Balkinization  

Thursday, June 28, 2007

The Conscientious Objectors Speak

Mark Graber

Today’s opinions in the Seattle school case feature the too usual lectures from conservative justices on the meaning of the “good” civil rights movement, the one which asserted that “the constitution is color-blind.” Of course, neither Chief Justice Roberts nor any other member of the majority were actually members of that “good” civil rights movement. To paraphrase Dick Cheney, they had other priorities at a time when police dogs were being set upon African-American children who dared insist on the right to drink at the same water-fountains as white children. Indeed, Roberts, Alito, and Scalia were proud to be in the vanguard of the movement that pried from the Democratic Party those who set the dogs upon the children (and those who applauded that behavior). They could do so in good conscience because somewhere in the late 1960s, the “good” civil rights movement was replaced by the “bad” civil rights movement, a movement which insists that persons of color be actual as well as pro forma, legal equals. Curiously, this transition took place even though the vast majority of participants in the “good” civil rights movement remained in the “bad” civil rights movement, included almost the entire leadership. By comparison, on this history, George Wallace became the person who best understood that the central principle of BROWN v. BOARD OF EDUCATION was that no “innocent” white person could ever be harmed in the effort to secure racial equality and any person of color who claimed covert race discrimination would have to produce a smoking gun the equivalent of the smoking guns which convinced the Burger Court that the Alabama Constitutional Convention of 1900ish was committed to race supremacy. Recognizing that George Wallace and Strom Thurmond are the true heirs to Martin Luther King, Justice Roberts and his allies feel the need to direct lectures on BROWN to the “bad” civil rights movement in the hope that we may be converted.

There is, of course, something deeply hypocritical about persons who, at best can be called conscientious objectors during the Civil Rights movement, lecturing the actual participants on the true meaning of their cause. But if one remembers that Roberts and Alito were probably hand picked by Dick Chaney, hypocrisy is exactly what we should expect of them.

Comments:

what an amazing post. I surf over to balkanization to get the liberal perspective on today's school opinions, and what I find is an ad-hominem attack as remarkable in its failure to address any of the actual arguments made in the case as it is in its personal vitriol directed at the plurality. I myself have only read the plurality opinion and skimmed the rest. I did not see a great many lectures on the civil rights movement, good or bad. I did see much commentary on the meaning of Brown v. Board. Since at least three members of the plurality were children when this case was decided, perhaps they can be forgiven for not being on the front lines at the time. Their subsequent failure to toe the liberal line on racial cases (no where outlined or defended in the post) is apparently unforgiveable, despite the absence of any sort of argument about the merits of this case or any others like it.

I am just a layman on legal matters, and rely on the opinions of experts to frame debates and guide my thinking. I had thought balkanization to be a source of persuasive honest advocacy that could be beneficial in this process. It seems that instead it is the home of knee-jerk personal attacks. I find this distressing, and I hope it is an anomaly rather than a trend.
 

Graber remarks that the authentic civil rights movement was "a movement which insists that persons of color be actual as well as pro forma, legal equals." It is important to emphasize this. It is foolish, at best, not to consider the real world, in which black folks are qualitatively worse off, when it comes to having the material and opportunity to have a fair shot at a good life.

I will skip the obvious truisms that spring to mind about the creation of law. Graber's post reminds us of how distressing it is to see those in power invoke idealism when it can lead to terrible effects for those already disadvantaged. (Off-handedly) one is reminded of the joke about the French bureaucrat. Sure, it is a good idea to have school integration in practice, but will it work in theory?

Pete L.
 

I would observe that the true hypocrisy lies with those who campaigned against Jim Crow government racial discrimination only to turn around and support government racial discrimination today.

As Chief Justice Roberts correctly concluded today: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
 

Bart:

You are begging the question. This debate is about exactly what the civil rights revolution was about. Some contend that it was about ending the subjugation of blacks. Others contend it was about achieving "color blindness". Both views have evidence in their favor.

