Roberts Rolled Kennedy On Brown

From a nice column by Bruce Ramsey in the Seattle Times:

Sen. Edward Kennedy, D-Mass., was interested in Brown v. Board of Education, the 1954 case that banned segregation in public schools. William Rehnquist, the late chief justice, had expressed his doubts about that case half a century ago. How about the new chief justice? Would he be sensitive, Kennedy asked, to minorities who were not asking for a handout, but a hand up?

Certainly. Roberts expressed his sensitivity. He blessed the Brown decision. But in the Brown decision, he said, Chief Justice Earl Warren had not ruled that segregation was illegal because it forced black Americans into poor schools. Disparity was not the constitutional problem. “The genius of the decision,” Roberts said, “was the recognition that the act of separating the students was where the violation was.”

It was a careful answer, and one that bodes ill for what the Kennedy wing delicately calls “taking race into account.”

This exchange nicely raises perhaps the most crucial point in the recent history of race in America: Did Brown bar the state from treating people differently based on their race, or did it in effect require “taking race into account” in order to produce constitutionally mandated integration, or, now, “diversity”?

As I’ve written here before, Brown

on one view commanded the elimination of racial discrimination and on the other commanded the presence of racial integration. The first view was based on and re-inforced the principle that bars the state from distributing burdens or benefits based on race. The second positively requires the state to engage in precisely that form of racial regulation.

On this point I believe Roberts was absolutely correct: the central meaning of Brown was that “the act of separating the students,” i.e., treating them differently based on their race, was unconstitutional, and wrong.

Say What? (9)

  1. staghounds September 22, 2005 at 7:44 am | | Reply

    I hate to disagree, but I would say you read BROWN exactly backwards. Out of an exaggerated desire to not straight out overrile PLESSY, the supreme court would NOT say that separating students by race, in and of itself, was a constitutional violation.

    Instead, they held that separation of school children by race was unconstitutional ONLY because it always led to unequal facilities and treatment- that is, because it forced negro children into inferior education.

    If only the decision had said what myth, and you, say it did, that the act of separation was the violation no matter what the result.

    If only the BROWN opinion had been the great PLESSY dissent.

  2. John Rosenberg September 22, 2005 at 1:01 pm | | Reply

    You make a good, but ultimately unpersuasive, point. If you were right then the Court would have approved of “separate but equal” if the separate really were equal. It ruled that, by definition, separate could not be equal — not because of bricks, mortar, resources, but because the act of racial separation made them unequal.

  3. Hastings September 22, 2005 at 1:58 pm | | Reply

    This is incorrect. (John Rosenberg’s post.) The act of separation was not centrally determinative in Brown, but rather, the resultant conditions that that act directly lead to were what made “separate but equal” unequal and, therefore, unconstitutional.

  4. staghounds September 23, 2005 at 10:41 am | | Reply

    “We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.”

    The court was very careful to make it clear that it was deciding about public education only.

  5. Michelle Dulak Thomson September 23, 2005 at 11:35 am | | Reply

    staghounds,

    The court was very careful to make it clear that it was deciding about public education only.

    Well, yes, except that it went on to desegregate all public facilities of any kind with no more than a pro forma citation of Brown. I have never quite understood why the court chose this route. Possibly the Justices thought it would seem less inflammatory? I would have thought the opposite, but then I wasn’t there.

  6. John Rosenberg September 23, 2005 at 7:14 pm | | Reply

    Hastings:

    The act of separation was not centrally determinative in Brown, but rather, the resultant conditions that that act directly lead to were what made “separate but equal” unequal and, therefore, unconstitutional.

    The notion that separate could never be equal, as a matter of FACT, was a legal fiction. Of course separate facilities can be legally equal — in their value, their budgets, the quality of their staffs, etc., etc. It was the fact of racial classification that made the separate facilities unequal, as demonstrated (as Michelle says) in the fact that the Court went on to outlaw segregation everywhere, regardless of the nature of any separate facilities.

  7. Michelle Dulak Thomson September 23, 2005 at 9:09 pm | | Reply

    It was the fact of racial classification that made the separate facilities unequal, as demonstrated (as Michelle says) in the fact that the Court went on to outlaw segregation everywhere, regardless of the nature of any separate facilities.

    Yes, John, but unfortunately staghounds and Hastings are right about what Brown said on its face. It was used after it was decided as a precedent declaring all segregation unconstitutional; but it wasn’t itself argued that way, and the argument (not terribly persuasive) was about the effects on what we’d now call children’s self-esteem of being educated in segregated schools.

    For what it’s worth, Robert Bork’s “alternative” argument for the result in Brown is staghounds’ one: in the many decades since Plessy, we’d had ample time to see what these allegedly “equal” facilities looked like, and they were again and again inferior. “Separate but equal” never was; so the obvious thing to do was remove segregation in order to establish equality. You see that the argument depends on its being obvious that the Black facilities really were consistently unequal; but that would not have been difficult to prove.

  8. John Rosenberg September 23, 2005 at 11:59 pm | | Reply

    Michelle:

    Yes, John, but unfortunately staghounds and Hastings are right about what Brown said on its face. It was used after it was decided as a precedent declaring all segregation unconstitutional; but it wasn’t itself argued that way, and the argument (not terribly persuasive) was about the effects on what we’d now call children’s self-esteem of being educated in segregated schools.

    Actually, Brown WAS argued precisely that way. Read the NAACP briefs, including its briefs in all the lower court cases leading to Brown. Without the racial classification, Clark’s doll studies would not have found black children feeling as though they were second class citizens.

    “Separate but equal” never was….

    On the contrary, read the facts in Plessy: the rail cars were in fact equal because they were the same! A car was restricted to whites going one way and resstricted to blacks going the other. Brown could have been clearer in reversing Plessy, but the separate but equal holding in Plessy was reversed.

  9. Hastings September 24, 2005 at 4:31 am | | Reply

    “On the contrary, read the facts in Plessy: the rail cars were in fact equal because they were the same! A car was restricted to whites going one way and resstricted to blacks going the other. Brown could have been clearer in reversing Plessy, but the separate but equal holding in Plessy was reversed.”

    As stagehounds hinted earlier, the tangible measures of equality useful in the transportation context (“budgets, the quality of their staffs, etc., etc.”), cannot be used, per Brown, in deciding the efficacy or constitutionality of the doctrine in the public schooling context. Separate but equal in the public schools “denotes” “inferiority” and “tends to retard” the academic and social development of Black children by virtue of their being separated. This is where the “inherent” inequality comes from; that Plessy may have stood for the proposition that “separate but equal,” in the abstract anyway, may at times be is not particularly dispositive here because 1) the Brown court explicitly limited it’s decision to the public school context (although I believe this was nothing more a jurisprudentially mandated excercise in judicial restraint commanded by the overwhelmingly powerful and consistent legal policy against the issuance of advisory opinions and the tendency of courts to dispose of the exact issues before them, they may have done this, as Michelle D.T. argues, “to seem less inflammatory”) and 2) Plessy, on its facts, presented a different set of issues. The extent to which Brown overruled Plessy was that “separate,” if tangibly equal (maybe apparently is a better word here), was presumptively constitutional.

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