Taken literally, that quote means Justice Stevens believes that William Rehnquist would have disagreed with the decision.

I'm happy, I'm happy, I'm happy happy happy!!!!

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)

Professor Kerr:

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.

But what will the leftists do now to pay tribute to the god of diversity? If you can't bus blacks to white schools and whites to black schools, they'll need to find new ways to force blacks and white into the same neighborhoods.

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.

"Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories."

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.

MJG--Your point in the final paragraph is so true: I'd go nuts if I were a lower-court judge trying to apply this decision in a case that looked somewhat, but not exactly, like Seattle's.

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.

I haven't had a chance to read the opinion or the dissents; however, one item strikes me as odd - Justice Stevens apparently feels that "no Member of the Court that I joined in 1975 would have agreed with today's decision.", and he might be correct on that score.

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.

"MJG--Your point in the final paragraph is so true: I'd go nuts if I were a lower-court judge trying to apply this decision in a case that looked somewhat, but not exactly, like Seattle's.

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.

"BUT, where does it/did it say that the court in 1975 was absolutely the final authority on anything? "

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.

On a lighter note, Justice Stevens is about seven years late on the Anatole France aphorism. Compare Parents Involved in Comm. Schs. v. Seattle Sch. Dist. No. 1, __ U.S. __ (Stevens, J., dissenting) (Bench Op. 1-2) with Hill v. Colorado, 530 U.S. 703, 744 (2000) (Scalia, J., dissenting).

And by "brief" I mean "concurrence" (or, alternately, "opinion")

"Well, little Mr. Chief Justice! When /I/ was your age we didn't go around deciding cases like this! . . . Hey ! Hey you kids! Get off my lawn!"

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.

I can see the dissenters' constitutional point, though I do not agree with it.

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?

Thank God we don't have judges legislating from the bench any more! Now the good conservatives defer to decisions made on the local level, where people can actually govern themselves instead of having everything forced into the ideology box of 5 old men in Washington.

Oh, wait...

Yes, the dissent is all about the "promise", and not the law, as I read it. Breyer ends with a nice bit of historical wrap-up, which exemplifies this (emphasis mine).

Finally, what of the hope and promise of Brown? For
much of this Nation’s history, the races remained divided.
It was not long ago that people of different races drank
from separate fountains, rode on separate buses, and
studied in separate schools. In this Court’s finest hour,
Brown v. Board of Education challenged this history and
helped to change it. For Brown held out a promise. It was
a promise embodied in three Amendments designed to
make citizens of slaves. It was the promise of true racial
equality—not as a matter of fine words on paper, but as a
matter of everyday life in the Nation’s cities and schools.
It was about the nature of a democracy that must work for
all Americans. It sought one law, one Nation, one people,
not simply as a matter of legal principle but in terms of
how we actually live.
68 PARENTS INVOLVED IN COMMUNITY SCHOOLS v.
SEATTLE SCHOOL DIST. NO. 1
BREYER, J., dissenting
Not everyone welcomed this Court’s decision in Brown.
Three years after that decision was handed down, the
Governor of Arkansas ordered state militia to block the
doors of a white schoolhouse so that black children could
not enter. The President of the United States dispatched
the 101st Airborne Division to Little Rock, Arkansas, and
federal troops were needed to enforce a desegregation
decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today,
almost 50 years later, attitudes toward race in this Nation
have changed dramatically. Many parents, white and
black alike, want their children to attend schools with
children of different races. Indeed, the very school districts
that once spurned integration now strive for it. The
long history of their efforts reveals the complexities and
difficulties they have faced. And in light of those challenges,
they have asked us not to take from their hands
the instruments they have used to rid their schools of
racial segregation, instruments that they believe are
needed to overcome the problems of cities divided by race
and poverty. The plurality would decline their modest
request.
The plurality is wrong to do so. The last half-century
has witnessed great strides toward racial equality, but we
have not yet realized the promise of Brown. To invalidate
the plans under review is to threaten the promise of
Brown. The plurality’s position, I fear, would break that
promise. This is a decision that the Court and the Nation
will come to regret.
I must dissent.

