How the NFL Was Integrated

Apparently, the NFL was integrated a year before Major League Baseball, when the LA Rams signed former UCLA college standouts Kenny Washington and Woodrow Strode. It's never had the same cultural resonance as Jackie Robinson breaking baseball's color barrier -- probably because the NFL wasn't that big a deal in the 1940s.

But there's also a key difference in the narrative. In baseball, Branch Rickey looms large, and he represents White America's favorite civil rights story: White people, more or less out of the goodness of their hearts, deciding of their own initiative to do the right thing.

Yet the story of the Rams is different. The team leadership had no real interest in integration. Rather:

The Rams had just moved to Los Angeles from Cleveland, after smelling dollar signs on the West Coast. They needed a home and wanted to play at the L.A. Coliseum. But the stadium was publicly funded — owned by taxpayers black and white alike — and black sportswriters in Los Angeles successfully hammered local officials into requiring the team to integrate if the Rams were to play there.

This is the story where Black political power and influence moves the needle -- a different story, one with much more in common with the Black Power tradition than the sometimes overly moralized normative civil rights story associated (a bit unfairly) with Martin Luther King. The NFL was integrated because Black people in Los Angeles had sufficient clout to force it to happen. This isn't to say that there were no White players who were receptive audiences -- I have no doubt that the community had at least some allies among White movers and shakers in LA. But the central part of the story isn't White people choosing to the right thing, it's Black people being in a position so that it didn't much matter if White people wanted to do the right thing or not.

Change Places!

Fascinating article on population shifts in Cleveland. Basically, it goes like this: Rust Belt cities have witnessed the hollowing out of the urban cores for decades now. This means that residential real estate in the city is dirt cheap. You know who loves cheap urban real estate? Young White people, who are flocking to the city as they can purchase houses at rock bottom prices that are very close to finally reflowering city neighborhoods.

Meanwhile, the collapse of the housing market in the suburbs has had its own effect on Black city residents -- they see this is their big shot to cash in on the American dream (nice house with a yard away from the city). So as we're seeing an influx of White couples into the city, we're seeing a transition of Black families out to the suburbs. The upshot? Far more integrated neighborhoods.

The Insular Cases

I just read an interesting empirical study on Jewish feelings of outsiderness in the United States.* The good news is that most Jews don't feel like outsiders in the United States. So yay for that! But the interesting part of the study, to me, was what accounted for the sentiment. In general, Jews who lived in areas with many other Jews and who had many Jewish friends and acquaintances were far more likely to say they felt included as Americans. By contrast, Jews who were more isolated from other Jews and had fewer Jewish contacts were more likely to feel that they were outsiders in America. Since most Jews live in areas with relatively large Jewish populations, that means most Jews feel relatively included in America.

To me, this finding is quite intuitive. But it does clash with a narrative some forward, that insularity and particularism amongst minority group "ghettoizes" them and prevents their integration into the American mainstream. It turns out that story seems to be wrong. Rather, when a member of a minority group has surrounding structures demonstrating the normalcy of their peers (that they're average, non-exceptional members of the community), it is likely to reinforce the message that there is no conflict between being a member of the minority group and being an American.

The upshot is pluralist. If what we're going for is a polity in which people of all backgrounds feel welcome and included as Americans, the right strategy isn't to try and breakdown particularistic group affiliations. Rather, these groups are essential to the mainstreaming process, because they promote feelings of normalcy and non-exceptionalism amongst the minority group, which in turn renders the surrounding culture less alienating.

* Becka A. Alper & Daniel V.A. Olson, Do Jews Feel Like Outsiders in America?: The Impact of Anti-Semitism, Friendships, and Religious Geography 50 J. Sci. Stud. Religion 822 (2011).

Mega Travel Roundup

I'm going to Maryland, and then to Illinois, and then to Minnesota, then back to Illinois, then to Nevada, then back to Illinois, then to New York! Yeaargh. (This is over the next month and a half, starting tomorrow).

* * *

Do teachers dislike creativity?

Poor Mitt Romney. Every time he has to converse with actual human beings, the threat of disaster looms.

Fascinating article about the Black QB at a private Virginia school that was founded as part of massive Southern resistance to school integration.

Jeffrey Goldberg explains why the support of Christian "Zionists" won't sustain an US-Israeli alliance in the event American Jews are permanently alienated from the Jewish state.

