Ali Eteraz, an attorney who writes for the Huffington Post and his own blog, Plural Politics, which he describes as a new venture about American pluralism, asks, essentially, whether, if the government cannot assign students to schools by race because it violates the 14th Amendment guaranty of equal protection of law, according to Brown v. Board (1954), as modified this term in Parents v. Seattle (2007), can it do so by some other more-or-less immutable characteristic that may in some instances at least amount to nearly the same thing, in order to achieve some important goal, such as "diversity," or simply better education?
Ali writes:
I am a lawyer and writer at Huffington Post and Plural Politics (a new venture about American pluralism....
I have posed a constitutional question that I was hoping you could answer....
The legal issue is here: http://eteraz.org/2007/07/31/economics-the-new-race/
Thank you very much for your time.
AE
Ali poses the issue as follows. I've emboldened the choice bits:
Economics, The New Race?
The Supreme Court recently ruled that race cannot be a factor of assignment of children to public schools. But as this US News article makes clear, income, rather than race could be the next manner in which schools will assign schools. The article states:
Schools will most likely consider using socioeconomic status plans for two reasons, according to Richard Kahlenberg, a senior fellow at the progressive Century Foundation who has studied such policies: These plans tend to produce a fair amount of racial diversity and also tend to improve student achievement. “It was never that African-Americans do better in class sitting next to whites, it’s that low-income students do better in middle-class schools,” Kahlenberg says. “It’s more of a class phenomenon than a race phenomenon.” In fact, results of the 2005 National Assessment of Educational Progress given to fourth graders revealed that low-income students who attended more-affluent schools scored 20 points higher than low-income students attending high-poverty schools, a difference equivalent to almost two years worth of education.
You can look at The Century Foundations’ reports here.
The question is can such a plan survive a constitutional challenge?
Is a right to an economically equivalent education a fundamental right? Traditionally, it has not been.
What does the future hold?
I have posed the question to a constitutional scholar.
Still, the constitutional question is only one side of the debate. Public opinion is the other.
***
It looks as though I'm the constitutional scholar that Ali has selected to respond and I'm flattered. I'll try to deal with the thought-provoking question by listing a few provoked, perhaps even provoking, off-the-cuff thoughts, meaning subject to revision as the discussion progresses.
Perhaps it would help to see where we are now in contrast to where we've been. We have the issue of school assignment by race in this country because, well, we've been one of the most racist societies on this continent since the white man landed on the red man's territory only to begin importing black slaves in 1619.
This may not have been a great start but we Americans today are the beneficiaries, if that's the term, of what our predecessors found, and did, when they got here. They brought attitudes with them when they arrived.
DEEP BACKGROUND
Slavery and decisions based on race had been around for a long time even then. Since before the time of Jesus, if your society lost a war, your men were killed, the wives raped and enslaved, and children raised in servitude. This is why Hector fought so hard at Troy. See Homer's Iliad. Homer was asking whether this was right. Homer may have been a woman. See Andrew Dalby's Rediscovering Homer, Inside the Origins of the Epic (W.W. Norton, 2006). S/he was raising a constitutional issue long before our time.
Fast forward from 1619, colonial Virginia, where slavery has taken hold when the white settlers begin growing Indian tobacco to sell in London, to 1776, when our founding revolutionaries decide that they don't like being slaves themselves to a corrupt Parliament which tries to tax them and tell them with whom they may, or may not, trade, without any input from them. Slavery for blacks, good. Slavery for whites, bad.
Our Constitution embodied this principle until amended as the result of the Civil War. The Northern victory which ensured union and freed slaves now had to decide how to deal with the former slaves. These people who had been kept illiterate and without savings had been transformed from being property into a labor problem as well a social problem.
What do you do as a white society after the Civil War which ended in 1865 with about 4 million people who are now living on their former masters' plantations? You charge them rent, of course, or throw them off. Or you send in Northern troops to try to keep the lid on the resulting unrest which included anti-Black slave codes, enforced by the newly formed terrorist group the Ku Klux Klan, led by Nathan Bedford Forrest, a former confederate general. White supremacists enforced a notion of black inferiority which we still fight like a virus today.
