The Moment of Truth — June 30, 2007

Stick A Fork In And Overturn Me, I’m Brown

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The decision of five Supreme Court judges to effectively overturn Brown v. Board of Education is a cautionary tale. It ought to caution us to think like Hollywood studios, who refer in their farsighted contracts to technologies yet to be invented and conditions “in perpetuity throughout the universe.” Here’s a telling passage from a New York Times article on the reasoning behind the June 28, 2007 decision:

In an unusual effort to cement his interpretation of Brown, [Chief Justice Roberts] quoted from the transcript of the 1952 argument in the case.

“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “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.”

Chief Justice Roberts added … “There is no ambiguity in that statement.”

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use it now.”

What I would say to Judge Carter is, “Be careful what you wish for, or what you dare not wish for.” But how could Judge Carter have known, way back then, the utopia we would come to inhabit today in which the American discourse about race has advanced so far that the word racism has come to mean any spacetime event in which skin-color or ethnicity is referred to, invoked, indicated, interpolated, implied, inferred, sullied, praised, extrapolated, annotated, connoted, denoted, lionized, bowdlerized, pondered, considered, examined, whispered of, slobbered over, pined for, idealized, derogated, relegated, ignored, noticed, impeached, bewitched, bothered, folded, spindled, or mutilated?

But had Carter said no state shall use race as a factor in disaffording educational opportunities, would that have made any difference to Chief Justice Roberts?

I don’t think so. He would just have had to look elsewhere for a statement to twist to his own purposes. As it was, he had to look outside the Supreme Court’s opinion itself.

Chief Justice Warren, from the Brown opinion:

“In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

“… [Education] is a right which must be made available to all on equal terms… We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

Just a side note to counter a misconception on the part of judge Clarence Thomas, who said regarding a 1995 case, Missouri v Jenkins, when he was discussing the reasoning behind the Brown decision: “Segregation was not unconstitutional because it might have caused psychological feelings of inferiority.”

That’s wrong. That’s the opposite of true. Thomas might as well have said that laws against murder have nothing to do with the death of the victim. Again I quote from the Warren opinion where he sites an earlier case involving a law school in which “qualities which are incapable of objective measurement” were to be considered: “Such considerations apply with added force to children in grade and high schools,” Warren said in the Brown opinion. “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Segregation was indeed unconstitutional because of psychological harm, since psychological harm, while “incapable of objective measurement,” was a cited unacceptable inequality resulting from separate institutions. It’s not surprising that Clarence Thompson didn’t understand this, since he generally sits far away from the other justices, who are white, off by himself, and can’t participate as an equal in discussions during which such understanding might be nurtured. He feels inferior, and reasons accordingly.

The basic idea behind Brown was that divvying up educational opportunities, and shortchanging some people because they were black, was unconstitutional because of the social, economic and psychological effects such unequal divvying had on those shortchanged. It was not based on some abstract automatic principle by which the consideration of race was to be forbidden, regardless of context, even when redressing an injustice.

Roberts’ decision to look for a statement supporting his portrayal of the Brown decision as some kind of advocacy of social colorblindness is mistaken at best, deceitful at worst. I tend to think of Roberts as a deceitful person, since it’s unlikely he would look away from the opinion itself to the lawyers’ arguments if he weren’t fishing for some way to disguise his hostility toward Brown as somehow being true to the spirit of Brown.

How does a person with a law degree, let alone five such persons, come to the conclusion that counteracting racial discrimination should be done without taking race into account? What would that even mean? How is that even possible?

Here’s what a world according to Roberts would look like:

PLAINTIFF: I’d like to file a complaint against a realtor who wouldn’t show me a home in a particular neighborhood because I’m black.

LAWYER: That’s terrible. Of course, we can’t refer to the fact that you’re black in the complaint.

PLAINTIFF: So… what do we say?

LAWYER: We say you were a victim of racial discrimination. We just can’t take your race into account.

PLAINTIFF: How is that going to work exactly?

LAWYER: Well, if it goes to court, you’ll stand in front of the colorblind judge, and he or she will ask you to explain what happened.

PLAINTIFF: And I’ll say, “The realtor steered me away from a particular neighborhood because of my race.”

LAWYER: No, you won’t, because the judge would take one look at you and wouldn’t know what you were talking about.


LAWYER: Judges are colorblind. I would advise you to say you were steered away from a particular neighborhood because you’re a lazy, shiftless poor person who breeds like rabbits.

PLAINTIFF: But I’m not any of those things.

LAWYER: Too bad. It’s illegal to discriminate on the basis of those things. Except being poor. It’s okay to discriminate against poor people till the cows come home. And the cows never do come home. The chickens sometimes come home, but the cows went out to buy cigarettes years ago and haven’t been seen since. In any case, your laziness, shiftlessness, and rabbit-like breeding habits should not be factors in where you are encouraged to buy a home.

PLAINTIFF: Look, I was discouraged from buying a home in a predominantly white neighborhood–

LAWYER: Predominantly what? There are no white or black neighborhoods, just neighborhoods. Now, there are some neighborhoods where they don’t want lazy, shiftless–

PLAINTIFF: All right, enough of that. Look, maybe the realtor stereotyped me as having undesirable qualities because I’m black.

LAWYER: You’re what? What’s black? What’s white? What are these things you humans speak of? Does not compute, does not compute. You have got to figure out a way of describing how you were racially discriminated against without bringing race into it.

PLAINTIFF: I don’t think that’s possible.

LAWYER: Are you implying that the man is keeping you down? Sounds like reverse racism to me.

PLAINTIFF: What’s that?

LAWYER: I don’t think we have words or thoughts to describe it anymore. Perhaps we once did. I don’t know, it’s all lost in the mists of the past.

I’d just like to conclude with the statement that nothing makes citizens more unequal under the law than their relative wealth. If the Fourteenth Amendment were really to be enforced, it would require either a more equitable distribution of wealth, or an owning class willing to pay for the public services necessary to provide equal protection for all.

Either way, here in Chicago, where I live, Brown has failed to bring desegregation. After half a century, the schools are not only separate, they are also unequal. Three hundred or so years of extreme, institutionalized racial inequality were not about to be remedied in half a century solely through the public school system, anyway, especially with the rest of society busily maintaining and exacerbating economic inequality.

Widening the gulf between the mega-wealthy and the rest of us does one important thing regarding education: it makes public resources scarce. So when we see a school district under-funded, we’re sure as hell not going to give up any of our own scarce resources to make up for the more severe scarcity in our neighbors’ coffers.

How did the richest country in the history of the world become a place where the public feels legitimately threatened with impoverishment? The cartoonist Walt Kelly once put the following words in the mouth of a pig who was a caricature of Nikita Kruschev: “The shortage shall be divided amongst the peasants.”

This Supreme Court has been brought to you by the same president who gave three trillion dollars in budget surplus away to his mega-wealthy friends, and has done everything possible to make sure a smaller and smaller shortage is divided amongst a larger and larger population of peasants.

What does the constitution say about discriminating according to levels of intelligence? Can we do that? Can we say that everyone stupid enough to have voted for Bush in 2004 is disqualified from voting in the next election?

I think it would pass the constitutional test. Ivy League universities discriminate on the basis of intelligence all the time. Of course, regardless of how dumb you are, if you’ve got enough money, you can get in anywhere. Or at least into Yale.

This has been the Moment of Truth. Good day!