A Supreme Court Conversation
Dear Dahlia,
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
Facebook
MySpace
Mixx
Digg
Reddit
del.icio.us
Furl
Ma.gnolia
Sphere
StumbleUponWhile we await today's school segregation decisions, I'll answer your earlier question about the impact of Brown v. Board of Education. Both sides in the debate over whether to use race to maintain integrated schools invoke and rely upon Brown to support their position. Supporters of the Lousiville and Seattle plans believe that the promise of Brown was to use the schools to bring the races together to help move the country from a segregated society toward one America. Those challenging the plans believe the fact that some requests for school assignment are denied because of the race of the pupil violates Brown's condemnation of racial classifications.
So, what was Brown all about?
It is difficult to convey to someone who wasn't living in the South the magnitude of the Brown decision. On the 40th anniversary of the decision, I revisited that day for the Washington Post:
I REMEMBER nothing of my 13th birthday, which was celebrated in some now unrecallable fashion on a May Saturday in 1954. But I will never forget what happened the following Monday. ...
I was stumbling, unfocused, through the seventh grade at Myers Park Junior High in Charlotte, N.C. It was just past midday when a knock on the classroom door aroused me from my post-lunch slumber. The assistant principal, standing just outside the partially open door, carried on a whispered conversation with our fourth-period teacher. At conversation's end, our teacher closed the door and turned (in my mind's eye, in slow motion) to face the class. Our distracted chatter dropped to a hush as we noted his ashen face. I believe I remember, 40 years later, his exact words:
"Children," he said slowly and deliberately, "the Supreme Court has ruled. Next year you will go to school with colored children."["A Southern White Recalls a Moral Revolution." The Washington Post May 15, 1994, Sunday, Final Edition]
In fact, nothing happened the next year. Or the next. Five years later, I graduated from a still all-white public school without ever having attended school with a black child. In fact, I finished college and law school, clerked for a Supreme Court justice, and was a law professor teaching Brown when the Supreme Court finally brought a meaningful end to the de jure segregation of the public schools of the rural and small-town South in 1972.
Nothing happened in 1954—and everything happened. Brown put a powerful proposition to the American people: that racial segregation was immoral and unconstitutional. For many young white Southerners, the court turned Jim Crow from a social fact into an inescapable and powerful moral question. From the day our teacher solemnly announced the court's decision, my life through high school and college in the South was energized by an endless and fierce argument about whether the Supreme Court was right that segregation was wrong, and what one should do about it. The causal link from the court's ruling in Brown to my walking a picket line in front of a segregated movie theater was direct and strong. The decision of May 17 initiated a debate the changed the South—and the nation—forever.
The idea that the principle of Brown condemns the valiant efforts of, say, the Louisville community to maintain schools attended by both black and white students seems profoundly wrong to me. The Louisville school system (I keep using Louisville, because I know that case better) takes account of the race of students to keep each school integrated. They don't try to replicate the one-third-black percentage of the district as a whole in each school, but they do take race into account where that figure would otherwise fall below 15 percent or above 50 percent. Good people, black and white, in Louisville have refused to give up on the public schools. They know that sharp imbalances in the race of a school population leads to "white flight' from the schools and that using race to keep schools integrated is essential to the viability of public schools.
Of course, they could have a system in which each school almost always reflects the racial proportions of the district's overall population simply by assigning all students by lottery. Each school would usually wind up about one-third black. No system would do that because assignment by lottery would impose enormous costs on families in transportation and deprive them of the great advantages of neighborhood schools. But, as I argued in my last posting, using neighborhood as the sole mechanism for school assignment means that the schools will replicate the housing segregation that defines Louisville as it does many of our metropolitan areas. The carefully planned Louisville system combines neighborhood schools with parental choice and some use of race to ensure an integrated experience and a viable public school system.
Looking at today's cases from the vantage point of the Brown decision, the idea that the Supreme Court would condemn the valiant efforts of the Louisville community is extraordinary. The people of Louisville want a community that is not separated by race, beginning with a school system in which white and black children learn to know one another.
Brown condemned a system of Southern racial apartheid, a system of racial domination and subordination. It is the worst form of literalism to believe that the cases now before the court can be decided by the fact that the phrase "classifying by race" can be used to cover two radically different notions. Only by blinding oneself to history and common sense can one assume that the use of race to maintain the monstrosity of the Jim Crow regime of the South and the use of race to achieve an integrated society in Louisville are one and the same.
You and I and Stuart Taylor will have a lot to talk about today.
Walter
Happy Birthday, Smokey Bear
Are Gas Grills More Eco-Friendly Than Charcoal Ones?
He-Man: Briefs of Rage and Other Toy-Inspired Movies We're Dying To See
Kaus: Seven Possible Theories Explaining Palin's Resignation
The U.S. Embassy in Djibouti Cordially Invites You to a Fourth of July Cookout
The Week's Best Editorial Cartoons
Remarks from the Fray:
This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."
This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"
--CaLawyer
(To reply, click here.)
I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.
I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.
--SlateSurfer
(To reply, click here.)
It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.
--rrfan
(To reply, click here.)
With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.
--Tori_Fox-Hunter
(To reply, click here.)
The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.
So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.
The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.
--randy-khan
(To reply, click here.)
Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?
--Aagcobb
(To reply, click here.)
Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!
The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.
Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.
--Dilan Esper
(To reply, click here.)
(6/26)