Parents Involved in Community Schools v. Seattle School District,
the case involving race in public schools, is here. Chief Justice Roberts wrote the plurality/majority opinion that had Kennedy in parts but lost him in others. Justice Kennedy concurred; according to Kennedy, Roberts' opinion went too far in some respects. Justice Breyer filed a 77-page dissent, joined by Stevens, Souter, and Ginsburg, which argues that the plurality opinion would "break the promise of Brown." Justice Thomas concurred, filing a 35-page response to Justice Breyer. Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
I will say it implies that Roberts holds his views above mere unanimity (as he should), though his talk of moving incrementally and approaching cases "Umpirically" has been well documented as likely simply incorrect. The only thing I know for sure is that his approach to unanimity is more Warren than Burger, as Roberts certainly has not adopted Burger's "give up and join them" approach to getting majority opinions.
In any event, this decision is disheartening, and difficult. Breyer's dissent, though overlong, is eloquent. Roberts' cabining of Grutter (wasn't really about race at all) and distortion of Brown is painful as well. And expectedly Kennedy gives us "we go too far today in saying that race can never be used, but I will leave it to everyone else to guess when I think it may be used," thus ensuring his central role for years to come.
Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Yup, just the sort of straight, logical, common-sense talk you can't get from an Angry Leftist (or Liberal, or Progressive)
So?
I'm still waiting for my about-face that you referenced in response to my post yesterday. This opinion wonderfully illustrates Cover's critique of uncommitted judges. The Roberts plurality claims they are informed by the text of the opinions and law that came before this decision: they appear to give not a moment's pause to the meaning and narrative behind those words, for either side. At the end of the day, this case isn't about racial classifications. It's about (on one side) the narrative of rescuing a group of people who were denied so much for so long, and (on the other) the commitment of a family to make sure that each individual child in that family is given the best education, based on their "merit" or hard work. The law of racial classifications in this country arose and continues to arise from these narratives. The plurality acts as if it's the other way around.
The Kennedy concurrence is classic Kennedy (a judge I'm sure Cover would have absolutely eviscerated for drawing these itsy bitsy distinctions that, in the end, give comfort to no normative group in our society).
I haven't gotten to the dissent yet. Nevertheless, I'm still absolutely of the opinion that the judicial "restraint" and positivism of the Roberts Court serves a mostly apologetic function.
Too bad there was no discrimination under these plans. Every student (regardless of their color) had their race taken into account if it would upset the balance as defined under the plan. That is simply not differential treatment.
The funny think is, once you bus the blacks to the white schools, they self-segregate and prefer to stay together away from the whites.
I can hardly see the desirability of the outcome of the case as relevant in evaluating it. Surely only weak-minded activist liberal progressive hippy leftists would think so.
Yay Justice Thomas!
Also, I like how both Roberts and Thomas get some sweet burns in on Kozinski. Kozinski's opinions have been declining drastically in quality these last few years.
I think Justice Stevens meant it literally.
On a completely separate note, I hope some of the commenters will bother to read the decisions before commenting. Whatever one thinks of affirmative action as a policy or as a normative matter, there's a lot in the decisions about how judges decide cases.
I'm not rejoicing. But I don't think it matters. I was all in favor of desegregation in my native Chicago. The result: CPS is now about 8% white. People just opt their kids out. If the 1975 Court cam back to life to vote with Stevens, the end result, in 10 years, would be racially-segregated public schools in Seattle.
Seattle is hardly a conservative city. But people "vote with their kids": no matter how liberal they believe themselves to be, parents will not accept any situation that hurts junior's chances of going Ivy.
So you might say I'm cynical.
BUT, where does it/did it say that the court in 1975 was absolutely the final authority on anything?
Perhaps we should harken back to the court that was seated in 1805, or 1923, or whenever -- that's why we nominate the justices, provide Senatorial consent (if that's what you could call some of the last few rounds of hearings), and then let the Court opine on the matters brought before them. Stare Decisis (sp?) is a neat concept, but every once in a while, the Court needs to get a infusion of common sense and reality.
I'm not rejoicing. But I don't think it matters. I was all in favor of desegregation in my native Chicago. The result: CPS is now about 8% white. People just opt their kids out. If the 1975 Court cam back to life to vote with Stevens, the end result, in 10 years, would be racially-segregated public schools in Seattle.
Seattle is hardly a conservative city. But people "vote with their kids": no matter how liberal they believe themselves to be, parents will not accept any situation that hurts junior's chances of going Ivy.
So you might say I'm cynical."
You are right, and it is difficult. But it is at least fair to make those citizens of a particular jurisdiction who refuse to utilize a desegregated system pay for the system and receive no benefit, rather than allowing for a segregated system based on that threat alone, or allowing them to financially opt out without leaving the jurisdiction.
Seattle, btw, can learn a lot from the actions of other state authorities who were limited in their ability to use affirmative action - a comprehensive resegregation of schools BY INCOME would truly be a phenomenal experiment.