We sent Northern troops into the South and were treated to the Klan, which prospered wherever whites looked down on blacks as an inferior race. It was the politically correct thing to do, then. Even Lincoln suffered from this virus. Today the politically correct thing to do is to regard all people everywhere as essentially good and the same but for unfortunate differences in history and geography which could be corrected if we all just rolled up our sleeves and determined to see things this way.
U.S. CIVIL WAR
Following the election of 1876 (Hayes-Tilden, the Bush-Gore of its day), a deal was cut to gain the presidency. Rutherford B. Hayes, a Northern general during the Civil War, and a Lincoln Republican, agreed to withdraw the troops from the South in return for the prize and thus became president. The blacks were cut loose from federal protection, left on their own to sink or swim. Civil rights laws enacted to protect them were gutted in a package of cases, called ironically "The Civil Rights Cases" (1882). These held that the Constitution did not apply to private decision-making on the basis of race but only to government action by state actors. Thus private owners of restaurants, theaters, resorts, and many other businesses were free to bar blacks from participating. In 1896 the resulting Jim Crow regime was legalized in Plessy v. Ferguson, a case involving whether blacks could be barred from white railroad cars. The Court held that blacks could be barred from traveling in the same car with whites provided a car for blacks was included in the train. Thus was sanctioned the principle of "separate-but-equal" which carried over into the public school sphere.
There were problems with separate but equal as applied to public schools.
The first was the money. White taxpayers (who owned the land and businesses and controlled all levels of government) were not going to pour good money into schools to educate blacks so that they could rise above the only station that whites deemed them fit for: continuing to work in the fields and perform other hard labor that no self-respecting white man wanted to do, any more than you and I want to change linen in motels and hotels, wash dishes in restaurants, trim lawns, or hang sheet-rock. Nor do we want our kids aspiring to these vocations.
The result was that white schools received the bulk of the tax money to pay for brick buildings with white trim, indoor plumbing, white teachers who'd gone to good schools themselves, and buses rented only to take athletic teams to away games.
Black schools, by contrast, were often ramshackle, leaky, wooden structures with a single spigot out back and an outhouse. I get this from memories of a LIFE magazine article from more than half-a-century ago which showed the contrast in photos. The teachers were black and there was not a lot of interscholastic athletic competition. Robert Caro, in his biography of Pres. Lyndon B. Johnson, recounts how LBJ, as a young teacher, before entering politics, taught Mexican-American students in Texas, and had to scrape to come up with a bat, a baseball, and a glove for their team.
This is where LBJ learned the meaning of civil rights which he later, as Majority Leader of the Senate, he protected in 1957 with the first civil rights act since Reconstruction. It had no teeth, but it did establish the Civil Rights Division of the Department of Justice and represented the insertion of a wedge into the Southern Bloc, of which he was a part. After the assassination of John F. Kennedy, Johnson, who had been elected Vice President, pushed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965 which truly emancipated blacks in the areas of public accommodations (hotels, restaurants, motels, parks, beaches, pools, golf courses, etc.) and voting, where the real power to create change lay.
The second problem was that of status. The system that developed was socially and legally enforced. It guaranteed white supremacy and relegated blacks to second class citizenship, seemingly forever.
The system of white supremacy, however, was being undermined all the while. Black were slowly being seen by whites, by virtue of accomplishment that even a white man had to respect, as people, able to compete on equal terms with whites. Previously blacks were either not seen as people, or not as people who were equal in any meaningful way to whites. Preachers preached, educators taught, politicians led, and parents showed that this was right. White folks, that is. Blacks thought otherwise and worked to show that white supremacy was was all lies, the prejudiced triumphalism of the dominant whites who needed to come down from their lofty perch. It took decades, and counting.
THE HYPOCRISY WAS TOO MUCH
Successful individual blacks became beacons for others to follow. Here three examples from the world of athletic competition:
1. Jesse Owens, the track star and winner of gold medals in the 1936 Berlin Olympic Games, which was hosted by Adolph Hitler, who hoped to showcase white, Aryan supremacy. We Americans certainly showed Hitler, didn't we. Suddenly Owens was seen by whites not just as a second-class black citizen but as a first-class American, as far as our relations with the rest of the world were concerned. Back home he still had racism to deal with.