Israelis look on nervously as GOP candidates race to be further right-wing than the Israeli right.

Russell Simmons urges Americans of all stripes to protest Lowes' decision to give in to anti-Muslim bigotry and pull their advertising from "All-American Muslim". Also, Adam Serwer points out that the attack on shows like "All-American Muslim" demonstrates that -- shock of shock -- Islamophobes have a problem with Muslims, not "radical Muslims".

I hate having to link to Commentary, but there is a point that "Israel-firster" (used by some CAP folk as well as M.J. Rosenberg) has uncomfortable anti-Semitic overtones. Of course, this from the magazine that posted Jennifer Rubin's anti-Semitic article on why Jews dislike Palin, so, you know, pot and kettle (it only adds to the irony that Rubin herself has been at the forefront of attacking CAP).

Good post on False Dichotomies regarding how the nature of anti-Zionist rhetoric poisons any possibility of a one-state solution where Jewish citizens are viewed as equal. Simply put, if you view essentially all of Israel's Jews as colonialist Nazi interlopers, the odds that you're going to tolerate them wielding any sort of substantial political power or autonomy is relatively small. Which, come to think of it, characterizes a lot of anti-Zionist rhetoric towards Jews worldwide now.

Alabama discovers some foreigners aren't Latino -- indeed, some are executives at factories employing countless Alabamans -- panics about its anti-immigrant law.

Technical Error Roundup

This one might be a bit more haphazard than most, as it incorporates some election night celebration. As for the title, my laptop had its hard drive replaced, and in the middle of doing so my wireless card somehow snapped. So that has to get fixed too.

* * *

My comment to this post set of a twitter war between myself and the Republican Jewish Committee, centered around my observation that if disliking Bibi means hating Israel, then disliking Obama means hating America. Why do Republicans hate America so much, anyway?

Occupy movement inspires unions to get bolder.

Andre Berto is dropping his belt to pursue a rematch against Victor Ortiz, which may pave the way for a match between Randall Bailey (42-7, 36 KOs) and Carson Jones (32-8-2, 22 KOs) to claim the vacant belt. I like both guys, but I'm a particularly fervent Jones fan, so I approve. Bailey is average at best in all dimensions of the sport save one: concussive, brutal, devastating, one-punch power. So it should be good.

Though Blacks are far more likely to be imprisoned for it, it's White kids who actually are more likely to use drugs.

Mostly a good election night for Team Blue: Maine voters reinstated same-day voter registration, Ohio voters tossed Gov. John Kasich's (R) anti-union law, Mississippi(!) voters decisively rejected a "personhood amendment" that would declare life begins at conception, and won massive victories in most Kentucky statewide races as well as an Iowa State Senate election that preserves their control of the chamber. Also, one of the chief xenophobes in the Arizona State Senate, Senate President Russell Pearce, was successfully recalled by another (more moderate) Republican.

On the negative side, the Virginia state Senate will likely flip by an agonizingly small margin (86 votes in the pivotal race) and Mississippi approved a voter ID law (and elected a new GOP governor -- no shock there).

UPDATE: Another bit of good news: Dems have retaken the Wake County (NC) school board. That's a big deal: Wake County had been one of integration's few true success stories, and the GOP board that swept to power last cycle was looking to undo that.

A Success Story's Last Chapter?

Dana Goldstein reports on going-ons in Northern Virginia, where shifts in student population may cause district lines to be redrawn, moving a largely White and wealthy subdivision (Wakefield Chapter) from Annandale High School (49 percent low-income and about one-third Latino, 29 percent white, 23 percent Asian, and 15 percent black) to Woodson High School (Two-thirds white and 6 percent low-income).

The interesting part of the debate is how it is shaking out within Wakefield Chapter. Parents of younger students support the move, believing that their students will benefit from it. But parents of students already in Annandale High -- and those students itself -- are stridently opposing it, pointing out to the immense benefits they've received from attending a diverse (and academically very successful high school).