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.

Breyer's Dissent is "eloquent"? Frankly, Thomas hit this dead on -- Breyer will go to any lengths, distorting precedent, making up facts unsupported by the record, and conflating "segregation" with "racial imbalance" to support his view that "benign" race-based policies are not only constitutionally permissible, but morally imperative. And his view that the C.J.'s opinion constituted a betrayal of Brown v. Board of Education is simply ludicrous; he must believe that the legacy of Brown was not just to abolish de jure segregation, but to impose an affirmative duty to achieve de jure racial balancing. Breyer's philosophy completely eliminates the concept of individual right to be free from discrimination, and replaces it with a group right to achieve absolute equality of outcomes, and individual choices be damned. Is this Breyer's concept of "Active Liberty"? Seems damned short on "Liberty" to me.

I like the fact that Roberts opens with a Stevens quote in support of the decision. Those little jabs are such fun!

I can name one justice who, at least in 1978, would have agreed with this opinion: John Paul Stevens. He wrote the opinion disagreeing with Justice Powell's view that universities could consider race as a plus factor because the 1964 Civil Rights Act required government to be color blind. 438 U.S. at 416.

Technical question (having not had a chance to read the whole thing): to what extent is Kennedy's opinion controlling going forward?

I really don't worry about how lower courts will treat this decision. The lefties on the bench will approve any school plan that promotes "diversity" to screw over little white kids in favor of little black or little hispanic or little whatever kids.

They'll use the same arguments they always have: Diversity Now, Diversity Tomorrow, Diversity Forever!

David Drake,

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.

I've finished the Roberts opinion and I am struck by how many pages he devoted to mocking and deriding Breyer. Granted, the mockery is clearly warranted, but for some reason I didn't expect it from Roberts. Part of me wishes he should stoop to Breyer's level, but a bigger part enjoys seeing Breyer ripped to shreds.

Speaking of Jack Greenberg...

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).

Mark, I'm curious - if 14th Am equal protection of the laws does not mean that the govt must treat us the same regardless of race, what does it mean?

Technical question (having not had a chance to read the whole thing): to what extent is Kennedy's opinion controlling going forward?

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.

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).

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.

Even a dog knows the difference between tripped over and being kicked.

Goofy.

I see the bright line distinction between majority 4 and dissenting 4 as applying the 14th Amend either as an individual right or a group right. It is unequivocal that every relevant case including especially Brown v Bd of Ed relied on the individual right construct. The group right view, which appears to have morphed after Brown, would empower the school board to make up its own rules and the Consitution would be satisfied anytime the Board's motives appeared pure enough. The dissent itself only faintly masks such a result, which should be offensive to all thinking citizens. It doesn't leave much of a right for you and me, does it? I'll take the individual right anytime.
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?

Wow, I didn't know Greenburg filed a brief (though I was pretty sure I knew which way he'd go). Seems that Drake really shouldn't be speaking for those early civil rights leaders or Brown. Makes you wonder how authoritive Drake is on the viewpoints of those who crafted the Fourteenth Amendment, too.

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.

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.

Justin:

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.

Incidentally, I would say that the 13th Amendment would allow some level of race conscious laws, and the 14th Amendment can't be applied in this context without at least a token acknowledgment of the 13th. As I have not yet read this opinion, I hope that at least one of the dissenters made a good faith effort to defend affirmative action on 13th grounds.

Yeah, Slater, and you come from a "line of thought" that celebrates the gulag.

This is a fun game, right?

Whackjob:

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?

Mark, I'm curious - if 14th Am equal protection of the laws does not mean that the govt must treat us the same regardless of race, what does it mean?

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.