Don't be willfully obtuse. I have only skimmed part of the opinion, but it shows Roberts demonstrating how all of the precedents involving race and education stand for the proposition that the government cannot consider race for anything, anytime, and compel the conclusion that these plans violate the equal protection clause. Stevens dissents, saying that Roberts' interpretation of these cases is of recent vintage and misrepresents Brown and its progeny up to Adarand. He finishes by saying that none of his fellow justices in 1975 would have been in the majority in this case. That's how much has changed.
He is not, using the hypothetical opinions of the OT 1975 Court as any kind of authority to support an outcome in this case, only to support his claim that Roberts et al. are not being faithful to the precedents that they claim support today's outcome.
Except that it's not - members of that group aren't being rescued. The groups that were denied aren't involved in the current case. The vast majority are dead and the remainder are too old to be in high school.
Instead, we're talking about folks who look like members of denied groups.
Some of the folks involved are related to folks in groups that were denied, but if you're not going to allow corruption of the blood, how do you justify the inverse? (And, if we're allocating based on relationship, what happens to Clarence Thomas' children?)
Note that quite a few of the folks who benefit from these racial priorities are not related to folks who were in the denied group.
Especially because many of these opinions (Bakke, Fullilove, etc) were not even majority opinions, and others (Metro Broadcasting, etc) represented one court view that was sharply curtailed or overruled. In somewhat unfairly broad strokes, Stevens is trying to expose Roberts's opinion as faux-doctrinalism, that this result flows inexorably from some seamless line of cases that don't say or represent what he thinks, or at minimum don't fit together quite as nicely as the Chief Justice implies.
Good one!
It's time for Stevens to go. They've prepped the battlefield and softened Bush up, and there'll be no Bork as replacement, so Stevens should retire gracefully and in good spirit.
And if he still wants to work, and since he's the senior guy in town and has seen this all first hand, he should push for court reform, and term limitations on those judges, so they're not hanging around jaded for far too long, and going out in body bags. We would definitely hear Stevens' voice, if he gave us something to hear.
what i don't get is their olympian remove from the real world. most inner city public schools are heavily black, and nothing the S Ct did in this case would change that. so the cries about 'resegregation' come long after that horse has left the barn. (though as Thomas notes, there is nothing compelled about this separation, so labeling it resegregation is a little much.)
also, telling a 14 yr old white or asian kid that he can't go to a school he otherwise qualifies for because of his race is a very weird way of teaching that kid that race is irrelevant.
can't we focus on making schools better, and dispense with the overarching sociological notions?
1. All Supreme Court decisions are political. With some exceptions, increasingly rare these days, liberal justices are nominated by democrats and conservatives by republicans. Occasionally you get a Souter, but then Bush 41 was not a conservative president. Liberals naturally want their political ideas to endure and to be put into practice, as do conservatives. It is such folly that we have to wade through 150+ pages when, in fact, (except for the result of Kennedy's coin toss) the result was pre ordained. Is there a soul over 40 who did not know how the other 8 justices were going to vote?
2. It is scary, to reverse the CJ's remark, that 4 supreme court justices believe the way to end racial discrimination is to continue to hire, fire, admit, exclude, promote, demote, move, grant, and deny on the basis of race.
Oh, wait...
Steve, the instrument we used to rid the schools of racial segregation was the law, backed up by the 101st Airborne. "Promises" had nothing to do with it.
Stevens reproaches these young whippersnappers, and Breyer augurs apocalypse for our nation. This is just too much.
What? That's all it takes? Why didn't someone say this 50 years ago? Just think of all of the time, energy and lives lost in the civil rights struggle when the answer was so easy it could be condensed down to one line.
WRONG. Federalism is a pragmatic principle -- when stuff is in equipoise, or even close, then you favor the localities. It will be like the 1860 Election all over again, only with racist states and non-racist states instead of slave and free.
Surely you cannot really believe Equal Protection is satisfied merely because each and every child "had their race taken into account." Jim Crow laws in the south most definitely took race into account.
Loved Thomas' point that the minority is obfuscating the critical distinction between legal discrimination by the gov't and mere "racial imbalances" caused by the choices citizens make (such as where to live).
WRONG. "Federalism" is a buzz word conservatives use to impose their preferred political results. The hypocrisy would be laughable if it weren't actually despicable.
They'll use the same arguments they always have: Diversity Now, Diversity Tomorrow, Diversity Forever!
The reason for SCOTUS involvement here is that the 14th Amendment's Equal Protection Clause was aimed directly at stopping race-based state action. Unfortunately, it was soon corrupted to be impotent vis a vis the very actions the Amendment was meant to remedy--racial segreation. It took a long time--until Brown--to turn the Amendment back to its intended purpose. After the "turning" process, SCOTUS may have overshot the mark somethat in the other direction, which is understandable under the circumstances of the fight some of the states waged from the start against the idea of equal protection, culminating in the fight against Brown itself. The result here is a healthy step toward making the Constitution really color-blind, which was the aim of the 14th Amendment, the early civil rights leaders, and Brown.
