Below the Fold: The New Plessy versus Ferguson and White Privilege

Michael Blim

There is something odious about privilege. In this case, white privilege.

On June 28, the Supreme Court ruled in Parents Involved in Community Schools versus Seattle School District No.1 that using race as the sole criterion for assigning children to one elementary school or another violated the equal protection clause of the 14th Amendment to the Constitution. Chief Justice Roberts writing for the plurality of the Court set down their ruling is stark terms:

“Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘at the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class.’”

The racial classification of students in creating diverse public schools, Roberts argued, violates the landmark Brown versus Board of Education of Topeka, Kansas (1954) decision to require school districts, as the Court put it, “to achieve a system of determining admission to public schools on a nonracial basis.” (emphasis added by Roberts) Fifty-odd years of race-conscious remedies to provide African-Americans with equal educational opportunity, other than in cases of legislated de jure school segregation, have infringed upon the rights of each child to equal treatment under the law, whether he/she is black or white.

To mark the destruction of precedent, announce the end of an era spent searching for remedies to the historical disadvantages heaped on African-Americans during slavery and after, and perhaps to create himself a memorable, quotable line for the seven o’clock news, Roberts concluded his opinion for the Court with this exhortation: “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

In other words, just say no.

Justice John Paul Stevens, 87 years old, member of the Court for 32 years, and its elder statesman, spotted the slight of hand right away. How could Brown, a decision to remedy state discrimination against African-Americans, now be used against them in their quest for equal educational opportunity?

Justice Stevens put it this way:
“There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown versus the 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.”

Once more, as in Plessy versus Ferguson (1896), the Supreme Court has used the equal protection clause of the 14th Amendment against African-Americans for whom it was written and designed to protect.

Privileged people never see the connection between their power and the powerlessness of others. One could say charitably that it is too threatening to their virtue. One could also say less charitably that many just don’t care. It is a liability to care or to assume responsibility. It tarnishes their self-justification. It picks at the myths that they carefully pin like manifestos on the murals of public life.

So, as Justice Stevens noted, Robeerts et.al. traduced Brown to make new law. In fact, this decision is Plessy versus Ferguson in a rather shabby and ignoble Brown versus Board disguise. The only problem they might have with Plessy is that the Court at least recognized the intent of the 14th Amendment as a pledge to blacks as a disadvantaged class and as a guarantee of “absolute equality of the two races before the law,” while ruling that it was never intended to abolish the social distinctions between blacks and whites. If states wanted to create race-segregated public transportations, schools, and other public places, they could do so. The black plaintiffs, the Court argued, were unwarranted in believing that segregation “stamps the colored race with a badge of inferiority.” Moreover, the Plessy Court believed, the plaintiffs assume “that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the races…. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…”

The Plessy Court concluded: “If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane…”

Justices Roberts, Alito, Scalia, and Thomas do not wish to recognize African-Americans as a class, and do not interpret the 14th Amendment as an explicit guarantee of African-American rights as a class in light of the historic deprival of their rights in slavery. Instead they construe the 14th Amendment solely as a guarantee of each person’s right to equal protection under the law. Thus, in the case before them, if a school district prefers a black child for admission to a public school because it seeks to integrate schools racially by administrative action, or in other instances seeks to re-assign black and white students to prevent their social isolation in all black schools, or seeks to create diverse student bodies under the belief that all students would benefit from the experience, the Court finds these kinds of actions impermissible. They violate the right of a white child to have access to educational resources that she or he seeks to enjoy because he or she is white.

It is a cleaner kill of the 14th Amendment’s guarantee of equal protection for African-Americans than was Plessy. African-Americans are no longer an historically disadvantaged group who lived almost 350 years as slaves and in renewed bondage under Jim Crow laws. After 388 years in America, only a minority of African-Americans since the mid-1960s have begun to live lives blessed by some measure of equal opportunity. For this Court, they have become individuals who happen to be black, one of a potentially infinite set of characteristics that defines each of them in distinctive ways. As such, their rights are no more important than those of any other persons.