But it is not hypocritical for people who felt that the civil rights movement was about ending the subjugation of blacks to favor affirmative action programs that they believe might do that.

Personally, I am not the biggest fan of freestanding affirmative action programs like those that came before the Court in Gratz and Grutter. But this idea that the civil rights movement was necessarily fought in defense of the principle that you could never give preference to a black is ahistorical-- some members of the movement believed that, but others did not.
 

If the goal of the whole 60's "social justice" movement was to simply eliminate the practice of discrimination, it would be hypocritical to discriminate.

It is, of course, revisionist and notably dishonest to ignore that the actual goal was not simply to "level the field" but also to try and correct for centuries of past injustice.

Whether this was done correctly, has now been accomplished and is now no longer just, is another question.
 

In this country Black folks do not have the access to opportunities and resources that the mainstream white community has.

Mr. DePalma's focus on hypocrisy is typical of those who are so immature and so idealistic that they are unwilling to confront the real situation, in which black folks are qualitatively worse off, when it comes to having the material and opportunity to have a fair shot at a good life.

Part of looking at the problem of things such as school segregation involves looking at the facts and not just sticking to high ideals about discrimination which exist only in abstraction. This might serve as a fun thought experiment to discover the "true hypocrisy" in a philosophy seminar, but it does little else than entertain.

According to Mr. DePalma Roberts provides the useless tautology: the way to stop racial discrimination is to stop racial discrimination, see above. This is of course correct, just as it is utterly unhelpful. For the idealist, I suppose, Roberts' profundity may be satisfactory.

I should say, in defense of the Thomas opinion, there is some attempt to argue that he came to his opinion on pragmatic grounds. See for example the pitifully amusing footnote (n. 17, p. 23) in which Thomas remarks that in prisons racial integration can be a dangerous policy. Of course, I would guess that most of us don't think prison issues are germane.

Pete L.
 

To blame Roberts, Alito, and Clarence Thomas -- who actually is black and who has experienced segregation -- for not marching at Selma at a time when they were all in middle school, is a cheap shot on a level that I've frankly never seen before.
 

What an idiotic and anti-intellectual approach. If it weren't published here, I wouldn't bother to respond, since I'd assume that anyone dumb enough to write such a thing couldn't be worth bothering with. I'm not entirely persuaded that's the wrong approach, but here goes anyway:

Yes, I think it's fair to say that John Roberts had "other priorities" in, say, 1965. He was, after all, 10 years old. I'm assuming that, rather than campaigning for civil rights, Roberts was busy in the 5th grade. What did Graber do in 1965? I'm guessing it must be pretty damn impressive if Graber's willing to make this kind of ugly point. So, tell us, Mark, what did you do?

(I'm guessing Graber hasn't realized or come to terms with the fact that some of his contemporaries are more professionally accomplished than he is. He just assumes that John Roberts must be much older. Roberts isn't.)

I'm curious why Mark left Clarence Thomas out of his analysis. The same sort of attack would have the same merit, wouldn't it? Is it just that it would make the weakness of the attack that much more obvious?
 

Dilan said...

You are begging the question. This debate is about exactly what the civil rights revolution was about. Some contend that it was about ending the subjugation of blacks. Others contend it was about achieving "color blindness". Both views have evidence in their favor.

I agree. But that was not my point.

Graber made a couple false allegations of hypocrisy. Hypocrisy is saying one thing and doing another.

My point was that the civil rights movement sold itself as color blind or as Dr. King famously stated:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

No where in this pitch to the American citizenry did Dr. King make the argument that his four little children should be the beneficiaries of government racial preferences.

However, the civil rights movement, including Dr. King at the end, in what is at best hypocrisy and at worst a betrayal of a wonderful and nobel cause, ended up supporting the very government racism they started out bravely fighting.

That reality is what makes Graber's false accusations of hypocrisy so ironic.
 

Dilan said...

You are begging the question. This debate is about exactly what the civil rights revolution was about. Some contend that it was about ending the subjugation of blacks. Others contend it was about achieving "color blindness". Both views have evidence in their favor.

