In the wake of our national fixation on “diversity” and the attendant concern with “inclusion,” our understanding of the meaning of Brown v. Board of Education has been fading, and is now so dim as to be a virtual Brown-out.
I’ve discussed the meaning of Brown too many times to cite (although for starters look at these: here, here, here, here, here, here, and here). Conflating quotes from myself here and here, the central question is this:
Did Brown bar the state from treating people differently based on their race, or did it in effect require “taking race into account” in order to produce constitutionally mandated integration, or, now, “diversity”?
[O]n one view [Brown] commanded the elimination of racial discrimination and on the other commanded the presence of racial integration. The first view was based on and re-inforced the principle that bars the state from distributing burdens or benefits based on race. The second positively requires the state to engage in precisely that form of racial regulation.
I was reminded of the Brown question recently in chiding the editors of the Los Angeles Times (here) for writing as though the essence of civil rights is not freedom from racial discrimination but eradicating “racial isolation” (whatever that is), which actually requires racial discrimination.
I had just about concluded that I had already beat the Brown horse to death and was not going to say anything else about it (at least for a while) when I read in the San Francisco Chronicle (here) that an Alameda County trial judge has, in apparent violation of California’s Prop. 209, just given the Berkeley school system permission to take race into account in assigning students. (I’ve written about the Berkeley scofflaws before, here and here.)
I suspect this decision will be overturned on appeal. The excellent lawyering of the Pacific Legal Foundation has succeeded, at least so far, in persuading California appellate courts that Prop. 209’s bar on the state’s use of racial classifications actually is a bar on racial classification.
By now the issue at the nub of the Berkeley controversy will be familiar:
Prop. 209 prohibits the use of race in any part of public education in California,’’ attorney Sharon Browne of the Pacific Legal Foundation said Tuesday. She said she will appeal the ruling, which the judge issued Friday, on behalf of an anti-affirmative action group created by Prop. 209 founder Ward Connerly called the American Civil Rights Foundation.
But attorney Diana Tate of the Lawyers’ Committee for Civil Rights, representing parents who sided with the district, said the ruling shows that Prop. 209 can be reconciled with school officials’ duty under California law to “prevent segregation regardless of its cause.’’
Berkeley schools, segregated? Ms. Tate must have a sense of humor. I can’t help her with that, but I can provide her — and others who believe in racial classification and regulating every area of public life in order to engineer a certain amount (how much?) of “inclusiveness” — with a reminder of how far from the appealing civil rights vision of Brown they’ve strayed.
On the threshold question of the legitimacy of racial classification, consider first the argument of Thurgood Marshall and his colleagues from the NAACP Legal Defense Fund in their brief to the Supreme Court in support of Oliver Brown’s challenge to the segregated schools of Kansas:
The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone. The State of Kansas has no power thereunder to use race as a factor in affording educational opportunities to its citizens. (p. 5)
Forget about such nice justifications for discrimination as “diversity” and “inclusiveness.” Marshall argued that the principle prohibiting racial classification and assignment by the state was so fundamental that it could not be compromised even to avoid actual violence.
When the distinctions are based upon race and color alone, the state’s action is patently the epitome of that arbitrariness and capriciousness constitutionally impermissive (sic) under our system of government…. A racial criterion is a constitutional irrelevance (citations omitted), and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction. (pp. 6-7)
Nor were Marshall and the NAACP alone in taking this principled stand against all racial classification. They were supported by a number of amicus briefs, typical of which was a brief from the ACLU, the American Jewish Committee, and the Anti-Defamation League that asserted that segregation was unconstitutional not because it led to unequal facilities or impeded the learning of black students but because it is based upon “an inadmissible classification.” Those prototypical liberal organizations opposed all “differential treatment by State authority predicated upon racial classifications or distinctions.” (p. 5)
There was, of course, nothing new about this principled stand against the state classifying people by race. It had been a staple of NAACP argument from the beginning of its long march to eliminate the legal underpinnings of racial discrimination, as I pointed out here (Many of these, and others, can be found on this excellent and useful site). A few examples from Thurgood Marshall’s arguments:
- Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws. Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948)
- There is no understandable factual basis for classification by race…. Sweatt v. Painter, 339 US 629 (1950)
- Racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment. McLaurin v. Oklahoma, 339 U.S. 637 (1950)
As I pointed out in all of my earlier discussions of Brown (most of which are linked above), those who favor admitting or assigning students based on race in order to create a sufficiently “diverse” mix believe, obviously, that racial classification and assignment by the state is both necessary and proper. As we saw above with the lawyer for the Berkeley schools, and time after time on the part of defenders of racial preference in Michigan, they also tend to claim that any racial mix they regard as insufficient is “segregation,” even if the state had no hand in it.
They are of course free to believe this, but in my view they are not free to claim any support for this position from Brown. In fact, I also believe they should be forced to acknowledge that in defending state-sponsored racial preferences they are repudiating the essence of what the NAACP argued for in case after case, culminating in its arguments in Brown. Consider the following arguments by Thurgood Marshall, taken from Leon Friedman, ed., BROWN v. BOARD: THE LANDMARK ORAL ARGUMENT BEFORE THE SUPREME COURT (New Press, 2004):
- … racial distinctions in an of themselves are invidious (p. 45);
- The only thing that we ask for is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem to assign children on any reasonable basis they want to assign them on.
JUSTICE FRANKFURTER: You mean, if we reverse, it will not entitle every mother to have her child go to a nonsegregated school in Clarendon County?
MR. MARSHALL: No, sir. (p. 47)
- But my emphasis is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the individual children. (p. 49; emphasis added)
- … the state is deprived of any power to make any racial classification in any governmental field. (p. 202)
- … it is clear to me, to my mind, under the Fourteenth Amendment that you cannot separate people or denote that one shall go here and one shall go there [even] if the facilities are absolutely equal…. (p. 202)
- … the Fourteenth Amendment took away from the states the power to use race. (p. 234)
- Ever since the Emancipation Proclamation, the Negro has been trying to get what was recognized in Strauder v. West Virginia [100 U.S. 303 (1880)], which is the same status as anybody else regardless of race. (p. 236; emphasis added)
Beverly Hills and Berkeley and Seattle and Louisville are perfectly free to argue (though unpersuasively, in my opinion) that they should be allowed to assign students to schools by race in order to promote “inclusiveness” or “diversity” or whatever Good Thing they think of tomorrow to call racial engineering. What they can’t do is make this argument without acknowledging that they have turned their backs on the arguments that won Brown and the passage of subsequent civil rights legislation and, even worse, on the non-discrimination principle underlying those arguments.
The non-discrimination priniciple used to be owned by liberals, but it was abandoned. Indeed, one of the most tragic developments of modern American liberalism is that abandonment. Note the prescience of the great liberal judge Stanley Mosk (“the last of the New Deal liberals in California public life”), writing for the California Supreme Court in Bakke [18 Cal 3d 34, 553 P.2d 1152 (1976)]:
The divisive effect of such preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony. The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race — any race — is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case….
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality….
We’re all worse off because Justice Powell thought, mistakenly, he could do better than Mosk, and that liberals and then Democrats followed Powell in abandoning the “without regard” principle of non-discrimnation for the thin gruel of “diversity.”