August 25, 2006

Predicting "a favorable hearing" for argument against racial balancing in schools.

David Savage writes about the school integration case that's pending in the Supreme Court. Parents have challenged programs that take accound of race and exclude some white children in the pursuit of racial balance, and the administration has just filed its briefs siding with the parents:
[Solicitor General Paul] Clement urged the high court to resolve a lingering dispute over the meaning of the court's landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools were "inherently unequal."...

"The promise of this court's landmark Brown (decision) was to 'effectuate a transition to a racially nondiscriminatory school system,' " he wrote. "The United States remains deeply committed to that objective. But once the effects of past de jure (legal) segregation have been remedied, the path forward does not involve new instances of de jure discrimination."

His argument is likely to get a favorable hearing from Chief Justice John Roberts and his conservative colleagues.

"It's a sordid business, this divvying us up by race," Roberts commented in June when the court ruled on a voting rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law's focus on the race and ethnicity of the voters.

The voting rights case is different -- importantly so, I think -- because it saw federal law mandating what Roberts called a "sordid business" and overriding a choice made at the state level. In the racial balancing case, local government has chosen that "sordid business" for itself, and the question is whether federal law should override it. Other conservative values -- federalism and judicial restraint -- therefore come into play. It's not just conservative versus liberal here. There is a complexity to the conservative side of the argument that ought to be recognized.

26 comments:

SteveR said...
This comment has been removed by a blog administrator.
SteveR said...

Sorry, I'm still too depressed about Pluto to get into this, maybe later.

yetanotherjohn said...

I have an idea. Why don't we have a law that says the government has to treat the citizens equally. Maybe something like this.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "

oops. Sorry. We already have such a law. Its in the constitution. But this seems to get in the way of how the liberals want to run our lives, so lets just ignore it.

Jim said...

I think both Savage and Althouse confuse the terms "desegregation" and "integration." The Brown case and almost all those subsequent took pains to speak of the need for "desegregation," there being no justification in the Constitution for mixing of races by court fiat.

David said...

There is some reason to think that black males, the population worst served by the current educational system, would do better in schools limited to black males. Nobody really knows, because we can't even run the experiment.

I'm deeply ambivalent about the idea, but it would be nice to know exactly what the cost of current law is, and on whom it falls.

Simon said...

"There is some reason to think that black males, the population worst served by the current educational system, would do better in schools limited to black males. Nobody really knows, because we can't even run the experiment."

The desire to free the education system from the restrictions incumbent upon government is another very good argument for school vouchers. Moving to a voucher system would permit that kind of experiment (although I think such an experiment is flawed, I would be inclined to support gender-separated schools), and would free the schools from worrying about difficult parents, unruly students ("unruly, boy? Meet my friend Mr. Cane, which your parents consented to as terms of your attendance here"), and whether locker searches violate the Fourth Amendment. Glen Reynolds noted in An Army of Davids that people are congregating in private spaces because private actors can place restrictions on conduct in those spaces that most people find beneficial, but which government cannot undertake in a public space. I think he's right, and I think the same should apply to education. Public education is failing for a plethora of reasons; it is long past time to consider if the reason it is failing is not a want of pithily-titled federal programs ("no child left behind", which conjoins unconstitutionality with inexpedience), but rather to consider if the problem with public education is subject to Reagan's maxim that the problem may not be insufficient government, but that government is the problem.

Simon said...

Jim said...
"The Brown case and almost all those subsequent took pains to speak of the need for "desegregation," there being no justification in the Constitution for mixing of races by court fiat."

You might think that, but the Supreme Court has not always agreed.

Mark said...

There is some reason to think that black males, the population worst served by the current educational system, would do better in schools limited to black males.

Is anyone else getting tired of this fiction that blacks are "poorly served" by our school system? Is there anyone who has actually attended a school with a significant black population who does not know that it is the school systems that are being poorly served by the black males? We seem to have to just keep pretending that the problem is the schools, and not the behavior of the black males. I wonder how many more decades this will go on?

dearieme said...

Does "to effectuate" have some subtle difference in meaning from "to effect", or is it just evidence that lawyers charge by the letter?

Jim said...

Interesting, Simon, but why would someone cite Wikipedia in a legal discussion? Someone needs to go correct the numerous misstatements in the Wikipedia article. I stand by what I said: Except for one or two cases where the court was similarly confused, Brown and subsequent decisions were based on "desegregation," to correct de jure or de facto "segregation." It was acknowledged that, if neither could be found, there was no basis to order "integration" of the races!

Simon said...

Mark said...
"Is anyone else getting tired of this fiction that blacks are "poorly served" by our school system?"