I agree with your historical take. But that was not my point.

Graber made a couple false allegations of hypocrisy. Hypocrisy is saying one thing and doing another.

My point was that the civil rights movement sold itself as color blind or as Dr. King famously stated:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

No where in this pitch to the American citizenry did Dr. King make the argument that his four little children should be the beneficiaries of government racial preferences.

However, the civil rights movement, including Dr. King at the end, in what is at best hypocrisy and at worst a betrayal of a wonderful and noble cause, ended up supporting the very government racism they started out bravely fighting.

That reality is what makes Graber's false accusations of hypocrisy so ironic.
 

Wow, am I glad I don't go to Maryland. God forbid Graber goes on rants like that in class.

On the other hand, an in-class rant like this would be quite hilarious. Imagine the timid student raising his or her hand to remind the fuming professor that Roberts was a young child and truly did have "other priorities" at the time.
 

I worked on part of this case when it was a certified question of state law was in front of the Washington State Supreme Court. The court was instructed by the Ninth Circuit that the Seattle Schools would be segregated without some sort of racially conscious assignment. I lived in Seattle; it’s a segregated city. I don’t understand how we’re going to have meaningfully diverse schools without a system like this. What the U.S. Supreme Court has done is resegregated the Seattle schools. It breaks my heart.

Bart, I really don’t think we’re furthering the underlying principles of the fourteenth amendment by ending programs aimed at ending the legacy of centuries of subordination. Ignoring race doesn’t make the legacy of racism go away. King was campaigning against overtly racist laws that subordinated African Americans. The Seattle program doesn’t -- didn’t -- subordinate anyone. It just made sure that no high school was segregated.
 

in my house, we have what we call the 24 hour rule, which simply states that you cannot respond to anything that makes you viscerally angry until a day passes so that you do not say anything that you may regret in the future while in the heat of anger. i have imposed that rule upon myself in connection with these cases, mark's post and the responses thereto viciously attacking him (you should have seen what i started to write yesterday...).

in response to those who ask, in 1965, mark was nine. i was seven. quite obviously, we were not out in front in the civil rights movement. in 1963, our parents brought us to washington where we were present at the martin luther king "i have a dream" speech. i confess to having virtually no memory of the entire event. i also confess that at that age, we were being taught by our parents that racism and that which perpetuates racism is wrong. you don't have to be the ones making the speeches, marching the march or sitting at the woolworth's counters to know the proper legacy of the movement.

yes, i suppose that forcing some students from schools closer to their homes to others where there are students of racial, national or religious backgrounds their parents may not want their child exposed to (for whatever reason, good or bad) may be a surface level act of discrimination based upon race, etc. i would pose, however, that whatever the constitution or well established supreme court precedent may or may not say, sometimes you just have to do what is ultimately right.

and it is right to try to cure the legacy of racial discrimination in this country by trying to improve the education and thus the promise of opportunity of those who through no fault of their own end up in economically disadvantaged communities with schools populated by, yes... minorities, staffed by less capable or inspired teachers and administrators who have lost hope, which offer little or no hope of advancement for these children. if this requires attending to issues of race to cure the discrimination, so be it.

what is lost by the majority and apparently many of the commentators herein is the fact that requiring one to completely ignore racism in order to fight racism may simply result in the perpetuation of racism. our parents have taught us that in order to solve a problem, you must deal with the problem or risk perpetuating it. it is obvious from yesterday's events and the comments attending them that the fight must go on.
 

Kali said...

Bart, I really don’t think we’re furthering the underlying principles of the fourteenth amendment by ending programs aimed at ending the legacy of centuries of subordination.

The underlying principles of the 14th Amendment require that our government does not discriminate between people on the basis of race, not that we integrate the delivery of government services at any particular location on the basis of race.

Additionally, I would contend that the very idea that the only way African American students can improve their self worth and academic performance is to be taught next to white and asian students is at its core racist and assumes that African Americans are inferior and cannot perform on their own the way others can.