It's fascinating that you can speak up for Jack Greenburg. And here I am thinking that Jack Greenberg (who argued Brown) was quite able to speak for himself on such a case. If you want to know what "the early civil rights leaders" were aiming for, why don't you ask them? Many of them are still around, ya know.
The dissent does not apply strict scrutiny.
The dissent does not follow Grutter.
This was really a very easy case which should have been unanimous.
He submitted an amicus brief in the case (available here) which demonstrates that David Drake's historical assertions are simply wrong. Whatever the merits of the "race neutral" interpretation of the EPC as a matter of text or policy, it has no basis whatsoever in originalism (another conservative shell game).
That's what they tried to teach us in law school.
Greenberg shows that folks who were injured by before-then legal segregation were given preferential treatment. That's not true of any of the students of the school district in question.
If my ancestors were victimized by Vikings, is any local govt entitled to give me preferential treatment over folks who look like the decendants of Vikings? How about if I just look like folks who were victimized by Vikings?
His opinion controls. The Chief Justice's opinion controls as for the earlier parts, with Kennedy not agreeing with the parts of the CJ's opinion that state that race can never be a compelling interest.
See Tom Goldstein's post on scotusblog. He says the way to read the case is to think of it like Grutter except without an actual case upholding the use of a race-conscious measure. So maybe it is kind of like Bakke 2 in this regard, except with less tangible guidance than Powell's paean to the Harvard plan.
But set that aside (though it's rapidly becoming a Roberts trademark; kind of remarkable for a guy everyone expected to be a scrupulous and honest analyst, albeit with a conservative thumb on the scale in close calls). Bottom line: how can anyone believe that the same Congress which passed race-conscious ameliorative statutes would have also passed a constitutional amendment requiring those statutes to be struck down. It's just not remotely a serious historical reading. **EASILY** up there with the most outrageous flourishings of the Warren Court. (And arguably much worse because it doesn't even have the excuse of coming from good intentions.)
I'm not even close to sold on affirmative action as a policy matter. But pretending that the Constitution requires color blindness is . . . absurd. Bespeaks results-driven dishonesty of the worst kind. And, no, that's not hyperbole.
I think this is 1/2 right. The original expected application of the text of the EPC permitted some, arguably many forms of racial discrimination against blacks. (And logic therefore suggests racial discrimination against whites would also be constitutionally permitted.) However, at the very least, the original meaning of the Clause required equal application of whatever general rules of law happen to be on the books, be they statutes against murder or theft, the legal ability to enter contract, give evidence or sue or be sued, or even take advantage of substantive legal rules that come from Court decisions.
If it is going to be a matter of constituional law that all purposeful government discrimination against blacks violates the EPC (something perhaps not within the original meaning but that all of the liberals and conservatives agree on now), then the original meaning of the EPC likewise requires that such expanded meaning equally protect whites and other races.
In other words, whatever degree of protection "the law" decides to give, the EPC requires it be given equally to all persons without regard to race. When the EPC was originally ratified, "the law" simply granted a lower level of protection. It didn't grant blacks (or whites) rights against government policies which took race into account; but now "the law" does, at least for blacks, it does. Government must, therefore, protect all races within this general rule against racial discrimination. Otherwise, the way the liberals would have it, we end up with a rule where blacks get greater constitutional protection under the EPC than whites or other races. And that outcome is impossible to square with the original meaning of the text.
I don't think any of us want to "go back" to the proper original expected application of the text of the EPC which arguably permitted racial segregation and without question permitted bans of micegenation. But given that is out of the realm of possiblities, the way Thomas and Scalia interpret the EPC as requiring race neutrality for all is the next closest thing to an originalist outcome.
And Sunnunu should be burned at a stake for giving us Souter.
Goofy.
Who cares?
As to Robert's takedown of Breyer, I agree it comes off a bit too personal and is unexpected. Could it be that the good Senators' media lynching of judicial nominees pushes them harder to the right?
Two points for honesty, I guess.
It's notable as well that Kennedy flat out rejects the one sentence of Robert's majority opinion that's being widely quoted in the press as what the decision stands for:
Since essential swing vote Kennedy explicitly rejects that formulation, it's idiotic to use that as what the majority opinion stands for.
This is indeed now the Kennedy court on affirmative action cases. The whole game will be divining what he's ok with.
Anonymous,
That's why Scalia &Co are not arguing for "original intent," but for "originalism". It doesn't matter what members of Congress intended, proclaimed in floor debates, or say on their deathbeds. All that matters is what the words of the law ARE. When there is an ambiguity, you can then look to see "what did those words mean at the time they were enacted?" (this is where originalism and textualism vary). Intent never comes into play.
It's perfectly reasonable to debate what the 14th means, but any attempt to "divine congressional intent" is an invitation for unchecked judicial authority.
