A Supreme Court Conversation

Everything Conservatives Should Abhor
An email conversation about the news of the day.
June 29 2007 11:17 AM

A Supreme Court Conversation

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Dear Dahlia and Stuart,

I woke up at 4 this morning to the realization that I cannot begin to understand how Chief Justice John Roberts and his colleagues could really think that the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together is anything remotely like the system of racial apartheid, subjugation, and servitude practiced in the American South. His concluding sentence, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," equates two such fundamentally different practices that it leaves me stunned.

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I want to try to convey a sense of how profoundly misguided and ahistorical that conflation is. Let me return to the most rhetorically powerful argument against the two school-district plans in this case: the fact that they would require some parents to say to a child, "You can't go to that school because of your race," just as black parents had to say to their children in the South before Brown.  

Think first about being a black parent explaining race to a child in North Carolina in 1963. That year, Gov. Terry Sanford went on statewide television to urge an end to segregation in public accommodations and read a letter from a black soldier stationed at Fort Bragg describing what it was like to drive his children from eastern North Carolina to visit their grandparents in Texas. It was a harrowing experience, he wrote. Planning that trip was like a military operation; every supply that might be needed had to be packed and stuffed in the car for a trip of more than 1,000 miles. When they were hungry, they could not buy food. When they were tired, they knew they would be turned away from the motel. They traveled in fear that a child would become sick on the trip. Day after day they would drive by tourist sites and amusement parks that they could not enter; gas stations at which the children were barred from the restroom. How do you explain to a child why she can't go to the swimming pool, play in the park, or go to the movie? At home or on the road, this was an experience a child of color had repeatedly every day. Every day. And the reason: The child was an inferior being whose very presence in a place would be repulsive to the community. 

Is that what happens under the Louisville or Seattle plans? What some parents will sometimes have to say to their children under these plans is something like this: "You will be going to PS 111 instead of PS 109 this year, and here's why: Our community is trying to make sure that we get over the racial separation that has been such a troubled part of our history. So we want to make sure we have a pretty good number of white and black children in all of our schools.  It's important, even though it sometimes means you don't get your first choice of a school assignment this year." As I read the record, that is unlikely ever to happen more than once to any child white or black. What is the big deal? 

Why is it so critical that we "get beyond race" in every possible way? Get beyond despising or disliking people because of their race, yes. Get beyond oppressing people because of their race, yes. But avoiding any consideration of race as though it were toxic?  I don't understand that. 

The court's decision is everything conservatives should abhor. It is a form of social engineering dictated from Washington. It ignores the principle of local control of schools. It sets aside the judgment of elected officials, even though nothing in the text of the Constitution requires that result, and the original understanding at the time of drafting of the 14th Amendment is solidly against it. It equates the well-intentioned and inclusive programs supported by both white and black people in Louisville and Seattle with the whole grotesquerie of racially oppressive practices which came down, as Charles Black once said, in apostolic succession from slavery and the Black Codes.

The plurality opinion is elegantly reasoned and reads as if it could have been written by a law review president. But it fails the very first lesson taught to preschoolers who watch Sesame Street: "Which of These Things Is Not Like the Others?"

It's been a pleasure talking with you both.

Best regards,
Walter

Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

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