2. Joe Lewis, the World Champion prize fighter who, also in the 1930s, fought the German, Max Schmeling, in a fight that captivated both nations. The fight was more than black vs. white, although it was that; it was the American vs. the German, Democracy vs. Fascism, and people tuned in and understood. Americans cheered for the American black. Nazis cheered for the white German.
3. Jackie Robinson, who in 1947 broke the color line in the American Pastime, courtesy of the Brooklyn Dodgers general-manager, Branch Rickey.
Robinson had returned to civilian life after serving in the Army during World War II in which the forces of good (us) defeated the forces of evil (Hitler, Tojo, & Mussolini). Aryan supremacy was a thing of the past. Black troops mustered out after defeating Hitler's racial ideas only to find them flourishing at home. More whites could see the inconsistency, the hypocrisy of it all.
In 1948, the Supreme Court struck down racially restrictive covenants in deeds. Shelley v. Kramer.
The end of World War II in 1945 produced the Cold War as the big Four Powers (U.S. (FDR) Britain (Winston Churchill), France, & the USSR (Stalin)) vied to carve up Europe, Germany, and Berlin. This sparked a nuclear arms race whose aftermath, nuclear proliferation, we still have nightmares about. When we called the USSR on their human rights abuses (the gulags and general repression of all dissent) it called us on our civil rights abuses against American blacks. Who were we to talk?
As a result, Pres. Harry S. Truman, by executive order to the Army (but not the Navy), decreed that the Army integrate itself. This has been called the most successful of integration efforts to date.
In significant part because of outside criticism from Moscow, American diplomats urged that we clean our own house and get it in order. They told this to the Supreme Court in a friend of the court brief in the upcoming Brown v. Board (1954) case(s).
BROWN V. BOARD (1954)
In 1954, Thurgood Marshall succeeded in bringing five cases before the Court in a package of cases called Brown v. Board of Education of Topeka, Kansas, after the lead case. The Court ruled unanimously that in the area of public education separate was not equal. Not only was it not equal in buildings and equipment, which could be made equal in appearance, but separate was inherently unequal because it represented government telling told one large part of the population, officially, that it was not as good as the other. Spiritually, emotionally, psychologically, and in every other way, racial segregation was evil in America, because America preached equality of all people morally and legally, regardless that some are better than others in one thing or another.
Jim Crow had a wooden stake driven through its heart as a legal matter but the monster strides on today, which is why Ali asks his question.
Brown was largely understood as being the "integration" decision. Integration became the watchword for all sorts of political and legal activity designed to put the two races together here in all public areas for the first time. Given negative public attitudes in large portions of the country, Brown was met with "massive resistance," in the South and elsewhere, meaning in many school districts in the North, as well.
Suddenly we could use race to assign black kids to white schools, if only the white schools would stand still for it. The parents wouldn't, and didn't. Private schools arose. Religious schools arose. White flight began. White suburbs arose as the rising postwar economy allowed whites to flee the increasingly black cities. Slums, downtown, and uptown ghettos resulted. Long, hot summers of race riots followed in New York, Los Angeles, and Detroit.
The assassination of Martin Luther King, Jr., enraged blacks and dismayed many whites. Black Panthers inspired white fear. Richard Nixon capitalized on white fear of blacks, and crime, and "forced busing," the plan to correct segregated housing patterns by requiring white and black children to leave their home districts and spend an hour traveling across town to equalize the races in class.
FORCED BUSING TO ACHIEVE RACIAL INTEGRATION
Very few people seem to have liked this system. It burdened the children, the parents, the school districts, it was expensive, in the service of an abstraction, it wasted time and money, and parents everywhere seemed to prefer that their kids walk to the school down the block rather than go across town. But they did it, to ensure that blacks were no longer deemed second class citizens.
Black kids could now sit next to white kids in class.
Sitting next to another kid in class does not necessarily ensure that the contents of one brain transmute somehow into the other. They may not even eat lunch together. Or they may.
