth and Fourteenth Amendments were ratified at different times, so at least theoretically, the original understanding of the words “equal protection of the laws” in 1791 and 1868 might be divergent, but that’s beside the point here). But it doesn’t — which means that Brown and Bolling are plainly distinct, because once you’ve decided in Brown that equal protection means “that racial discrimination in public education is unconstitutional,” Brown II, supra, at 298, that ruling only reaches the states. To apply the same equal protection holding against the federal government, you can’t just rest on Brown – you need something else. You need to determine that equal protection analysis applies to the federal government. And that’s the holding of Bolling, Jacques, and that’s the reason it was wrongly-decided. It should be plain as day that Brown is distinct from Bolling.
As explained above, it wouldn’t, and even if it had, I fail to see what Bolling has to do with School Cases, both of which involved actions by states. No one on the court expressed a view on Bolling for presumably the same reason no one expressed a view on Alden or Roe or any number of other cases which have nothing whatsoever to do with the case at hand.
I didn’t say you did. I meant only to set your hyperbole about how overruling Bolling (which you continue to assume is my position, notwithstanding that I expressly disclaimed taking a position on that point) would overrule Brown into the broader context that cries that doing this that or the other would “overrule Brown” are ten-a-penny lately. It’s an expansion of the “boy who cried wolf” theory – throngs of people unhappy with the Supreme Court are running around hysterically yelling “wolf,” which means that anyone yelling “wolf” is going to be met with skepticism.
It’s not equivocation between this kind of discrimination and that kind of discrimination (”bad” discrimination vs. “good” discrimination, perhaps), it’s a disagreement over what discrimination is. (It should go without saying that since I’m not affiliated with “right-wing public interest firms … [who] argue that any classification of race by the government — even data-gathering — violates the Constitution” trying to hang me from their views isn’t going to get you anywhere.)
Comment by Simon Dodd — July 11, 2007 @ 7:32 pm
Thanks for your last bunch of incoherent comments. But the obvious argument that the 14 Amendment applies to the federal government is that it amended the structural Constitution; and the obvious argument that the logic of Brown and Bolling are indistinct is they both deal with the 14th Amendment and the rights of citizenship thereof, not to mention Bolling cited to Brown.
As to your argument about defining “discrimination”: the point is that the text of the Constituion, particularly Article I, makes your favored definition logically impossible.
Comment by Jacques McKenzie — July 12, 2007 @ 5:02 pm
I fail to see what Bolling has to do with School Cases, both of which involved actions by states.
Both involve interpretation of the 14th Amendment.
Comment by Jacques McKenzie — July 12, 2007 @ 5:04 pm
And I note the irony of you, someone who claims Bolling was wrongly-decided, accusing someone who disagrees of trying to hang you.
Comment by Jacques McKenzie — July 12, 2007 @ 5:08 pm
Jacques, you’re being obtuse:
That’s your post hoc rationalization, but it’s not what the court said. Where Brown rested on the Fourteenth Amendment’s equal protection clause, Brown I, 347 U.S. at 495 (”we hold that the plaintiffs and others similarly situated … are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment”), Bolling rested on Fifth Amendment substantive due process. Whatever the merits of your “the fourteenth amended the fifth” argument may be, that argument simply isn’t in Bolling. The court said was that “racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.” Bolling, 347 U.S. at 500.
