Saturday, June 30, 2007

The Putnam Study

John Leo reports on a diversity study by Robert Putnam that raises troubling questions about the benefits of diversity. Specifically, he finds that living in diverse areas is correlated to a bevy of negative effects on the residents:
Diversity does not produce “bad race relations,” Putnam says. Rather, people in diverse communities tend “to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more, but have less faith that they can actually make a difference, and to huddle unhappily in front of the television.” Putnam adds a crushing footnote: his findings “may underestimate the real effect of diversity on social withdrawal.”

Neither age nor disparities of wealth explain this result. “Americans raised in the 1970s,” he writes, “seem fully as unnerved by diversity as those raised in the 1920s.” And the “hunkering down” occurred no matter whether the communities were relatively egalitarian or showed great differences in personal income. Even when communities are equally poor or rich, equally safe or crime-ridden, diversity correlates with less trust of neighbors, lower confidence in local politicians and news media, less charitable giving and volunteering, fewer close friends, and less happiness.

Putnam does say that these harms are across the short and mid-term, and in the long-run diversity remains an overall benefit. Still, these are findings to give one pause.

I first came across the study at MvdG's place (this is an expansion of the comment I left there), and have seen it in several other locales since then. As I blog rather frequently on the perks of diversity, and consider myself a cheerleader for its benefits, I feel it's only fair to blog on this study as well.

The Putnam study is indeed distressing. The one variable I didn’t see him control for (and he may have, I'm relying on a summary) was comparing people who grew up in diverse surroundings versus those who moved in at adulthood. Most of the research I’ve seen as indicated that childhood is a crucial time for getting people to accept and thrive in diverse environments–and that they experience performance leaps as a result. Putnam’s study might indicate that these benefits don’t accrue if you start too late (this is also buttressed by his findings of long-term gains to offset the short- and mid-term losses). If Putnam's study is to be synthesized with the studies that do find long-term benefits for children who grow up and are educated in diverse environments, it would suggest that integrating schools is a "try-or-die" situation--if you don't catch kids early enough, simply putting them in diverse situations later on will blow up in your face.

That being said, Putnam's study does impress that diversity is not a panacea. It has benefits, especially along the axis of racial distributional justice. But its pursuit can have costs as well, and it is unfair not to take those costs into account. Ultimately, I think the best use of our brightest minds, confronting Putnam's work, is to figure out how to eliminate the relationship he's finding. More than the study itself, I am worried by the people reacting to it with satisfaction bordering on glee. Regardless of what you think about various state-incentivized plans to encourage diverse living, everybody is hurt when simply living next door to someone of another culture risks lowering your quality of life--not because of increased crime or worse schools, but because of psychological discomfort and distress. Putnam's study doesn't just describe a finding, it describes a problem.

It's a problem--but I don't believe that it is an immutable one. People can grow comfortable around those who previously thought to be inscrutably, exotically different. It's a problem, but one that we can solve. So, let's solve it.

The Diversity Rationale and the Problem of Subjectification

Reacting to the recent school resegregation case, Jill of Feministe remarks on the staying power of the "diversity rationale" for affirmative action and desegregation.
The underlying rationale in the diversity argument is that AA (and desegregation policies) are important because they make things more interesting for white people. Just look at how diversity is framed: It allows the majority population to come into contact with people of different races, cultures and backgrounds; it widens our horizens; it prepares us for a life of interaction with people unlike ourselves. In other words, diversity is good because the presence of minorities help the majority. It’s kind of like the argument that racism is bad because it hurts all of us — which isn’t exactly true. Racism hurts particular classes of people far worse than others, and it maintains a system wherein a certain class is in power. I don’t like racism and I would like to see racism obliterated, but as a white person racism most certainly does benefit me.

The fact that the diversity argument is the one that still (kind of) flies with the Court is pretty indicative of just how far we haven’t come — arguments for desegregation policies still must be premised on the grounds that they’re good for white people. That in itself should indicate that we aren’t living in a colorblind society, and shouldn’t pretend that we are.

A few preliminary notes before I hit the main substance of the post. First, I'm not sure I agree with the degree with which Jill dismisses the "racism hurts all of us" argument. Yes, it hurts some people far worse than others, and that's important to keep in mind when White folks get on the "I'm the real victim here" kick. But nonetheless, we construct our own interests, and it is perfectly rational for a White person to say that racism hurts her, both tangibly ("I'm hurt when I'm prevented from interacting on equal terms with the absolute best and brightest people out there") and intangibly ("My immortal soul is in danger when I'm a player in an evil system of domination"). Second, I think (and Jill is welcome to correct me here) that Jill is not suggesting we let the perfect be the enemy of the good: Affirmative action is important, and if the only way to preserve it is to invoke the diversity rationale, we got to grit our teeth and do it. She's merely arguing that it would be preferable if we were willing to enact Affirmative Action for reasons that weren't so nakedly self-interested.

I've heard versions of Jill's argument before, and it has some power. My understanding of it is that--aside from the fact that it lets us preserve programs important to racial justice, like AA--the diversity rationale has no intrinsic anti-racism force. The argument itself does nothing to dismantle racial hierarchy, only the programs that flow out of it do. But I think there are reasons why the diversity rationale has intrinsic anti-racist weight (as opposed to only end-point effects). In other words, I think that the invocation of "diversity" accomplishes anti-racism goals beyond that it might convince the Supreme Court to allow affirmative action.

There are two reasons this might work. The first is the inversion of the "diversity lets White people figure out how the other half lives" argument. That's self-interested, but the reverse has great egalitarian potential.
If anything, we should send poor students to elite schools so they can learn how to take advantage of the rich kids. They should figure out what persona they can adopt to ingratiate themselves with the wealthy and then work the connections they make with the rich kids paying full tuition to their benefit. Room with some blueblood and start a business out of the dorm together with his capital! Marry rich! Meet parents who could give you a job! Find out about careers and sectors of the economy that you never dreamed existed! If the perspective of rich students is narrow, circumstances often make those of poor students even narrower.