If you want to address education, address education.

African Americans are usually compelled to go to the worst of the government schools and, because they usually grow up in "working poor" and often broken families like I did, they do not have the alternative of private school and have no choice but to go to the crap school to which they are (and I was) assigned. You must have extraordinary family support as I enjoyed to get an education despite going to one of those crap government schools.

Therefore, why don't we give students in K-12 the same choice we give college students - give everyone the financial resources and they can decide which school to attend. Let the K-12 students compete for students the way colleges do. We have the finest university system in the worlds as a result.
 

yes, i suppose that forcing some students from schools closer to their homes to others where there are students of racial, national or religious backgrounds their parents may not want their child exposed to (for whatever reason, good or bad) may be a surface level act of discrimination based upon race, etc.

This raises an interesting question. What "right" was violated by the plans? I'm sure we'd all agree that no student has a right to be assigned to a school within a certain distance from his/her home. Nor does a student have a "right" to pick which school to attend. So, what "right" was violated?

As for Prof. Graber's rant, I fully understand it. The critics seem to have lost sight of the forest for the trees. Whether his comments apply in the specific cases of Roberts or Thomas is irrelevant to the larger point that they surely do apply to the conservative movement generally.

The conservative interpretation of the 14th A has historically been this: we'll apply whatever rule is necessary, under the current socio-economic conditions, to avoid any association with black people. Thus, in an era when living conditions were relatively integrated, and blacks had some chance of competing economically on relatively equal terms, separate but equal was fine. When segregation (de jure or de facto) succeeded in isolating blacks in particular neighborhoods and depriving them of the education and wealth they need to compete economically, conservatives switched the test to "race neutral".*

Then they have the chutzpah to lecture us on the meaning of Brown (which they opposed), their adherence to neutral judicial principles (which they routinely violate in order to achieve conservative policy goals), and the "racism" of liberals who dare to think that race must be taken into account in order to overcome the racism of conservatives (blaming the victims has a noble conservative history). Frankly, Prof. Graber let them off too easy.

*"Neutral" only in the Anatole France sense, of course.
 

Dr. Graber's point, and I feel that it has not been adequately understood, is that NO ONE is neutral. The people in the Civil Rights movement were not neutral, nor should we have wanted them to be. Furthermore, Professor Graber pointedly notes, as did Justice Breyer in his dissent, that equality has become a principle totally unhinged from its practical aims. Equality plays an important role in the kinds of ways governments can be Constituted. This entirely mental construction "the end of equality is equality" has entirely lost its moorings and has a chilling "Orwellian/French Revolutionary" tenor to it. If we are no longer able to raise questions about equality with regard to its virtues, then we are lost.
 

Please, please... please read the 14th Amendment to the United States Constitution.

And try to resist the tactic of responding to a cogent argument by intimating its authors are Nazis - you're smarter than that.
 

Bart, you are of course correct about King's use of the "content of their character" line. But, remember, that was his DREAM. At other times, including in other passages of the same speech (such as where he discusses "cashing the check"), King couched his rhetoric in terms of ending the subjugation of blacks.

King's kind of hard to interpret because he used the language of religious prophecy to a great extent in his rhetoric. This means that the rhetoric is quite lofty and that everyone can see their favored policy prescriptions somewhere in it. Of course, that was one of the reasons why King could build such a broad coaltions; to use modern language, he was a uniter, not a divider.

But the debate of whether the civil rights movement was really about achieving "color-blindness" or ending the subjugation of blacks is something that will go on forever, I am sure. It is not, however, hypocritical for people who probably always believed in the latter intrepretation to continue to espouse it now.
 

The ability to frame Roberts and Alito as "victims" in the complaints to this post illustrates the depth of the so-called conservative backlash to the attempts in the '60s to redress the patently unjust foundations on which the US was then resting. We are going to see the courts destroy almost all of the progress which the post-WWII generation brought the country. What a tragedy.
 

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