If you really want to abolish the concept of the law as color blind, then on what basis does de jure segregation go down the tubes? Based on inequality of the schools? Part of why plaintiffs in Brown argued for color blindness is because previous decisions were forcing segregated school systems towards a rough equality in conditions and funding for black and white schools. They were not there yet, but Brown was decided based on color blindness precisely because it was apparent that the improvements that were being made would soon render inequality of schools a moot point.
I understand that a lot liberals really, really want racial discrimination to continue, as long as it benefits racial minorities. That's an understandable public policy goal--after all, that way we don't have to listen to well known white supremacists such as Bill Cosby talk about the severe cultural problems that have destroyed the education and success ethic in much of black America. But that's not a legitimate basis for law, anymore than white racial superiority was.
Well, for that matter, Martin Luther King favored affirmative action too. Affirmative action is a complicated issue, as a matter of law and policy. But it's at best dishonest to watch conservatives/right-wingers pretend that they come from a line of thought endorsed by "early civil rights leaders," when in fact (i) early civil rights leaders generally endorsed affirmative action-type measures, and (ii) conservatives/right-wingers come from a line of thought that was arguing that property rights and the "right of association" trumped the ruling in Brown and basic, color-blind anti-discrimination laws like Title VII.
2) Nobody -- not one of the nine justices on the court now, or anybody else -- suggests that the 14th amendment bans race-conscious remedial measures. That isn't what we're talking about. Neither the Seattle nor Louisville programs were remedial. The laws that they were passing in the post-civil-war era were.
3) Even putting that aside, the constitutional amendment they passed would not have required that those statutes be struck down, because the 14th amendment does not apply to the federal government.Of course not. Because conservatives are evil. Only liberals have good intentions. Roberts, Alito, Scalia, Kennedy and Thomas wrote/signed onto this opinion because they hate black people. Everyone knows that.
This is a fun game, right?
He gives as examples race conscious measures that would be OK various kinds of outreach and recruitment programs and school siting decisions:
He also avoids saying that he is overruling Grutter, the Michigan Law school affirmative action case of 2003, where the majority found the program not an impermissibly rigid racial quota system but rather a permissibly complex “factoring in race”, even though he dissented in that case. Whether he would vote to overrule Grutter at this stage is very much up in the air. What he does say is that he considers his opinion here as in conformity with Grutter – that is he considers these high school affirmative action cases as smelling too much like quotas, and he chides Breyer’s minority opinion for saying the opposite.
He does give a hint that he might overrule Grutter though when he cites Stevens in saying that in “matters of doctrine” it’s permissible to continue to vote your belief’s in subsequent decisions despite stare decisis.
No, because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism. As did mainstream U.S. liberalism. On the other hand, mainstream U.S. conservativism took a long time to come to grips with Brown and anti-discrimination laws. Heck, you can see opposition to on this blog still to anti-discrimination laws, in principle.
In any event, I was mainly helping others correct the factually incorrect statement made about what "early civil rights leaders" believed about affirmative action. You do care about historical truth, right?
I'll answer this below, but I want to say first that I'm puzzled at the question. I haven't said here that the race neutral view is wrong. What I've done is point out the fallacy of two common conservative claims about the jurisprudence of the "Roberts 4 (5?)".
Now, to answer your question, let me ask one in return. If you think that the EPC requires a race-neutral application, do you also think it requires a gender-neutral one? Do you think, for example, that Congress violated the EPC when it restricted women to certain roles in the armed forces? Do you believe single gender schools are permissible?
I expect that nobody here, liberal or conservative, actually expects a rigidly enforced gender-neutral interpretation. Yet, from the text alone, it's hard to come up with a reason for that distinction. One way to avoid the problem is by reference to history. That, however, creates still more difficulties: history pretty strongly supports the use of race to assign pupils. More embarrassing still, it VERY strongly supports miscegenation statutes.
In my view, the correct answer is that the EPC establishes a policy (a value, if you prefer) of an integrated society. That means we move towards that goal as much as possible.
Now, this does NOT mean that an integrated society is the ONLY value. I certainly understand that there are other values (free speech, due process, property rights, etc.) which may at times be affected by efforts at integration. What it does mean is that when those other values are not implicated -- and they certainly were not in these programs -- considerations of race designed to progress towards an integrated society are permissible.
I'd add, as well, that I disagree with the distinction suggested above that post-Civil War actions were remedial only for the direct victims of slavery. This is false, on the one hand: for example, pensions for black veterans included pensions for those who were free before the War (many of them had never been slaves). On the other hand, it's wrong today to suggest that all the pernicious effects of segregation have been eliminated from society. We can argue about the extent of progress (and it's substantial), but I have no problem with programs which recognize the residual effects of segregation (and even slavery). And those programs will, of necessity, take race into account.