This is a class-based argument, but it works as well--if not better--for race. In a society that is a) racially segregated and b) dominated by Whites, the diversity argument exposes minority students to the people who they're going to have to grapple with if they want to win their share of power and affluence in society. A White person justifying AA based on a diversity-desire to "expand my horizons" is self-interested. A Black person justifying AA based on a diversity-desire to "get a foothold among the ruling class" is making an important stride in breaking down racial caste systems.

But yet, I'm uncomfortable with this argument by itself. The reason is it treats minorities as if they are "missing" something that only Whites can give them. In this manner, it has the tenor of replicating racist hierarchies rather than dismantling them. But this explains why I think the traditional "diversity" argument also has anti-racism force. Simply put, it very explicitly places value on minority students vis-a-vis White students. It tells Whites that they are incomplete without a minority perspective. The very idea that White people might not be the complete and universal is radical in of itself.

This is important because a significant portion of modern White racism is based on the view that Black citizens are literally worthless and expendable. They have no value to society, they serve no useful purpose. Many left-commentators shy from taking this argument, because it feels like objectification. But here I'd borrow from Leslie Green's argument on objectification, because I think it illustrates a really important point:
Objectification does not...actually change the moral status of a person, for that is not a matter of social convention. To treat people as mere objects does not make them mere objects. Objectification says people are not the very things that they are: the whole possibility of insulting or degrading someone’s personhood begins on the footing that it embodies some kind of lie about her status. Our subjectivity is an un-won status, something we get for free, without effort, as is our objectivity. What has to be won is our awareness of our subjectivity—we need to see ourselves as the ends that we in fact are—and others respect for our subjectivity. However, and here is my main point, the same is true of our our objectivity.

Let me approach this idea through an example. Our instrumentality is one important part of our objectivity; it is the property of being of potential use to others who may direct us to their own purposes. This is not sufficient for our dignity as persons; but some who endorse a disembodied view of personhood would go further and say it is not necessary either. Interestingly, non-philosophers do not agree. Most people desperately want to be of use to others, and they come to understand themselves partly through those uses, actual and potential. Of course, they do not want only that, and they want to be of use and used subject to certain constraints—but the idea of being useful is in fact valued. Part of what is at stake when people age, when they are severely disabled, when they are chronically unemployed, is the fear that they are not, or they are no longer, useful. Others do not want them; they fulfill no valued role. They miss not only their diminished agency, but also their diminished objectivity. In dire cases people may no longer see themselves as something desired, wanted, or useful at all, even as they retain their standing as civic subjects, applicants, supplicants, users or consumers. They become, to coin a term, subjectified. [Leslie Green, "Pornographies," The Journal of Political Philosophy, Vol. 8, No. 1, Pp. 27-52 (2000), 45-46]

In the slave-era, Black Americans were objectified, seen as having no intrinsic worth while being "useful" as forced labor. Today, to a large extent, this perspective has been reversed. Now, conservative advocates for "color-blindness" couch their arguments in the form of protecting the intrinsic dignity of Black citizens, while being completely apathetic to the reality that the vast majority of Blacks are being hidden away in inner-city projects or locked away in jail cells. Perfectly willing to grant Blacks the technical status as "civic subjects, applicants, supplicants, users or consumers," the conservative model nonetheless gives no credit to their instrumentality--if every Black disappeared tomorrow, the world would spin as normal. This message has impressed itself on people of color. Cherrie Moraga, commenting on the role of women of color in the feminist movement, wrote "so often the women seem to feel no loss, no lack, no absence when women of color are not involved.... This has hurt me deeply." [Cherrie Moraga, "Refugees of a World on Fire," Forward to the 2nd ed. of This Bridge Called My Back (Watertown, Mass.: Persephone Press, 1983), 33]

By sending a message that White people cannot do it alone, that all of us have intrinsic and instrumental worth, the diversity rationale can help reverse the damaging sentiment that Black don't matter, are worthless, and that their absence is not one at all. That White people benefit from diversity is merely part of a larger argument being made here--that all are reliant on all, and that, far from being a patronizing indulgence, our very lives and livelihoods are contingent on recognizing the Other.
[D]ifference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. Only then does the necessity for interdependency become unthreatening. Only within that interdependency of different strengths, acknowledged and equal, can the power to seek new ways to actively ‘be’ in the world generate, as well as the courage and sustenance to act where there are not charters. [Audre Lorde, “The Master’s Tools Will Never Dismantle The Master’s House,” in Cherrie Moraga and Gloria Anzaldua, eds., This Bridge Called My Back (Watertown, Mass.: Persephone Press, 1981), 99.]

In this respect I think the diversity rationale has significant internal value, and in of itself has an important role to play in dismantling racial hierarchy. Though its deployment should be couched in language that makes clear that it values minority students as such, I do not think we must necessarily grit our teeth when utilizing it to preserve the programs necessary to keeping the dream of racial equality alive.

Friday, June 29, 2007

The Redemption

In a "highly unusual" move, The US Supreme Court reconsidered a previous decision and granted cert to hear two critical Guantanamo Bay cases, Boumediene v. Bush and Al Odah v. U.S. Because Court rules require five votes instead of the usual four to grant cert in such situations, and due to the unusualness of the case at hand, it is looking like the Court will reverse the D.C. Circuit Court, which would be a victory for detainee rights.

Good. I don't know much about Al Odah, but Boumediene was literally kidnapped from Bosnia by US Special Forces after he was found innocent of the plot we're accusing him of (well, there's another one, but he's got a good alibi--he was in a Bosnian prison when we said he was in Afghanistan). It's time for these travesties to end. Congratulations, Justice Kennedy--you have a rare opportunity to write an opinion for the ages.


The Notebook

Steve Benen

Spencer Ackerman

In This Moment

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.

