Tangled in Language & Legality: Segregation/Integration & The Limits of Constitutional Guidance

Our white students are forever concerned about “reverse discrimination.” Those who grew up with relative economic comfort especially believe that they are or will be disadvantaged for being born white - citing minority-focused scholarships, minority-centered mentoring programs, and, most alarmingly, affirmative action “quota” programs.

Quotas in higher education were banned in 1978, and the Supreme Court reaffirmed its position on the matter as recently as 2003 (see Grutter v. Bollinger and Gratz v. Bollinger). Still, opponents of affirmative action (the collective name for programs that attempt to rectify past inequality and increase diversity) continue to use the term “racial quotas” to inflame (or at least confuse) the issue. Set-aside programs violate the sensibilities of many of even the most progressive-minded Americans. Acknowledgement of continued inequality as a result of historically racist policies, though, is embraced by most Americans, and many appreciate the importance of strategic efforts to correct those trends.

In essence, then, affirmative action programs (not quotas) are necessary, sensible, and, according to the U.S. Supreme Court, warranted (at least for now).

But the Court tackled the question of affirmative action (sort of – Justice Souter clearly stated “this is not an affirmative action case”) again this week, hearing oral arguments in two cases (Parents v. Seattle and Meredith v. Jefferson Co. Bd. of Ed.) involving race-based allocation of high school students in districts that allow parents and students to choose what public school to attend. As Dahlia Lithwick nicely points out in an article from Slate.com, there are really two separate legal lines that meet in these cases: school desegregation and affirmative action. These cases are neither. Or both. Hmmmm.

The AP reported that some of the protesters outside the Court on Monday chanted “Equal education, not segregation.” But is this a false dichotomy? Does anything short of full integration (however that’s defined) constitute a return to the separate-but-equal policies that were legally in effect between 1896 and 1954?

These cases present interesting legal questions, but we’re more interested in the way language is being used to frame the debate. Here are a few of the powerful words that were invoked in the arguments in the Seattle case alone: integration, segregation, desegregation, quotas, compelling interest, strict scrutiny, racial balance, race-neutral mechanisms, and race-conscious objective. Such terms are not without context, and their potential effect is rooted in that context.

For example, if one is coming from the perspective of a black or Latino student whose group is underrepresented in a particular school, the term “integrate” has a positive connotation. If one has the perspective of a white student at that school, though, the same term could very well carry a negative connotation, as the suggestion is that something is wrong with his or her school because there are too many people like him or her there. Decontextualizing such a term (or, more accurately, refusing to acknowledge the context) will lead to continued misinterpretation of both perspectives.

Intentional or not, such decontextualization is part of the power struggle. Justice Scalia plainly told the Seattle School District’s lawyer Michael Madden that the only meaning of segregation is that which results from purposeful discrimination. Scalia suggested that a wish to provide “racial balance” is not as compelling as a need to desegregate (therefore, we should note, the ability to determine whether there is “segregation” is a very important power).

We couldn’t disagree more with Scalia’s characterization. From a legal perspective, he may be correct, but the very distinction between de jure (by law) and de facto (in reality) segregation suggestions that absent evidence of a conspiracy to keep people of color separated from whites (or vice versa), circumstances based on historic discrimination (resulting in disproportionate poverty, implicit discrimination, housing patterns, etc.) can and does result in segregation.

Segregation is real and has consequences, even if not mandated by law or “intended.”

We’re left with a lot of important (and difficult) questions. Is desegregation the same as integration? At what levels or mixtures of races is integration achieved? Is integration even really necessary for equality?

This last question is particularly sensitive. Even the staunchest proponents of “judicial restraint” refrain from publicly criticizing the Court’s landmark desegregation case (Brown v. Topeka Board of Education). At the time it was decided (1954), of course, there was widespread criticism and noncompliance of a decision by what many considered to be an overly activist Court that reached beyond the appropriate boundaries of their power. Today, though, when looking for evidence of judicial activism, public officials will point to Roe v. Wade (the abortion/right of privacy case), but never to Brown. This suggests how socialized we are to believe that racial integration is a prerequisite for racial equality. Jonathan Kozol skillfully and painfully describes how segregated our public schools are today (more so than in 1954) in his book Shame of the Nation, arguing that such segregation has resulted in an American apartheid that needs to be rectified immediately.

But many black leaders throughout history have argued that this is not necessarily the case (Marcus Garvey, Louis Farrakhan, Booker T. Washington), and there are many strong advocates for continuing the viability of historically black colleges that provide essentially segregated educational opportunities (see this recent piece from Inside Higher Education).

One of the important distinctions that the Supreme Court justices are faced with in these cases is the precedents from higher education cases, because mandatory public education is much different than competitive entry into institutions of higher education.

But the philosophical question remains: Can we have racial equality without racial integration? Might we have more equality if we maintain some separateness? Who benefits from racial integration? Just people of color? Mostly people of color? Mostly white folks? Does it undermine any benefits to people of color if white folks benefit, too? Is everyone harmed by segregation? Does the intent of segregation or integration matter? Or is it about the effects of such trends or attempts? These are tremendously difficult questions, but they are issues with which we should be dealing directly.

ABC News’s Good Morning America program has been running a series on race in the shadow of Michael Richards’s tirade a couple of weeks ago. A glance at their message board is very jarring. For those who believe that our racial differences are behind us, we urge you to take a look and even join in these online discussions. As crude and hostile as some of these posts are, it is through conversations such as these that we will begin to find answers.

Looking to the Constitution will be of limited help, as those who wrote it and those who are responsible for interpreting it have come from a very narrow slice of American society. The 14th amendment (on which these types of cases pivot) suggests that we treat individuals equally and, as Justice Scalia pointed out in Monday’s arguments, not as part of a group.

But, of course, society doesn’t honor that mandate.

We are not color blind.

We do see each other as members of groups.

And, we do make judgments and decisions (consciously or otherwise) on that basis.

For a Supreme Court justice to not consider that is to ignore the reality of the legacy of racism.
Accordingly, we should not be bound by constitutional and case law parameters to come to understandings and agreements about racial justice. It’s time to stop passing the buck to the elites. This work needs to be done on the ground.