Personally, I think children of all colors - and of any creed - are being "poorly served" by our school system. You say that the problem is with the behavior of black males, but I say that (a) the behavioral problems of the kids are not limited to black children, and (b) regardless of who is acting out, it is equally reasonable to say that the problem is with the inability of the public school system to deal with those behavioral problems. If they were in a school environment where being disrespectfull to the teacher got you an ass-whuppin', those "behavioral problems" would disappear rapidly. One bad kid can disrupt an entire class - give schools the power to have a "two strike rule" (strike one, you go into a separate class specifically designated as being for "losers and jackasses" or something similarly derogatory, and if they don't pull their socks up, kick them out of the school) and that problem will also work itself out. If you put a bunch of people together into an environment where they are encouraged to act out and show off for friends, and then hog-tie the school such that it can impose no kind of discipline on students, what do you expect to happen? These people get the idea that the world revolves around them from somewhere, and maybe - just maybe - it's from the fact that we have a school system which revolves around the patently flawed concept that the worst thing a teacher can do is to hurt the child's self-esteem.

Simon said...

Jim,
I don't disagree with you that there is no basis in the Constitution for forced integration. In fact, I could scarcely agree more - discrimination is discrimination, regardless of whoo applies it against whom. My point was solely that the Supreme Court has (mistakenly) taken a contrary view from time-to-time, and we can all thank the Nixon Four for the fact that it didn't go a lot further.

Jim said...

Yetanotherjohn,

The Amendment you cite can be used as a justification for "separate but equal." It's obsolete anyway, to the extent that it doesn't speak to the rights of such non-persons as gays, singles, non-breeders and 17s-and-under.

MadisonMan said...

Simon, kicking miscreants out of school solves a short-term problem. But what do you do with a passel of undereducated young adult males? I think it is in the long-term interest of the country to educate them.

I personally do have faith in the Nation's public school system. Perhaps you missed the report, released by the Dept. of Education with no hoopla late on a Friday, that showed how Public School students outperform their private school counterparts.

I can appreciate the Mother's (she who brought the suit) desire to have her child educated at a school closer to her home. The school district should be encouraging that as well, as it fosters parental involvement.

Jeremy said...

...and that problem will also work itself out.

Simon,
I think the going thought is that it doesn't just work itself out when you kick the losers and jackasses out of school. Those kids tend to become social menaces by way of gangs, crime, violence, drugs, etc. Then they tend to breed further generations of jackasses at an exponential rate. The idea with public schools, I think, is that if you can nip it in the bud - that is, stand in for jackass parents and force kids to "achieve", then you can break the cycle.

I don't think it's been very successful but there it is.

Justin said...

Well, unless you're a skeptic.

As someone who thinks that "federalism" is a results oriented business, and that Tocqueville has been long since abandoned by conservatives, I think this is an easy case. The fiction that society places all men and women on an equal pedestal, irregardless of past or subconscious discrimination, is too important for the conservative movement to cede to local experimentalism - something that is all the rage only amongst liberals these days anyway (see Dorf, Liebman, Sabel, etc.)

Simon said...

"The idea with public schools, I think, is that if you can nip it in the bud - that is, stand in for jackass parents and force kids to 'achieve', then you can break the cycle."

That theory only works when and if schools are invested with the authority to "force kids to achieve" and to "break the cycle." I see very little inclination to do that in the present public school system.

Jeremy said...

Simon,
I'm sure that they'd respond that they're exhausting their diplomatic steps before resorting to threats of corporal action. Doesn't really work for the UN either, I don't think.

I spoke with a coworker recently about her kid's school. She didn't have much to say in the way of her kid's acheivements but she was mighty proud of the many ways she's been able to bully teachers and reassign blame for her kid's behavioral problems. I couldn't help but think that she is the problem.

I suspect that it's common for jackass parents to be disinterested in their kids' education enough to be unhelpful, but not enough to relinquish real power/authority to the schools. It's the perfect balance of foolishness and bullheadedness.

Seven Machos said...

Mark -- We are stuck with the black males for the foreseeable future. We are stuck with all the other people, too. Sorry. Hence, we should do what we can to change the schools and the other variables that we can change.

Richard Dolan said...

Ann says: "In the racial balancing case, local government has chosen that 'sordid business' for itself, and the question is whether federal law should override it. Other conservative values -- federalism and judicial restraint -- therefore come into play." While I agree that there are lots of issues lurking in these cases, I doubt that federalism or judicial restraint will have much impact in the Court's decision.

I think it's unlikely that the Court will spend much time on "the question ... whether federal law should override" whatever state or local laws or standards may have been the basis for the racially discriminatory pupil placement decisions of the local school authorities in these cases. For better or worse, in the absence of a controlling federal statute (and there appears to be none in these cases), I don't see how one could frame even a plausible argument in those terms. Perhaps the school authorities will defend their actions by saying that it was all benign, designed to avoid re-segregation, and thus no invidious discrimination on racial grounds within the meaning of the 14th Amendment even occurred. That's not an argument that federal law shouldn't "override" state or local standards, but that there was no constitutional violation at all, and thus no conflict between federal constitutional requirements and what the local school authorities did here. There are lots of problems with an argument justifying racial discrimination as benign depending on the identity of the discriminatee, and I doubt that any such argument would be a winner. But I don't see how one could even frame an argument that there is some principle that federal law should not "override" state law permitting racial classifications and their application in this context.

