Virtual Bourgeois

Just An Analog Guy Trying to Upgrade For a Digital World

Civil Rights and Individual Rights

Posted by Gerald on June 29, 2007

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.



14 Responses to “Civil Rights and Individual Rights”

  1. sphyrnatude said

    Intereseting points, but the reason there are still “black”and “white” (And chinese and italian and jewish and muslim) neghborhoods is simple: like attracts like. If I’m an upper middle class white, black, hispanic etc, chances are pretty good I’m not interested in living in an inner city slum. Likewise, if I’m poor, chances are also good – regardless of color – that I won’t be living in theland of golf courses, swimming pools and well maincured lawns. Take a look around your neighborhood – there is probably a fairly decent mix of races, but almost everbody will be in a fairly close economic range.

    It is true that many inosrities are more highly represented in the lower income brackets. This may be a vestige of old legalised segregation, but if, after 40 years things ahven’t changed, there is probably something else. The fact that things are not getting better after 40 years is also a strong indicator that using the schools to try and indoctrinate our kids into PC behavior simply doesn’t work…

  2. bridgett said

    Hmm…let me think about this when my kid isn’t jabbering like mad about Harry Potter.

    As for me and mine, we’re doing our part for residential desegregation. We’re one of two Anglo families in a predominantly Caribbean, African, and African-American neighborhood. On the other hand, we drive our kid to a private school in another county (very racially diverse, but economically? not so much.)

  3. sphyrnatude said

    OK, I’m not trying to be snarky, so please take deep breath before you read this:

    You’re doping your part for racial desegregation by living in a mixed neighborhood. Thats good. BUT you are kind of defeating the whole idea of desegregation by sending your kid to a private school in another county…. You are essentially doing what the supreme court said it was illegal for the state to do (its OK for an individual to make that decision, but not the state). By sending your kid to a private school where your child is ensured to be exposed only to kids of his own economic strata, you are getting past the racial segregation (or at least you are exposing your kids to succesful minorities), but the issue remains that a lot of the minorites are in a different economic strata.
    The reality of the whole segregation issue is that it has shifted from a move for color-blindness (desegregation) to a move for extra priviliges for any minority that claim it is over-represented in the poorer economic strata. Race is simply an excuse for “entitlements” – this is a large part of the reason that I am glad the supreme court made the finding that it did….

  4. bridgett said

    Deep breath taken. You might not mean to be snarky, but you are speaking authoritatively about a life that you know nothing about, which is always unwise. You’ve made many erroneous assumptions about my motivations for where I live (a five-minute walk from my workplace and the workplace of my husband, as we can only afford one car), where I school my daughter (religious beliefs rather than white flight), my socio-economic background and the socio-economic background of my neighbors (they are better off economically than we are, though equally well-educated — we, not they, provide the economic diversity in our neighborhood). I don’t know you, so I do not know why you assume that black and immigrant of course must mean poor or that private school must mean rich or that rich equates with successful. That you do, and that you feel entitled to pronounce on the quality of my commitment to diversity based on nothing more than an offhand three-line blog comment, is illuminating. Perhaps some of your other positions rest on equally underinformed premises.

  5. Gerald said


    I’m not going to address Bridgett’s points. She doesn’t need me or anyone else to speak for her.

    While I see what you are saying about “like attracts like”, I think that just opens up a wider set of questions. I do not see race as an absolute given. It is something we as a society have defined and have invested certain meanings in over time. People decide their definitions of “us” and “them” whether it is white and black, Protestant and Catholic, Sunni and Shi’a, or Red Sox and Yankees.

    We didn’t create the society and racial definitions of our time, we inherited them. However, we ARE currently writing the book we are going to hand on to our progeny. We are constantly in a social conversation in which we either accept or re-define the world we inherited.

    I believe that the Roberts plurality on the Court and their decision here is based in a rhetoric of individual rights, but that the idea of a “color-blind” government ignores the realities we have inherited. The only way we are going to make things better (which I define as an American “salad bowl” rather than an American “melting pot”) is by a conscious act of will (well, by many, many, many of them.