"... because my intellectual tradition always -- and I mean always -- opposed Soviet-style communism. As did mainstream U.S. liberalism."

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.

Mark Field -- you stated:

In my view, the correct answer is that the EPC establishes a policy (a value, if you prefer) of an integrated society.

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?

Community Schools 185 pages summed up as "school assignment based on race alone is bad vs. diversity in schools is good" or "the goverment cannot make decisions on race alone vs. the goverment can make decisions based on race alone"

Mark,

The original expected application of the text of the EPC arguably grants no protection to gender whatsover.

Mark, I don't think sex and race are analogous in the context of govt action or otherwise, for many reasons. men and women are quite different in many inherent ways; I don't think diff races are.

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.

Ben,

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.

Whackjobb: Fair enough.

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?

The original expected application of the text of the EPC arguably grants no protection to gender whatsover.

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?

Let me rephrase that last post: at least according to one of the opinions, diversity is not a compelling state interest at the K-12 level. But that is dicta, and likely from Thomas (without rereading the opinion), since it was not at issue in the case.

Bruce:

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.

One of conservatives solutions for the plight of American public schools is a voucher system. Within its public school system, Seattle effectively had this system. Any student within the district could apply to any school. The problem thus arises: what if more students apply to one school than that school has capacity? Seattle used a number of "tie breakers", one of which was race. That practice is now violative of the 14th Amendment. So a question for conservatives: what does today's decision due to voucher programs? If race can't be used as a tiebreaker, how will black or Latino kids from impoverished areas with poor schools be able to use their voucher to attend schools in whiter, more affluent areas where we all know the schools are better? Can districts use parental income as a tie breaker?

Benjamin,
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.

Thanks folks. I am 51.

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

Wooga~

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.

Vouchers are pie in the sky. The price for the nice schools will be bid up and price discrimination will be done.

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.

And I have always asked here and never gotten an answer from folks here, what is your proposal to integrate the nation?

As you mean "integrate," my proposal is none whatsoever. It is not the government's job to shuffle people around to fit someone's vision of what society should look like. It's the government's job to protect individual rights.

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.)

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.

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?)

Mark Field: "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."

What are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle?

Is there anyone here who can refute the historical description of the relevant precedent in Justice Stevens' dissent? (And, don't bring up Justice Thomas's concurrence, because that was aimed at Justice Breyer and ignored Justice Stevens.) Anyone care to explain why Justice Rehnquist would -- based on, say, the Civil Rights Act of 1964 -- overturn a 1967 decision he affirmed in 1978 on the basis of the 14th Amendment? Is there any way -- based on the specifically applicable precedent that Justice Stevens cites in his dissent -- that CJ Roberts' plurality is not raw judicial activism? I like Roberts, but this looks pretty bad.

The idea that or sexual racial choices or preferances are always inherently evil may be a fine moral idea. But it is it the business of the Supreme Court to be legislating morality?

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.

As to "legislating morality," morality is the only thing that is legislated; there is simply no need to legislate pure abstractions (that which has no moral grounding or import). Or put differently, what of consequence is legislated that does not have moral import, whether narrowly or broadly conceived, whether directly or indirectly?

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.

What are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle?

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?

"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."

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.

<blockquote>
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?
</blockquote>

Mark. I think that is basically true. Why the reversal for the criminal arena? I suspect its a question of what each side is willing to trust government to do. I think that, broadly speaking, conservatives accept that governments are capable of prosecuting criminals fairly while they are skeptical of governments ability to solve societal problems. Liberals are more wary of government in the criminal arena and accepting of it's "social" power. Good point and worthy of some more thought.

"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."

As already suggested, no one has forwarded numbers that reveal racism within the N.O. and Katrina scenario, to the contrary it has been shown that whites were disproportionately impacted when compared to a general per capita representation.

Steve: "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?"

