Thursday, July 05, 2007

Does the Supreme Court Hate Racial Equality?

Reading much of the commentary on the Court's recent decision in Parents v. Seattle School District, one gets the impression that the answer to this question is: absolutely yes! Many are taking this decision to signal an end to school desegregation efforts and the beginning of the Court's dismantling of affirmative action.

Its important to recognize that school integration has not been particularly successful over the last forty years. The Civil Rights Project at UCLA (formerly Harvard) points out that Black and Latino/a students today attend more segregated schools than they did 30 years ago. Part of this is due to white flight to the suburbs, and also to strong resistance from local communties to school integration efforts. One only needs to look at photos from the struggles in Boston to remember that there never really was a heyday of racial integration in American schools.
Parents is not the first time that the Court has put serious obstacles in the way of ensuring that public education reaches communities of color and working class students. It ought to be put together with the 1973 case, San Antonio Independent School District v. Rodiguez, in which the court ruled: 1) education is NOT a fundamental constitutional right in our country and 2) students are not entitled to recieve a materially equal education. In other words, states can arrange laws how they want to fund schools and poor districts do not have rights to equal funding with rich districts.

But the really signficant result of Parents is the redefinition of "diversity." In his opinion, Justice Roberts argued that the reason to strike down the school desegration plans in Seattle and Louisville was because they used race as the single factor in determining whether diversity was being achieved in the school districts. Roberts suggested that such a use of the idea of "diversity" simply amounts to treating people differently based on skin color. He held that if diversity is going to be something that government has an interest in supporting, then it must mean more than just race but also involve "exposure to widely diverse people, cultures, ideas, and viewpoints."

This language is very suggestive. I think what Parents really represents is a kind of conservative reappropriation of the language of diversity. Diversity is no longer a term used for talking about the need for racial justice or the efforts needed to change power relationships that would allow a wide range of people to participate in the decision making processes of American society.

Instead, the language of diversity and inclusion now is about making sure that everything is "fair and balanced". Everyone's opinion is to be listened to and no one is to be criticized. Students deserve to have a diverse learning environment, which means that "liberal" and "conservative" points of view need to represented on all issues, and perhaps even creationism alongside evolution instruction (after all creationism is a viewpoint in our society--so a diverse learning environment would be one in which this is taken seriously). The way Robert's language works, a diverse school could be one that has a variety of Christian denominations represented, even if the students are all white or upper class with nary a black or brown working class face in the bunch.

This interpretation of diversity is behind the kind of efforts of David Horowitz's Students for Academic Freedom movement, which holds that diveristy means that conservative points of view need to be raised in the discussion of all social, political, or ethical issues or else a kind of silencing or abuse is occuring that robs students of their academic freedom. Diversity here means having more Republican professors in the English department.

It is Justice Steven's dissent in this case that really highlights how the language of diversity is being reinterpreted. He writes:

"There is a cruel irony in the chief justice's reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' This sentence reminds me of Anatole France's observation: 'The majestic equality of the law forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread.' The chief justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the chief justice rewrites the history of one of this court's most important decisions."

Stevens reminds us that the struggle for diversity in the past have been about power and reshaping social, economic, and political institutions so that elites cannot dictate the life expectations of others. How we use language and concepts such as race, diversity, and inclusion, is part of that struggle.

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At 9:14 AM , Anonymous Anonymous said...

Compare to Romer v. Evans 517 Or 620 (1996).

I tend to think that the problem there included a reference in the state constitutional amendment of a restraint on the judiciary to offer a minority-protecting remedy. See reference to Shelley v. Kraemer, 334 US 1 (1948) therein.

Can any racial class (or any describeable class) be branded as biased; by a majority supported legislative act? It really is a logically impossible proposition. Suppose that I claim that I do not represent the ideology of the KKK . . . where a (racist?) black person is dismissive of that argument in total because I am White . . . and thus I must be a racist?

The structure of equal rights arguments governs society-wide rules for interaction between government and citizen.

Look also, for contrast, to a purely private interaction between two individuals. If someone initiates a conversation with an attack it places the opposing side in a defensive posture to rebut the attack. From a computer programmer type perspective (purely rational logic), in a non-homogeneous population, the only agreeable route out of an infinite loop argument is the notion of excluding racial discrimination of any sort -- at least in legislative acts where the judiciary can still vigorously retain the power to play a minority-protecting role relative to the majority role played by legislative bodies.

There are many facets (or factual contexts) where the principal can be applied. The role of the judiciary is uniquely designed (of necessity) to protect the interests of a single individual against the world. The problem (logic-wise) is still how best to measure the subjective existence of bias of some particularized group such that it would necessitate a remedy -- against "state action" (see Shelly case). The Romer v. Evans case should be instructive too, I would think.


At 3:02 PM , Blogger Joseph Orosco said...


I think the question that Stevens raises is this: who's interests are being represented when the Supreme Court adopts an interpretation of "diveristy" along the lines of Parents. I tend to think that laws are not simply society wide rules for governing interaction between government and citizens, but are embodiments of power struggles between different groups in society for a definition of the terms of cooperation. This is the way in which Aristotle and Machiavelli understand democratic politics, so its not necessarily just a critical legal theory standpoint.

Also, I would tend to say that one need not have to adopt the ideology of the KKK to be a racist. Bigotry has many subtle forms, and yes, people of color can be bigoted too. The question that is interesting to me is whether formal legal procedure is at all capable of representing these social understandings which are, again, struggles over the meaning of political values. Sometimes, I tend to think that it is not so well capable.

At 10:50 AM , Blogger Dennis said...

Joseph, I really think you're on to something with the bit about redefining diversity.

The question I have is whether such a redefinition is intentional (as a political move that would further conservative interests) or based on an initial misunderstanding when the concept of diversity was first introduced into public debate.

Your post also lines up really well with Walter Benn Michaels' book The Trouble With Diversity. His basic claim is that we spend so much time worrying about diversity of identity we've totally forgotten about the class aspect. You seem to hit on a similar point when you said this:

Diversity is no longer a term used for talking about the need for racial justice or the efforts needed to change power relationships that would allow a wide range of people to participate in the decision making processes of American society.

I think that is really telling: Is diversity - and its underlying motivation - about creating fundamental social change that's more democratic, especially with regards to "race", or is it about filling quotas that make everything look more diverse? (The latter of which, by the way, I also line up with liberal feminism as a form of social change that's far more reformist than radical) Since many prominent conservatives only ever saw it as the latter, it makes sense that's how a conservative Supreme Court would actualize it.

But I still want to know how intentional this is - say, as a part of a power struggle on the part of various groups for control over the debate. I'm also not convinced it's much of an either-or situation. It could be some of both.

At 7:48 PM , Blogger The Crater Lake Hermit said...

From My Post

I look at Parents very differently. The fascist Bush Supreme Court has determined to reinstate segregation. Not all at once, but a little at a time. These people are no longer Republicans or even Conservatives. The bigots, racists, elitists and fascists have taken over the Party of Lincoln. It no longer is a political party that decent people can respect.


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