Category: Race
Requiem for Brown
Hailed as the most important Supreme Court case of the 20th century, Brown v. the Board of Education on its diamond anniversary is no more than a gorgeous corpse. Brown today prevents state and local governments from hanging a “colored only” sign on the schoolhouse door – unfortunately it allows them to do everything they need to do to produce precisely the same outcome, without need for the sign. Eviscerated by subsequent decisions, Brown’s awesome potential is unrealized, and unlikely to ever be, doing nothing for an increasing fraction of students who attend legally segregated schools across the US. The nation should end its sardonic celebration of Brown’s 60th, and be rededicated to the task of desegregation.
Brown invalidated the Jim Crow establishment of parallel white and colored schools, repudiating the infamous “separate but equal” doctrine with its overruling of Plessy v Ferguson (1896). Brown was truly a giant leap forward for the US, predating the Civil Rights Act by a decade. So it was for the Warren Court: ever on the vanguard, dragging a reluctant nation into modernity. But Earl Warren, the chief justice, author and architect of Brown‘s 9-0 decision, retired in 1969. Nixon replaced him and 3 other justices, setting the stage for Brown‘s demise.
While every schoolkid learns the historical significance of Brown, few are taught Millken v. Bradley, which in 1974 cut Brown off at the knees. Board of Ed. of Oklahoma City v. Dowell was a conservative Court’s 1991 coup de grace,* rendering Brown a nullity.
Milliken is a quintessentially cynical conservative decision, in which 5 justices feign ignorance to the most basic facts in order to arrive at an indefensible decision. Milliken‘s majority observed that neighborhoods can become segregated by socio-economic factors. School districts in such neighborhoods, they explain, can as a consequence become segregated without any action on the part of the government. And thus may poor black neighborhoods beget poor black schools, and rich white neighborhoods beget rich white schools – and Brown, those 5 conservatives pronounced, has nothing to say about that. “Segregation is dead – long live segregation, y’all,” – their holding might well have been
Justice William O. Douglas takes Milliken‘s shiftless majority to task in a dissent that expounds the obvious: where school district lines are drawn and whether they get redrawn; where schools are erected; where municipal lines begin and end; where public housing projects are put up; and nearly every factor that integrates or segregates a given community’s public schools is determined by the government. The government’s decision to countenance racially segregated schools, rather than working to integrate them, is precisely that: a government decision. The Milliken majority acknowledges that where Detroit meets its suburbs there’s a line in the dirt, and the black kids on one side get routed into poor black schools, while white kids on the other side get routed into well-funded white schools. At this point the majority pretends to not grasp the obvious fact that the government chooses where that line is drawn, and whether it is redrawn to integrate schools, as Brown commands, or left alone.
5 conservative justices finished Brown off in its 1991 Oklahoma City decision. Oklahoma has among the most egregious records on segregation. The cordoning off of black kids into black-only schools was written into the state constitution from the day Oklahoma achieved statehood in 1907. Despite Brown, the Civil Rights Act, and an 11 year federal court battle, Oklahoma City schools were still segregated in 1972. Finally a new plan was implemented – and it worked: in 1977, a federal judge declared Oklahoma City schools to be integrated – 23 years after Brown!
But just 8 years later, Oklahoma City enacted a different plan to allocate students – and by 1989, its schools were segregated again. When plaintiffs sought to reopen the federal case that ended 70 years of Oklahoma City school segregation, 5 conservatives on the Supreme Court slammed shut the courthouse door. Never mind those 70 years, this conservative majority argued, asking us to believe that this more recent variety of segregation is the permissible Milliken kind, driven by economic decisions by private citizens. A mere 10 years of desegregation in the preceding 80 had miraculously turned Oklahoma into Massachusetts. Segregation is dead – long live segregation.
Justice Thurgood Marshall, who argued Brown before the Court in 1954, took on the Oklahoma City majority in his pointed dissent. The effect of Oklahoma City is to allow miscreant school districts – who were once subject to a desegregation order, and who subsequently satisfied that order by integrating – to backslide into segregation again by “private economic decisions” – and then when they get sued, they can hide behind Milliken, throw up their hands, and claim that this “new” segregation is not the result of government action. Long live segregation, y’all!