I would like to remind everyone of a little skullduggery. Remember, prior to Roberts' confirmation, the effort to look at the memos he had written during his years in the Reagan Administration Justice Department? Remember the government types went out to the Reagan library in Simi Valley to look up his memos and took notes? Remember that there was a memo in which Roberts had opined on affirmative action? Remember that memo could not be found after the government types left? Remember the government types regretted the disappearance and offered their (of course neutral) notes? All through the confirmation hearings Roberts knew what he wrote, the government types knew, but none of the Senators or any of us knew. Now we can guess at what Roberts wrote. And now, in part due to that skullduggery, he gets to put it in place. Similar thing with his membership in the Federalist Society. But, hey, that is all principled because it got Roberts in, right?
In this brave new EPC world, I guess I am not to worry about segregation when I am the only black person in a room and just chalk it up to private choice of racial imbalance.
I guess I am to look around neighborhoods and just understand that they are the way they are because of private choice of racial imbalance.
I guess I am to look at the disparities between schools in inner city neighborhoods as compared to others and just understand that they are the way they are because of private choice of racial imbalance.
As long as the racism is in the market place through private choices then it appears Roberts has no problem with it. These are just racial imbalances from private choice.
The state's Anatole Frankish studied neutrality is the essence.
As Bill O'Reilly said, you can drink that Kool-Aid if you want to. The struggle that has been going on for 400 years will continue.
I think it is a 5-4 against minorities and specifically against poor minority kids. As Maurice Dyson of Thomas Jefferson Law School has written other places - why is the Grutter goal of integration after 18 less important before 18 in the K-12 period?
And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation? Brown was not just about non-discrimination but also about integration.
President Johnson "got this" back in the 60's.
Heaven forbid that the Supreme Court might let the state do something that might be even slightly oriented to reach down to help poor minority kids get a better deal than the raw deal that has been dealt for 400 years. That the state fight the hydraulic pressures that keeps them down rather than giving into those pressures. But, that remains too much to hope for.
Best,
Ben
Hardly, and most certainly not after '68. Prior to '68, referencing JFK and Truman, they both fall within neo-con outlooks, if but broadly conceived at the initial stages of the Cold War.
Yes, and you cited so much authority for your position and avoided blanket terms like "generally."
"No, because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism."
I suppose somebody might believe that if they hadn't read anything you've written, be it "scholarly" or here at the VC.
But doesn't this "integrated society" approach totally abandon individual rights in favor of group results? What possible individual rights might survive your interpretation of the EPC?
I don't understand this question. I specifically said: "Now, this does NOT mean that an integrated society is the ONLY value. I certainly understand that there are other values (free speech, due process, property rights, etc.) which may at times be affected by efforts at integration. What it does mean is that when those other values are not implicated -- and they certainly were not in these programs -- considerations of race designed to progress towards an integrated society are permissible."
Honestly? Because black doctors' and bankers' kids go to private K-12 schools, but they want to go to Michigan Law even though it is public because it is still a top 10.
They need/want a little boost, and the school wants to give it to them because by letting in the black doctors' kids below the cut they can keep out the white factory workers' kids (they are icky-poo and not our kind of people).
The original expected application of the text of the EPC arguably grants no protection to gender whatsover.
we disagree as well to what the EPC stands for. the EPC concerns govt action, period. if people freely choose to live among others who share this or that trait, and schools reflect that fact, that is none of the govt's business. (I'm not excusing any govt or corp steps that encourage such separation - if there is redlining or whatever, by all means go after it.)
I know we still have hurdles to overcome from segregation and slavery. there are race neutral ways to address this. but tipping the scales to favor one group not only flies in the face of the plain language of the EPC, but seems guaranteed only to encourage a sense of racially based separateness and hostility.
Mark, this perfectly illustrates why the "liberal" and "conservative" views on this issue differ. You see the EPC establishing a goal. Race based mechanisms are therefore acceptable if they appear to move us toward that goal. This view is results driven. OTOH, I see the EPC as establishing a rule that is consistent with the goal. This view is process driven and works at the individual level.
I support the process view because I don't believe that government action can solve this (or other) societal problems. The best bet is set up rules that are fair at the individual level and let society work it out from there. Thus "[t]he way to stop discrimination on the basis ofrace is to stop discriminating on the basis of race."
Both sides come to this issue with good intentions. But because of this fundamental difference in world view we end up talking past each other.
I might desire an integrated society as well, but, after removing FORMAL barriers to integregration that existed pre-Brown, when government tries to force outcomes while meddling with what otherwise would have occured under private choices and voluntary sorting, more often than not, more harm than good occurs.
People generally want to be around other folks with whom they have things in common. In white communities, voluntary sorting also occurs along class lines which are more subcultural than economic (the yuppies who wear khaki pants v. the folks who drive pick up trucks with gun racks on the back).
Blacks who have mostly white friends and whites who have mostly black friends are often called unfair names which I won't repeat here. But the kernel of truth underlying that categorization is that such folks adapt their preferences so they better "fit" in with the other group. And once they do, the different social groups can surprisingly accepting.
Blacks and whites (and hispanics and asians) certainly do affect one another's subcultures. Preferences that begin in one group often migrate to the other.