The Desegregation Opinions: Breyer's Dissent

[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)]

In my post on Chief Justice Roberts' opinion, I noted somewhat disparagingly his claim that Justice Breyer's dissent used "cataclysmic" rhetoric. Upon reading Breyer's opinion, I must admit I may have been a bit unfair to the Chief, for he opens up with guns blazing:
The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. (2)

At first, I Breyer's 77-page dissent struck me as somewhat pedestrian. Not that it was poorly argued--Breyer's opinion is carefully reasoned, tightly argued, and very compelling-- but that there were very few particular moments that stood out as "wow." But upon re-reading it, I am more convinced that there is a lot of important stuff in here, that deserves explication and comparison. So here we go.

The first location of note comes on page four, where Breyer lays out sobering statistics on segregation patterns in America.
More recently, however, progress [on desegregation] has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–-100% minority. See Appendix A, infra. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.

School districts, since 1980, have been slowly but steadily resegregating. The problem is worse outside of the South, primarily because many Southern school districts are still under (or are only recently removed from) court-ordered desegregation plans that actually make a dent in segregation patterns. Places that are not under such orders and which do not (and, if the plurality had its way, could not) adopt such plans are resegregating rapidly.

Breyer then proceeds to give a long and detailed history of segregation in both Seattle and Louisville. The former is far more interesting, because contrary to the assertions of the plurality, Seattle had admitted to de jure segregation, it just settled the case out of court, in part through the promise that it would use race-conscious policies to remedy the problem. Situations such as this, as well as the general pattern toward housing resegregation, and the fact that court precedent "has recognized that de jure discrimination can be present even in the absence of racially explicit laws" (19, citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)), make "the distinction between de jure segregation (caused by school systems) and de facto segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context...." (5). Indeed, there is a strange incentive under the jurisprudence announced for a district to admit its schools were de jure segregated so as to be able to access the "remedial" plans it wishes to use but are only available to the (nebulously defined) formerly de jure segregated districts.

Next is a citation Justice Breyer gives to Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). The Chief Justice spent a page and a half explaining why this quote was "dicta", but, oddly to my mind, did not at any point tell us what the quote or argument was. Well, here it is:
"School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." (quoted at 3, 22)

This, of course, stands in harsh contrast to nearly every page of Roberts' substantive analysis--where he flatly condemns any effort at "racial balancing" and derides the notion that setting that balance in the proportion of school demographics is in any way legitimate.

Breyer actually provides this full block quote twice, to emphasize how serious he takes it. And a serious point it is, so much so that he spends eight full pages developing an argument off of it. To this, the Chief Justice has no other response than, "well, it's dicta." I venture no opinion as to who is right as to the relative significance of the Swann passage. But Breyer is unquestionably right when he writes:
[T]he plurality....cannot adequately justify its retreat simply be affixing the label 'dicta' to reasoning with which it disagrees. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied. (30-31)

As I noted after reading Roberts' opinion, the conflation of what a district must do to desegregate, versus what it can do, is a huge flaw in his opinion, and it's one that Breyer seized upon to great effect. Roberts' refusal to even engage the analysis in Swann is telling, both of his lack of a good answer and his lack of respect for the serious legal issues in play here.

Breyer also takes a brief and oblique swipe at Thomas, the Originalist Warrior, by noting that (to the extent it speaks to the issue at all), it would be difficult to argue that the framers of the 14th Amendment would have understood it to bar the type of policies enacted by the two cities:
There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866–-1904 (1996) (describing federal funding, through the Freedman's Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862-–77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865-–1877, pp. 111-–116 (1974) (same).

I'll revise this after reading Thomas' concurrence, but my understanding is that originalist analysis is scant, if present at all, in his opinion.

Breyer and Thomas clash again on pages 37-45, on the subject of what the social science research tells us about how integration affects student performance. Breyer notes that "even the author of JUSTICE THOMAS' preferred studies has found some evidence linking integrated learning environments to increased academic achievement," but goes on to argue that there is certainly a sufficient grounding of social science evidence on the side of integration so as to permit the district to rely on it (45). It certainly is a sharp turn from Gonzalez v. Carhart, where the Court allowed Congress to take a position at odds with nearly all the scientific research on the subject, to this case, where the Court refused to allow the districts to operate within a paradigm supported by the overwhelming consensus of the scientific community.

Yet another not-so-veiled swipe at the conservative members of the court shows up at page 62, where Breyer writes an impassioned plea to let democratic legislatures decide questions, rather than having the courts step in.
I use the words "may need" here deliberately. The plurality, or at least those who follow JUSTICE THOMAS' "color-blind" approach, see ante, at 26–27 (THOMAS, J., concurring); Grutter, 539 U. S., at 353–-354 (THOMAS, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. See ante, at 40–-41 (plurality opinion); see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation's children and how best to administer America's schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality's slogan, whether the best "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Ante, at 40–-41. See also Parents Involved VII, 426 F. 3d, at 1222 (Bea, J., dissenting) ("The way to end racial discrimination is to stop discriminating by race"). That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria.

Such language is obviously ironic, but it does reveal the hypocrisy of many members of the majority, who would be first the right such words on nearly any other issue that came before the court where a liberal majority was striking down a policy they support.

Finally, Justice Breyer does a service when he notes that "Choice, therefore, is the 'predominant factor' in these plans. Race is not." To wit:
In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80% of all cases, that choice alone determines which high schools Seattle's ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria). Choice, therefore, is the "predominant factor" in these plans. Race is not. See Grutter, supra, at 393 (KENNEDY, J., dissenting) (allowing consideration of race only if it does "not become a predominant factor").

Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. (46)

The majority, oddly enough, tried to paint this as a point against the plan, arguing that it showed that it showed race-classifications were not necessary if they were used so sparingly, only to sheepishly admit that "we do not suggest that greater use of race would be preferable," (plurality opinion, 27). Justice Breyer clearly has the better of this argument, noting that all this shows is that the majority's apocalyptic predictions of infinite and unlimited race-conscious assignments was unlikely to be borne out.