Justice Thomas argues that the Constitution must be color-blind. “We are not social engineers… the Court does not sit to create an ‘inclusive society’ or to solve the problems of ‘troubled inner city schooling.’” Just as the majority in Plessy, he rejects the notion that African-Americans acquire a badge of inferiority when isolated from whites. In words that directly recall Plessy, he concludes that the Court cannot permit “measures to keep the races together and proscribe measures to keep the races apart.” He concludes: “the government may not make distinctions on the basis of race.”

Thomas takes Justice Harlan of the Plessy Court as his patron for a color-blind Constitution, quoting from Harlan’s Plessy dissent a rather odd declaration that he evidently finds supportive of his position. Justice Harlan in his peroration for a color-blind society says:

“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. (words in italics omitted by Thomas)

This is an extraordinary comment to solicit an endorsement from Thomas. Here is Harlan, an apologist for white supremacy, denying disingenuously white dominance. Just as he refuses to recognize organized white rule, he refuses to acknowledge that African-Americans in 1896 were a caste. Color-blindness by Harlan is used here not simply as a dashing defense of individual equality before the law. In the context, it is an explicit rejection of the special status of African-Americans in the law, which even the Plessy majority accepted.

Justice Thomas and his colleagues follow Harlan’s reasoning precisely. Harlan’s white supremacist views are ignored doubtless as a recognition of the ignorance of the time.

Can Thomas and the other three justices be adjudged any less ignorant of their times? Can they be unaware of the desperate status of African-Americans today? Are they aware that as late as 1998, African-American family income was 49% of white income, and their net worth was 18% that of whites? Do they believe that 40 years of limited progress is enough compensation for 388 years of slavery and racism?

White privilege doesn’t allow these facts to come into evidence. After all, isn’t each African-American, and each American family for that matter, happy and healthy, or unhappy and unhealthy in its own way? To be so colorblind is to be so privileged that even facts are no enemy of your theory. You can actually deprive African-Americans of their rights again by ruling out of order any showing of their abundant economic and social inequality, and declare them theoretically equal in the eyes of the law.

This is the rhetorical trick of this insidious ruling.

Moreover, better to do it once and for all with a smashing opinion such as this one. Else, as Justice Roberts warned (and quoted above), people will start demanding racial proportionality throughout American life. That would put a bit of a crimp in the collar of white privilege.

In the case decided last Thursday, precedents didn’t matter. They stood Brown on its head. They converted the equal protection clause into another relatively harmless libertarian individual guarantee.

Characteristic of the far right wing in this period, they fall in with Margaret Thatcher: There is no society; there are only individuals. So use the law to strip out social missions from our institutions. Make the courts and the state simply night watchmen, there to protect property and haul off malefactors. In a game where whites start out more equal than others, if you are white, you have to like your odds.

And there is no telling what more this Court can do to pave your way.

Comments

[Mickey]

Lets see, we tried busSing.Did that work? I believe it was the white folk who(un)civilized this country.I believe it was also the white people who developed the rules, laws and the value system. I think the ball is in the minority court, but most dont seem to want to play. And why should they, they dont know and they dont want to know.It starts at home...yes?

[Psoid]

Maybe Mr. Blim can explain how a 70 percent illegitimacy rate and a homicide rate seven times that of whites fit into blacks' efforts to better themselves.

http://www.jewishworldreview.com/cols/williams060805.asp

http://www.ojp.usdoj.gov/bjs/homicide/race.htm

[Elatia Harris]

Thank you, Michael, for a look at the Orwellian reversals of meaning this decision both depends on and engineers.

[Pepito]

After reading the last two comments I think it's evident that white supremacism is alive and well. Criticizing black society as a whole for a "70% illegitimacy rate" (whatever that might mean), their higher homicide rate and saying that "most don't want to play" without considering the multiple external factors that influence into those dismal numbers reveals that we are far from being a color-blind society, as the ruling of the Supreme Court could be interpreted.

The lack of empathy revealed in comments like "white people developed the rules, and the ball is in the minority's court" is disheartening.

The ancestors of modern blacks were brought by force into a society in which their status was on par with that accorded to beasts of burden. They shouldn't have to "prove themselves"worthy of the same privileges that the descendants of their oppressors comfortably enjoy while callously criticizing them.