    We need an America (and a world) where “we” are all “us”. I don’t think this helps get us there.

  6. sphyrnatude said

    OK – take my last post, and instead of applying to your specific family, apply to americans in general (I wasn’t trying to criticize your specific situaion – you’re right – I don’t know you, and wouldn’t want to criticize a specific I don’t know). I think Gerald brings up an interesting point – his closing line where he suggests that “we are all us”. This is a great utopian concept, but in reality, is unlikely to ever really happen – no matter what, there will alaways be “us” and “Them”. The question is what defines the borders, and what the borders are used for.

    If “us” and “them” are used at a state level to grant preferential treatment to any group, the state is re-inforcing the differences between the groups. IF the premise of a government is that “all people are created equal”, and (theoretically at least) deserve equal prtoection and treatment, then this type of entitlement is not only hypocritical, it is undermining the basic premises of the government.

    The idea that entitlements are needed to make up for “past wrongs” would be an interesting oneif it was applied uniformly. My grandfather was an american indian. Does that mean that I have a right to demand my ancestral land back? Or demand restitution for all of my ancestors that were killed by the diseases that Europeans brough to America? The other side of my family came to the US in the 1920s, and spent most of the first 2 generations working in sweatshops. Can I go to the families that became millionairs by using the sweatshop labour and insist that they give me a portion of their fortunes? I vertainly hope not.

    Yes, there are inequalities in society – there always have been and always will be. A rational society accepts this, and does what it can to make a basic level of comfort available to all (which we do – if you’ve never been to the third world, you haven’t seen what real poverty is). Wile the quest to create an absolutley level field for all people at all ages and all skill levels is admirable, it is simply not acheivable.

    An intersting example is the current situation that many labour unions find themselves in. In the early part of the last century, unskilled labour organized, and began insisting on increased wages and benefits. At the time, this was appropriate, as the unskilled were being taken advantage of. However, once the unskilled laborours reached a point where they had a liveable wage, they wanted more – they wanted the same lifestyle as the white collar and skilled blue collar workers. The unions continued to succesfully lobby employers for more and more pay and benefits for unskilled labour, and eventually the unskilled labour was shipped overseas to a place where it could be done at a cost that was appropriate for unskilled labout. Not very nice, but the reality is if a job can be done by a high school drop out, the wages will (or at least should) reflect that. If someone is satisfied with that type of job, they must live with the results of their decision that put them in it. If they want a better job, they can learn a skill that will justify a higher paying job. (And yes, I do know a number of those unskilled labourers, and many of them are content with their lifestyle. Many of them are also not content, and are taking coummunity college courses, learning other skills, and geting on-the-job training to increase their employability).

    There will always be inequalities, and the only way that people wil lbe able to overcome them is with individual motivation. The state cannot be responsible for ensuring that every individual is given every chance. The state also cannot act to prevent someone from being able to pursuing growth…

  7. opit said

    It is to the benefit of society if it does not squander its resources, irrespective of kind. For the state, allowing a situation in which current economically advantaged people are able to twist the educational system to give preferment based on social status rather than innate competence is to disallow maximum contribution by the brightest and best. The hope of a public school system is that common standards for all drives teaching to an acceptable standard for all – a communist/socialist goal if you will.

    Nonetheless, allowances for dullards and gifted both will present opportunities to frustrate this ideal, an innate weakness in the program. I see ‘privatizing’ of schools as a further weakening of equal opportunity. The only effective weapon the state has is to work to ‘level the playing field’ so individual merit has a chance to flourish, regardless of method.

  8. sphyrnatude said

    OPIT, the problem with your argument is that he public school do NOT provide an opportunity for the “brightest and best” to contibute. Indeed, just the opposite has happened. In our quest to provide “equal opportunity” to all, we have lowered the standards of our school so that anyone can pass. A common standard taht is based on thelowest performing individual or group is destined to turn out a population that performs the ability of the lowest individual or group.