Like Justice Stevens, Justice Breyer's dissent closes with bitter force and a firm look at what Brown, segregation, and Jim Crow truly represented.
And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and JUSTICE THOMAS likens the approach that I have taken to that of segregation's defenders. See ante, at 39-–41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville's integration polices); ante, at 28-–32 (THOMAS, J., concurring). But segregation policies did not simply tell schoolchildren "where they could and could not go to school based on the color of their skin," ante, at 40 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950's to Louisville and Seattle in the modern day--to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying "a state-mandated racial label." Ante, at 17 (KENNEDY, J., concurring in part and concurring in judgment). But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.

Finally, what of the hope and promise of Brown? For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.
The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

I must dissent. (66-68)

I'll have to read Thomas' opinion after dinner to resolve the clash between him and Breyer. But the more important part about his conclusion comes afterwards. The soul of Brown, and the battle for segregation, cannot be won as a "a matter of fine words on paper, but as a matter of everyday life...not simply as a matter of legal principle but in terms of how we actually live." Racism will not be overcome, to quote Kimberle Crenshaw, "by proclamation alone." Roberts' opinion was heavy on rhetoric and short on solution, empathy, or concern. And for that reason, I hope that Breyer's dissent eventually takes its place as the controlling law of the land.

The Desegregation Opinions: Blogs and Media React

[This is a round-up post on the just-released decisions striking down Seattle and Louisville's desegregation plans. 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)]

Blog and Media Reactions to the school desegregation cases:


USA Today

The Seattle Post-Intelligencer (AP) has a list of major school segregation cases, including Keyes v. School District No. 1, Denver, "ruling that schools have responsibility to desegregate, even in districts where schools had not been segregated by law."

NYT: "Justices Limit Racial Decisions in Schools"

Washington Post: "Court Limits Use of Race to Achieve Diversity in Schools."

CNN's analysis, by Jeffrey Toobin, states the issues in the lede as "race, affirmative action and education." Segregation and desegregation are strikingly absent, since they are the core issue of the case. At the end, however, Toobin writes "This is going to rank with the great, important school desegregation opinions of the court's history, starting with Brown v. Board of Education in 1954. This, of course, is one where the school districts were told they couldn't integrate their schools, so coming from the opposite direction."


Steve Benen (at Washington Monthly):
It's been a discouraging week at the Supreme Court. Over the last four days, there have been five major decisions, all of them 5-4 rulings, all of them victories for conservatives, and all of them backed by the same five-member majority (Roberts, Alito, Scalia, Thomas, and Kennedy).

Today's ruling on school racial integration was probably the most disappointing of all.
Stevens' and Breyer's dissents (.pdf) are both worth reading. Their disdain for the majority is palpable.

Ultimately, of the five controversial rulings this week, Roberts wrote the majority opinion in three, and Alito wrote the other two.

I guess it's one of those elections-have-consequences moments, isn't it?

Scott Lemieux gives his first thoughts on the decision, including the stunning revalation that Thomas' dissent doesn't provide any evidence that the original intent of the 14th amendment was to prohibit race-based classifications for remedial purposes. "Strange; I'm sure he must have it somewhere and just hasn't gotten around to it!"

Archpundit thinks Kennedy's concurrence will be meaningless. I'm not sure--and I don't know if desegregation orders are necessary for his distinction to be applicable.

James Joyner: "The Supreme Court, in yet another 5-4 ruling, has decided that discriminating on the basis of race is not a Constitutionally permissible solution to race discrimination....The 14th Amendment rather clearly enjoins discrimination on the basis of race....In the present cases, the districts were trying to force integration of schools to remedy benign neighborhood settlement patterns." Aside from whether race-conscious integration plans should be considered "discrimination" (see the comments) under the parameters of the 14th amendment, I'm curious as to what is so "benign" about residential segregation? Is it not meaningful or significant that White people in the "post-racism" era still apparently want to live in largely segregated neighborhoods?

SCSU Scholars: "[T]hat sentence from the Chief Justice will be valuable when perhaps a better case comes before the Court."

ThinkProgress links to a study verifying that minority students learn better in integrated schools.

I cannot help but think about former Justice Thurgood Marshall, and his NAACP legal compatriots, and their joy on the steps of the US Supreme Court following reading of the opinion in Brown v. Board of Education, and what that decision meant for so many Americans who were, in that moment, lifted up. The joy on their faces, and the hope.

Today, all I am feeling is hollow — that this Supreme Court lifts up no one but those who think as they do, and that the rest of the nation, especially those who most need a hand up from the shadows of poverty and despair, are left on the sidelines whether or not they have been wronged.

Taylor Marsh: "Sometimes supposedly brilliant people are just book read individuals without any common sense or understanding of culture and the realities of real life."

Paul Horwitz: "Why is higher education a "unique context" in ways that elementary education is not, at least for purposes of this case? Courts usually speak in terms of the special expertise that universities have in deciding who shall be a member of the student body, among other questions; why do lower public schools not possess similar epistemic authority as compared to the courts?"

The Legal Defense Fund, its "where do we go from here" post, stresses that a five judge majority recognized that racial diversity is a "compelling interest". Also over there, posts by UVA Law Professor Jim Ryan (who predicts Kennedy's opinion will play a future role similar to Powell's opinion in Bakke) and Washington University Law Professor Samuel Bagenstos (exploring why Roberts' Van Alstyne-esque quote is a misguided solution to the problem). Bagnestos is one of the nation's foremost authorities on the legal aspects of the psychology of prejudice.

Jack Balkin: "The Parents Involved decision-- Swann Song or Bakke for our times?"

