The Volokh Conspiracy - A Factual Correction

from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:

"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France's observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting).

"Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927).

Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)

	[Eugene Volokh, June 28, 2007 at 11:16pm] Trackbacks A Factual Correction from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1: "There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France's observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting). "Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927). Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)