Some benefit must come from this. We can learn that we're all people, not monsters, except for the bad actors in both races. This is something. We can no longer say that one race is inferior to another as a matter of law. This is good. It is big. Some part is worth perpetuating. Perhaps not on buses, however. No one likes busing, on strictly non-racial grounds.
This forced integration approach created new problems.
It meant that we had to consider race. For a long time some white people in the north took pride in ignoring the obvious, or saying they did, color, at least in some areas, on some levels, or in some contexts. Justice Harlan, in his 1896 dissent to Plessy, argued that the Constitution was color-blind. Maybe it should be, but most people aren't and we have to deal with the fact that race pervades who gets jobs, contracts, seats in school, promotions, and many more. Racial politics is alive and well in every sphere.
Once we began applying racial criteria to these in binary white-black fashion, the consequences were immediate. This is nothing but racism in reverse and we don't like it, say the white police and firefighters who lose out on jobs for their kids and promotions for themselves.
AFFIRMATIVE ACTION
Blacks who benefit are often seen as less qualified 'affirmative action babies,' which drives them nuts, as it stigmatizes those with real accomplishments who compete on equal or better terms with whites. Justice Clarence Thomas is a leading exponent among those who bridle at the stigmatization of so-called affirmative action. Ward Connerly, a former regent of the U. of California, has opposed use of race in college admissions and public contracting for this reason and also the fact that it introduces a bad element of racial decision-making into government activity when government is supposed to be, in his view, racially neutral. Affirmative action based on race is anything but racially neutral.
The new decision in Parents v. Seattle School District No. 1 (2007), supra, is notable for reinterpreting Brown such that it now is read as holding not that schools must be integrated by race but that no longer may race be considered when considering school admissions. No more benign racism to accomplish laudable goals, we're told the the newly conservative four person block plus Justice Kennedy who frequently aligns with them, or sometimes stakes out a position in the middle as far as his reasoning goes, but gives his vote to them, as here.
CONSTITUTION NOW COLOR-BLIND IN PUBLIC SCHOOL ADMISSIONS?
We've gone from bad to good to bad when it comes to race in about half a century, depending on whether you think considering race in school admissions is good or bad. Considering race was bad under Jim Crow (to insure racial segregation in public schools), good under Brown (to insure equal educational opportunity), and now bad again (to prevent reverse discrimination).
Somehow, all of this relates to Ali's question, at least in my mind. Why? Because you can't see where you're going unless you know from whence you came. You must look back to see the road ahead.
Okay, if you can't use race to insure racial equality in education, then what can you use to do so?
We need a proxy, a substitute that works just as well.
What could that be?
How about socio-economic status?
What's that?
This is a fancy way of saying that we think blacks have a long, bad, history of being regarded as inferior because look at how badly they do in school, in ghetto-like neighborhoods, in jobs, and they way they continue to be treated as second class citizens by whites who continue to make housing and schooling choices as far removed from blacks as possible.
And why do blacks have this long, bad history?
Because whites made them this way by kidnapping them from Africa, tearing apart their families, destroying their social, cultural, economic, belief and language structures, and refusing to let them put them back together here as the result of a plantation slavery system enforced by law and night-patrols of armed horsemen to prevent them from fleeing.
This is our legacy.
But we still want to see the kids of blacks and whites and browns and reds attend the same schools to receive the same educational, social, athletic, and economic opportunities.
This is a big logistical problem, apart from any constitutional law issue, a social engineering problem that would stump Pharoah, who seemed quite able to get the the pyramids built with the help of another disfavored minority at the time.
DO PARENTS HAVE A CONSTITUTIONAL RIGHT TO HAVE THEIR CHILDREN ATTEND SCHOOL NEAR THEIR HOME?
There are some beliefs that many of us hold so dear that we elevate them to the realm of constitutional right, even when they don't appear expressly in the Constitution.
You have a constitutional right to represent yourself in a criminal prosecution, provided you pass a little test designed to insure that you have enough intelligence and familiarity with legal procedures that you don't automatically condemn yourself through your ineptitude.
You have the right to use contraceptives. Griswold v. Connecticut.
You have the right to marry the person of your choice, not the government's or the neighbor's. Loving v. Virginia
You have the right to decline life saving medical treatment.