Liberty Papers asserts that the "the plain fact of the matter [is] that the 14th Amendment was clearly intended to make the Constitution colorblind." That's a lot of bluster for a position that even uber-originalist Clarence Thomas apparently hasn't be able to back up. There is little to no evidence that the 14th amendment was originally intended to set up a "color-blind" norm (which has no bearing on whether it is a good policy argument--or even, since I'm not an originalist, a good legal argument--but we should be honest about our positions).

The Progressive Pulse notes the poor outcome of color-blind student assignment plans in North Carolina at maintaining desegregated schools.

Too Sense: "Supreme Court Greenlights School Resegregation"

Rhymes with Right shows the dilemma nicely: "The problem is that Brown does not call for integration -- it calls an end to legally-mandated segregation. Indeed, "integration" of schools is not required by the Constitution and would, in most places, require an unconstitutional distribution of benefits and burdens based upon race of the sort banned under Brown to accomplish." That has the benefit of honesty--the plurality would hold that integration is unconstitutional, I would hold that it is quite constitutional and (to quote Kennedy) a "moral and ethical obligation."

Stereohyped: "Good News For White Parents In Seattle And Louisville: You Can Take Your Kids Out Of Private School Now." I can't really protest the snark, although in an ideal world I'd hope that White parents, too, would recognize and press for the benefits a racially integrated education provides.

Bitch, Ph.D flips out in the best sense of the word.

The Desegregation Opinions: Chief Justice Roberts

[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)]

Roberts swung for the fences on this one. I cynically suggested in my first post that Roberts saw this case as a way to secure his legacy, and his opinion seems to bear that prediction out.

The first part of the opinion is reasonably narrow, articulating specific problems with the application of the Seattle and Louisville plans (this was the part of the opinion that Kennedy joined). In much of this, my reaction is similar to my reaction to the analogous portions of Kennedy's opinion. It's the latter half (Part IV and portions of Part III), where Kennedy's vote was absent, that Roberts really unleashes the artillery.

Much of my disagreement with the Chief Justice stems from a material disagreement as to whether segregation that is not directly traceable to de jure government action should be at all actionable, as well as whether the distinction between "racial integration", "diversity", and "balancing". Here's part of Roberts' discussion of this issue:
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O'Connor, J., dissenting); internal quotation marks omitted). Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race will never be achieved."
The Ninth Circuit below stated that it "share[d] in the hope" expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909-–910 (1996) ("[A]n effort to alleviate the effects of societal discrimination is not a compelling interest"); Croson, supra, at 498–-499; Wygant, 476 U. S., at 276
(plurality opinion) ("Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy"); id., at 288 (O'Connor, J., concurring in part and concurring in judgment) ("[A] governmental agency's interest in remedying 'societal' discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster").

The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from "patently unconstitutional" to a compelling state interest simply by relabeling it "racial diversity." While the school districts use various verbal formulations to describe the interest they seek to promote--racial diversity, avoidance of racial isolation, racial integration--they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05-–908, at 257a ("Q. What's your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that"); id., at 228a-229a ("I don't think we've ever sat down and said, 'Define racially concentrated school exactly on point in quantitative terms.' I don't think we've ever had that conversation"); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) ("Q. How does the Jefferson County School Board define diversity . . . ?" "A. Well, we want to have the schools that make up the percentage of students of the population").

Jefferson County phrases its interest as "racial integration", but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 ("[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is . . . infirm as a matter of law" (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) ("The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole"), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.

The en banc Ninth Circuit declared that "when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution." Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled "racial diversity" or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. (22-25)

Roberts' cavalier dismissal of the entire concept of "diversity" is troubling, as is his (mis-)usage of Milliken and Swann--which held that mandatory desegregation plans cannot demand a particular racial balance--to argue that voluntary plans can't use those metrics. What the courts can order and what the legislature can pursue are not the same thing, and Roberts knows better than to conflate them.

I'd also note that Roberts simply asserts, without argument, that race-conscious integration plans are at "cross-purposes" with getting students to view their peers as individuals instead of members of a group. However intuitive that proposition may seem in the abstract, virtually all the empirical evidence points in the other direction. "Facts are stubborn things," as John Adams once said, and here they pose an insurmountable barrier to Roberts' substitution of rhetoric for reason.

Indeed, for all his complaints of how the dissent is engaging in hyperbole (he calls Breyer's rhetoric "cataclysmic"), there is a fair amount of hysteria in Chief Justice Roberts opinion. Twice, he refers to the plans forwarded by Seattle and Louisville as "extreme" (27, 38). But he gives very little in the way of analysis as to what makes them extreme--especially compared to the radical claim that race-based desegregation and race-based segregation are morally identical. Much of the arguments he does give are focused around the need of the constitution to protect individuals, not groups. But I am individually raced as White, and every Black student is individually raced as Black. The existence and perpetuation of race-based stereotyping and hierarchy effects all of us as individuals, and the Chief Justice shows little sensitivity or inclination towards dealing with this problem. Arguing that any use of race is an exercise in group-protection would force us to jettison not just "racial diversity" but "racial prejudice." Both would take an individualized characteristic and tag it to a group identity. Why should we look at prejudice on account of a group membership differently than prejudice on account of any other (more idiosyncratic) prejudice? Does even talking about racial discrimination "demean[] the dignity and worth of a person" (39, quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000))? Roberts opinion is not just irreconcilable with racial progressivism, it's irreconcilable with the idea of doing anything about anything race-related, including racism. If the thought, motives, and effects are all irrelevant (see 35), we are left with nothing more than legally-compelled amnesia. For my part, I think that we are mature and rational enough individuals that we can hear the word "race" without crawling under the bed in terror. As Ian F. Haney Lopez put it, "[t]o acknowledge race is to leave open the possibility--indeed the certainty--that this acknowledgment will at times be turned to racism's service." However, the fact that discussions of race can enable racism "cannot provide the reason for refusing to examine as honestly as possible the nature of race." [Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 19 (1994)]. Courage, not fear, is the order of the day.