The only way to see greater black/white social integration done naturally and voluntarily without government interferences which cause more harm than good is to see those preferences converge and subcultural differences disappate or disappear. There would have to be a "melting pot" effect where each group surrenders some of its racial identity. Given that whites are a majority, blacks will probably have to do much more surrendering than whites.
Plus many if not most blacks prefer to live in neighborhoods with more than 12 or 13% blacks. To suit those preferences, algebraically, there must also be white, hispanic, or asian neighborhoods with less than 12 or 13% black.
I don't believe that if and when this nation completely integrates it will not be because of government action. It will be because society has changed. Government can and should curb the most flagrant abuses (and in most cases has already done so). But trying to force complete integration is a losing battle and causes additional anger and resentment.
JRL: If this thread were about me, I might ask for support for your bizarre implication that something I've written here or elsewhere supports Soviet Communism. But this thread isn't about me, so I'll just note that your implication is false and dishonest, and I'll let those interested in my work read it for themselves.
Getting back to the main point, about this case, does this mean that "diversity" is now a compelling interest in law schools, but not elementary schools? If so, what about high schools? Colleges?
It sure can't work worse than what we have now, which is to some extent benign paternalism on the part of those trying to force racial balancing by using race as a primary selector. What was proposed here was to use over racial discrimination in the name of racial balancing.
One thing that has to be kept in mind here is that there is a whole industry, a whole political and economic set of players whose primary purpose in life is to extort racial spoils. Think of the Revs. Jackson and Sharpton, much of the Congressional Black Caucus, etc. These people are fanning the flames of race in order to further their own positions, and using the law to this end. If nothing else, removing the legal means for them to do so should reduce both their incentives and their ability to fan these racial flames.
Agreed. But the original expected application of the text of the EPC arguably supports the use of race to accomplish integration. And it's hardly even arguable that the original expected application of the EPC permits miscegenation statutes.
KeithK, I think your post fairly encapsulates the different positions. I'll raise an interesting point, though. Someone on one of the threads below (the Lithwick one, I think; don't have time to search for it now) suggested that one difference between conservatives and liberals in criminal cases was that conservatives cared more about the result -- was the person guilty? -- and liberals cared more about the process. Do you agree?
Secondly though, this was never about "diversity", but rather racial balancing. The argument was never made that the purpose of this was diversity.
Also, in the law school case, race wasn't the deciding factor, but one factor. Here, race was the deciding factor.
Benjamin,
My proposal is for:
(1) more vigorous adoption of economic based affirmative action in colleges. Help all poor folk, regardless of skin color (i.e., Bill Cosby's kids don't need affirmative action).
(2) K-12 school vouchers in major cities. Give black children an opportunity to escape the government monopoly on crappy education. Let blacks go to the good elementary schools, so they will start out on the right foot and not need college level affirmative action to "catch up."
Both of these will options will help minorities integrate through their own merits, and will avoid imposing on them a stigma of being a "token quota black."
Right. I probably should have clarified that what I was asking was this: independent of whether you, I, Thomas, or anyone else likes it or not, according to current court doctrine, (unless/until Grutter is overruled), diversity is a compelling state interest that can justify certain types of affirmative action.
Assuming your second point is correct, I wonder why the school didn't argue the purpose was diversity. Wouldn't that be an important justification for racial balancing?
Which gets me back to my question. Is the law now that diversity is a compelling state interest for some levels of schooling and not others?
As to your third point, race being the deciding factor, that is a valid distinction between this case and Grutter. That would go to the "narrowly tailored" prong, I think.
(As to the Truman and JFK reference earlier and though it's ot, witness JFK's inaugural, January, 1961 and contrast that with the '71 and '73 "liberal" Congresses or with varied and sundry "liberal" forces contra Reagan's anti-Soviet initiatives. It is worth recalling - in part because such facts are so often pushed into the background - that "Jack Kennedy was killed by a Marxist show-off, as it happens, just like his brother Bobby was killed by a Palestinian zealot.")
Seattle could just divide up its high schools into geographic regions based on race, let kids apply, and pull their names out of a hat.
And since the state of Michigan no longer allows consideration of race in public schools etc., the University of Michigan can set a baseline of qualifications, say a 3.2 undergrad GPA and LSAT of 158, let everyone apply and pick the names out of a hat.
I don't think it's that hard to integrate institutions.
These "hydraulic pressures" that are keeping poor minority kids down, pray tell, are they the same ones that allow these kids to attend quality colleges and law schools with embarrassingly subpar grades and test scores? Are these the same pressures that give companies who hire minorities, or that are owned by minorites, preferential treatment and monetary grants? Are these the same pressures that make white people spinelessly apologetic at the very thought of even seeming the slightest bit racist?
