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All his life Strom Thurmond fought to overturn Brown v. Board, tirelessly campaigning for justices who would “strictly” interpret the Constitution. Today, Thurmond must be smiling from beyond the grave, for in the Seattle School District decision, the Court edged closer than it ever has before to overturning Brown. In the process what I have termed the Gang of Four (Justices Roberts, Scalia, Alito, and Thomas) threaten to undermine a century of racial progress.
All that prevented the Court from taking us back to the days of separate but equal was Justice Anthony Kennedy’s narrow opinion, which like his majority opinion in several other cases now has constitutional scholars and school district lawyers scratching their heads as they attempt to divine its meaning.
I spent the last few hours reading all 185 pages of the decision as soon as it was announced. It will probably take several more readings to fully grasp the meaning of this momentous decision, but several things are already clear.
The Gang of Four now speaks in a unified voice that does not appear to want to directly overturn Brown but would reinterpret it in such a way as to emasculate it. As Justice Breyer noted in his dissent, their reasoning would not only impact Brown but virtually every other area of racial discrimination.
To directly overturn Brown would be a political bombshell and also put several justices in an uncomfortable situation since in their confirmation hearings they spoke reverently of maintaining important precedents. Instead their aim is to reinterpret it so it no longer means what it has for over half a century. It would mean what Strom Thurmond wanted it to mean.
In the Seattle decision the Gang of Four advanced several arguments which indicate they would scuttle Brown by turning it on its head. To accomplish this they borrow from none other than Strom Thurmond.
In the Southern Manifesto and a lifetime of speeches, Thurmond always maintained that segregation constituted a part of the “habits, traditions, and way of life” of the South and neither the Supreme Court nor the federal government had any business interfering with those practices, no matter how whether or not others saw them as discriminatory.
In The book The Strange Death of Liberal America, I proposed that Thurmond’s Manifesto became the foundation of the Republican Counterrevolution. The ideas of the Manifesto have found their way into recent Republican platforms. But it is the philosophy of the Manifesto which Thurmond cleverly packaged as “states’ rights” that has become the controlling philosophy of the Republican Party.
The ideology of states’ rights has always viewed the federal government as a necessary evil whose main functions should be national defense, running the post office (and some question this), and refereeing intramural squabbles. If a state chose to support slavery, that was its prerogative. It was Ronald Reagan who successfully cloaked what had been seen as essentially a racist ideology into the more acceptable opposition to “big government.”
In some of the more startling passages in the decision, the Gang of Four, seem to sound like Thurmond when they defend the notion that racial imbalance as such is NOT segregation. Interesting it is Justice Thomas who makes this point the most strongly, writing:
Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.
Later he reiterates the point in case we did not get it the first time:
Racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.
Chief Justice Roberts makes the same argument in his opinion.
The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations.
Pay special note to Thomas’ words “without intentional state action,” for they may be one of the scarier ideas to come from the Gang of Four. What Thomas and his colleagues are saying is that unless there is a specific law or rule that segregates people by race it is not segregation and hence not illegal. This is essentially what Thurmond maintained in the Manifesto, arguing that just because a town or even a state practiced racial segregation that was their choice.
The Gang of Four then moves on to say that the Court should have nothing to do with remedying “racial imbalance.”
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society.
The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.”
Think for a minute what this would mean. For example, what if a “racially imbalanced” bank made substantially more loans to whites than people of color–and at better rates? What if there were racial imbalances in housing, hiring and health care? Obviously, in a statistical sense whites currently are in the majority and various data may reflect that imbalance.
Yet the data also show in many cases the imbalance is so great that people of color constitute such a small percentage that it is evidence of de facto segregation. Or, they may show people of color have been “redlined” into schools that lack the resources and experienced teachers of their white counterparts.
But the Gang of Four openly rejected the entire idea of de facto segregation. It implied that just because inner city schools received less resources or the percentage of people of color in upper level management positions was out of kilter, that unless there was a LAW that specifically mandated discrimination that “racial imbalance” was acceptable. In a footnote, Justice Thomas specifically addresses the de facto de jure issue:
The dissent makes much of the supposed difficulty of determining whether prior segregation was de jure or de facto. See, e.g., post, at 19– 20. That determination typically will not be nearly as difficult as the dissent makes it seem.
Although he provided the majority vote in this case, Justice Kennedy made it a special point to say he wanted no part of this argument, addressing what he pointedly referred to as the “plurality’s” line of reasoning. He found it:
To be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.
Kennedy then moves on to state his unequivocal support for racial equality, averting the attempt to turn Brown on its head with an eloquent passage that is sure to be quoted for years to come:
Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.
The dissenters deplored the reasoning of the Gang of Four, asserting their support for racial equality. In his usual straightforward fashion, Justice Stevens said:
THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court’s most important decisions.
In a calculated slap against his colleagues who purport to follow the Constitution as written and to respect precedent Stevens recites the history of the Court since Brown.
It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.
Strom Thurmond probably smiled at that one, because that is exactly what he hoped to hear some day–that the Court had finally changed and adopted his philosophy.
Justice Breyer’s dissent is the lengthiest part of the opinion, so long that he feels he must justify it by stating that the tremendous volume of evidence he cites is necessary to disprove the Gang of Four’s assertion.
Breyer’s dissent represents one of the most fascinating and important sociological documents of recent years. It is clear he wanted the record of the Court to include the data and studies he cites to show that discrimination is not only alive and well in the United States, but in fact has become worse. His dissent includes tables, graphs, charts and references to various studies of racial equality.
I cite one lengthy paragraph at the beginning of his dissent because the facts he presents should be known to the entire country. They show how, under the Bush Administration, we are not only philosophically moving backwards under the Gang of Four but socially moving backwards–back to the days of Strom Thurmond.
More recently, however, progress has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100% minority.
Breyer ends his dissent on a ringing note that evokes Brown and I suspect was also designed to create harmony with Kennedy. Together the two passages represent the finest in the American tradition of equity and justice for all.
Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.
As we move deeper into this election cycle, it has become clear that future control of the Supreme Court ranks among the more important issues. Right now some of the most important precedents of the Court persist only because of the sometimes ambiguous swing vote of Anthony Kennedy.
In the Seattle case he sided with the majority only in ruling that the school district had not made a compelling case for its plan. He pointedly refused to accept the Gang of Four’s twisted view of Brown. Not merely Brown is at stake but the Equal Protection Cause of the Constitution and a host of other decisions from Roe v Wade to decisions about government regulation to church-state issues. As we ponder the potential of that future, we should remember the “culture” that Strom Thurmond so vigorously defended. Do we want to return to that America?
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