Finally, as Justice Stevens indicated, the most offensive portion of Roberts' opinion comes at the end, where he tries to write his opinion as the successor to Brown.
Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis," Brown II, 349 U. S., at 300–-301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The Chief Justice and I, respectively, have very different views about what Brown was about. No history class, no lecture, no textbook ever characterized the evil of segregation as being the usage of "Black" and "White" in the school statutes. The harm of segregation was that schools were segregated. Roberts last sentence is meant to echo William Van Alstyne's famous line, and he "wrote for the quote", so to speak. But with due respect, it is sick and twisted to refer to race-conscious integration as "discrimination." Before Brown, students were told that Black and White students ought not, could not, and would not go to school together. Over 60 years later, we our running a school system in which Black and White students still do not attend school side-by-side, and the opinion of Chief Justice Roberts says that schools ought not fix that. This is nothing more than a reversion to Plessy under new language (the Plessy Court, I'd note, strenuously denied that its policy of segregation was anything but neutral and fair to all parties). I would urge the Chief Justice to re-evaluate the content of Brown, and adopt a new slogan that is consonant with the way every school-child understands it: "The way to stop segregation on the basis of race is to stop segregating schools on the basis of race." So long as the schools remain segregated, the promise of Brown remains unfulfilled--and too many people have staked their lives on that promise to let it be corrupted by historical revisionism now.

The Desegregation Opinions: Justice Stevens' Dissent

[Other posts in the series:

Blogand 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)]

Stevens' dissent was short, so I won't excerpt it extensively. There is some anger and a lot of sadness in Stevens' words. In many ways, it is the dissent I felt I would have written had I been in the court. It seems to me that there was more here before Stevens' pulled himself back from the precipice--the opening and closing foreshadow a much darker opinion that would have all but accused the plurality of trying to overturn Brown. Here's how he opens his dissent:
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. In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court's most important decisions. Compare ante, at 39 ("history will be heard"), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) ("It is a familiar adage that history is written by the victors").

The France quote is one of my favorites, and it is fitting here. This is fire from Justice Stevens--and rightfully so. I suspect that in his first draft, there was a lot more in this vein. But by his closure, he is burned out, and his last sentence--understated as it is--sends chills through me:
"It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

Though this is almost certainly untrue (Rehnquist at least would have easily been on board with this opinion), the sentiment comes through nonetheless. Stevens knows he doesn't have much more time on the Court, and is saying the last rites for the Warren consensus which was dedicated to securing racial justice in America. Thanks to Justice Kennedy, that pact still lives. But it is on life support, and Stevens was right to craft his eulogy.

The Desegregation Opinions: Kennedy's Concurrence

[Other posts in the series:

Law 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)]

The structure of these posts is to copy what I think are the key excerpts, then give my commentary at the bottom. This post is on Justice Kennedy's (controlling) concurrence.

Key excerpts:

"Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." (2-3)

Problem with the Louisville plan
"Jefferson County [Louisville] fails to make clear to this Court--even in the limited respects implicated by Joshua's initial assignment and transfer denial--whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State." (5-6)

Problem with the Seattle plan
"As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as "white," it has employed the crude racial categories of "white" and "non-white" as the basis for its assignment decisions.

The district has identified its purposes as follows: "(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent nonwhite students from having equitable access to the most popular over-subscribed schools." Id., at 19. Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between "white" and "non-white" furthers these goals. As the Court explains, "a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not." (6)

Why Kennedy refuses to sign on the portion of the majority opinion which would codify color-blindness as an absolute constitutional principle
"Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U.S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). The Court's decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387–388 (KENNEDY, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible." (7-9)

Noting that the de facto/de jure distinction means little to victims (he later goes on to explain why the distinction remains important)
From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices." (15)

Discussing the claim that "if race is the problem, race is the solution."
"The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. See post, at 35 (citing 426 F. 3d 1162, 1193–1196 (CA9 2005) (concurring opinion) (citing Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring))). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.

The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin." (16-17)


"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue." (17)


First, let me congratulate Justice Kennedy on writing an opinion that, though it is on a topic I feel very strongly about and one that I disagree with him on, I find compelling and well-thought out. It seems clear that Justice Kennedy takes seriously the issues that motivate those of us who support race-conscious policies to bring about racial integration, and his rhetoric of "frustrating duality" seems to show that he does not dismiss the difficulties that even his own, moderate position, bring about. And, for my part, I do not dismiss the issues Justice Kennedy points out as to how defining race can lock people into identities and has troubling implications of its own. I also am pleased that Justice Kennedy kept the door open for race-conscious procedures in cases like this--a decision I was not hopeful for given his Grutter opinion and one that prevented this from being the absolutely crushing defeat for racial equality many of us were expecting. Kennedy's opinion is the controlling one, and it is very clear that race-conscious policies, so long as they are not along the line of individual race classification and assignment, are not unconstitutional.

I have a few problems, unsurprisingly, with his analysis. The first is an issue of clarity--in his objection to the Seattle program, he focuses on the fact that it divides students solely into "White/non-White", as opposed to a more finely tuned distinction. Point well taken, but if Seattle were to fix that, would it be okay? It doesn't seem like it would fall within Kennedy's stated objection to individual racial classification. The second problem is that Justice Kennedy seems to expect a lot out of school assignment plans. Most plans I know of are pretty simple, and don't even purport to be judging the kids along a meritocratic axis (I didn't go to Whitman because I was somehow "better" than a Churchill kid, I went there because I lived near it). Kennedy's demand for more holistic admission procedures may be sensible for college and universities, but it seems a bit much for high schools (are we going to have full-fledged applications for them too), and utterly out of the question for elementary schools. Third, Justice Kennedy doesn't sufficiently address the "race is the problem, so race is the solution" objection. The point about classification is, again, well-taken, but it doesn't seem like enough to win the day. People are raced in American society with or without the government's involvement. That's a train that's passed us by. So while there may be issues with that formulation, deciding now of all times to use that (altogether well-known problem) as an excuse for blocking well-thought out, solid policies of racial reform seems unreasonable. There's simply too much analysis behind this argument to be dismissed via one argument in a single paragraph.