I am very serious in asking what are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle. What are they?

eddie: "To think that there are no residual effects to more than a century and a half of actual slavery and an additional near century of government sanctioned discrimination (see, e.g., Jim Crow) (see also recent news reports from the "Whites only shade tree" in Jena, LA) is simply willfully blind."

What are the residual effects on the average 13-year-old black kid in Seattle?

eddie,

What I linked to was a single report that, yes, reported on deaths and is but one indicator. I didn't suggest otherwise. If you have contrary or contrasting data, link to it and/or otherwise substantiate the argument you're seeking to forward. Likewise, I wasn't praising a specific reporting agency in general terms, I linked to a single report. Again, if you can refute the data on more substantial grounds, do so, I'm amenable to a sound argument. Are you?

As to the "real world," I had previously remarked upon the fact that many of the initiators of voucher programs were black, specifically noting the Milwaukee, Wisconsin initiative (which implicitly reflects upon the power of teachers unions, along with other societal changes since Brown, 1951/54). And again, no one is suggesting "free market" solutions are the only solution, but they do help to redress some teacher union and other deleterious dynamics.

As to "residual effects," what is more pointedly being addressed is this specific SCOTUS decision in 2007, not the entirety of race relations and history in the U.S. since the founding era when Washington and Jefferson owned slaves. For example, in contrast to the plaintiffs in the '54 Brown decision, which were uniformly black, the appx. three hundred plaintiffs in the Seattle case, while consisting of a majority of whites, is mixed nonetheless according to the two or three reports I've read. In general terms, this present case does not parallel Brown in any critical respect; this present case has a different focus and is framed within a different set of dynamics.

This is 2007, not 1951/54 or any time prior to that. Race is still, certainly, a viable issue and concern and should not be unduly slighted, but society's dynamics have changed dramatically and at fundamental levels, other issues and other dynamics are at play compared to earlier eras. You and others have failed to appreciate those changed and evolving dynamics in so much as a token fashion, much less more fully.

Finally, serious legal commentators, including those who lean left, have appreciated the arguments Kennedy brought to bear in this recent decision.

Look folks. Here is a 12 step program for righties in denial to cover 45 years of my life.

1) When my folks sought to put me in a private school in New Jersey in 1961 - they had to get a consent decree to get me admitted. When my dad and mom brought my older sister into schools they said she had a learning deficiency in English. She was tested by the local school board and, of course, was found to be fine. The "nice" principal would say, "if it was up to me, I would be happy to enroll her but I will have problems with my board." In case some of you do not understand that code, let me put it in words of one syllable - we do not really want blacks here.

BTW, in the 1940's when my uncle wanted to study drama and set building at Carnegie Mellon the "kindly" Dean then wrote to dissuade him as the "experience with the audiences with black actors was not good". He suggested my uncle go to a program at a historically black college in the south. My uncle had the white owner of a playhouse at which he had worked basically tell the Dean "he is "our" kind of Negro, he is not interested in being out front and he will be quiet in the back so admit him" He got in but only by demeaning himself this way. BTW, I have the letters from the Carnegie Mellon dean to my uncle and letters from my dad about the experience with my sister.

2) As recorded in the history the school did of those times, when I went to Sidwell Friends School in Washington DC there had been extreme resistance from the white families at the school (so called elites, not all Quakers, right) to black kids being admitted. It was a years long battle and really the first ones were in late 67-68 (i.e. 12-3 years after Brown).

3) On intimidation, when we moved into a predominantly white neighborhood in 1967 in NorthWest DC someone one day got the brilliant idea to paint "KKK" on our garage door in very large letters. I guess that is the "welcome wagon".

4) When in 1973 I was visiting Brown i Providence to interview and asked directions from the police officer - his immediate question was "What? You looking for welfare?'

5) During the busing days in Boston, my freshman year, I was in a bar and was attacked by some white kids for no apparent reason.

6) Was it in my junior or senior year at college that a white "friend" said, "Look please understand I can not take you with me to the finals club (the fraternity) because they do not like blacks"? I guess this is that good ole "Chariots of Fire" kind of racism.

