All that's necessary to achieve racial justics is for (good?) men to do nothing. That's seems to be the essential message of George Will's latest missive, The Court Returns To Brown. I have heard a lot of criticisms of Brown which are legally creditable, but Will's is not among them.
Incredibly, Will describes Brown as prohibiting the consideration of race in the assignment of children to schools, or implicitly in any other state action. Incredibly, Will quotes Thurgood Marshall for this purpose. Obviously the quote is not representative of Marshall's position, nor is it actually from the Court's decision as Marshall's role was as a lawyer for the NAACP. The quote,
Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere,appears to be a favorite of right-wingers who prefer an unrepresentative sound bite to substantive debate, and I can't find any presentation of that sentence within its greater context. I suspect that Will picked it up out of a book of quotations or somebody else's column. Is that the only sentence that those opposed to civil rights decisions like Brown can glean from Thurgood Marshall's entire body of written work?
Giving the devil his due, I am not personally a fan of K-12 integration programs offered as a substitute for improving the quality of schools. Even without any discriminatory intent, it can certainly be unseemly if a school district's best schools are largely white and its worst schools are largely minority. Many integration models seem designed to avoid that appearance, but with complacency setting in once the desired level of racial balance is achieved. A bad school is bad, regardless of the racial composition of its student body.
George Will presents what he no doubt believes to be a clever analogy, suggesting that "liberals" like diversity programs for elitist reasons.
Breyer said that last week's decision abandons "the promise of Brown." Actually, that promise -- a colorblind society -- has been traduced by the "diversity" exception to the equal protection clause. That exception allows white majorities to feel noble while treating blacks and certain other minorities as seasoning -- a sort of human oregano -- to be sprinkled across a student body to make the majority's educational experience more flavorful.Let's start with this nonsense that Brown somehow dictates a "colorblind society". Even if you believe that to be desirable, you would have to be dishonest, ignorant, or deluded to believe that's the principal holding of Brown. You would have to have a similar grasp of history to not know that the insistence of people like Will for a "colorblind constitution" grew out of the civil rights era, and was part of an effort to roll it back. Find me one person like George Will who argued that the Constitution was "colorblind" back when Jim Crow laws were in full force and minority students were intentionally shuttled off to segregated, inferior schools.
Obviously, it cannot be said that the original text of the Constitution is "colorblind".
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.The idea then must be that the 14th Amendment rendered the Constitution "colorblind". That argument fails from the standpoint of originalism. So it is quickly reduced to a textualist sleight of hand - the "plain language" of the 14th Amendment is said to render the Constitution "colorblind" not because of the intent of those who drafted it, and not because of its application during the many decades between the Plessy and Brown decisions, but because "that's what the words mean". I don't mean to dismiss textualism as an approach to constitutional interpretation, but within this context the strongest advocates of textualism are choosing that approach solely as a means to reach their desired outcome, which has always been to roll back the remedial measures implemented in the Civil Rights era.
The "human oregano" comment is meant to be both clever and derisive of Will's primary nemesis, the "liberal". And sure enough, here's one of those nasty "liberals" discussing racial diversity as if it is a seasoning....
While superficial observers might focus on the greater diversity of the Democratic contenders (with one female, one black, and one Latino among them), the eight Dems and ten GOP’ers still showed a similarly disproportionate domination of dark-suited, white, middle-aged males – with a single seventy-something curmudgeon (John McCain for the GOP, Mike Gravel for the Dems) offering some feisty seasoning.Oops, sorry, that was Michael Medved, and I guess it's white people who are truly "spicy".
Medved, though, represents the George Will school of thought on race - the fact that he regards head counts as indicative of diversity somehow means that everybody else does so, as well. So as much as the Republican right blasted Bill Clinton for having minorities they deemed unqualified in his cabinet, they had no problem demanding that George W. Bush get special credit for having even more minorities in his cabinet, and remain curiously silent when some of those people (most notably Alberto Gonzales) prove disastrously incompetent. (In fairness, incompetence in the Bush Administration is not a racial issue - it's endemic among Bush's appointees.) Beyond the use of less inflammatory language, there's not much to separate this type of "head counting" from that demonstrated by James Watt.
The Brown court's was describing mandatory segregation, but in a manner not irrelevant to the situation which would exist in many school districts in the absence of an integration plan:
Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.The current Supreme Court brushed off these concerns, apparently content that if you remove a single element from the facts of Brown, the mandatory nature of the segregation, all else becomes irrelevant. That's fine with the likes of George Will: If all of the minority students in a district are in failing schools and all of the white students are in quality schools, that's just demographics in action. But to pretend that this is the intent of Brown? To pretend that a decision which overtly speaks of the detrimental effect of segregation "upon the colored children" is color-blind?
* * *
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
* * *
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.
Will also proves himself either ignorant of the facts of the Seattle integration program, or again mendacious. The Seattle program permitted students to select their preferred school, with race as a "tie-breaker" for students deemed equivalent under the school board's criteria. No student was forced to be "oregano" - minority students enrolled in schools outside of their neighborhoods by choice, and it is reasonable to believe that virtually all choices were driven by the desire to attend a stronger school, or one which offered programs not available at the local school. It remains the case that equality (or even superiority) of funding of a school does not automatically translate into superior schools, particularly in large urban school districts.
Ultimately, perhaps George Will is the type of "colorblind" buffoon parodied by Steven Colbert. (If you pretend not to see it, at least outside the context of a Republican President's cabinet, it doesn't exist.) I wonder if he sees himself as a modern day George Wallace, standing up for the rights of an 'aggrieved minority'.
At the end of the day the vision of Brown is not fulfilled by pretending that in the absense of intent, de facto school segregation, in which minority students are vastly more likely to end up in weak or failing schools, is not an issue. It is also not fulfilled by shuffling students around between schools to create "racial balance" while doing nothing to improve weak and failing schools. If you gave every school child in a district the ability to go to the school of his or her choice, and the net result were that the vast majority chose their local school because it was "as good or better than" pretty much every other school in the district, the ethnic distribution of students should not be troubling. But we're a long way from that ideal, and (good?) men like Will seem intent on ensuring that we never reach it.