Breaking: Voluntary Desegregation Held Unconstitutional
I’ll be moving this post to the top as I write more on the subject
***
7:30 Eastern Reaction to Justice Thomas’ concurrence–where’s the originalism?
6:21 Eastern: My thoughts on Breyer’s dissent–it long, it’s well-written, and it’s a doozy.
3:30 Eastern: Blog and media round-up is live.
2:28 Eastern: I just want to report that I’m going to be taking a break from opinion-reading to do a round-up post of blog and media reactions. That’s coming next, after which I plan to read Breyer’s dissent, followed by Thomas’ concurrence. It’s possible that after that, I’ll write a finally wrap-up post with my concluding thoughts–though I may be too burned out to do it at that point.
2:21 Eastern: Chief Justice Roberts’ opinion–”wrote for the quote.”
12:46 Eastern: Justice Stevens’ dissent–last rites for the Warren consensus.
12:20 Eastern: Excerpts and commentary on Justice Kennedy’s controlling opinion. It’s actually not bad–I was impressed, and I wasn’t expecting to be impressed by Kennedy on this case.
***
5-4, Roberts writing, Kennedy and Thomas concurring, Breyer and Stevens dissenting. I’ll be posting throughout the day. These posts will likely include a lot of swearing. You’ve been warned.
The opinions are here. Kennedy’s concurrence is controlling, and it is very narrow, and holds that the use of race-conscious remedies to secure diverse schooling may be constitutional (he even gives a list of programs). We may have dodged a bullet.
opinions powered by SendLove.to
62 Responses to “Breaking: Voluntary Desegregation Held Unconstitutional”
and why are all my quotes in big bold text? I don’t mean them to be, sorry.
If you bothered to read what I wrote before commenting on it, Kevin, you would have noticed that I advocate a public school choice system that in effect abolishes district lines entirely.
Orson (45) I don’t think it’s about legislating morality, I think it about legislating opportunity.
I’ve been thinking about the differences in my reaction to this ruling and that of the “fairness doctrine”.
Education IS our opportunity. The choices that are made for us from our earliest age to a large extent dictate the choices available to us when we are adults.
If someone were to suggest that we solve discrimination by giving money and jobs to blacks and other minorities until they were equal with whites I would disagree heavily. That is trying to legislate outcomes.
What I want is that once a child develops the ability to choose for themselves, that they are on roughly equal footing with their peers.
Segregated schools do not allow for this type of equality.
That was for MvdG, not you, but ok…
I agree with you in principal, but I think that unless distance related costs are neutralized, this still encourages de facto segregation, and if they are neutralized, things quickly become unreasonable. What if I wanted my child to attend a public school 400 miles away? Would the district need to provide free housing for the child? This is another example of how choice, while important, cannot trump everything else.
The challenged system seemed like a fairly reasonable compromise between all of these compelling extremes. I think in this ruling the SCOTUS has shown a preference of ideology over practicality.
Kevin wrote: “Jason, there are 3 competing needs here that need to be met: equality, integration, and personal choice. ”
Maybe that is part of why we are having this discussion. Those of us who believe that we are speaking of equal opportunity, rather than equal results in life, are obviously at odds with those who believe that equal outcomes are attainable and enforcible. The right to pursue happiness is not the same as the guarantee of happiness.
So far, I have seen few real-life examples of absolute equality in the world. It is not the natural state of affairs. Some of us are talented on one way, some in others. Some of us are more ambitious and work harder than others. All of us make choices which will have a bearing on how well we succeed at anything – sports, employment, family relations, and yes, making a living. Some of us are willing to work harder, and defer personal gratification. They tend to make more money than those of us who play more and work less.
I think this comes back to David’s earlier outrage at segregated communities. About this time last year, (summer) there was quite a bit of discussion about the former UN ambassador who was a spokesman for Walmart. He said (paraphrase) that he hoped the big store would put little Korean-immigrant owned stores in African American neighborhoods out of business, because the little stores over-charged Blacks. Now here’s the thing: Why aren’t more African Americans willing to be entrepreneurs and start small stores? The Koreans just want to make money, and are willing to work hard to do it. Not having enough money to start a big store in a rich neighborhood, they scrape up enough to start a small store in a poor neighborhood. Is the difference racial? I doubt it. I think culture may have a lot more to do with why the Koreans are succeeding. I don’t believe that I have a right, or an obligation to force someone else to adopt my culture. But I will say this – if material success is the desired end, then hard work, willingness to defer personal gratification, and a long-range view is going to have to be a central element in one’s life. Those who chose to do that may succeed. There is no guarantee, of course, but the probability is greater. Those who wait for success to come to them will fail.
The challenge I would offer is not how do we racially integrate neighborhoods and schools, but how do we encourage all individuals to participate and succeed in society? How can we encourage more Blacks and American Indians to find ways to succeed in the larger economy the way Asians are succeeding? I think that is a much more compelling need than worrying about what school in Seattle has what percentage of Asian vs. African Americans vs. Hispanics vs Anglos. My opinion and a buck buys you a cup of coffee (but not at Seattle’s imperial force, aka Starbucks).
Jason: How do you “tiebreak” for oversubscribed schools then? What you’re describing is thus far perfectly consistent with the Seattle plan, which didn’t have district boundaries, was “choice-first”, and only used race as a (second) tiebreaker when a school was oversubscribed and racially imbalanced.
MvdG: It takes a special type of arrogance to tell me that Courts are striking against activism by overturning precedent to strike down laws passed through the democratic process with the overwhelming support of both Black and White parents. Progressives won through the democratic process–and now you turn around and say “let the Courts decide” while still lecturing about judicial restraint? It’s mind-boggling.