The crux of the matter was candidly admitted by the Chief Justice: While “[t]he Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states,” 347 U.S. at 499 (emphasis added), the court deemed it “unthinkable” that “the [same] Constitution [that] prohibits the states from maintaining racially segregated public schools … would impose a lesser duty on the Federal Government.” Id. at 500. So, having recognized that Brown rested on “the Equal Protection Clause of the Fourteenth Amendment,” id. at 498, and conceded the inapplicablity of the Fourteenth Amendment (which “applies only to the states,” id. at 499) to the case at bar, the court was only left with the imperative that something in the Constitution had to restrain the Federal government, and in the search for that something, turned its attention elsewhere: the Fifth Amendment. “[T]he concepts of equal protection and due process … are not mutually exclusive,” and although “the two are [not] always interchangeable phrases,” ibid. (emphasis added), here they effectively were. Why? Well, it would be “unthinkable” that the federal government could do something that the states can’t do, you see, and because “[s]egregation in public education is not reasonably related to any proper governmental objective,” it is ” an arbitrary deprivation of … liberty in violation of the Due Process Clause.” Id. at 500. This is boilerplate substantive due process, not clever reimagination of any Fourteenth Amendment effect on the Bill of Rights.
Comment by Simon Dodd — July 12, 2007 @ 7:17 pm
That’s your post hoc rationalization
No, it is not post-hoc. The moment the 14th Amendment eradicated the 3/5ths Compromise from Article I, it applied the 14th Amendment to the Federal Government. It is a matter of historical fact.
Comment by Jacques McKenzie — July 13, 2007 @ 1:49 pm
This is boilerplate substantive due process, not clever reimagination of any Fourteenth Amendment effect on the Bill of Rights.
Yes, it is substantive due process to read the equal protection clause of the 14th Amendment into the Fifth Amendment Due Process Clause despite the phrase “Equal Protection” not being there. But it is not boilerplate, because the phrase Equal Protection is not there. My point is that the justification for the move lies in the 14th Amendment’s effect on the structural Constitution. There could have been a plausible legitimate government objective prior to the 13th and 14th Amendments (e.g., rounding up runaway slaves); there is not one after the 3/5ths Compromise is gone from Article I, and Bolling does not fail to recognize that; indeed, that is Bolling’s point.
Comment by Jacques McKenzie — July 13, 2007 @ 1:55 pm
Bolling is all of six paragraphs long and is freely available for anyone to read. Since anyone interested can go read it for themselves in a couple of minutes and see for themselves what it does and doesn’t say (Jacques’ claims fall into the latter category), it’s unproductive to continue this argument. The defense rests.
Comment by Simon Dodd — July 13, 2007 @ 6:09 pm
That Bolling is brief cuts against you.
The reason it is brief is that it relies on Brown for much of its force. Because the logic ounderpinning Brown and Bolling are, as I said, indistinct.
E.g., “In view of our decision [i.e., Brown] that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”
Comment by Jacques McKenzie — July 14, 2007 @ 12:29 am
And, your case was that Bolling was wrongly decided as a matter of constitutional law. You have not proven that.
Comment by Jacques McKenzie — July 14, 2007 @ 12:31 am
One final point:
Bolling does not deny that the 14th Amendment amended Article I. That simply isn’t how the opinion is using the word “apply.”
It’s rather dishonest to suggest otherwise.
Comment by Jacques McKenzie — July 14, 2007 @ 12:40 am
Jacques,
On Bolling, as I said above, I’m not going to engage on this further. The opinion is short enough for anyone – including laypersons – to read (which was my point about its brevity), so readers can read it and make their own minds up. I’m confident they’ll make up their own minds that you’re wrong.
On the 3/5 clause question you keep talking about, I fail to see the relevance. The clause said that “Representatives and direct taxes shall be apportioned [to states] … according to their respective [populations],” counting “free persons” as one person and “all other Persons” (i.e. slaves) as “three fifths” of a person. True, the Fourteenth Amendment explicitly changes this, but that change was already unnecessary. The three fifths clause became functionally inoperative when the Thirteenth Amendment abolished slavery, with the effect that there ceased to be persons not free to be counted as three fifths of a person. The slaves became “free persons” and would thus count as one person, as they rightly ought. But what an explicit (if basically nugatory) clause amending the apportionment mechanism has to do with your point escapes me. That amendments can amend the constitution? Well, yeah…That’s kind of implied, you know. ;)
Comment by Simon Dodd — July 14, 2007 @ 8:44 pm
True, the Fourteenth Amendment explicitly changes this
And therefore your reading of Bolling is 100% wrong.
