Like the Associated Press article of yesterday, an article in the Washington Post today also notes that the racial school assignment cases that the Supreme Court will hear tomorrow “is the first time in more than a decade that the Supreme Court will consider what is proper for school systems to do to promote desegregation….” Robert Barnes, the article’s author, does not explain how the case from Seattle could raise questions about “desegregation” since that city’s schools were never segregated.
Barnes begins his article with Louisville Mayor Jerry Abramson scratching his head.
For 25 years, his home town was under federal court order to integrate its public schools. Now that the painful and bitter chapter is closed, and the school board has come up with its own plan to make sure the schools remain racially diverse, Louisville could find itself under federal court order to stop.
“You just sort of scratch your head when you think about that,” Abramson said
Well, Mr. Mayor, here’s something else to scratch about: Louisville’s past policy of assigning students to schools by race was ruled unconstitutional. It stopped. Now it has started using race to assign students to school once again, and the only confusing thing about that is why you are confused.
Both the Post’s and the mayor’s confusion over “desegregation” reveals that while everyone worships Brown, we are still engaged in religious wars over the command of that deity.
On one side are those like the Post and the NAACP Legal Defense Fund’s Theodore Shaw who believe, as the Post article asserts this morning, that Brown held that “that separate schools are inherently unequal,” and hence unconstitutional. Their critics, noting the different formulas for “inclusion” employed by different cities, reply that “separate” is too vague to be meaningful but that there is no need for precision in any event because what Brown barred was not the fact of “separation,” whether a lot or a little, but “segregation,” the policy of assigning students to schools based on their race. It was the racial discrimination inherent in that policy that made the “separate” schools inherently unequal, not the demographic fact of blacks attending schools primarily (or even exclusively) with other blacks. In short, they argue, what Brown prohibited is precisely what Seattle and Louisville proudly practice: discriminating against students (no matter how many or few) because of their race.
To Shaw et. al. (see PShaw), saying Brown requires treating students “without regard” to their race is pure blasphemy. As he was quoted in the Post this morning:
What opponents of the plans are really objecting to, said Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, is using race at all. To him, that is not a natural outgrowth of the Brown decision but a perversion of it.
“The core question is whether efforts to integrate schools on a voluntary basis are going to be treated like [past] efforts to segregate public schools,” he said
Actually, as I’ve just suggested, Shaw is partially right here. We critics really do object to “using race at all,” and we believe the Constitution and the Civil Rights Act, properly interpreted, agree with us. This, to us, is a matter of principle, and it is no less a matter of principle for allowing some very narrow and constrained qualification in some unusual circumstances, such as requiring that an undercover police officer assigned to infiltrate, say, a Puerto Rican gang be Puerto Rican.
Shaw is wrong, however, to stress the “voluntary basis” of the Seattle and Louisville plans, for it is not “voluntary” on the part of those who suffer the racial discrimination. The advocates of these plans, like the advocates of racial preferences elsewhere, always argue that there is no real discrimination because there’s not (they claim) very much of it. Thus:
The small harm done to a few students who do not get their first choice of schools, Louisville argued in its brief, is outweighed by the value of an integrated school system….
This formulation makes the complaining students and their parents sound like whiny brats, ignoring that the students “who do not get their first choice” were denied because of their race.
Law, of course, deals with the practicalities of real life, but when the Supreme Court interprets the Constitution it also, and I believe more importantly, is either announcing or clarifying the fundamental principles that govern our lives. Future cases, after all, will be decided by measuring facts in different cases by whatever the Court believes are the guiding principles. So it is altogether fitting and proper, I think — indeed, even mandatory — for us (and, I hope, the Court) to look closely not just at what policies the preferentialists and racial balancers favor but at the principles they use to justify those policies.
It seems to me that the underlying principle urged upon us by the Louisville and Seattle school boards and their defenders is that “racial balance” is fundamental. Non-discrimination might be nice, but it’s not essential. What is essential, I believe they claim, is that the need for “racial balance” trumps everything. They often claim, as Shaw does here, that they are speaking of “voluntary” programs, but these comments always strike me little more than political fluff, since they also argue that the promotion of “racial balance” is “compelling,” justifying what harm is done to those whose wrong-colored skin keeps them out of the school of their choice.
I’ve already argued that I believe it is quite a stretch (beyond the breaking point of whatever is being stretched) to read Brown as embodying this principle, but that doesn’t dispose of the argument. After all, the preferentialists can argue, even if Brown didn’t say that, it should have, and so it can be “interpreted” or even “construed” to mean that. (Stranger “construals” have occurred; see here and here.)
In order to elucidate the preferentialist principle a bit further, let us step outside bounds of actual, practical controversy and consider this hypothetical scenario:
First, if “racial balance” truly is a compelling national interest, then students in schools — indeed, almost all students in some entire states — are being woefully deprived of the education they need to succeed in our new global marketplace, etc.
With that in mind, what if the governments of, say, Michigan and North Dakota (black population: 0.7%) agreed (“voluntarily,” of course) to pay all the expenses associated with relocating several hundred black families from Michigan (many, but not all, from inner city Detroit) to North Dakota, to provide at least a modicum of “racial balance” there. If there were not enough Michigan volunteers, the National Guard would round up the balance, choosing those whose material conditions would be most improved by the transfer.
Some of those involuntary transferees, to be sure, would complain that they preferred for their children to attend schools in their current neighborhood (“Or at least in the same state!” a few of them might shout). Officials from the Michigan and North Dakota state governments, mayors, and involved school board officials from both states would no doubt think it unfortunate that some people were forced to relocate because of their race, but they took solace from the assurance of the City of Louisville in its recent brief to the Supreme Court that
[t]he small harm done to a few students who do not get their first choice of schools [or states] … is outweighed by the value of [providing] an integrated school system … [to an entire state].
Is the difference between what Seattle and Louisville are doing and my hypothetical scenario a difference in kind, or only in degree?
UPDATE [5 Dec.]
I have continued the discussion in this post here.