Race(ing) Backwards With Boost From SCOTUS

June 28th, 2007

By Rowan Wolf

Well, SCOTUS (Supreme Court of the United States) has dealt yet another “conservative” blow to the nation. This time by essentially overturning Brown vs the Board of Education. Schools are still expected to achieve racial “diversity.” However, accomplishing racial integration is very difficult if it is unconstitutional to use race as a criteria. Justice Roberts argument was:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (NY Times, 6/28/07)

University of Alabama Students burn desegregation literature, 1956. - Image courtesy of Library of Congress
Roberts’ statement is a tautological argument that is based on a false premise - that race would not be an issue if we did not attempt struggle against institutionalized racism. His quote is reflective of the bumper sticker political analysis which has become all too familiar. However, the assumption of a color blind society, which is enforcing discrimination through attempts at racial integration, is faulty to the point of criminality.

What the Bush administration, “conservatives,” and now Bush’s Court, are attempting is the elimination of civil rights and affirmative action advancements over the last 50 years. Why? Is it because they do not want a society with increasing levels of equality and participation? Do they want a society of peasants and patricians? Do they oppose a representative democracy, but support a feudal government run by a monied (white) elite?

Roberts’ trite argument plays well to the mythology of race and privilege in the United States. The rhetoric - particularly now - is that everyone in the U.S. is equal, and there is no structured inequality. Race is a non-issue which we dealt with long ago. Race-based policies and considerations are not “fair” to whites, and place whites at a disadvantage. This is sometimes ridiculously referred to as “reverse” discrimination. Of course there is no acknowledgment that without the body of legislation and policy under the umbrella of “affirmative action,” whites could not argue they had been discriminated against. The legislation refers to “race” - not as confined to people of color, but also to whites.

The often posed solution is to use socioeconomic status, rather than race, as a basis for social policy and integration. The argument is that class is the only real divider after all. Unfortunately, that is a false argument.

There is no proxy for race in the United States. Race is its own system of inequality, though it is certainly reinforced by social class. That reinforcement is not accidental - but structured into social policy. Social policy is, after all, a form of social engineering.

The United States started out with the restriction of citizenship to whites. At that time citizenship carried with it the right to own property, to testify in court, to access public education and public services - and eventually - the right to vote. These privileges of citizenship were granted largely on the basis of race - not social class. However, they certainly had (and continue to have) social class implications. These policies gave whites a social class advantage which was passed down from generation to generation. It facilitated an opportunity path for whites that did not exist (or was significantly restricted) for those who were deemed “not white.”

The institutionalization of race, and race separate policies, continued for more than two centuries, and they continue today. Unimaginably, we are still fighting voting rights and gerrymandering based on race in 2007 (among a myriad of other race-based disparate impacts). Are the images of who was left to drown or starve during Hurricane Katrina so easily forgotten? At that time racial disparity stood clearly in front of the eyes of every person who turned on a television. Also remember, that very quickly the interpretation was put forward that this was not about “race,” but social class. The dominant white population is much more comfortable talking about social class (which is largely perceived as an “individual” issue) than about race - where we must examine the costs of racial privilege.

Race and social class intertwine, they are not the same. While there are more poor who are white than any other racial group, whites are disproportionately under represented in the ranks of the poor. Whites are also dramatically over represented in the ranks of the middle class, and even more so in the upper class. This is largely due to race based policies that subsidized the accumulation of wealth (most significantly with home ownership) for whites, while denying that access to those who were not white.

So what does all of this have to do with the Supreme Court ruling regarding education? Education is strongly related to people’s ability to participate and advance in the social class environment in the US (though this is changing). Without equal access to education the doors of social class mobility once more start to close. Brown vs Board of Education ruled that there was no legality or validity to “separate but equal.” The decision to desegregate public education was not to make a more “diverse” environment, but to equalize the playing field for social class participation.

There has been a terrible transformation in education systems’ arguments about the importance of racial and cultural diversity to education. While those arguments are valid, it is not why we integrated schools. Diversity in education (race, culture, age, class, sex, sexual orientation, religion, etc) is tremendously valuable for all kinds of reasons, Brown was not about the value of diversity. It was about addressing institutionalized inequality based on race.

That fundamental inequality based on race has not been resolved. Look at test scores, high school completion rates, college entrance and graduation rates or even the status and reputation of different school districts. All show there are significant racial divides. Racial integration is not a relic of some bygone day. In our schools; in our neighborhoods; in our health and infant mortality; in the work force; race still stands as hugely significant to social and personal outcomes.

Contrary to the rhetorical argument put forward by Roberts, the promoter of discrimination is not efforts to have schools that mirror the racial demographics of their districts and population. The discrimination happens at virtually every level of social interaction and organization. It is reinforced by racial segregation which fosters the mythology of stereotypes, and the reality of disparate economic opportunity. Education (and not simply K-12 education) is an important component of social maintenance and change. Race and social class inequality are principal among the systems being maintained or changed.

The most common example of past in present discrimination is: segregated neighborhoods lead to segregated schools lead to segregated job opportunities. We have done a rather pathetic job of changing housing segregation (both in terms of race and class) which is why integration in education becomes monumentally important.

The 5-4 decision by the Roberts court reversed the decisions of two appellate courts. It has also virtually reversed Brown vs the Board of Education -one of the most important court decisions impacting racial equality in the United States.

One might wonder what happened to both Roberts’ and Alito’s highly touted respect for stare decisis - legal precedent (see end notes). Justice Breyer issued a stinging rebuke which is pertinent and hopefully not prophetic: “It is not often in the law that so few have so quickly changed so much.” In regard to the importance of precedent, he stated: ““It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision..” This pretty much rules out any confusion over the context and intent of Brown v. Board of Education.

END NOTES
Supreme Court Cases involved: Tennessee Secondary School Athletic Association v. Brentwood Academy and Parents Involved in Community Schools v. Seattle School District No. 1 et al.

Voting in the majority: Alito, Kennedy, Roberts, Scalia, and Thomas.

Voting in the minority: Breyer, Ginsburg, Souter, and Stevens (NY Times

Text of the Court’s opinion - Justice Breyer’s dissent starts on page 109 of the 185 page opinion.

REGARDING stare decisis

From Day 2 of Roberts’ Confirmation Hearing in response to a question regarding Roberts agreed with the importance of stare decisis:

ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”

So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.

AND

ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”

So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.

AND particularly for the current decision:

ROBERTS: Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.

Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.

So it is clear that even at his confirmation hearing Roberts was aimed at “jolting the legal system” in relationship to Brown vs the Board of Education regardless of his support for stare decisis.

And from the Alito confirmation:

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system.

And it’s the principle that courts in general should follow their past precedents. And it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents.

Warren Court that Ruled on Brown - Library of Congress

Roberts Court 2006 - Wikipedia

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