This decision has opened up an interesting rift in the neighborhood. Parents of younger kids --those currently attending whiter, wealthier elementary and middle schools--are in favor of the switch to Woodson. They assume that their own already-privileged children will get more out of a high school experience learning alongside similar peers. But current Annandale High students and parents who live in Wakefield Chapel oppose the move, saying Annandale's diversity, school spirit, and challenging curriculum have shaped their lives in positive ways. In an online petition, they also mention that Wakefield Chapel parents are active volunteers at Annandale, and that rezoning those families to another high school would negatively impact the entire Annandale student body, especially low-income kids whose own parents aren't able to get involved at school.

Dozens of Annandale High families are actively opposing this rezoning, even though current students would all be allowed to finish their high school careers at the school. These parents and teens believe that keeping Annadale integrated is the right civic decision, the best policy for future generations.

This tracks findings common amongst scholars who study integrated schools (something becoming rarer and rarer as resegregation accelerates) -- products of these schools are consistently laudatory of their experience and how it helped enable them to be at ease in multi-racial settings (or where they themselves are in the minority), preparing them for an increasingly globalized and multi-cultural workforce. The major blight on such schools was that minority students were dispirited by the contrast between their integrated educational lives and their lives outside the school doors which remained largely separate and unequal.

Civil Rights Roundup: 07/21/08

Your daily dose of civil rights and related news

The Boston Globe has a report on Democratic efforts to find an "anti-Scalia." Could Massachusetts Governor Deval Patrick, a former bigwig in the Civil Rights division of the Justice Department, be that guy?

A dissident Catholic group claims it has ordained three women as priests.

I missed this while I was in NY, but Connecticut is likely to file suit to mandate that the VA allow voter registration drives.

The Washington Post reveals how nannies organized themselves to get the first housekeeper protection law in the nation passed in Montgomery County.

The Post also has an op-ed about "career academies", which have demonstrated some success in improving the job prospects (though not the academic performance) of at-risk youth. Jonathan Kozol, as I recall, was skeptical about this programs, as they essentially track these youth away from any chance at joining the nation's elite, thus perpetuating class divides.

The Arizona Republic has an interview with By Any Means Necessary (BAMN) on the Arizona affirmative action fight.

Local religious leaders are rallying behind a Massachusetts synagogue which was again hit by vandals.

The Orlando Sentinel urges Florida to stop withholding civil rights for ex-felons just because they can't pay restitution to their victims. After all, no civil rights often means no jobs, which means the victims will never get paid.

South Dakota gives doctors a script to read when talking to women considering an abortion. The script says that abortion "will terminate the life of a whole, separate, unique living human being," and "informs" the women that she possesses "an existing relationship" with the fetus that is protected by the U.S. Constitution, that "her existing constitutional rights with regards to that relationship will be terminated," and finally, (falsely) tells her that "abortion increases the risk of suicide ideation and suicide."

Lemons into lemonade: School districts around the country are looking for ways to integrate in the wake of the Supreme Court's decision last summer severely limiting voluntary desegregation plans.

New Orleans residents wonder if the air of police entitlement that allows them to violate citizens rights with impunity is the exception or the rule.

Finally, hip-hop star Usher is launching a voter registration drive in Georgia.

Ossining Public Schools

Dana Goldstein in the American Prospect has a great article on the efforts of Ossining Public Schools to reduce the performance gap between its White and minority students, in part through programs specifically targeted at Blacks, particularly Black men. Ossining is a rare school district that has a long outstanding commitment to racial integration -- one that recent Supreme Court decisions has threatened.

It's really a fantastic and fascinating piece. Go read.

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:

Media

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."

Blogs

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.

FireDogLake:

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)

Conclusion

"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)

Commentary

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.

Fuck.

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.

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.

Opinion Watch

In the wake of the Ledbetter decision, I can't really stand more bad Supreme Court news. But it always does seem to find me.

With yesterday's ruling, Supreme Court observer Aaron Streett relays the following information about the remaining decisions to be handed down this term: "With [Alito's] majority opinion in Ledbetter, only the racial-integration cases remain from December, with only the Chief left to write. Unless he lost his majority, this will likely be the most important opinion of [Roberts'] young career."

The cases, which I described as threatening the very heart of Brown v. Board itself, are likely to be razor-thin, and I have very little faith that Roberts will be on the right side of them. If Roberts' decides to use these opinions to craft some sort of conservative legacy for himself, we may be on the verge of witnessing the greatest legal setback for civil rights in the past 50 years.

I'm keeping my fingers crossed, but I'm not optimistic.