[Elatia Harris]

Pseud/Psoid,

I am more than a little concerned about your comments, here and elsewhere lately. You write behind a pseudonym or two, and you offer little but inflammatory, race-based speculation. I think you're capable of better than this. What if, whenever you got the urge to make a comment like the one just above, you forced yourself to sign your real name to it? If doing so seemed ill-advised, then that could be your cue not to comment. I believe this form of self-restraint would be clarifying for you, and would result in your coming across as a person worth paying attention to. As of now, you make yourself very easy to discount.

[Bill]

I don't usually comment when I have only "well done" to add, but since this article is apparently a magnet for racist loons, I will pipe up.

What Elatia said (both times).

[Guest]

I can almost deal with Roberts' repulsive position on this issue, as he at least has the cojones to make an impudently disingenuous argument. Thomas, however, is just sad. The guy seems honestly to believe his own bullcrap.

[josil]

Suppose, forced racial integration does not improve the educational attainment of the students. Do we care? Is integration an end in itself? Do the preferences of students matter? Parents? Of course, i'll be labeled a racist because calling names is easier than thinking.

[Phenry]

This is for Josil (and other similar writers):

Why is it that you feel "you will be labeled a racist" and then slam anyone who would care to respond to your posting?

There's nothing wrong with asking questions, so long as you are actually interested in communicating. I'd be interested in your views on the questions you raised. But be prepared to engage, and be willing to ask yourself questions about how you yourself might have been affected by systemic biases.

Since you ask questions, I will respond with my own view:

Of course I care about improving educational attainment of my students, whether they get to school by bus or not. In Seattle, where I teach, students are assigned to schools based on their preferences. If there's a waiting list, then other factors come into play (siblings etc.) and until recently, among these was race. Race was included as an attempt to help integrate schools, beause it's felt that it's beneficial to expose students to people from different backgrounds (the diversity argument). There is a stronger argument, now rejected, based on the historical fact that schools serving predominantly white students were better funded and had more political pull than schools serving predominantly minority students. By moving African American students into White schools, this inequity was reduced somewhat.

Josil, I doubt that you are personally a racist. But, if you are white, know for a fact that you are as a rule given deference in many aspects of society compared to people who weren't born so fortunate.

[Michael Blim]

Thanks to everyone for your comments.

For the record, the four justices that formed the plurality (Justice Kennedy agreed in part with them majority but wrote his own opinion at times critical of Justice Roberts' opinion) specifically dismissed social science research, including findings pertaining to educational performance and attitudes regarding race and diversity among students as a relevant factor in their decision. You may recall from the piece the quotation from Justice Thomas that they are not social engineers as an indication of their stand.

You might recall too that Brown versus Board of Education was innovative (as well as ground-breaking regarding desegregation) in the sense that it used, I believe for the first time in Court history, relevant social science data as part of their justification for their ruling.

If they granted social science as relevant data, it would be more difficult for them to dismiss the obvious facts of African-American economic and social disadvantage generated by race prejudice.

As I sugggested above, they also want to eliminate any law or judicial action that establishes the right of classes of people to seek redress collectively.

It remains to be seen whether their drive to eliminate classes from standing before the law will include conservative classes they favor.

If you want to read the tea leaves for glimmers of hope, see Justice Kennedy's opinion where he outlines permissible remedies to relieve racial isolation and resegregation.

The NAACP Defense Fund has put the entire decision on its web.

Justice Breyer's dissent is a dense but interesting defense of local initiatives to provide equal educational opportunity.

Best wishes Michael Blim

[harmon]

I'm an army brat. In the 50s & early 60s, I attended racially segregated civilian schools, racially integrated civilian schools and racially integrated military dependent schools. I have five sons. They have all attended racially integrated schools, some public, one private. My sons have attended schools in the Chicago suburbs which were integrated by administrative redrawing of boundaries, and schools in the city that were integrated by court decree. The private school was one in which the parents desperately tried to attract black students, with some small success.

