No-one should be surprised by the grumbling on the Left about the Supreme Court’s decision on racial discrimination, for reasons that hardly need enumeration here. In broaching the subject at all I am on thin ice, as a white male: a member of a morally stunted, congenitally tainted group that is deemed in many circles utterly disqualified from discussions of prejudice, inequality, and so on. But, if I may press on anyway, and act the provocateur to my many friends on the sinistral side of the aisle, the decision is correct. Here’s why; it’s really quite simple, as Chief Justice Roberts and the concurring justices understood.

First, here is an excerpt from Chief Justice Roberts’s majority opinion:

The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no state has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

There is no ambiguity in that statement. And it was that position that prevailed in this court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

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,” 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 way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Indeed, what could be clearer? How can we ever move beyond racism when it is written into public policy? Certainly there are children languishing in inferior schools, and a healthy society must care about them — not out of paternalism, or pity, but because it is in the nation’s own vital interests to educate all of its children, as well as it possibly can; our society could make no sounder investment. But why should our efforts be focused on race, rather than need?

Second, it is only by abolishing the shuffling about of schoolchildren like little black and white pawns that we will ever force ourselves to focus on what we ought to be doing, which is to provide decent schooling for every child, wherever they may live.

But before we can make any real progress, we must first genuinely commit ourselves to the idea, so important to Martin Luther King himself (who I wish were alive today to comment on this ruling) that we simply should not engage in legal, social, or political discrimination, for either the best or the worst motives, based on the color of a person’s skin. We can — we must — do better than that, and it’s time we got on with it.

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  1. Jesse Kaplan says

    I will not say much at this point.

    First, an aside: your penultimate paragraph (“Second, …) represents debatable opinion, not sound logic.

    Second, as I told you privately, I can walk outside my door and see the effects of a kind of housing segregation practice that was legally abolished in 1964 — and I live 2,000 miles from The South.

    Third, Brown’s progeny were certainly remedial. The politics/timing of Brown were debated mainly on that ground, not for what it said. Note the lag from 1954 to the 1960s. I have an obscure book that reflects what happened behind the scenes at the Supreme Court, With All Deliberate Speed, The Life of Philip Elman, (an oral history by him, where the author may be credited as being Norman Silber — I’m sorry; I don’t know how to work italics or underlining into this). Elman played a critical role in finding a palatable route for Brown (hence the title), but probably any biography of Thurgood Marshall or story of the NAACP Legal Defense Fund would explain the strategizing from the other side.

    Fourth, the real issues today are the gulf between middle-class blacks and those still left behind, and the similar widening socio-economic gulf in the rest of American society, as well. I think you rightly identify a tension between one American value of non-discrimination and another of equal opportunity. I’m not sure yet to what extent useful tools for addressing these issues are being lost by weighting up one rather than another in these two school district cases.

    Posted June 30, 2007 at 12:52 pm | Permalink
  2. Malcolm says

    Hi Jess, and thanks for weighing in; I had hoped you might.

    Indeed you are right: my second-to-last paragraph (like the rest of the post, and indeed most of what appears on these pages) is an opinion, rather than a logically proven theorem. Few matters of social policy, if any, are amenable to that sort of formal rigor, and even the rulings of the Court are referred to as “opinions”, so it will have to do. I do think that when one approach is being taken to a problem, it tends to suppress the implementation of alternatives, and that once busing is off the table, it will increase the likelihood of shifting the focus to addressing the problems of the schools and communities themselves, rather than just shuffling kids out of there.

    While de facto discrimination may linger, as you observe, that is no argument for discrimination on the basis of pigmentation to be codified in public policy.

    I’m not sure I understand what the point of your third paragraph is; can you clarify it for us? Are you are suggesting an end-justifies-the-means rationale for race-based affirmative action? Again, why must it be based on skin color, and not need?

    I didn’t think I was identifying a tension between non-discrimination and equality of opportunity; to the contrary, one would expect that the greatest equality of opportunity should be found in the society that discriminates the least. As I suggested in my post, if we avoid discrimination, both negative and affirmative, then we will be able to focus more clearly on the root causes of inequality of opportunity, and address them more directly.

    Above all, as we have discussed privately, the point is that we ought to be consistent in our core values. If we wish to end racism, then we ought not to be practicing it in our civic policies.

    Finally, to use italics, etc., click the button that says “Show QuickTags”. If you then highlight a word or phrase, and click the “em” button, that bit of text will appear in italics when you submit the comment.

    Posted June 30, 2007 at 9:56 pm | Permalink