Parents Involved in Community Schools v. Seattle School District No. 1 (2007) is the new decision which modifies Brown v. Board (1954), our Statue of Liberty case which outlawed Jim Crow, starting with the public schools.
What it decided was that no longer was "separate but equal" equal, as Plessy v. Ferguson held in 1896, to the ringing dissent that the Constitution was supposed to be "colorblind," by Justice Harlan I (His grandson served the Court as II).
What it didn't decide was how you go about eliminating the equality. Originally it meant "forced busing" kids of both races (for desegregation purposes it was a bipolar white-black Manichean world). So kids were bused all over so they'd sit next to each other.
It wasn't so much that through some yet-to-be described method of osmosis the white and black kids would even out intellectually, but the thought that both sets could now recognize that neither was entitled to preferential treatment, neither could be relegated to second-class citizenship as a matter of legal principle, and most importantly, that school boards could no longer pour money into white schools and leave black schools to rot, that counted.
Brown forced schools to count pupils by race, which became interesting in districts where there were other than B & W, such as L.A. and San Francisco where you had Mexican, Chinese, Filipino, many Other, and all sorts of in-betweens because a lot of people like to get together when they grow up, pair off and have kids. This makes it hard to count by race.
When the principle of Brown is extended to other areas, such as jobs for cops and firemen, the whites become upset at racial preferences for blacks while the blacks become upset at the thought they got ahead not on merit but on account of race. Salt is rubbed in the wound when whites stigmatize high-achieving blacks by considering them 'affirmative action babies,' unqualified except they got there by virtue of race. Justice Clarence Thomas is a good example of someone who apparently feels victimized by this, accounting in fair measure for his stance on some racial issues.
So, the question is what do we mean by equality? Equal treatment for different 'races'? How do you accomplish that without being not colorblind?
Can you establish quotas for each race? [No. Bakke, Gratz/Grutter, Parents United]
What does that leave? Neither whites nor blacks are colorblind. Are the courts? Is the law? Those are composed and made by people, who aren't colorblind.
If you cannot consider race, how do you make up for past wrongs? This raises a new question. Suppose the generation that committed the greatest wrong, allowing slaveholding, is dead? They did what the could to kill the slave trade, and slavery, two different things, by engaging in a war that killed 600,000 people, reuniting the nation, and amending the Constitution to enforce equality, which went unenforced (Amends. 13 anti-slavery, 14 equal protection, due process, 15 voting for newly freed blacks, allegedly).
But are you and I supposed to make up for past wrongs that our ancestors didn't commit? Mine weren't here at the time. Ward Connerly, a black civil rights leader, argues that making up for past wrongs today punishes the wrong people and rewards the wrong people, because we're too far down the line. So he favors encouraging people to sink or swim according to their own ability and desire to succeed rather than giving bonus points for race.
Here's another interpretation as to what the new Parents v. Seattle decision means.
***
Guest Columnist
History, Principle and Affirmative Action
On its face, the affirmative action case decided on June 28 by the Supreme Court turns on whether two school districts in Washington and Kentucky violated the 14th Amendment’s equal-protection guarantee when they assigned children to schools on the basis of race.
But the underlying issue is whether the court should be attentive to history and the societal consequences of its decision, or should turn a blind eye to those consequences and attend only to the principled protection of individual rights. The plurality opinion, written by Chief Justice John Roberts, strongly affirms the latter position, citing Justice Anthony Kennedy’s declaration (in Metro Broadcasting Inc. v. F.C.C., 1990) that: “Our Constitution protects each citizen as an individual, not as a member of a group.”
From this it follows that while groups may suffer disadvantages in the course of history, race-conscious efforts to ameliorate those disadvantages sacrifice constitutional principles, which are timeless, to the achieving of a result that is considered good by the ephemeral standards of the time.
Chief Justice Roberts acknowledged that the motives for race-conscious policies may seem benign, but he quoted Justice Sandra Day O’Connor’s admonition (again in Metro Broadcasting) that “ ‘Benign’ carries with it no independent meaning, but reflects only ... the current generation’s conclusion that a politically accepted burden, imposed on particular citizens on the basis of race, is reasonable.” By “independent meaning,” Justice O’Connor meant a meaning independent of history.
In dissent, Justice John Paul Stevens accused the majority of ignoring history and thereby obscuring what is at stake both now and when the 14th Amendment was passed. He is particularly incensed at Roberts’s invoking of Brown v. Board of Education (1954) in the concluding paragraph of his opinion. “Before Brown, schoolchildren were told where they could and not go to school based on the color of their skin.” Now, the chief justice said, it’s happening again.
Stevens retorted with irony and anger: “The chief justice fails to note that it was only black children who were so ordered.” That is, Brown and the 14th Amendment were not responses to an abstract principle of equality, but efforts to redress a historical injustice inflicted on one race by another. You don’t redress that injustice by barring attempts to mitigate its consequences.
The plurality, according to Stevens, failed to see that “a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason.”
No it isn’t, replied Justice Clarence Thomas. “Every time the government uses racial criteria to bring the races together, someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” He equates the minority’s arguments with those traditionally made by segregationists, who, he says, “repeatedly cautioned the court to consider practicalities and not to embrace too theoretical a view of the 14th Amendment.”
The conflict between the accidents and practicalities of history and the principle that race consciousness should not drive government policy is restaged around the distinction between de jure and de facto segregation. The distinction, Roberts explains, is “between segregation by state action and racial imbalance caused by other factors.” The results of these other factors — individual choice, economic inequalities, historical biases — may be regrettable and include de facto segregation, but in Roberts’s view, they should not be remedied by law.
Why? Because history, not government did it, and what history has done, history, not legislation, should undo.
That’s all very nice on paper, declares Justice Stephen Breyer in dissent, but it simply ignores “the long history and moral vision” that stretches from the 14th Amendment to Brown and beyond — the vision of “true racial equality,” not as “a matter of legal principle but in terms of how we actually live.” In other words, my principle — true equality — is more principled than yours.
This move of Breyer’s shows that while I have framed the opposition as one between history and principle, the identification of principle is itself the work of history, and history can always go the other way. This is Stevens’s point when he slyly reminds Roberts of one of his own recent pronouncements: “history is written by the victors.” In short, there will be another day. Count on it.