For the same reasons, an appeal to federalism or judicial restraint doesn't seem persuasive in this context. Clearly, both are powerful arguments to a conservatively inclined Court. But what is the argument for claiming that the Court should invoke federalism concerns -- i.e., a concern about not intruding on state prerogatives or applying federal law to areas committed to state authority -- as a basis for ducking the federal constitutional issues, where the claim before the Court is a denial of equal protection by local authorities who relied on overt racial classifications in making pupil placement decisions? Same with judicial restraint. I don't see how one frames that argument in this context.

Depending on how overt the local school authorities were in using race to make pupil placement decisions, there may be room for an argument, as in Bakke and Grutter, along the lines that race was just one factor among many impacting on pupil placement. That argument would obviously be stronger if there were a history, even one pretty long in the past, of de jure segregation in the school districts at issue. I'm not familiar with the facts, but from the article that didn't sound like an argument that would fit here. And I suspect that the local public school authorities here were much less adept than the UMich Law School folks at "swaddling" racial quotas in the kind of "neutral sounding verbiage" (to borrow a phrase from yesterday) that passed SCOTUS muster (albeit barely) before Roberts and Alito arrived.

The real problem with a federalism or judicial restraint argument in this context is that history matters, and thus claims of racial discrimination will always be constitutionally different. In the voting rights case, the Court could reasonably defer to the exercise of Congress's broad powers under the 14th Amendment. But it's hard to see anything equivalent that the Court could defer to here, to avoid reaching the merits of the federal constitutional issues.

In all events, by this time next year, we'll all know the answer ....

Revenant said...

(b) regardless of who is acting out, it is equally reasonable to say that the problem is with the inability of the public school system to deal with those behavioral problems.

Replace the bolded section with "childrens' parents" and you're on the right track.

Schools don't exist to teach children the right way to behave. They exist them to teach them reading, writing, mathematics, science, history, and other important academic subjects. It is the job of the *parents* to teach the children (a) that school is important and (b) how to behave in an academic environment.

If black boys aren't learning in school and other kids in the same classroom ARE learning, that indicates that there is something defective about the black boys in question.

David said...

Revenant: That couldn't be more wrong. First, the point of elementary school is to discipline children to abide by social norms. Show up on time, work diligently, follow directions, and learn the social skills that allow people to co-exist. If the kids also learn to read, write and do basic arithmetic, we're ahead of the game.

Leaving aside your contempt for black boys, wouldn't it still be better, for them and for the nation as a whole, to find a better pedagogy?

Revenant said...

First, the point of elementary school is to discipline children to abide by social norms. Show up on time, work diligently, follow directions, and learn the social skills that allow people to co-exist

That's not even remotely true. The primary purpose of elementary school is to impart the basic math, reading, and writing skills necessary to deal with the education they will be receiving in the higher grades.

Teaching children obedience, responsibility, and graceful social interaction is the job of the parents, not the teachers. God help your children if you think teaching those things is somebody else's job!

David said...

Oh, and learn English, of course.

Kev said...

Simon--great comment. Unforunately, very few schools are even allowed to give that "old-fashioned ass-whupping" anymore, though I recently wondered if that might not be a good idea, and if not, what can substitute for corporal punishment to instill the reasonable, healthy fear of consequences for their misdeeds that seems to be missing in so many young people today.

And the racial angle does come into play here: I have a student who received a day of in-school-suspension last year for having an untucked shirt, and the assistant principal admitted to him that the only reason they had to go after untucked shirts on everyone was that they couldn't target what they really wanted to avoid--baggy, gang-looking clothing--without being perceived as racist; how pathteic (my rant here).

Kev said...

MadisonMan: "Simon, kicking miscreants out of school solves a short-term problem. But what do you do with a passel of undereducated young adult males? I think it is in the long-term interest of the country to educate them."

I don't think we're talking about kids who chew gum in class or make paper airplanes. The problem is that one or two kids who constantly act out in class can derail the learning process for everyone else, and the school, thanks to well-meaning but misguided regulations, can't simply remove the problem from the classroom. It's not the school's job to deal with the results of bad parenting on a regular basis.

As for where these undereducated young males can go if they decide to continually disrupt class--how about these options...

1) Alternative school
2) Jail (for the truly egregious offenders)
3) The workforce
4) The military

...or anywhere else where they're not interfering with those who truly desire to learn.