7) During college in the 70's, I was a door to door salesman in Arizona and Texas. Whenever I worked in a white neighborhood it was inevitable that the police would be called out to check on my credentials several times a day. The cops and I became friends. "Oh Ben, you'll be working here today?" The craziest day was when I followed another black salesman around in a white neighborhood. The number of times we had to show our credentials was astounding. This did not happen in black or hispanic neighborhoods. Just trying to work our way through school on straight commission.

8) When I was in Law School, we did a negotiation exercise at a fraternity and my teammate pointed out the fraternity membership with one Asian guy saying "He is our ethnic." I guess that is elite openmindedness.

9) I guess I got up to the late 70's here. I will fast forward here through the "problem with black people" discussions (or the white boss who confused me inevitably with the other black bank examiner and then - miracle - with the Vietnamese-American bank examiner (!)) during the next few years to the end of the century. Just to keep it domestic, I will not talk of the experience with white American lawyers (and other what I term primacists) in international arbitration in France - I have written about that in the American Review of International Arbitration.

10) In 2000-2002, enough times to make it hurt I was standing at a busstop in Fort Worth Texas, and some young white man would drive by and yell "nigger" at me as I waited for the bus.

11) I can remember looking to rent houses and feeling a distinct lack of comfort coming off of the person who was showing the house to me in the 2003 period here in Toledo.

12) I am a nice guy and I am extraordinarily privileged.

Now I am simply not sure what you all will think about this litany that essentially covers 45 of the 51 years of my life with a few anecdotes that of course could never be statistically significant. But what I hope it does is help you understand that nothing is benign about the way black people are treated in this country. Thurgood Marshall understood what he was doing when he worked on Brown. White people fought tooth and nail to block the promise of Brown all through my childhood - others of good will fought for the integration promise.

Of course, there will always be someone to say that this or that is the way to go - like Thomas or Juan Williams or others.

But, folks, I will take Thurgood over Thomas every day.

As to what people were doing when they were in their adult years, it seems to me that Roberts did not have to go to the Justice Department during the Reagan years and write lots of memos trying to resist civil rights enforcement under Brdaford Reynolds. The government could have weighed in with those who were trying to encourage integration. Please understand that Bakke is a failure and certainly was experiences as such - not a success as it may have been taught to some of you - in terms of building integration.

Robert and Alito for that matter could have done lots of things like supporting integration. So they made choices, just like Rehnquist did in his day to challenge hispanics who were trying to vote in Arizona when he was a young lawyer.

I hope this does not sound like a rant. Just trying to share with the people my truth.

And to the question about the 13 year old in Seattle - I have a 16 year old here in Toledo and as long as the originalists go back 200 years for their ideas to keep him down I will go back to Benjamin Harrison who signed the declaration of independence and remind people that he owned my ancestor (her name was Barbary) and so I have a personal objection to some of those Framers and Founders and their ideas. At least Washington had the decency to free his slaves. For you Feddies with Madison on your cover - Madison did not sell his, now did he? What a great American.

Peace,
Ben

Ben -- your personal history is compelling. I don't know that any other poster here can claim the same life experience if they're not AA. But other citizens have also been exposed to hate, intolerance or just plain meanness. I am close to your age and grew up in the same times. I was physically attacked by native americans on an Indian reservation in the the late 60's. I was surrounded by a group of AA's after a football game around 1970, approached with a broken bottle and asked what I was doing in their neighborhood. In the early 70's I was beaten up in a Montana town by a group of cowboys who didn't like my "eastern" looks.