Milliken made sure that Brown could not apply outside of the south, allowing states like New York and California to have some of the most segregated school systems today. Oklahoma City next gave southern school districts the opportunity to be treated like New York and California – they need only desegregate for a few years, after which they can return to segregated business as usual.
Yeah I know it sucks – sorry to be the bearer of bad news – but Brown, in many respects now does more harm than good. Ironically, Plessy v. Ferguson might produce better results today, since it requires EQUAL to go along with separate. Brown, twisted from its original meaning by 40 years of conservative jurisprudence, is now the facilitator and protector of a system of separate and unequal schools across the country.
Refs:
http://news.yahoo.com/us-schools-largely-segregated-60-years-brown-v-201333080.html
http://www.pbs.org/newshour/bb/60-years-brown-v-board-school-segregation-isnt-yet-american-history/
http://www.cbsnews.com/news/ny-schools-are-most-racially-segregated-in-nation-report-says/
http://www.huffingtonpost.com/2014/03/26/new-york-schools-segregated_n_5034455.html
http://www.businessinsider.com/most-segregated-cities-in-america-2013-11?op=1
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=498&invol=237
http://supreme.justia.com/cases/federal/us/418/717/
http://carltonthurman.me/2014/03/28/segregation-new-york-style/
http://www.nytimes.com/2014/05/17/us/mrs-obama-cites-view-of-growing-segregation.html?_r=0
http://en.wikipedia.org/wiki/Warren_Court
* CT kindly requests that all world citizens, francophonic or otherwise, enunciate the final c in “coup de grace.” Failure to do so results in “coup de gras”, which – though it may be poetically construed as a drink on Fat Tuesday, or, more farfetched, a judo move involving the buttocks – is unbearably grotesque in ears of a certain stripe. Grazi-yay a todo.
Segregation, New York Style
Who has the most racially segregated schools in the US? According to a new report out of UCLA, that distinction falls on New York State. The roots of New York’s segregation go back to a 1974 Supreme Court decision that isnt as infamous as it should be. In Milliken v. Bradley, 5 justices decided that there were really 2 kinds of school segregation. New York’s, as you might guess, is the legal kind – though both kinds suck separately, equally and spectacularly.
The illegal kind of segregation happens when a school board official sits down at a map, and with evil intent sketches out school districts that keep blacks with blacks and whites with whites. This is “de jure” segregation. After review, a Federal Judge will send the miscreant back to his map, with instructions that he sketch out nicely-integrated school districts. He does, the Judge signs off, and life goes on, desegregated.
Years pass and some neighborhoods do better than others. Affluent people buy into better school districts. Poor people get displaced by higher property values, and get pushed into inferior school districts. Since there’s a wide disparity in the US between incomes of whites, blacks and hispanics – and persistent discrimination among landlords, realtors, and other private parties – the result is a return to racially segregated schools. And since schools across the US tend to be locally funded, you dont just get segregated public schools – you get poor minority kids in underfunded schools, and middle-class white kids in well-funded schools.
The kicker comes when the next-generation public school board official gets his arsenio hauled into Federal Court – only to receive a pat on the head. Because y’see this kind of segregation, which just kinda sorta happened (wink wink), is called “de facto” segregation – and it’s been legal as pie since 1974. Under Milliken, a Federal Judge cant force state officials to throw out the old districting map simply because it results in segregated schools. If there were no evil intent when the districts were drawn, the state can kick back and enjoy its aparteid-by-omission. While school board officials arent allowed to create segregated districts with their pencils – they arent required to undo them with their erasers.
The Milliken case came out of Detroit, where poor, black, city school districts abutted affluent, white, suburban school districts. “Milliken” was himself the governor of Michigan – sued by Detroit residents who objected to the state’s school-districting scheme because, by following existing municipal boundaries, it resulted in deeply segregated schools. The plaintiffs argued that the distinction between “Detroit” and “Suburb” was just a line in the dirt – that the state was required to cure racial segregation, or run afoul of Brown v. the Board of Education‘s holding that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The lower court agreed with plaintiffs, and ordered that city and suburban districts be integrated across the city line.
The Supreme Court disagreed. Chief Justice Burger wrote, “The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils.” (Emphasis supplied.) Burger conveniently overlooked another passage from Brown: “Does segregation of children in public schools solely on the basis of race… deprive the children of the minority group of equal educational opportunities? We believe that it does.” The modifiers “state-mandated” and “deliberately maintained” arent there. The distinction between “de jure” and “de facto” segregation isnt there. Under Brown, there was just one kind of segregation: the illegal kind.
