Thursday, June 28, 2007

The Desegregation Opinions: Justice Thomas' Concurrence

[Other posts in the series:

Blog and Media Roundup

Reaction to Justice Thomas' concurrence

Reaction to Justice Breyer's dissent

Reaction to C.J. Roberts' opinion

Reaction to Justice Stevens' dissent

Reaction to Justice Kennedy's controlling concurrence

Opening thoughts (Parts I and II)]

Finally, we get to the last opinion of the day--Justice Thomas' concurrence. I'm starting to fade, so this will probably be a bit shorter than my other posts.

There are two prevailing themes in most Thomas opinions. The first is their steadfast commitment to originalism. The second is that they are, if nothing else, consistent--Thomas is willing to take his points to their logical conclusion, often going far beyond where his self-described "faint-hearted originalist" colleague Justice Scalia will follow. The net effect is to produce intellectually coherent opinions whose conclusions terrify 85% of the nation.

So the first thing I looked for was to see if Thomas, the ultimate poster-boy for originalism come hell or high water, is, in fact, making an originalist argument in this case. And the answer is, no, he is not. The closest he comes is on pages 26-27. But the oldest source he cites for his proposition comes in the form of Harlan's Plessy opinion, a dissenting opinion written nearly 30 years after the ratification of the 14th Amendment. Even if you think Harlan had the right idea, it is impossible to argue that his opinion was reflecting an original understanding of the amendment. In footnote 19, he responds to Breyer's analysis as to the original intent of the framers, but only purports to show why race-conscious policies based in the immediate aftermath of the reconstruction amendments are not inconsistent with the color-blind constitution (or specifically, the exemption for remedying de jure discrimination that Thomas is willing to concede exists). This, of course, doesn't do anything to establish that the color-blind view was, in fact, the prevailing one among the framers, and Thomas does not devote any time to establishing a point which should, according to his judicial philosophy be central (indeed, paramount) to his ruling. And of course, without the pillar of constitutionally-mandated color-blindness, the entire edifice collapses.

Aside from that, though, Thomas' opinion is true to form. He makes his argument, takes it to the logical conclusion, and the rest of us can just sputter. Despite running 36 pages, Thomas' concurrence here really is centered around one huge point, and that point is typical Thomas: Not only is there obligation to remedy de facto segregation, there is no such thing as de facto segregation. This, instead, is "racial imbalance", and it is perfectly fine and morally neutral--no matter how big those "imbalances" get, it's not segregation (and the corollary is that efforts to ameliorate it are not "integration" but "racial balancing"). And once a polity eliminates the last vestiges of its de jure segregation, it has, in Thomas' words, "its slate...cleared" (9).
For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of state-sponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation. See Freeman, 503 U. S., at 496; Jenkins, 515 U. S., at 118 (THOMAS, J., concurring).

Second, a school cannot "remedy" racial imbalance in the same way that it can remedy segregation. Remediation of past de jure segregation is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity. At some point, the discrete injury will be remedied, and the school district will be declared unitary. See Swann, 402 U. S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district’s changing demographics. Thus, racial balancing will have to take place on an indefinite basis—--a continuous process with no identifiable culpable party and no discernable [sic] end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. (10)

These two points don't establish Thomas' claim. The first is tautological--it argues that de facto segregation ("racial imbalance") is not segregation because its not de jure segregation. The second merely shows that de facto segregation is more nebulous and more difficult to identify the cause of and solution to. Okay, but tough--you're a judge, nobody expects your job to be easy. Deal with it. Neither point shows that the problems of segregation are even lessened, let alone eliminated, when the separation is de facto instead of de jure.

However, once you accept Thomas' point, the whole argument falls into place. If racial imbalance is not a bad thing, then obviously eliminating can't be a compelling interest justifying race-conscious measures. The premise is the problem--it seems (and is) superficially absurd to argue that racial separation is a-okay so long as its not required by law--but the conclusion does flow from it.

