The Volokh Conspiracy - Not Loving the Chains.--

Gail Heriot's post on mandatory sensitivity training in California brings to mind a lively opinion by Judge Posner. She was particularly bothered by the program's teaching that white males who claimed that they were victims of discriminatory action or who criticized affirmative action were dangerous (tip to Hans Bader and Instapundit).

In a 2001 7th Circuit case (People Who Care v. Rockford Bd. of Ed.), the Rockford, Illinois, school system was in federal receivership, which despite draining the community of 238 million dollars had not apparently accomplished its ultimate goal of substantially closing racial performance gaps. Posner addressed the argument that public officials were not sufficiently enthusuastic about the program imposed by the federal courts.

The plaintiffs' principal argument for the indefinite continuation of the decree is that the school board has not been complying with it in good faith. The difference between technical compliance and compliance in good faith is that the latter form of compliance does not exploit loopholes and ambiguities. . . . It is not, as the plaintiffs would have it, that the school board must "actively" support the decree, must express "commitment" to it, and, above all, must not criticize it. The undemocratic implications of this position leave us almost speechless. Are elected officials, the members of the school board, elected long after and not complicit in the illegalities that gave rise to the litigation, forbidden, under threat of never resuming control of the public school system that they were elected to govern, to criticize a decree that in pursuit of an ambitious and possibly quixotic scheme of social engineering has imposed a formidable tax burden on the people who elected these officials?

Pressed at argument, the plaintiffs' able lawyer could not cite an instance in which the school board has violated any of the numerous provisions of the decree. He may well be correct that the decree would have achieved more had it been enthusiastically embraced by the board, but state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them.

Judge Posner's earlier opinion in the case is also worth a read.

	[Jim Lindgren, December 26, 2007 at 8:11pm] Trackbacks Not Loving the Chains.-- Gail Heriot's post on mandatory sensitivity training in California brings to mind a lively opinion by Judge Posner. She was particularly bothered by the program's teaching that white males who claimed that they were victims of discriminatory action or who criticized affirmative action were dangerous (tip to Hans Bader and Instapundit). In a 2001 7th Circuit case (People Who Care v. Rockford Bd. of Ed.), the Rockford, Illinois, school system was in federal receivership, which despite draining the community of 238 million dollars had not apparently accomplished its ultimate goal of substantially closing racial performance gaps. Posner addressed the argument that public officials were not sufficiently enthusuastic about the program imposed by the federal courts. The plaintiffs' principal argument for the indefinite continuation of the decree is that the school board has not been complying with it in good faith. The difference between technical compliance and compliance in good faith is that the latter form of compliance does not exploit loopholes and ambiguities. . . . It is not, as the plaintiffs would have it, that the school board must "actively" support the decree, must express "commitment" to it, and, above all, must not criticize it. The undemocratic implications of this position leave us almost speechless. Are elected officials, the members of the school board, elected long after and not complicit in the illegalities that gave rise to the litigation, forbidden, under threat of never resuming control of the public school system that they were elected to govern, to criticize a decree that in pursuit of an ambitious and possibly quixotic scheme of social engineering has imposed a formidable tax burden on the people who elected these officials? Pressed at argument, the plaintiffs' able lawyer could not cite an instance in which the school board has violated any of the numerous provisions of the decree. He may well be correct that the decree would have achieved more had it been enthusiastically embraced by the board, but state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them. Judge Posner's earlier opinion in the case is also worth a read.