    Private schools and homeschooling are the only options parents that want their children to get a good education have. Especially if those parents live in an area where the schools are bad. Unfortunately, many parents cannot afford to send their kids to private schools, so they are left to spend 12 years in an apathetic environment that encourages mediocrity. By privitizing schools, we will give those parents the option to choose what school their children go to. If they choose to send their kids to a school that has high standards, their kids will either perform to those standards or flunk out. If they choose to send thier kids to a school with low standards, that is their choice. It is unfortunate that their children will have to suffer for their poor choices, but in reality, their kids will suffer from many more poor choices that they make anyway. Even if a kid is sent to a high performing, high standards school, without parental support, encouragement, and a home environment that encourages academic performance, the kid will (in most cases) simply coast through or drop out.

  9. opit said

    I’m not disregarding your points. In fact, there is good reason to separate out the gifted and let them achieve their potential : otherwise boredom and disaffection will ruin their possibilities.
    What I am suggesting is that it is important to configure and support the system to allow this. It is only an argument for the ‘superiority’ of privatization as a known fact – which I heartily dispute – which makes you think greater efficiencies and possibilities are not both achievable as a ‘public utility’. Specialist institutions can take up the slack : that’s not the same as becoming mainstream.
    What does kill public schooling is inequality of resources. The ‘basic quota’ is not being adequately maintained.

  10. sphyrnatude said

    I will agree that in theory a public school system could provide adequate education for all students – slow, normal and gifted. However, the concept of “equality of resources” is insane. A kid with special needs will cost more than a “normal” kid, and a gifted kid will also cost more than a normal kid.
    The reason that I feel privitization is the only hope for schools is that there is absolutley no way that a parent can make a difference in a school. With a free-market approach to schools,the crappy schools – crappy for ANY reason – will lose students and the revenue assocaited with them, and eventualy go away. Teachers that can’t teach will also find themselves looking for new jobs, as will adminstrators that can’t do their jobs. Sure, the majority of parents will probably opt for the school that lets their kids coast along learning very little, but meeting some minimum standards – just like the public schools currently do. But those parents that want their kids to actually get an education should have the option to put their kids ina school that they choose – without having to face the financial penalties of being required to support another school as well.

    I don’t claim that privatization is some sort of wonder cure. Many private schools will not be able to deliver, and will fail. If there is a student body avaialable, another will rise to fill the spot. It is also important to realize that the public schools are not, and never were meant to deal with either special needs or gifted kids. The purpose of public schools historically was to turn out factory workers – people with just enough knowledge and skill to operate the machinery in a factory. Today, this has translated into churning out mediocrity. Public schools excel at taking a bunch of highly motivated kindergardeners – kids that can’t wait to go to school, and in very short time turn them into kids that view school as a chore – often by the first or second grade, kids hate going to school. By the time these kids get to jr or sr high school, they have learned how to satisfy teachers by simply spitting the same information back at them, to never question, to never present a politically incorrect opinion, and (most importantly) to pass standardized tests that are supposed to prove that they have actually learned something.

    If we want to teach our kids to think, be creative, and find new ways to do things, we need to get them out of the public schools – either that or completely reqork the public schools. Reworking is simply not possible – there is to much beurocratic inertia to implement any real change. Those of us who can afford to and have the time send our kids to privatre schools and home school them. We accept that the money that we pay for education taxes is simply wasted.
    As far as “efficiancy” is concerned, I know a number of private school and homeschooled kids who get extremely good educations at much lower per student cost than the public schools can ever dream of. These kids often take University courses when they are in Jr. High school – at a cost that, once again, is lower than the same class in a public high school. Of course, it also covers a heck of a lot more material than the public school classes. The public schools are the most expensive and least efficient way we have of teaching kids. The addage of an elephant being a mouse built to government specifications carries to the schools as well. Any possible savings there may be in having a large group of schools sharing resources is completely dwarfed by the overhead created by bloated beurocracies.

    The public schools are what they are, and they aren’t going to change. The question is, as people going to sacrifice their kids future to thepublic schools, or are they finaly going to stand up and force a change?

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