Wednesday, July 11, 2007

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.



At 7/12/2007 12:18:00 AM, Anonymous Anonymous said...

"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."

Of course as you suggest, it is when one is lucky enough to go to college and meet and mix with a whole variety of shades and experiences that one's narrow little version of life is blown open. This could happen at 7 years old, just as I was lucky enough to learn about Jung and Freud and Kant at 7 years old.

I am hoping that if not in our lifetime, at least in this century, a more ubiquitous internet will help make up for the kukluxklanification of America's schools that Mr. Roberts and berobed Ilk seem bent upon.

At 7/12/2007 04:06:00 AM, Blogger Martin Heavisides said...

You give an admirable recounting of the history behind this current decision. I'd guess I'm right in thinking Clarence Thomas got a great deal personally out of affirmative action before he came to the decision he was agin it?

At 7/12/2007 10:11:00 AM, Blogger Chancelucky said...

Mr. Pogblog,
I think social literacy is a perfectly defensible educational goal. One of the sadder things is that the educational debate has turned into a discussion of "reading per se"...which amounts to a very narrowly defined literacy.

Thanks. Clarence Thomas did not literally benefit from "affirmative action" programs as much as he got breaks for being a "token" black man with right wing views. It's a very fine distinction though.

I've been reading some of his opinions lately and they're very radical as in well outside the mainstream of even American conservatives.

At 7/13/2007 08:54:00 AM, Blogger None said...

Well done Chance. I hadn't read much on this recent case.

Thomas really is a nut. While even some conservative justices will flip sides every so often, he remains firmly entrenched in that camp. And, I do remember reading some time back that he takes more "gifts" than any other justice. I still dont see how he made it through.

The term "color-blind" has recently been adopted by the right-wing "thinkers". Its a bit unnerving that a justice would use such language in his decision. How far are we from Rush Limbaugh giving an interview to Roberts? People can call in, making outrageous comments while those two jokers can sit back, agree and chuckle. Just like Cheney does when he goes on that show.

I'm not sure if anybody has read of the recent move by the conservatives to "claim" Martin Luther King, Jr. was one of theirs. But.. this sort of plays out of the whole "color-blind" thing.

At 7/13/2007 10:01:00 AM, Blogger Chancelucky said...

The concept of "color blind" justice has an interesting history. It's worth remembering that "color" is a social and political construct that's surprisingly new in the world. I remember seeing Tiger Woods and Vijay Singh winning the Masters more or less back to back. Singh, of course, is probably darker than Tiger Woods, yet it barely got commented on. I think the media didn't know what to do with a man who grew up in Fiji whose ancestors came from India. On the good side, I don't think Singh got any death threats.

I think the right's attempt to co-opt the literal language of Dr. King's I have a Dream speech "judged by the content of their character not the color of their skin" ignores some of the deeper points King was making about social justice. There have been some members of the King family who have unfortunately helped this along.

I think Dr. King wanted a society where all children had a chance. Before he died, he made a very risky decision to focus on poverty in general and to oppose the war in Vietnam. Both decisions were criticized by many black leaders who thought he was taking his eye off the ball of equal treatment for African-Americans. I think King's reply was that injustice anywhere is an affront to justice everywhere.

The question in Louisville and Seattle remains "Are all kids there getting the kind of education they deserve?" Addressing that should be the social priority.

At 7/14/2007 10:43:00 AM, Blogger inkyhack said...

Great entry, Chance. I sometimes wonder if decisions like this one are part of the greater plan by the Conservatives to completely destroy the quality of education for everyone in this country and ensure that only rich white people can afford a decent schooling. This decision along with the president's disastrous "No Child Left Behind Act," cuts in funding for schools and cuts in aid to low-income college students that have all happened in the past six years all same to point to the same conclusion - an entire generation that can't think on its own.
At least that's my two cents (now worth 1.2 cents).

At 7/14/2007 05:56:00 PM, Blogger Chancelucky said...

Thanks Inky,
Ostensibly the decision has little to do with the quality of public schools per se. It mostly says that you can't preserve racial balance or diversity by explicitly considering race or possibly race alone.
At a deeper level though, it makes it harder for students in low income neighborhoods to make the shift to public schools in higher income neighborhoods (obviously low income schools aren't necessarily worse than high income schools, but that's often the way things work out).

Mostly though it's just a sign that W's two appointments have had a significant impact on the court.


Post a Comment

<< Home