Milliken went beyond merely undercutting Brown – it managed to undercut the most infamous case in US history, Plessy v Ferguson, which in 1896 validated the doctrine of separate-but-equal. Milliken succeeded in validating separate-but-UNEQUAL – a step backward from, and more regressive than the Jim Crow South.
In Milliken, the Supreme Court reversed the decision of the lower federal court, which would have required the state to seek an “area-wide” plan to cure segregation, rather than relying on a “city-wide” plan. The lower court’s eminently sensible solution to the segregation problem would have moved some city kids into schools in the suburbs, and some suburban kids into schools in the city. The distances were modest – this “area-wide” plan generally had kids traveling shorter distances than the “city-wde” plan. But the Supreme Court decided there was no problem at all, because “There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort.” Thus the holding of Millken is “Segregation Happens” (with a shrug). Hey, wuddyagonnado….
Justice William O. Douglas – the same guy who gave every American a right to privacy back in 1965 – wrote a brilliant dissent, which we can only hope will become law one day. Douglas is among the most gifted writers the Court ever had, with an exceptional talent for nailing down knotty issues in a few tight paragraphs. You dont have to be a lawyer to enjoy Douglas at his best – though suffering through a few of Kennedy’s or O’Connor’s mangled texts helps speed the appreciation. A link to his full dissent is given below, and it’s worth reading in its entirety. Unable to improve on his eloquence, Douglas closes here, his thoughts as apropos of 1974 Detroit as they are of 2014 New York:
“Today’s decision… means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only “separate” but “inferior.” So far as equal protection is concerned, we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.
“There is, so far as the school cases go, no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system just as surely as did those States involved in Brown v. Board of Education when they maintained dual school systems.
“The issue is not whether there should be racial balance, but whether the State’s use of various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State’s control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling — either constitutionally or equitably…. It is conceivable that ghettos develop on their own, without any hint of state action. But since Michigan, by one device or another, has, over the years, created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations.”
Refs:
Douglas’s dissent: http://supreme.justia.com/cases/federal/us/418/717/case.html#757 (you have to scroll down a little bit – it begins just below “MR. JUSTICE DOUGLAS, dissenting”)
full text of Milliken: http://supreme.justia.com/cases/federal/us/418/717/
http://en.wikipedia.org/wiki/Milliken_v._Bradley
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/Brown_v._Board_of_Education
full text of Brown: http://supreme.justia.com/cases/federal/us/347/483/case.html
bonus material: http://en.wikipedia.org/wiki/Griswold_v._Connecticut
How the GOP Became the Whites-Only Party
Immediately after winning the 1980 GOP presidential nomination, Ronald Reagan went to Philadelphia, Mississippi and gave a speech on “States’ Rights.” It was a curious venue for a curious subject. In the same southern town just 16 years previously, 3 civil rights activists were murdered by the local police department, the county sheriff and the KKK. “States’ Rights” had a special meaning: it stood for opposition to the civil rights movement. It would be like giving a pro-guns speech in Columbine today – a massacre which happened 15 years ago.
Reagan advisor Lee Atwater said in a 1981 interview, “You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you cant say ‘nigger’…. So you say stuff like ‘forced busing, states’ rights’ and all that stuff…. You’re talking about are totally economic things and a byproduct of them is blacks get hurt worse than whites.”
Conservatism among poor whites was and is fundamentally about racism. The GOP, not by accident, but BY DESIGN, is a party for whites only. Though they feinted toward inclusiveness during the 90s, their Tea Party wing – birthers and all – still doesnt care enough about winning the White House to strike a deal on immigration reform – a necessary first step toward taking a fraction of the Hispanic vote – without which they have little chance of winning a national election.
LBJ knew that the Civil Rights Act would drive white southerners to the GOP. The so-called “solid south” had been wobbling since the 1940s, when Strom Thurmond formed the “States’ Rights” party, whose single policy goal was maintaining segregation. He took 4 southern states in the 1948 presidential election. Coming just 4 months after passage of the Civil Rights Act, the 1964 Presidential election saw 5 southern states go to the GOP, whose candidate, Sen. Barry Goldwater, voted and campaigned against the Act. With his home state, they were the only states he won. The same 5 states went to George Wallace in 1968, again running only on segregation. Wallace remains the most successful third-party presidential candidate of the past 100 years. Racism, and nothing else, was all it took to win the white southern vote. And still is.