You have the right to engage in sexual relations outside marriage with a person whose gender you choose, not the government or the neighbors working through government. Lawrence v. Texas (2003).
You have the right to send your child to the religious school of your choice, provided you pay for it, and the same for any language school to learn German, Hebrew, Chinese, etc., Meyers & Pierce, 1924,5.
You have the right to pull your child from a high school that teaches secular values in conflict with your religious and cultural values. Yoder v. Wisconsin.
But do you have a right to have your child educated in the public school closest to your home? And not to have your child bused an hour each way because the government thinks it is in the child's or the general interest to have him learn with the rich, or the white, kids across town?
Isn't this the argument made by the segregationists opposed to forced busing? And look what happened to them. They lost and are pariahs today for we who believe in equal treatment of the races.
Apparently parents have no right to oppose government imposed busing to achieve social goals.
Our beliefs concerning race stem from our long history of oppression because of race and ethnicity. We now say that just because we've always been racist doesn't mean that we have to continue being racist. Step one was to free the slaves. Step two was to abolish Jim Crow. Step three may be to ban considering race when distributing government benefits such as federally supported schools whether the goals are laudable or not. We're entering a new experiment using a color-blind Constitution for the first time. It appears that Ward Connerly's Prop. 187 has hit the Supreme Court and enough of the justices like it to have made it into law, at least in the area of public school admissions. Brown v. Board (1954) our Statue of Liberty case also arose in that context, but the equality principle on which it was based soon permeated all other areas, however slowly. Big social movements take time, sometimes too much time, but that's the way it is.
ARE SOCIAL AND ECONOMIC STATUS THE SAME AS RACE?
Do we feel the same about social status and economic status?
I'm not so sure that we do.
For one thing, many in this market-driven society tend to believe that with a lot of hard work and a little bit of luck, and some intelligence, you too, can drop out of Harvard and still become Bill Gates, whereupon you can build the biggest mansion in the state, stocked with the most expensive toys, and send your kids to the best school in town, public or private. I read somewhere that Gate's fortune exceeds that of all the blacks in America put together. This sounds like an exaggeration, but as an example, apocryphal or not, it helps highlight the notion that we tend to cheer for Bill Gates and not hold it against him that he's doing better than you or me. More power to him.
If government has the power to force public school students, white and black, to board buses to travel across town to ensure the social goal of racial integration, why can't it force rich and poor kids to board buses to attend the same schools to enhance educational performance? That would be one way of forcing parents to fund schools more equally, wouldn't it? It might also force the rise of more private and parochial schools.
De-segregation was seen as the remedy for a human artifact, racial segregation.
POVERTY
Is poverty a human artifact? There are certainly many examples of poor government policy creating and then perpetuating poverty. The whole Marxian-Leninist program was to try to correct this. Unfortunately the cure was worse than the disease.
Our Constitution does not guaranty any particular economic system. If the electorate wants to vote in a different economic system it presumably can, provided it doesn't break too many constitutional eggs in the process.
But I'm not sure that poverty as a whole can be considered a human artifact in the same way that slavery and Jim Crow is. Some people are better able to compete, or stumble across a gold mine which they may be able to claim as theirs, in which case they may prosper and buy things, including education for their kids, that those who haven't stumbled across gold mines cannot afford.
Not all of us think this is bad. I quite like the idea, myself, and thus always keep my eye peeled sharply for the shiny glint of nirvana.
But the issue is not whether we can eliminate poverty, it is whether we can improve the education of children by busing them to richer schools. It seems obvious that kids attending well-taught, well-financed, well-appointed, magnet schools are more apt to be interested and engaged in the richer educational environment than children educated in hovels.
CLASS
The question is what causes the performance differential?
My guess is that interested, well-fed, well-protected children with good parental support, can better devote attention to what they should be paying attention to in school than poor kids, often from troubled backgrounds.
Unless the parents have the constitutional right to have their child attend the public school nearest their home, the school board has the right to assign students by any rational criteria outside of racial quotas or point systems. Justice Lewis Powell, in the Bakke case (1975 or 6) introduced the notion of racial 'diversity' in public education, so long as there were no mathematically ascertainable quotas in use.