Thomas later tries to indict Seattle's commitment to diversity (and, at the same time, the idea that non-diverse schools inherently hurt Black students) by noting its establishment of a K-8 "African-American Academy", which is 99% Black and which has excellent test scores (17-18). Aside from the fact that Thomas would undoubtedly like to rule that such a racially-tagged school is unconstitutional as well, there is a non-trivial point here. But I think what it shows is that Black students who choose to attend a predominantly Black school are in a qualitatively different position than Black students who are forced to attend a predominantly Black school due to housing segregation patterns. Ultimately, most of the research I've seen indicates that the very attributes that Thomas derides the significance of--the fact that such academies are not set up to stigmatize or degrade, and the fact that students are consciously choosing such an environment--is what gives them their advantage over other schools. There has been no established manner by which to leap from such a case to a school where the segregation is not voluntary and is not desired.


Rhymes With Right said...

I take it you have never read the opinion in Brown v. Board of Education -- after all, it, like the Thomas concurring opinion, draws heavily from Harlan's dissent in Plessy. You cannot criticize Thomas for using it without implicitly criticizing Earl Warren for doing the same (and Thurgood Marshall for his use of the Harlan dissent in his Brown brief).

David Schraub said...

1) Brown v. Board never even mentions Harlan's dissent in Plessy, or "colorblind" in any fashion whatsoever. In fact, at 494-95, the Court explicitly rejects the reliance on "the extent of psychological knowledge at the time of Plessy v. Ferguson...." and thus proclaims that "Any language in Plessy v. Ferguson contrary to this finding [that segregation hurts Black children] is rejected." (emphasis added) While I doubt Harlan's dissent was targeted by this rhetoric, insofar as it is covered by under it, I think it applies.

2) Unlike myself or C.J. Warren or Thurgood Marshall, Justice Thomas is an originalist--I can criticize him for not adhering to his own doctrine. Citing a dissent 28 years after the ratification of the 14th Amendment doesn't establish original intent and you know it.

3) The Thurgood Marshall reference is particularly odd, because its not like he curled up and died the day Brown was announced. He had a long and productive career in law post-Brown, including (survey says...) time on the Supreme Court. It is beyond clear, from his opinions in Bakke and others, where he would have fallen on this case.

Why the discrepancy for Marshall then? Two answers spring to mind.
a) Litigation strategy: Brown was already a huge blockbuster. You don't take what already would be a revolutionary court opinion and then try and argue its actually more expansive than everyone thought. Brown was not a sure-thing--the first vote among the justices (when Vinson was still C.J.) had it going the other way. Discretion is the better part of valor.

b) Experience: Perhaps Marshall genuinely thought color-blindness would be sufficient. Living in the world for the next 20 years, he, along with all the rest of us that were paying attention to segregation patterns, realized that it wasn't, and that the previously connected threads of "desegregate the schools" and "be color-blind" were actually in tension. The question is which holding was more central to Brown.

Brown's holding was explicitly premised on the segregation, not the classification: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (347 U.S. 483, 495). Hence, I believe that, insofar as there is a conflict, the core holding of Brown focuses on racial segregation, not racial classification.

Anonymous said...

You said that Justice Thomas' second point "merely shows that de jure segregation is more nebulous and more difficult to identify the cause of and solution to."

I think you meant de facto segregation.

David Schraub said...

Corrected, thanks for the catch.

albert venn dicey said...

"Justice Thomas is an originalist--I can criticize him for not adhering to his own doctrine. Citing a dissent 28 years after the ratification of the 14th Amendment doesn't establish original intent and you know it."

Yes, this is 'original intent originalism'. And under it Brown v. Board of Education was wrongly decided. But Justice Thomas may be a supporter of 'original public meaning originalism'

David Schraub said...

Citing a 28 year distant dissent doesn't establish original public meaning any better than it does original intent, so I fail to see the relevance here.