But, as I said, it's difficult for me to get too angry, because Kennedy helped us dodge a bullet here. Now it's up to Seattle and Louisville to start developing plans within his guidelines that can continue us down the path to racial integration that Kennedy himself calls a "moral and ethical obligation."

The Law Beater

[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)]

I feel like I'm in an abusive relationship with Justice Kennedy. I feel like he's just socked me in the mouth, and yet I still want to kiss him.

The opinions are up (all 185 pages of them), and Kennedy's opinion will be the controlling one. And (though I can't be sure because I'm working off the syllabus) it's about as narrow as you can get while still joining the result. It does not hold that government entities cannot take race into account while pursuing diversity, and it does not hold that the desire for a diverse student body is not a compelling interest. It merely holds that the Seattle & Louisville plans are not tailored enough--their use of race is either too arbitrary and ad hoc (in Louisville) or it falters by relying completely on a Black/other paradigm which is not a fine enough grain. He even provides a list of race-conscious remedies he thinks he would find constitutionally permissible.

I'm going to read Kennedy's opinion first, then get to the others. It still strikes me as the wrong decision, but it appears that we've dodged the worst-case scenario. Brown lives another day.

The Legacy is Secured

[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)]

Breaking: The Supreme Court, by a 5-4 vote, has struck down voluntary school integration plans as unconstitutional. Roberts for the majority, Kennedy and Thomas concurring, Breyer and Stevens dissenting. Congratulations, Johnnie boy, you've got your legacy, and insured my employment for decades to come. And all you had to do was rip the beating heart out of Brown v. Board to do it ("Indiana Roberts and the Supreme Court of Doom").

I literally nearly put a hole through a wall when I read this. I'll be posting throughout the day as the decisions become available. Hopefully Kennedy's concurrence will be a limiting factor, but I don't see how.


In a New York Minute everything can change
In a New York Minute it can get pretty strange
In a New York Minute everything can change
In New York Minute
Lying here in the darkness, hear the sirens wail
Somebody's going to Emergency, somebody's going to jail
You find somebody to love in the world you better hang on to them, man
The wolf is always at the door.

Wednesday, June 27, 2007

Races and Faces

Andrew Sullivan links to a study he says shows that "Bringing up a racist...may be impossible to avoid." Well, not quite. Here's the link Andrew's following, summarizing the study's findings:
The longer a child looks at a face indicates the child's preference for that particular face. The Caucasian Israeli infants looked longer at the Caucasian faces than the African ones. The African Ethiopians looked at African faces longer than at Caucasian faces. If the African Israelis exhibited a preference for African faces, the role of nature in own-race face bias would have been shown. However, the African Israeli infants showed no preference for the Africans or the Caucasians. This data shows that nurture plays a significant role in race face perception.

This study shows that our environment greatly influences our perceptions. Even infants at 3 months of age demonstrate signs of racial preference, but this preference is limited to the race they are mainly surrounded by. Heightening cross racial contact mitigates the effects of the bias. Is the own-face race bias a problem? Perhaps: the bias signals a lack of diversity in surroundings. The influence of the own-race face phenomenon may carry over into our daily perception and can cause some racial prejudice beyond our direct control.

It's true that the study is not willing to entirely discount own-face bias. But the actual findings it received did not show an own-face bias. The nurture effect appears to greatly outstrip whatever own-face bias there is.

So there would, in fact, seem to be a way to help avoid raising racist children (or at least severely mitigate one source of racism): raising children in diverse surroundings. That's what the study recommends, and that's what us crazy liberals have been recommending on race relations for decades now.


The study is Bar-Haim, Y., Ziv, T., Lamy, D., Hodes, R.M. (2006). "Nature and nurture in own-race face processing." Psychological Science, Vol. 17, 159-163.

The Cynic In Me

Texas' highest court has ruled 5-4 to drop the conspiracy charges against former House Majority Leader Rep. Tom DeLay (R-TX). The cynic in me wishes to know the partisan breakdown of those nine judges.

But it is water under the bridge now. DeLay still faces two more counts that the courts appear to be letting go to trial. Here's hoping that Ronnie Earle can make his case, and DeLay enjoys some quality time in a Texas jail cell.

Tuesday, June 26, 2007

Won't Somebody Think of the Children!

They treat us like idiots and then expect us to learn. This, in a nutshell, is the paradox of the modern American educational system.

I've thus far refrained from commenting on the quartet of 5-4 Supreme Court decisions released yesterday. This is primarily due to my desire to save my energy for when the Seattle and Louisville desegregation cases come down, because I imagine it will be soon and I imagine they will piss me off to high heaven. The Hein case appears to be completely incoherent--two people in my constitutional law seminar wrote their papers on this case, and both appeared completely flummoxed as to how the court could rule the way it did (at least without overturning Flast).

But the big daddy, of course, was Morse v. Fredrick--the infamous "BONG HiTS FOR JESUS" case. The annals of American law are littered with the graves of constitutional clauses unceremoniously sacrificed upon the altar of the drug war, and this case appears to fall well within that tradition. As Jonathan Simon puts it, "Morse is ultimately as much a case about the level of official hysteria about drugs (and especially marijuana) in America, as it is about any particular clause of the constitution."

"BONG HiTS FOR JESUS" is a gibberish phrase. It takes a special kind of contortion to argue that this "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug.'" I mean, I guess it could be, but I'm sticking with my original instinct that it is gibberish. Outside of statements that directly threaten the safety or equal standing of fellow students, I think high schoolers should have wide latitude to express opinions--sensible or no.