As much as this disappoints your liberal friends (because now they have nowhere to direct that ubiquitous sense of indiscriminate pity they always seem to be carrying around), it's 2007 and 'real' discrimination is thankfully isolated to a few pathetic and desparate insular areas (when I broach the subject with black friends [yes I have surprisingly many despite my overt 'racism'], none can really point out any concrete situations where they've been victims of blatant racial discrimination). The people who suffered real oppression in this country, your parents and grandparents (I'm just guessing your age), are probably humiliated by the way race is abused as a crutch in this country today. And despite what the rhetoric on the left proclaims, this is the most accepting and welcoming society in the world. You want to see real oppression of minorities? Try Africa, try Malaysia, try even the Soviet Union a few years back.
What about the minorities that have had it severely worse than blacks do in this country today and have still excelled? The Jews in the Soviet Union, the Chinese in Southeast Asia, the Japanese in Brazil at the turn of the 20th century. None of these groups got preferential treatment the likes of which we see today but still succeeded. Read a basic economics textbook or just look at history: When people get handouts and special treatment, sure they tread water for a while but they are doomed to fail. It's the whole 'teach a man to fish' concept. But I probably don't know what I'm talking about, it's too simple. And the fact that it has been consistently successful, historically, while the leftist methodology and rhetoric have been proven over and over to be colossal failures is also inapposite.
I know it's tough for an individual to look at himself and put his own failure squarely on his own shoulders and not those of mommy &daddy, the federal government, or a vast conspiratorial group of white men sitting in a giant corporate office and laughing about the subjugation of the "coloreds." I still don't think I can say that I fully believe my successes and failures are based on my own merit. And I can see the difficulty in doing that for a group that had a valid reason for believing they couldn't do that. But once external factors are taken out of the equation, you have to start looking at internal, cultural reasons. The answer often lies there.
And I think this was the spirit of the SC's decision. Despite how simple Roberts' tongue-in-cheek truism really seems, Occam's razor is perfectly applicable to the situation. Let's end the doublespeak, the endless logical contortions to justify something that's not only unconstitutional (am I crazy to think the wording of the 14th Amendment isn't hopelessly complicated?) but is a disastrous clusterf*%$ when put into effect. Let the pot call the kettle black without the Rev. Sharpton proclaiming that it should be boycotted for being a racist.
Market forces would remedy this shortage pretty quickly. In the interim, however, economic discrimination would be ideal: it's both a piece of cake to get through constitutional scrutiny, and a method to address poverty.
I have been around this country a long time - I have had the opportunity to see some of the highest heights and some of the lowest lows in those years. I have also worked overseas. I have worked with lots of different kinds of people.
Trust me - racism is real and out there. There are good people too obviously but that does not mean that racism is eradicated.
What can I say to you? I guess I can say that I do not drink the Kool Aid that makes a decision that says as long as there is no direct state action - racial imbalances are constitutional. Maybe that is a nice artful dodge to allow folks to sleep well at night. But to me, it is an artful dodge when you walk the streets of this country, go into the offices, and see the neighborhoods. I find it a bit passive aggressive.
I would remind you of a guy named Frank Walwer who was Associate Dean of Admissions at Columbia Law School in 1961. He looked out and saw that the country needed more black lawyers. So he increased the size of the class, went down to historically black colleges, and admitted a few students.
I am from the action school of changing the country for the better and not from the school that appears here that trust inaction and the status quo to get us to an integrated country in the "sweet by and by".
Vouchers are pie in the sky. The price for the nice schools will be bid up and price discrimination will be done.
You folks appear not to remember the case of a K-12 down in Texas whose principal segregated kids last year to keep whites in the system and pushed hispanics into English as a Second Language and blacks into other tracks to keep the all white classes. I guess you think that is an aberrant reaction. I would like to think so, but given the virulence out there sometimes and maybe because I have been around the block a little - I simply do not buy it that some magic new day has happened.
Maybe it is because I have been the "one and only" for so much of my entire adult life.
Best,
Ben
Best,
Ben
Excepting. Excepting no one is forwarding vouchers as the one and only solution. Excepting it was minority black parents who were among the primary initiators of voucher programs, for example in Milwaukee, Wisconsin. Excepting many are still willing to consider when the horizon for "action," as in affirmative action, should be considered, while also emphasizing the elemental importance of that horizon as such. Excepting many who do argue that horizon is now, or even past, do so on cogently argued grounds, not emotionally or with racialist motives in mind - even to the contrary, including among minority polities. Excepting patronizing dismissals do not form a cogent aspect of any argument, pro or con.
Excepting one aspect of what needs consideration is not the totality of what needs to be considered, neither Constitutionally nor in yet more practical terms still, such as the terms those Milwaukee parents were voicing.
Market forces? In K-12 education for poor minority students? I'd love to hear more about how those market forces are going to work.
Conversely then even absent state action, racial imbalances are "unconstitutional?" Or it's a good idea for government to try and remedy racial imbalances?
I would ask, to what end? So that every area of life sees 12% blacks? Every neighborhood in America should be "racially balanced" according population demographics. 1) How can outcomes such as this possibly be achieved? And 2) do the overwhelming majority of blacks even want to live in such an outcome? Many blacks want to live in neighborhoods where they constitute more than 12 or 13% of the overall population.