After fifty years personal experience with the integration of schools in small town, military & large city venues, it's my conclusion that the device of using the schools as a tool to achieve social, economic and political integration of society has pretty much been a failure. All it seems to have done is convince people, black & white, that the system is racially biased in every respect. Meanwhile, the schools, at least in urban areas, just seem to fail more and more.

It seems to me that the experiment with using our schools as a proxy for society at large, and to attempt to achieve racial integration through the schools, has largely failed. It has allowed many blacks to blame whites for black cultural failure to inculcate middle class educational values in their children. It has allowed many whites to blame blacks for the same thing.

It's time to try something new, but as long as the liberal prescription of group based civil rights maintains its hold on the schools, there is no room for anything other than the same old same old.

But we can't do that until we get rid of the political principles that have underwritten the forced integrationist experiment.

You've had your shot, based on group politics. It has led to white flight to the suburbs and to private schools, and to a great deal of racial animosity. Let's try something else - school vouchers usable only in the public schools, for instance - and see if that might not work better. The question is not where historical fault for our racial sins lies - it is what will work to correct matters, and make our schools better for everyone.

Oh, Phenry - the reason josil made a preemptive strike about being called a racist is that being called a racist is what happens to anyone who dissents from the current liberal philosophy concerning school integration. Sad to say, but ad hominism seems to be the first resort of many liberals - to the point where those of us who are not liberals simply anticipate it, a little unfairly, I suppose, but not without cause.

[Elatia Harris]

It's just barely still July 4, a good day to be thinking over this grave ruling.

Harmon, I go back pretty far too. I remember, for instance, seeing black children my own age forbidden to drink from the same water fountain I was in line for. There were summers when I had a deep tan and was told to unseat myself and go the back of the bus. I would never say that what we've personally experienced hasn't contributed to our present points of view. But we need to think deeper than our own limited experience necessarily impels us to when it comes to achieving social justice -- a goal you and I probably share. We have seen that creating a level playing field is back-breaking work that takes a long, long time, but we also know that playing fields don't level themselves. We probably both believe that black, white, Asian, Hispanic and Native American children should be in school together, the better to form a future society unriven by our own sad, fierce hatreds. Whether we feel personally guilty or not, we know equally that the damages of history must be as far as possible redressed. But you are letting the personal experience that you detail here becloud your judgement if you're ready to believe that vouchers constitute an answer to what ails our public schools, or that Brown v. the Board of Education was a matter of Liberals taking a shot that didn't work. And Harmon, you have to know, the palpable relief that you feel at abandoning the "integrationist experiment" is a sign of your own failure, not of that of any other individual or group.

[Chris Schoen]

Elatia,

Your posts here are always so grounded, incisive, somehow gentle and rhetorically effective simultaneously. One wishes one could read something more thoroughly developed by you, if not here, then, somewhere...

[Melf]

The American Dream is the essence of the U.S. collective identity. "If you try hard enough, you will", to put it bluntly. And, in turn, "if you don't, you won’t". It means that everyone is equal, is offered the same opportunity. Whenever I am in the U.S., I experience great belief and pride in this principle. In fact, many Americans appear so indoctrinated, they widely ignore the utopian character of the Dream and, instead, understand it as the sole pattern to create social hierarchies.

The Supreme Court decision indicates that a majority of the court shares this idealism. In order to uphold the egalitarian Dream, the judges go as far as ignoring evidence for the existence of collective racial stigma within the American society: de facto discrimination. Recognizing such discrimination means to question the validity of the American Dream. Reluctant to do this, the judges redefine “abolishing discrimination” as “social engineering” and exclude it from the Judiciary’s responsibility.

One must wonder, whether the judges, when stating that they were no social engineers, escaped the fact that their egalitarianism purports socio-economic segregation and thus is in itself a very effective engineering tool - it excludes African-Americans from the equality Dream. And if the judges refuse to rectify this, can we expect the wider population to revise their opinion?

I fear not. Again, recognizing discrimination equals questioning the American Dream. That, however, would shake the country to its core, and I don’t see any interest of the dominating white population to deconstruct their own myth. It seems much more convenient to believe Blacks don’t make it because they “don’t try hard enough”.