Scott Lemieux is relieved that what appears to be the controlling opinion limits the case as "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." I'm less sanguine--I think this is cover so that Alito can strike down school action against rabidly anti-gay speech in schools (you know, like he already did). The irony is that the argument really doesn't work that well to distinguish the two cases, but that's not going to matter because I don't think it's a principled distinction. This is something that does get me riled. Marijuana usage, medically speaking, just isn't that damaging to the health or safety of high school students. It's not benign, of course, but the hysteria we've surrounded it with through the drug war, in addition to having more than a whiff of racism to it, has blown it up beyond the realm of scientific or moral coherency. The hypothetical threat posed by "BONG HiTS FOR JESUS"--an attenuated sequence by which students who weren't otherwise inclined to take drugs would see the sign as advocacy and be persuaded (by the cutting argumentation, no doubt) to become stoners is far more remote than the risk to gay students presented by anti-homosexual slurs and posters in schools with a history of anti-gay rhetoric (and violence). That I am quite confident this hierarchy will be inverted is due to an irrational and toxic mix of war on drugs hysterics and homophobic prejudice that will henceforth be the law of first amendment land.

Oh, and before I forget, after reading this from Chief Justice Roberts:
Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important— indeed, perhaps compelling” interest....

I am going to flip out if he then says that diversity does not meet that threshold.

Monday, June 25, 2007

Where Do You Stand?

I really liked this post asking of leftist/socialist commentators on Israel to be more forthright on where they really stand on the issue--and exploring the implications of what a "one-state solution" would mean for Middle Eastern Jews:
My starting point is this.

All democrats - whether liberals or socialists - should support any democratic movement for national self-determination: including both Palestinian arab and Israeli jews.

I've got no real objection to people who believe that it would be best if one day, all states were to melt away. That is a matter of theology. But there are good reasons that nation states exist at the moment: in particular, that they are an effective device for securing the wellbeing of regional minorities.

Just as any supporter of Israel should be asked to make it clear whether they support a viable self governing Palestinian state, and oppose its destruction; any supporter of Palestinian self-determination should be asked to make it clear whether they support a viable self governing Israeli state, and oppose its destruction.

The coalitions which are behind much of British pro-Palestinian politics are led by political parties, campaigns and individuals, many of which seek the destruction of the State of Israel.

They do so explicitly, by calling for a single state. They do so implicitly by calling for the right, not of compensation, but of "return" of the descendants all all those who left Israel in 1948, with no thought to the position of the descendents in Israel of the refugees from tyrannical and hostile Arab states. Increasingly, many also openly ally themselves with Hamas which unapologetically promotes genocide of jews.

The coalitions and advocacy organisations which are active in Left politics at the moment at times seem to shy away from making it clear what, exactly, they would like to see happen in the Middle East. I would like them to spell it out.

Will supporters of boycotts, speaking tours, and trade union motions tell me: are you an advocate of a single state, and of the imposition by force of a Hamas or Arab nationalist government on the regional minority of jews? Or are you opposed to such a solution?

As far as I can tell, the Socialist Workers' Party and many of the other leading campaigners on the issue of Palestine are in favour of precisely that. I might have misunderstood them. If that is not where they stand, and they have some other plausible vision of what the triumph of their politics would mean, I would like to hear it.

What, exactly, are you campaigning for?

Wouldn't it be better if, instead of motions about the "occupation" (Of the West Bank? Or from the "Jordan to the Sea"?) and "the right of return of the 1948 refugees (and their descendents)", they just said:

"Yes, we are in favour of the replacement of Israel and Palestine with a single state, ruled by a Palestinian regional majority. If that means the Hamas or the al Aqsa Martyrs Brigade is left with a free hand to deal with the jews, then that is what must happen. You can't make an omlette without breaking eggs. Remember: the jews are colonisers of Arab lands, and we must offer unconditional support the liberation struggle of Palestinian people, by whatever means they find necessary, to secure such ends."

If it was clear that this is what the campaigners around the issue of Palestine were aiming for, wouldn't that be much better? We would all know where we stood.

I want to say that "starting point" is worth stressing on both ends. The post focuses on the position of leftists who want to see Israel wiped off the map. But I have no common cause with right-wing "pro-Israel" (in quotes because I don't think keeping Israel in a perpetual state of anti-democratic dominance and cataclysmic conflict with its neighbors is by any stretch "pro-Israel") speakers who are unwilling to demand that Palestinians deserve a state, full, equal, and sovereign, to live side-by-side with Israel. Such a demand does not absolve such a state from its obligations to live peacefully with its neighbors--but responsible state behavior has as a pre-requisite the existence of a state. Israel, as Tom Friedman long ago noted, can be Jewish, democratic, and in control "from the sea to the river"--pick two. The former two are far more important to me than the last. Or perhaps my nominal "friends" on the right would like to inform me as to which of the first two they would jettison?

But that point exists in common with the focus of the post. The abolishment of Israel--however it is phrased--would do critical damage to the well-being and safety of Jews. If we're very lucky, it won't lead to a genocide. However, I think its advocates are far too sanguine at playing dice with Jewish lives. When its your life at stake, you can roll the dice; until then, Jews have a right to some measure of control over their own bodies. "We cannot live without our lives," to quote Barbara Deming. And even if genocide didn't occur, a binational state with Jews as the minority would almost definitely deprive Jews of the unconditional protection of the country, which is something I think we can legitimately demand of the world community today. Israel may have been justified in 1947 because of the Holocaust, but if Israel had already existed in 1933 there wouldn't have been a Holocaust in the first place. And definitionally, such a state would mean the end of a "Jewish" state. The post author is right: states can serve as very important protectors of regional minorities. Jews should not have to be perpetual minorities. There is room, in this big wide world, for a place where Jews are not dependent on and subservient to someone else. We have the right to a place where are the norm, and not the margin. We have a right to be the center somewhere.

And, in different form, Palestinians have the same rights. Such is the demands of democratic nationalism. And so it is that one-staters--on either side, for whatever reason, have the fundamentally wrong idea. They show insufficient respect for the bodies of both Jews and Palestinians. And as such, they are playing dice with the lives of people who have bled for too long.