Comment by Jacques McKenzie — August 23, 2007 @ 11:38 am
Spurred by this debate, i just read Bolling for the first time. What i take from it:
1) Initially, Bolling clearly says that the EPC of A14 applies only to the states, not the federal government. Which makes sense, since A14 was originally intended to apply to the states, not the federal government, and indeed the wording of A14 says that as well.
So at this point it’s hard to justify a claim that the court is “reading A14 into A5″.
2) As the opinion continues, the court’s reasoning is that since A14s EPC and A5s due process clause “both stem from the American ideal of fairness”, despite their differences (the former is more explicit than the latter) they share some common ground.
They then rely on some precedents to claim that discrimination not reasonably related to a proper governmental objective violates A5s due process liberty protection. A14 still out of the picture.
3) But then they add this line:
“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”
So now they say they are making this Bolling ruling, which up until this point has been purely based on an analysis of A5, “in light of” the Brown ruling based on A14.
Which seems to support Jacque’s claim about Bolling “reading A14 into A5″.
This line strikes me as bizarre for a couple reasons:
1) to achieve their goal, it’s unnecessary. The analysis which precedes it, which depended purely on an interpretation of A5s due process clause, was sufficient to strike down the DC school segregation, or any other federal government discrimination. The same A5 logic would seemingly apply in any other cases as well.
2) It muddles their argument considerably, since (1) from a structural point of view there’s nothing “unthinkable” or weird or bizarre or what have you about a clause of the constitution applying to states but not to the federal government, and (2) it opens the court up to arguments that question it’s basis for “reading” A14 into A5. Where, in the history of A14 etc. does this notion come from?
And (3), Concerning the specific facts of this case, reading A14 into A5 to make this ruling is hard justify since (as noted by Cass Sunstein in his “radicals in robes” book) the same congress that proposed and passed A14 presided over, and continued to preside over after its passage, a segregated public school system in Washington DC. That suggests that those who enacted A14 didn’t see it as having the meaning the Bolling court says it has.
My reaction is that this line makes it look like the court itself lacks confidence in its preceding strictly-A5 based reasoning, and thus had to grasp beyond the constitution to some overarching notion of “morality” (i.e., my gosh it’s just, just, just… UNTHINKABLE that our constitution says the states can’t segregate but the feds can!) to arrive at the end result it seeks. It smacks of “judicial activism”, “legislating from the bench”, etc.
Finally, i can see why the court might have felt the need to bolster the A5 basis with reference to A14, since IMO the A5 analysis is itself very weak. It’s hard to imagine that the enactors of A5 would have considered it a denial of liberty on the part of the federal govt. if it set up segregated schools.
This court strikes me as desperately wanting to outlaw segregation, and thus desperately searching for anything – constitutional texts, precedents, etc. – to try and piece together a plausible ruling to that effect, despite it being pretty clear that no prohibition to federal-sponsored segregation can reasonably be found in A5 or A14.
Verdict:
Jacques is right in that the opinion does appear to “read” A14 into A5.
Simon is right in that Bolling was wrongly decided.
IMO, a courageous justice would have no problem stripping away 50 years of encrusted warren-brennan reasoning and overturning it.
Then, our citizenry, aghast to wake up and find out that the constitution doesn’t prevent federal race discrimination, can pass the appropriate amendments to correct it.
That’s the way our system is supposed to work, not by courts doing the work of legislators.
Comment by steve jaros — August 23, 2007 @ 2:49 pm
1) to achieve their goal, it’s unnecessary. The analysis which precedes it, which depended purely on an interpretation of A5s due process clause, was sufficient to strike down the DC school segregation, or any other federal government discrimination.
Only if you buy into substantive due process, which cuts against your statement that “[T]he way our system is supposed to work [is] not by courts doing the work of legislators.”