The only way to achieve such perfect racial balance is for the races to truly come together and perfectly assimilate in to one another -- not something I have a problem with. Though in a few generations, blacks would disappear as whites, as a group grew a shade or two darker.
Ben,
Tell that to the majority of Americans, strong majority of blacks, and overwhelming majority of blacks under 35. Vouchers are wanted. Vouchers work.
Vouchers are opposed by those with (1) a vested interest in a state run monopoly on education, or (2) a vested interest in keeping black kids uneducated.
Uh, it's real simple:
1. Vouchers = $.
2. Private schools will have access to these vouchers.
3. People like $.
4. People will open up new schools to get in on voucher $.
Private business are generally more efficient than government programs. The public schools in DC are horribly in efficient, and we might as well be flushing dollars bills down the toilet. Spend half as much money sending a DC kid to a private school, and you get (1) smarter students, and (2) lower costs to the government. The people who lose out are the ones on the corrupt public school teat.
If diversity or integration or whatever sophistic term is being used nowadays is so important, why limit it to schools? Why not order people to live in certain communities to fulfill the chosen racial quotas -- er, "balances" in those communities (and in those communities' schools)? Why not order people to join certain community organizations or work for certain employers or send their kids to certain sports leagues to achieve this goal? You don't have any principled reason why not; the only argument you might give is that it goes "too far."
(Which is a policy judgment, not a judicial one, and leaves it entirely up to the whim of the judge. As Thomas points out, one man's "benign" discrimination is another's malign, and the fact that Breyer happens to be good-intentioned does not mean all judges will be.)
What does assigning kids to schools based on their race have to do with "helping poor minority kids? (None of whom, incidentally, have been alive for "400 years," and few of whose ancestors have been in this country that long, either?)
That's a nice set of economic equations. Which one of those equations addresses the quality of education?
What are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle?
Steven, I thought that issue was self-obvious. Only schools with some ability to demonstrate competence are going to attract the voucher business. Think about it: if you have a voucher and you want to get out of a crappy school, are you going to use the voucher to go to another crappy school?
I have no problem with legislating morality, so long as legislation is left to legislatures.
I honestly do not believe this moral idea is in any way inherent in the 14th Amendment. Strict scrutiny is appropriate where, in addition to having a legal case, the plaintiff has a very substantial showing of harm. Being almost completely excluded from society is a very serious harm; not being able to go to ones preferred school is a relatively minor one.
It was wrong of the Court in the 1970s to extend Brown into Judicial control over school and vast intrusion into people's lives. It is equally wrong for the Court to declare affirmative unconstitutional solely because its members, reading through the 14th Amendment's penumbra's and emenations, wish to impose a moral principle on their country.
So far as the judiciary is concerned, unless it causes harm, racial preference is no more inherently evil than sexual preference.
and why should we care about opportunities for poor MINORITIES vs. just poor people. should a poor white kid be ignored because he's not the right race?
i have personally been the victim of racial discrimination. i'm not denying it exists, but it shouldn't be govt. policy either, which was the case in seattle before this decision.
i accept that if people are treated equally, we will have disparate results. minorities that tend towards overachievement will be overrepresented.
in the zero sum game of college admissions and local school choice, you necessarily harm somebody when you give them preference over another.
Legislation consists - precisely, while almost always imperfectly - in that subset of society's moral concerns that is deemed worthy of enforcement via the various coercive mechanisms of the law.
CJ Roberts and those who think his writing is so edifying are hiding behind principle - even if deeply but erroneously held - and promoting subjugation of blacks.
If you still have a doubt about vicious deep racism in this country after the pictures you saw about Katrina, then I fear it is hopeless to try to reach you.
"Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.
“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”
But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.
“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”
Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”
“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”
William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”
“It’s dirty pool,” said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, “to say that the people Brown was supposed to protect are the people it’s now not going to protect.” "
Best,
Ben
Seriously?
Do conservatives actually believe large numbers of black people live in poverty today because the stigma of affirmative action keeps them down? Or did they all just draw an unlucky lottery number?
wow.
talk about fooled by the media.
new orleans happens to have a very high %age black population. thus, footage from new orleans happened to show a very large (and disproportionate relative to the US population) amount of black people suffering through natural disaster combined with govt. incompetence (mayor, governor and feds).
however, the media chose to concentrate on new orleans. millions of people suffered from katrina and in many areas, it was predominantly poor whites, not poor blacks.
the affected gulf region was huge and it was not just indigent blacks in new orleans that suffered.
new orleans as of the last census data i checked prior to katrina was about 65% black population. katrina affected FAR FAR more than just new orleans.
you let the media feed you selective outrage. try a little critical thinking.
Perhaps he should have said so. Or, perhaps he shouldn't have, since it would clearly have undermined the moral authority of his position had he phrased it that way.
Huh? Where in the opinion did he find the claim that Brown was "now not going to protect" black people?