The U. of Michigan cases, Gratz and Grutter (2004?), perpetuated the value in having students of many backgrounds attend the same university. Parents v. Seattle, with Justice Anthony M. Kennedy in the middle of a 4:1:4 decision, also holds out for 'diversity,' as being the decisive factor in a question whether race may be considered in admissions to public schools. The answer was that yes, race could still be considered in university admissions, provided that race is not quantified in some mathematically ascertainable way.
COMPOSITION OF THE COURT HAS SHIFTED
But the Court has changed since Gratz and Grutter. Justice O'Connor was the tip-weight judge in that decision, but she has retired. Chief Justice William H. Rehnquist has died. Chief Justice John Roberts and Associate Justice Samuel Alito have replaced them Roberts clerked for Rehnquist and is quite conservative. Alito, also quite conservative, has replaced the far less conservative O'Connor. The conservative wing of the court now has four solid votes plus Kennedy. The authority of closely divided cases of the past few years may now be in doubt when similar questions arise, and they surely will because people who dislike them will be looking for vehicles on which to mount a new challenge. That's how Supreme Court litigation largely works nowadays. Legal think tanks with money to support appeals representing legal change ready to back cases they find interesting.
So far, I've been treating the issue of socioeconomic class as though it were simply a synonym or code for 'poverty' and the issue was whether we could step in the direction of dealing with the negative effects of poverty by sending poor kids to rich schools, and thus improve the children's educational performance levels.
I suppose that it would be a rational approach to a legitimate and important government goal of educating kids better by having them transfer to better schools, assuming the facilities are available. But suppose that equal facilities are not available. Can some kids be relegated to poorer public schools? Or must the schools come up?
DISPARITY IN SCHOOLS
Why are some public schools poorer than others?
Usually this is the result of the way a state finances its schools. California, years ago, financed its schools out of local tax money applied to local schools. School districts in richer communities could afford better schools. School districts in ghettos could only afford poorer quality schools. A self-perpetuating cycle of rich schools stayed rich and poor schools stayed poor ensued.
But the California Supreme Court, in the Soriano decision in the 1970s, held this a violation of equal protection, forcing the state to equalize in some fashion the money spent on public school. At the time, taxes on the value of real estate were the main support of schools. But California voters opposed to ever-increasing taxation of land, including the homes of fixed income retirees, voted Proposition 13 into law, freezing the ability of government to tax land. Education finance would have to come out of the general budget, if recollection serves.
In San Francisco, today, we have busing from predominantly black areas into predominantly other areas, not just all-white, as we have many Chinese, Filipino, Vietnamese, and Latino residents.
Can the school board just say, "Okay, we can no long consider race to balance schools racially, but how about let's accomplish the same thing by considering how well-off the parents are? We'll make everyone equal regardless of whose parents are rich or poor?" Doesn't the goal remain the same? Racial integration?
Well, equality is the ideal in law, isn't it? "Equal justice under law?" Carved in stone above the Supreme Court entrance? The rich man and the poor man are supposed to be treated equally in court, right?
This applies to criminal and civil law. Why shouldn't this principle of economic and class equality apply in the educational arena to enforce educational justice? After all, it isn't the child's fault to be born of impecunious parents, nor is it to his credit that he was born to rich parents. It's just a matter of the cosmic lottery and I'm sorry I didn't invent the computer operating system as Bill Gates did, either.
If a school district required each parent to submit financial data to support the choice of school the child was permitted to enter, and the decision regarding pupil assignment were made on this basis, exclusive of race, I suppose that maybe you could avoid tripping over Parents v. Seattle, et. al. I have my doubts, however, because it may be that "socio-economic status" is being used as a substitute for race, which was just outlawed in that case.
But if blacks, hispanics, or asians, for example, received bonus points on the basis of race or ethnicity that were unavailable to others, I'd say that the use of economic and class levels as a proxies for race was a subterfuge that strict scrutiny is designed to ferret out, and the effort would fail.
WE CAN TELL HOW BROKE YOU ARE, BUT TO WHICH CLASS DO YOU BELONG?
