Years ago, when television covered the news as news, the networks filled the time in the last week's of the year with hour long retrospectives of the events of the year about to end (since nobody was watching television anyway). Even that tiny contribution to public discourse is gone.
This diary attempts to fill that void in one small, but disturbing area reflecting the huge step backward that the Supreme Court took on the issue of race---the issue that has been the most troublesome one we have faced (or tried to avoid) since the republic was founded. It was a very bad year in this regard for many reasons: this diary will discuss only one of them.
That many believed that Don Imus' dumb comments last April had any significance in this area is a sign of how much people want to avoid grappling with the real issue, by the way. This diversion into political correctness, causing Imus to be removed from the radio for five long months (freeing time for even more inanity on radio and cable tv than usual), as if what he said was a serious threat to racial harmony, was instead an assault on free speech and a huge diversion from a real story---a scary one at that.
You don’t need the blogosphere to see which way the wind is blowing, nor to learn that race issues do not bring out the best in us. According to the blather in the early summer this year, Brown v. Board of Education, 347 U.S. 483 (1954), the first significant sign outside of the military that the war against racism fought in Europe and Asia had ramifications in domestic political thought, was overruled by a Supreme Court now dominated by Bush appointees seeking a return to an era where segregation could be legally enforced.
The Supreme Court does not merit any defense as an institution: they mortally wounded themselves by inventing a way to get "their guy" the White House in the first place. Filled today with ideologues appointed because they share the political goals of an unpopular President permitted to attain the office by politically motivated members appointed by the President’s father and the sainted President Reagan, the Court has been reduced to just another government body instead of the beacon of learning in the law that the Court was when Brown was decided.
Nonetheless, and with the greatest respect and deference to those who study the Court to a greater degree than do I and who are mortified at what they have wrought, I do not see Brown as having been reversed, vacated or even wounded. Brown was and is, one of the seminal opinions in the Court’s history: right up there with Marbury v. Madison, 5 U.S. 137 (1803), The United Steelworkers case [Youngstown Co v. Sawyer, 343 U.S. 579 (1952)], the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] and my favorite case, in name and in fact, United States v. Nixon, 418 U.S. 683 (1974). Its unanimous decision, to overrule the "separate, but equal" doctrine it had applied in Plessy v. Ferguson, 163 U.S. 537 (1896) to hold that "segregation of children in public schools solely on the basis of race ... deprive[s] the children of the minority group of equal educational opportunities" in violation of the guarantee of equal protection provided for by the Fourteenth Amendment to the United States Constitution, 347 U.S. at 493, changed this country irreparably. It would take at least ten years, and the desire to enact legislation which the first president born in the twentieth century proposed before being murdered, for the United States Congress to arrive at the same conclusion about other aspects of the legalized segregation and to enact laws to stop that, too.
That decision, like Bush v. Gore, 531 U.S. 98 (2000) in its own way, put the Court in the middle of a dispute that had divided the country and the call to impeach the Chief Justice (a former Republican Governor of California, hardly known for harboring any radical views) became a rallying cry for many (who apparently did not notice that, unlike the later decided Bush v. Gore, but like Nixon, the Court’s decision was unanimous. It was argued, not without some merit, that a change of this sort should not be mandated by justices appointed for life with no political mandate from the people, but rather from elected representatives in Congress, but that had not happened, and, as noted, did not happen until ten years later (and might not have then but for sympathy for the murdered President) and the Court was asked, as it was in Marbury, and all of its important decisions, to decide the question of law.
What the Court set in motion that day has continued to this one. It could not be undone even by a Court with all its members appointed by this President or, if it is possible, one who is even worse. "Segregation today. Segregation tomorrow. Segregation Forever" the cry of those who saw the right to state sponsored racism as an element of state sovereignty against the dictates of an oppressive federal government, is no more. No school, no public accommodation, no employer can legally permit people to receive different treatment based solely on race. There are no longer any legally sanctioned "white only" hotels, restaurants, restrooms permitted in this country, but there were when Brown was decided. They are, thankfully, not coming back.