As a caucasion American I'm sure I haven't faced the obstacles you did, but what do our disparate experiences have to do with the Seatle case? Not much, except to affirm that there's a lot of hate, intolerance, stupidity and sometimes, misplaced fears or interpretations of the intentions of people that don't look like us. What the 14th Amendment should require, however, and what Brown stands for, is that the government, of all people, should never be judging, acting or determining outcomes on the basis of race. The 14th Amendment doesn't outlaw privately held racial prejudices -- as you well know, thats a road still being travelled, but it does prohibit the state from treating its citizens differently on the basis of race or color. That's why Roberts, and Thomas, have got it right. JMO

I am very serious in asking what are the residual effects of segregation and slavery on the average 13-year-old black kid in Seattle. What are they?

Here's the harder question: If segregation and slavery are the problem, shouldn't those problems be declining as we get farther away from them? Slavery has been over for 140 years. There isn't a single living freedmen; there are very, very few people who were the children of freedmen. A black kid growing up Seattle is as many generations removed from slavery as Americans Jews are removed from being non-citizens of the European countries in which they resided.

Segregation is more recent, and there are a lot of people who definitely suffer from the consequences of this today. Thomas Sowell points out that until 1948, many Southern school districts provided only 2/3 the hours of instruction for black students as whites. Blacks with an eighth grade education were at a distinct educational disadvantage compared to whites with an eighth grade education.

Still, what is the problem today? There isn't a school district in this country that makes an effort to keep blacks down; if anything, there is more of a tendency to go the other direction because of white liberal guilt.

If anything is holding blacks back in school now it is:

1. Poverty--which needs an economic response, not a racial one.

2. The development of a black ghetto culture that denigrates education. My wife was soaked in her classes in leftist crap making excuses for this. There's a reason that the children of Asian immigrants from poverty level families are outscoring black kids from middle class homes, and it isn't racism.

I left out the rocks being thrown at me by the white kids in the white neighborhood nearby back when I was 8-10.

Hmmm. I had rocks thrown at me by the black kids in the black neighborhood where I lived back in 2000 Cincinnati. When I complained to the police, they told me that I should get used to it or move, because it happened to cops cars all the time in the area. They then warned me never to drive through this 9 block section of town, because not even the cops would regularly patrol it anymore. The problem was that anytime the cops tried to arrest a black person, a racist anti-cop mob would form and harass the police.

I now live in an overwhelmingly hispanic neighborhood, and haven't had any such problems. Except for the time when a black kid from the nearby Section 8 project smashed my car windshield. And no, my car is not painted like the General Lee.

Forgive me for not being sympathetic to the sort of pandering "soft bigotry" that excuses the horrendous social breakdown in the black urban community. It's not the "fault of whitey." But if white-guilt liberals continue to enforce the stereotype that "blacks can't make it in this world without governmental assistance," then the stereotype will become reality.

However, if we abolish the "soft bigotry of low expectations," and stop using skin color as an excuse for criminal and anti-education behavior, perhaps people will start acting like grown ups, take responsibility for their own lives, and make something of themselves. It seems to have worked for every other minority group in America.

The affirmative action exception for the black community is essentially treating blacks like the retarded kid in the Special Olympics. It's insulting and racist.

I'm trying to think of something from the Court that's smarmier and more disingenuous than this line: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." I'm not succeeding.

And I'm trying to think of a position as stupid as, "We're going to teach whites not to discriminate by discriminating against them." I did succeed: "We'll win the hearts and minds of Vietnamese villagers by randomly dropping napalm on their homes." I just don't see how anyone who spent 30 seconds thinking about it could adopt either position - unless their real intent in case 1 was to perpetuate racism, and in case 2 to lose the war slowly...

It is reasons like this my kids attend private school. And their Christian school is quite diverse without the need for the know-it-all elites to make it so.

Said, amazingly, without the slightest sense of irony.

Thanks for the feedback folks. Well, I have done my best to explain why I think the decision is wrong and why - from my experience - I know racism still exists. Some of you will believe me, some of you will not. So be it. The fight for equality continues.
Best,
Ben

Wake County, NC public schools are trying for another kind of diversity - economic.