As to taking a social inventory to determine parental, hence the child's class status, I can see all kinds of problems. For one thing, Americans, unlike Britons, like to pretend that we have no class system here. Are we ignoring the obvious, as we did race? Class is a bit more subtle and may be harder for the uninitiated to detect. Perhaps you haven't been paying attention to the silk scarves and the strand of pearls certain women wear to signal to which group they belong or aspire. "Do you vacation on the Cape or the Vineyard?"
I'm not sure how one would design the criteria to distinguish high and low status, assuming this is what we're testing for, although I can imagine a pleasant system of U and non-U indicators, such as which brand of scotch you drink as opposed to mine.
As you can see, I don't think race is anywhere near the same as class or poverty, although they certainly overlap. They have such different histories. The contexts vary. What holds for one may not hold for another.
Race, I believe, is an artificial construct, unlike poverty. Scientists put little stock in the notion of race. Yes, I'm aware that genetic differences account for similar physical characteristics among various groups to which we assign various racial names. Beyond that I'm not sure that these physical differences among races are significant, other than as we treat them as big deals or not, which we often do. This is our man-made problem, not something created by God. Darwin maybe, but he's not God.
Class is another man-made artifact, one that not even Darwin can claim credit, or blame for.
Poverty? I suppose that the way we arrange government and distribute opportunity and government benefits has a great deal to do with the creation and elimination of poverty and its effects and manifestations. Reform legislation has been aimed at this since the time of Solon himself in Ancient Greece.
Is forced busing to achieve better school results legitimate reform legislation? When the legislature sees the results of a survey purporting to show that busing poor kids into rich schools results in better grades and school performance, how is this not a rational response to a perceived evil? It doesn't take much to pass rational basis, the test of constitutionality when it comes to ordinary social and economic reform legislation.
ALI'S QUESTION REVISITED
At this point I'm no longer sure that I'm addressing Ali's question. He claims to be raising a constitutional law question, and I've tried to treat it as such, but I'm not so sure that it is, or that I've identified what question it is, whether he has composed one or not. At any rate, it is a thought-provoking subject and these are the initial thoughts. So much depends on how the question is composed.
So why don't we quit here and see what others think. We can pick the discussion up later as we refine the alleged issue.
Perhaps I should've asked Ali earlier what constitutional issue he thinks is implicated.
I do so now.
Ali, your turn.
***
The resulting post by Ali, which briefly noted my effort and referred back to the above via hotlink, drew the following comment to which I replied:
2 Comments
I think that when discussing the benefits or failure of school desegregation many miss the point. As I discussed in Why The Supreme Court Was Wrong, you have to look at what the historical reasons for desegregation were. It was not to make a black child smarter by sitting next to a white child, it was to even school funding and more importantly to provide an opportunity for exploration of cultures. Prior to desegregation the only interaction most white kids had with blacks were based on racially stereotypical roles or the input of their families. Desegregation allowed them to see for themselves who and what blacks were.
In a country like ours, it is our unity that provides our greatest strength and that can only come through diverse interactions. This should start as soon as possible in schools…
I agree.
The journalist Juan Williams recently noted that he’d interviewed Thurgood Marshall as he neared retirement as a Supreme Court justice, who as an attorney had brought and won Brown v. Board.
Marshall made exactly that point, that the goal of the public school integration (or desegregation) movement was not, by some magic, to make a black child smarter by sitting next to a white child, but to force an equalization of school funding.
To clarify an idea made by Ali in characterizing the view expressed in my response to his query, I don’t quite say that assigning public school admissions by socio-economic status necessarily equates to being a proxy for race, as there are plenty of people of all races who may qualify for the bottom rungs of this ladder.
Use of such a criteria may be rational and justifiable as a non-racial effort to improve student performance.
I am suggesting, however, that if it were shown as a factual matter that “socio-economic status” were being used as code for race, then I see a problem under the recent Parents v. Seattle school case, which says that race may not be considered, presumably under any guise. This would include using a subterfuge such as socio-economic class to cover for race, i.e. a substitute or proxy for the newly forbidden criterion.
We don’t otherwise regard “socio-economic class” as being the same as “race,” which has a long, bad, history, as I tried to suggest in the post to Sheridan Conlaw, link nearby.