Racism, on the other hand, cannot be ended by judicial or even legislative fiat. People live where they live and who they want to live around and, while things are not what they were in 1954, people continue to, for the most part, live in segregated communities. Wealthy places fund their schools better than do towns, villages and districts where "the poorer people go." The way schools are financed has been the subject of some debate, some of it based on the same equal protection clause as was the heart of Brown, but the question that came up before the Court was simply whether, to promote the racial diversity in the schools that seemed to many to have been the goal of Brown, a school district could take race into account in deciding which student went to which school. The Court said that it could not. Actually, a majority of the Court, which includes the opinion of Justice Kennedy, said that what the Seattle school district did violated the Constitution but that race could be taken into account under other circumstances.
The original Brown opinion held only that the Constitution did not permit public schools to be segregated by law. The Court then heard additional argument as to what to do about that and decided, in May, 1955 to require that school officials find a way to reconcile their systems with the constitutional requirement that the Court had announced "with all deliberate speed," 349 U.S. 294, 301, but that the goal was "to achieve a system of determining admission to the public schools on a nonracial basis..." 349 U.S. at 300-301.
What we can draw from this courageous decision and the experience of the 52 years since then (just slightly short of the time between Plessy and Brown) is that legally enforced segregation is dead but that the de facto segregation which arises from where people live and how schools are funded is a different question and harder to resolve. As Justice Stevens (as great an American hero by the way, as anybody likely to be discussed on the upcoming Fourth of July) points out, the issue in Brown was not simply that segregation was bad: it was that segregation was bad for children of one race: "the history books do not tell stories of white children struggling to attend black schools," he says. Parents Involved in Community Schools v. Seattle School Distr. No. 1, – U.S. –, slip op, at 2 (Stevens, J, dissenting).
If schools were funded the way other governmental services were, not by property taxes but by the allocation of all state revenues based on the "needs" of each district, this might not be as pressing an issue: public schools would be of relatively equal quality, but that means that people with children in relatively well off school districts—that would have included me until my daughter graduated from high school a few years back----would likely find that the quality of their schools would decline. If they could afford it----here we go again----they might then decide to send their children to a private school and then, once again, we are back in the land of de facto segregation.
I do not know what the answer is: but that it is unfair to make children pay the price of this, by long bus rides away from their local school so that another school might be more diverse, is grossly unfair. A Supreme Court which finds this, has not turned back the clock to 1953, in my view.
On the other hand, a Court which ignores our sad history and what Brown set in motion, the countless school boards and federal courts, including the Supreme Court, which have wrestled with these issues and recognized that a school board, accountable as it is to the local citizenry, must be free to devise what plans it can to achieve an equality, not simply of facilities, but of opportunity to attend a school which is not hard to get to, but which is not situated in such a way that only one race can reasonably be expected to attend, is pandering to a segment of the population that insists that its rights to trample on others is now being trampeled on itself. I keep thinking of those Country Time lemonade commercials as secret advertisements for what Ronald Reagan, and now the United States Supreme Court are selling: a nostalgia for days of yore, when peace reigned throughout the country (because everyone stuck to "their own kind.")
Once when we she was very little, my daughter was approached in a playground (where, I love this, she now is a lifeguard) by a child whose parents were Chassids. They noticed that my daughter’s father was not, and pulled their child from mine. My little daughter looked at me as if there was some explanation I could furnish, but there was nothing I could think of saying that made any sense. The Chassids were within their rights: they did not want their child to see what my non-Chassidic child was all about. I would have liked my daughter to see what theirs was all about, but the choice was not mine to make.
My experience growing up and having started school just a few years after Brown, has led me to the firm conclusion that diversity works best; that the more we mix it up, the less volatile are our interactions with one another. But I am not in charge, and I cannot require everyone to agree with me. I do not know the answer, but I respectfully suggest that the Court, in telling us that the question itself is invalid, is not being helpful.