Thursday, June 28, 2007

SCOTUS Plays "Hide-and-Go-Fuck-Yourself"

Sigh. So the Supremes have handed down their decision on the de/segregation case, in Kentucky and in Oregon, finding in essence that race can't be used in methods to address racism. This is rather like the Ari Fleischerian formulation of hoping your own hopes aren't dashed. Good commentary/analysis here and here, which big picture says Justice Kennedy's opinion, being the narrowest, (and, frankly, the closest to a "swing") is the "controlling" -- i.e. precedent-setting -- opinion. His opinion has the excellent formulation the race can be used when addressing past discrimination, but really, that's kind of icky and breaks too many eggs to make the integration omelet. He goes on to say it's ok to use race as a last resort, and if you show there aren't other means, such as zoning school districts etc. to make them racially diverse. (Great pre-commentary from Walter Dellinger on the legacy of Brown v. Topeka and the folly of banning race use in addressing racial discrimination here.) In other words -- you can use proxies for race because then we can continue to pretend that race doesn't matter. Fucking A.

For reference: The two cases were in school districts where they wanted to encourage a breaking up of the pre-existing housing segregation, which of course has been in no small part a result of discriminatory practices dating back to the GI Bill and white flight, and before than even, Jim Crow and forced and legal segregation. Their goal was to make sure every school had some portion of white & minority students, and not a ridiculous skew that didn't reflect overall city demographics one way or the other. Actually, Dellinger (a Duke University Law Professor) summed it up this way:
The idea that the principle of Brown condemns the valiant efforts of, say, the Louisville community to maintain schools attended by both black and white students seems profoundly wrong to me. The Louisville school system (I keep using Louisville, because I know that case better) takes account of the race of students to keep each school integrated. They don't try to replicate the one-third-black percentage of the district as a whole in each school, but they do take race into account where that figure would otherwise fall below 15 percent or above 50 percent. Good people, black and white, in Louisville have refused to give up on the public schools. They know that sharp imbalances in the race of a school population leads to "white flight' from the schools and that using race to keep schools integrated is essential to the viability of public schools.

Of course, they could have a system in which each school almost always reflects the racial proportions of the district's overall population simply by assigning all students by lottery. Each school would usually wind up about one-third black. No system would do that because assignment by lottery would impose enormous costs on families in transportation and deprive them of the great advantages of neighborhood schools. But, as I argued in my last posting, using neighborhood as the sole mechanism for school assignment means that the schools will replicate the housing segregation that defines Louisville as it does many of our metropolitan areas. The carefully planned Louisville system combines neighborhood schools with parental choice and some use of race to ensure an integrated experience and a viable public school system.
So. Yes.

Dellinger & Slate's Dahlia Lithwick have been conducting a dialogue on the SCOTUS' recent decisions (linked to throughout my post). They've added a conservative member to bring a new view, whose response is titled: Don't Despair -- There's a Better Way to Achieve Integration. I'm deathly afraid of reading this. Though, there's some slight possibility he's going to suggest higher education for all, universal improvement in housing and human services, cleaning up the pollution that disproportionately affects minorities and poor whites, and general redistributional justice. And perhaps he'll also bring me a dollar with compound interest for my wisdom teeth from 5 years back or so, and take us all to a magical gumdrop land full of chocolate rivers and strawberry fields.

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