All Due Deliberate Speed (Parents v. Seattle Schools Case)

The peculiar history of the fourteenth amendment just took another odd turn with the recent 5-4 Supreme Court decision in Parents Involved in Community Schools v. Seattle Public Schools. In this case, Justice Roberts determined that racial-balancing measures for school transfer plans that included explicit consideration of race in Seattle and Louisville violated the equal protection clause of the fourteenth amendment.

In writing the court’s main opinion, Chief Justice Roberts kept citing Justice Harlan’s famous dissent in Plessy v. Ferguson, the separate but equal case from 1896, and its now famous phrase “The Constitution is Color Blind.” While they didn’t do so formally, the high court literally moved backwards by shifting the magic phrase from 1954 that “Separate is not Equal” to the Harlan dissent from 1896 and “The Constitution is color blind”. Ironically, Harlan was the last man to sit on the Supreme Court whose family had owned slaves themselves. He had been personally shocked by the rise of the Klan and in some ways his personal connection to the racial questions in Plessy may have given him a sensitivity to the “real issues” that all of the other members of the court lacked.

I’ll let others do the constitutional analysis of the Seattle case. There’s plenty of it out there. I don’t think there’s as much from a historical point of view.

There are two aspects of Plessy, the case that made Jim Crow, de jure segregation,constitutional that have gotten obscured over the last century. First, one of Homer Plessy’s arguments was that he wasn’t “Colored”. Plessy happened to be an octoroon which meant that seven of his eight great grandparents were white. He therefore argued that he had a right to ride the streetcars in the “white” section because he was in fact more white than black. One of the sponsors of Homer Plessy’s test case was the Creole society of New Orleans, the city in America in which fine racial distinctions were the most deeply institutionalized. Through the 19th century, creoles occupied a clearly-defined niche of New Orleans society. Many were highly-educated. Many had familial though odd relationships with their white fathers and grandfathers. Most saw their place in New Orleans culture as being distinctly above blacks and often poor whites.

By the time the case made it to the Supreme Court, the legal issue had been simplified to “separate but equal”. None of the courts dealt with the much more troubling question raised by Plessy about the arbitrary and artificial concept of “race” per se.

Fifty eight years later when the Warren court formally overruled Plessy in Brown v. Board of Education, they found that separate was inherently unequal and thus segregated schools violated the 14th amendment's equal protection provision. It took almost two decades to implement Brown with the court's mandate of "all due deliberate speed". To many people’s surprise, it proved harder to integrate northern schools than southern schools. In southern towns, blacks and whites often lived closer to one another and had more contact. In the post-World War 2 north, middle class whites had left the cities for the outer ring suburbs. If a child went to a “neighborhood” school, it would effectively be a segregated school. The streetcar from Plessy had made the suburbs possible. Motorized public transportation would make school integration possible.

Even though it was overruled more than fifty years ago, the Plessy case lives on in its weird way. Jefferson County which includes Louisville, Kentucky was the other District under review in the recent Supreme Court case. Many years ago, the county had responded to a desegregation order by recognizing the obvious. The city of Louisville itself was predominantly African-American. The schools just outside the city were predominantly white. They integrated the schools by treating all of Jefferson County as a single school district. The bus made it possible.

In the two generations since Brown, another change happened. The rate of interracial marriage jumped. While it was not until the mid-sixties in the case of Loving v. Virginia that the US Supreme Court formally held that forbade states to enforce anti-miscegenation laws, the social shift happened after world war 2. There are now significant numbers of Americans who are neither black nor white because they have grandparents and parents who are both. There are also considerably larger numbers of Americans who didn’t fit either mold. Asians, South-Asians, Middle-Easterners, and Hispanics immigrated to the US after racial quotas were removed from the immigration system. Tiger Woods, Mariah Carey, and Barack Obama are some of the more prominent contemporary individuals who defy racial categories. Fascinatingly though, the press tends to treat the two males, Woods and Obama, as black in much the same way that Homer Plessy was made legally “black” in his historic court challenge that off-handedly denied the Creoles the separate identity they had cherished for so many generations. Mariah Carey, the singer who is African-American, Venezuelan, and Irish, largely gets treated as if she were “white”.