Orson: Racial diversity is not the paramount value (I don’t believe in paramount values). It is a very important value which exercises significant weight against other, competing values. It can be outweighed (as I’d agreed that forced re-settlement would be a case of). But cutting it out of the equation entirely is severely inappropriate. I’ve read the constitution, cases, and commentary, and I feel very comfortable about my interpretation here. And I reject the notion that saying something is racist ends discussion. I specifically said that one can make the argument that “I’m willing to allow racist hierarchy to remain, because other things are more important”, so long as you’re explicit about it. That’s an interesting discussion. But what you want is a free pass–you want to be able to take any position on race you want with a guarantee that I’ll never think its racist. It’s discursive gerrymandering, and I can’t do it. If I have a colorable argument for why a given position is racist, then you have to either a) beat it b) concede it but outweigh it, or c) change the position. But trying to narrow the definitional boundaries of racism just because you’re embarrassed to find yourself within them is absurdism. Change the position, not the word.
Lots of people: Choice is not a factor. We force people to go to schools. We don’t force them to become Christian. We force people to pay taxes. We don’t force them to give to charity. And in this case, its primarily about mediating between competing choices, one of which has to be deprived. The question isn’t about who is pro-choice or not. Each of us agrees that there are things that the government can force us to do, and things it can’t, and the only question is which side of the line this falls on.
This is my massive pet peeve. You can’t tell me “you reject choice on integration so ergo you want to eliminate choice in every aspect of life GAAAH!!!” when you also agree that there are things people shouldn’t be allowed to choose. I’m going to jump out my window if another person makes such blatantly non-unique arguments.
Orson, I’m assuming you have read my comment # 43 yet? I’m sure that post took more than 14 minutes to write…
But just to reiterate, I agree we should try and legislate outcomes, but rather opportunity. However, I guess where we differ is that I want to legislate adult opportunity. That is why I think education is a special case.
Q:
A: education
wow, that was bad typo, lets try that again
But just to reiterate, I agree we should not try and legislate outcomes, but rather opportunity. However, I guess where we differ is that I want to legislate adult opportunity. That is why I think education is a special case.
Kevin (53) – I see we are writing at similar purposes and times. I think we may be closer to agreement than you might think. I agree with you that education is an essential component in opportunity. I also think cultural matters can be important contributing aspects of success. Where I disagree with you is when the government starts trying to mandate where you send your child to school.
Ironically, here is one of President Bush’s ideas, which has been hammered repeatedly. No Child Left Behind is an attempt to do what you are talking about – give every child, at every school, a quality education. It isn’t working. But I feel that this is at least a preferable attempt to fix the problem than government mandated racially based school integration.
Personally, I think Jason Steck has a good point. Let’s be a bit more flexible about school district boundaries, and let parents figure out where they want their children to go. Let’s try to get better teachers, better books and materials into the schools. But let’s also consider breaking the public school monopoly. Vouchers look good to me. Now, I am a graduate of public schools, and public universities. I think I got as good an education there as my friend who went to a Catholic school, or a friend who wen to a private liberal arts college. I think I got a better value for my money and my parents money than my friends. But the decision was each family’s to make, not the government. Which brings me back to my earlier post a few minutes ago. Culturally, some groups are very supportive of education, and instill a strong work ethic. Others seem to have a larger number of people who feel that this is an attack on their culture. I repeat – I do not want to tell you or anyone else what to value culturally. But persons who choose to avoid obtaining the educational background to successfully compete in the larger economy, will be doomed to poverty. I think we have an obligation to give people an opportunity to obtain a good education. That will also require improving discipline in the schools. That’s its own subject, and I don’t want to take the thread off in that direction.
I actually think No child left behind is just about the only good thing Bush has done. I don’t think it is perfect, but I do think it was an improvement.
Ironically, the programs struck down basically did what Jason wants. It grouped a bunch of districts together and let people choose which schools to go to. The question becomes what to do when one school has 125% demand and another school has 75% demand. We could just randomly pick the ‘winners’ and give them their choice, throwing the rest into the other school.
This is fair, but a more intelligent way to do it is to say. “We know we want to provide for integrated schools because we believe it to be a fundamental good for all of us” (which is the major finding of Brown) so we will force our ‘randomness’ to balance for race within a wide margin. Both situations produce nearly identical %’s of choice. The only thing the school must change now is it’s use of race, not any of it’s other practices. I suspect they will simply move to a random lottery system, which will lead to the same situation 95% of the time, and those other 5% will have identical levels of choice, but lower levels of integration. That seems like a tie vs loose situation to me. Indeed, I don’t think greater levels of choice are even possible. You can’t make everyone happy all of the time; 80% is probably just about as good as your going to get.
Vouchers are a separate issue. We probably shouldn’t get into it, but I like charter schools more than vouchers because vouchers usually can’t cover the entire cost of education, leading to class segregation.
Back to the main point: If you agree that “education is an essential component in opportunity.” Then why can’t legislation mandate equal education. Again from Brown:
Unless you try and refute Brown and say that separate can be equal, which no-one has been willing to do directly, then it follows to that ensure equal education-based opportunity we must ensure integrated schools.
I say we leave the final word to ‘umble ‘arry……..
“The Supreme Court decision in the school desegregation cases is appalling. …………the Constitution requires racially mixed schools………….If this isn’t judicial activism, I don’t know what is.” – Senate Majority Leader Harry Reid, D-Nev.
p.s. well, let’s never accuse Harry of being in the strict contructionist camp
“Progressives won through the democratic process–and now you turn around and say “let the Courts decide†while still lecturing about judicial restraint? It’s mind-boggling.”
Really? When did you change the constitution in this regard?