One of Nixon’s advisers dubbed it “the southern strategy” – stripping the white southern vote from the DNC though appeals to racism. Remarkably, one facet of the southern strategy explicitly included pushing southern blacks into the Democratic Party, to lower that party’s stature in the eyes of racists. As a Nixon adviser put it, “The more Negroes who register as Democrats in the south, the sooner the negrophobe whites will quit the Democrats and become Republicans. That’s where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats.”
Success breeds success – Nixon’s “southern strategy” has grown to define GOP electioneering and politics, as increasingly virulent strains of conservatism have taken over the GOP – a once-great party with a strong liberal tradition. Since Reagan, GOP candidates have competed in general elections on Goldwater’s conservative policy positions, using Nixon’s electioneering strategy. The quadrennial GOP presidential candidate’s visit to the outrageously racist Bob Jones University (which forbids interracial dating) only ended after Bush Duh went in 2000, after which BJU unilaterally decided to withdraw from politics.
The language the GOP uses has evolved – where before we had “states’ rights” and “busing”, we now hear about “the takers”, “the 47%”, “illegals” – and then there are the birthers. The common element is belief in an “enemy within,” against whom a nation unifies in animus. Patriotism – nominally defined as love of country – is routinely expressed as hatred of particular people within it.
The birthers – crazies who suggest that Obama was born in Indonesia or Kenya – are NOT fringe elements within the GOP – they are mainstream. Mike Huckabee, Sarah Palin, Michele Bachmann and Newt GIngrich – all GOP national candidates – have made remarks sympathetic to or supportive of them.
And that’s how we got here – with many poor, white Americans supporting a political party that opposes there own financial interests. Among 46 million Americans in poverty, more than 30 million are white. Red states are themselves net recipients of federal dollars – receiving far more in federal support than they pay in federal taxes. Increasing the size of government almost invariably means that rich, liberal states will pay more; while poor, conservative states will receive more – and yet red-staters are against “big government.”
Almost 10 years ago, Thomas Frank took a crack at this issue with his book “What’s the Matter with Kansas.” His conclusion was that conservatives pulled a bait-n-switch on poor whites: luring them with demagoguery on cultural issues (abortion, death penalty, gay marriage, flag burning, etc.), in the hope that they wouldnt notice their regressive stand on fiscal issues (reducing taxes on passive income, slashing social insurance). There’s a lot of truth in his analysis – though Frank, a decent Kansan himself, was a bit too genteel in his conclusions.
In a Russian fairy tale, a genie appears to a peasant and says he will grant him any wish – on the condition that whatever he receives, his neighbor will receive double. After thinking it over for a minute, the peasant replies “kill one of my cows.” Poor whites have long taken pride that they’re somewhat less poor than poor blacks. They remain content with losing, as long as they think those other folks will lose more.
Refs:
http://en.wikipedia.org/wiki/Southern_strategy
http://en.wikipedia.org/wiki/Mississippi_civil_rights_workers_murders
http://www.slate.com/articles/news_and_politics/history_lesson/2007/11/dogwhistling_dixie.html
http://www.economist.com/node/17467202
http://en.wikipedia.org/wiki/Philadelphia,_Mississippi#Reagan.27s_visit
http://en.wikipedia.org/wiki/Dixiecrat
http://en.wikipedia.org/wiki/Bob_Jones_University#2000_election
http://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories#Campaigners_and_proponents
http://en.wikipedia.org/wiki/United_States_presidential_election,_1948
http://en.wikipedia.org/wiki/1964_Presidential_Election
http://en.wikipedia.org/wiki/United_States_presidential_election,_1968
http://en.wikipedia.org/wiki/Lee_Atwater#Atwater_on_the_Southern_Strategy
http://www.teapartynation.com/forum/topics/the-birther-manifesto
http://www.rightwingwatch.org/content/tea-party-nation-goes-birther
http://www.cbsnews.com/news/poll-birther-myth-persists-among-tea-partiers-all-americans/
Carlton Thurman's Liberal Field Guide 