Comment by Jacques McKenzie — August 23, 2007 @ 3:01 pm
desperately searching for anything – constitutional texts, precedents,
This is the first time I have ever heard that a ruling based on constitutional text and precedents interpreting that text is proof of “desperate searching”. Usually, “desperate searching” takes place when text or precedents or both are unavailable.
Comment by Jacques McKenzie — August 23, 2007 @ 3:04 pm
1) in saying it was unnecessary, i was trying to look at the issue from the perspective of the Bolling court, and i assumed the Bolling court buys in to substantive due process, and since they do, then reading A14 into A5 is, like i said, unnecessary.
As i later stated, i think the Bolling court’s A5 argument was wrong, and it assigned to itself the task of our legislators.
2) the reason i called it “desperate searching” is because IMO the analysis is so weak that it was clearly based on an effort to “reverse engineer” an outcome. The precedents are thin and few and the textual analysis specious and ahistorical.
The opinion strikes me as akin to a constitutional law assignment where a professor tells the students to write an opinion defending an obviously bizarro intepretation of the constitution, and the law students have to comb through the archives in a desperate effort to find bits of text here and bits of text there in various prior rulings, and do their best to piece these cherry-picked texts into a plausibly coherent whole that supports the decision.
When all the while knowing it’s hooey.
Comment by steve jaros — August 24, 2007 @ 12:03 am
“Final nail” in the coffin of Brown, eh? Oh boy. It is the rhetoric that just keeps giving. On the other hand, since this piece starts with a vague reference to social science, I wonder what the author feels about the validity of Kenneth Clark’s doll studies (upon which Brown is based) and their interpretations by the Court?
Juan Williams has noted: “during the last 20 years, with Brown in full force, America’s public schools have been growing more segregated — even as the nation has become more racially diverse. In 2001, the National Center for Education Statistics reported that the average white student attends a school that is 80 percent white, while 70 percent of black students attend schools where nearly two-thirds of students are black and Hispanic.” I wonder if he is right?
Finally, I wonder what the author thinks of Thurgood Marshall’s view of Brown: “seating black children next to white children in school had never been the point. It had been necessary only because all-white school boards were generously financing schools for white children while leaving black students in overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He had wanted black children to have the right to attend white schools as a point of leverage over the biased spending patterns … If black children had the right to be in schools with white children, Justice Marshall reasoned, then school board officials would have no choice but to equalize spending to protect the interests of their white children.”
Comment by P.S. Ruckman, Jr. — August 25, 2007 @ 9:45 am
P.S. Ruckman -
1) IIRC, in the “doll studies” cited in Brown, Clark actually found that black kids attending integrated schools in the north were MORE likely than black kids attending segregated schools in the south to say that the “black doll is bad” and to prefer to play with the white doll.
I guess the best we can say about that is that the studies were also methodologically weak.
2) sounds like marshall was ok with “separate but equal”, as long as the resources really were equal.
Comment by steve jaros — August 25, 2007 @ 1:41 pm
The opinion strikes me as akin to a constitutional law assignment where a professor tells the students to write an opinion defending an obviously bizarro intepretation of the constitution, and the law students have to comb through the archives in a desperate effort to find bits of text here and bits of text there in various prior rulings, and do their best to piece these cherry-picked texts into a plausibly coherent whole that supports the decision.
I know of no law professor who uses such pedagogy.
Comment by Jacques McKenzie — August 26, 2007 @ 2:31 pm
Too bad. Perhaps it could sharpen the student’s skills in defending lost causes … ?
Or prepare them for service as Supreme Court clerks given the task to write something to bolster an opinion as weak as Bolling … ?
Comment by steve jaros — August 26, 2007 @ 5:53 pm
Do you know of any law professor who uses such pedagogy? (Perhaps one of your own professors in law school?)
Comment by Jacques McKenzie — August 26, 2007 @ 6:19 pm