In a theoretical sense, the court’s attempt to embrace the Harlan “Color Blind” dissent from Plessy v. Ferguson, actually does capture a significant shift in American society in the last century. On an individual basis, racial lines have become much more blurred and racial categories are becoming increasingly obsolete in many parts of America. In a socially-realistic sense, race does still matter though. For example, Barack Obama may not be “black”, but he gets death threats because he’s black enough for certain elements of the population. The same happened with Tiger Woods back when he won the Masters for the first time. Back in 1896, the Supreme Court stuck its collective head in the sand by embracing the theoretical notion that “separate could still be equal”, something that may have been only remotely true on railway cars but not in any other social situations where Jim Crow was implemented. By insisting on legal and literal color blindness in all school regulations, the Roberts court similarly divorced itself from reality.

In the nineties, I worked with low income high schools across the United States. With the exception of Appalachia (an interesting discussion of its own), public high schools with larger percentages of white students tend to outperform high schools with larger percentages of black and latino students. Actually, the lowest performing schools I visited in my time were those that were exclusively American Indian. In any case, I spent a fair amount of time working with schools in Chicago, D.C., and Philadelphia that were almost exclusively African-American and a lot of time with California schools that were what’s known as “majority-minority” which had kids of multiple ethnicities but virtually no middle class white students. While these programs often had very-able administrators and staff, they never seemed to have the resources they actually needed to do their job well.

At the time, Gary Orfield (his work is quoted prominently in the Breyer dissent in the Seattle case), a Harvard Professor had studied the phenomenon of re-segregation systematically. His conclusion was simple. It was becoming more rather than less likely that an African-American student in most northern cities would not have a white classmate. In general, schools that were subject to re-segregation were not as academically high achieving as their suburban counterparts. One could see the data and argue that black students simply don’t do as well as white students, but it’s much more complicated than that. The other fact is that all of the resegregating schools were low income schools. As a group, poor kids tend to have more extensive educational needs.

Bottom line, when given a choice students tend to choose whiter or at least more Asian schools. Even if the constitution is supposed to be color blind, the movement of students from one school to another is decidedly not. Actually, even more interesting, they often don’t choose schools based on race at all. A surprisingly large number of families prefer neighborhood schools even when schools outside the neighborhood are higher achieving.

For the fifty years since Brown, the question of whether or not racial integration per se improves the quality of schools has largely gone unanswered. Whether or not children learn well too often is a question that transcends any single factor. On the whole though, the sad truth remains that the average non-white child does not get comparable educational opportunities to the average white child in America.

Perhaps it’s really more the school district’s job to figure out how to do this, but the saddest thing to me about the Seattle-Louiville case is that the Court turned a color blind eye to the heart of the matter. Perhaps the remedy should be color blind, but race and perhaps more importantly income remain all too big a factor in the educational result. The simple reason I observed for this is that kids with equal needs do not receive comparable resources. For example, the chances that a suburban student with talent in a particular subject would get instruction from an experienced teacher with an advanced degree in that field are much higher than for a student in a low income urban school. The urban teacher might even earn slightly more money, but the actual human resources were sadly disparate. I did meet a number of teachers in low income schools who were exceptions to this, but on the whole this was the way it played out.

Personally, I think kids are better off attending racially integrated schools for reasons that are not traditionally academic. Everyday exposure to a broad range of individuals is educational in the broader sense. It’s one of the reasons many people have life-changing experiences either going away to college or serving in the armed forces. If it were up to me, I’d make it part of deliberate social policy. The current Supreme Court says otherwise and that may be an intellectually defensible argument.

Sadly though, the reverse-discrimination argument misses the point. By heating up the rhetoric about “racial criteria”, our culture ignores the real problem. On average, through no fault of their own, the average black or Latino student or those so identified gets an inferior public education to their average white counterpart. The Brown court remains quite right. Separate has never been equal and that inequality has always gone in one direction in America. Even if changing the racial composition of the student body is not the answer, the problem remains. We as a people must do something about it. Now that we live in a country where most of us honestly don’t know if our own grandchildren and greatgrandchildren will be black, white, or other, it’s critical that all children have the opportunity to get a quality publicly-financed education.

In the hundred years since Plessy v. Ferguson, the law has changed but the underlying educational reality may not have. Perhaps the Constitution should be as color blind as John Harlan the Older proclaimed back then, but society should be too. Before we pat ourselves on the back about the former, we need to remember that the social reality is the one that matters more than the legal reality. I’m saddened by the fact that the Roberts Court attempt to proclaim itself color blind exposed its inability to see social issues in all the complex colors that come between black and white.

chancelucky