Several people have been discussing the two decisions by the Supreme Court striking down the voluntary desegregation programs in Louisville and Seattle. You can read some details here and you can see some of the discussion on my friend Bridgett’s blog at My Beautiful Wickedness.
I believe that the Supreme Court’s decision today reflects long-standing issues in the law – what are civil rights laws meant to do – and one of the biggest questions confronting the American experiment – are individual liberties always more important than public needs? It isn’t like these questions are new. Figures like Hobbes, Locke, and Rousseau (among many others) have put forward answers. It is a sign of how difficult this is in practice, as opposed to theory, that none of these brilliant people have come up with an answer that works all the time. Today’s decision reflects a vision of American society as being essentially atomic. Each individual is isolated and separate. The preservation of their separate rights is the paramount duty of the law. What this leaves out is any idea of America as a community. It says we are always a group of individuals, we are never one nation. As such, the decision is not surprising. Isn’t this exactly the view we see reflected throughout our culture? It is the double-edged sword of individual rights.
It is simplistic to try to define today’s decision as a racist view versus a non-racist view, which supporters of both sides are already doing. Each side is using a different definition of what the idea of “rights” means and a different idea of how those rights are to be protected. There is a big question at the root of the division of the court.
Do civil rights laws exist to protect the individual civil liberties of each American or do these laws exist in order to affect a set of social changes concerning how this society deals with race?
To date, the existing laws have tended to use the first of these goals as a justification for policies aimed at the second of these goals. Each American is supposed to be guaranteed certain rights; therefore we must build a society which will overcome the racial divisions of our past. In the beginning, the issue was ending a system of state-mandated racial segregation. Over time, school desegregation became a tool to try to end the de facto segregation of American society. In education, this has led to the idea that it is of vital importance that students be brought together in multi-racial educational institutions so that most people will be starting from the same place. This vision says that integrated schools will create an integrated, and equal, America.
This idea has been questioned, and not just by avowed racists. African-American parents have questioned the “assimilation” of their children. Parents of all races have deplored the relocation of children to other neighborhoods. Also, in order to do this, some students have found themselves denied access to schools they wanted or found themselves forcibly reassigned to schools they didn’t want on the basis of their race. Certain individuals had their liberties infringed upon in the name of a certain vision of the common good – but what about the rights they were guaranteed? Thus we had legal challenges to existing programs intended to promote racial diversity in schools, all of which leads to today’s decisions by the Supreme Court.
The position taken by the Roberts, Alito, Scalia, and Thomas portion of this decision is that the whole attempt to use schools to fix American society is misguided. The only important issue is the individual liberties of each student. The government must be racially blind when dealing with these students. The government cannot force them out of a school due to their race; the government cannot assign them to a school due to their race. The government must pretend that race doesn’t exist. If it does, this reasoning goes, there will be no racial discrimination in law and that is the only thing that government or the courts should concern themselves with. This argument says that we are a nation of individuals and individual rights are all that matter. Government must not infringe on the rights of the individual for any reason.
Justices Breyer, Ginsburg, Souter, and Stevens dissented in the name of the traditional vision of civil rights law. Breyer’s dissent argued that there is a difference between race-based programs of exclusion and race-based programs of inclusion. This is the idea that the ultimate goal of equality in America is an important enough public goal that the abridgement of some individual’s liberties is justified. This is an argument that a communal good occasionally outweighs private needs. This argument says we are sometimes a group of individuals, but we are also one nation. Sometimes what is good for the group must take precedence.
Justice Kennedy’s concurrence shows the tilting point. He agreed that the way race was used in these school systems – as an individual sorting method – was illegal, but he allowed that the goal of social change was something the schools, and hence the government, could legitimately pursue. This is a significant difference in philosophy from the Roberts group. I think there is an argument to be made that the divisions of the court, like the divisions in Congress, simply represent a much divided public mind.
I cannot agree with the Roberts group. I think that the view of an atomic society that they and other neo-Conservatives put forward will create a Republic that cannot stand. This legal reasoning is dangerous to us as a nation because it denies that there is any “us” at all.
But is the law the real problem here? Isn’t there another set of questions we need to ask? The reason for the Louisville and Seattle programs is the continuing geographical, economic, and social segregation of America. Why, five decades after Brown are we still living in an America with “black” neighborhoods and “white” neighborhoods? I tend to favor the position of the dissenters on the court, but there is still a valid question to ask about why school desegregation hasn’t produced the America its promoters envisioned. If we are going to come back at the supporters of this decision, and the thinking behind it, we are going to need answers more compelling than “if we just give it more time it will work.” I think I’ve been hearing someone use that as an argument for “staying the course” in another area, and I don’t buy it there so why should they buy it here?
We’ve got work to do people – and only a small part of it is about voting and law.
