Fifty years after Brown, we should not forget that the Supreme Court overturned itself in Plessy, which for 75 years equivocated "equal protection" could mean "separate, but equal." The Court then choosing to remedy itself for its errors seem just a tad bit self-serving. A segregationist court wrought segregated society, not the 14th Amendment, Civil War, or Emancipation Proclamation. The very Court of Plessy, Brown, etc., and who is the one segregating? (Hint: They don black robes or white sheets.)
 

But it doesn't really matter whether Brown mandates integration, does it? The Seattle and Louisville measures were voluntary efforts to achieve integration, brought about by the sort of local processes that judicial conservatives are always telling us to defer to.

What changed between Plessy and Brown is not that we suddenly realized the Fourteenth Amendment was intended to bar non-invidious classifications. Rather, what changed is that we realized "separate but equal" WAS an invidious classification, concocted to restrict blacks to inferior facilities as a de facto matter.

I dislike the conservative notion that we've lost all ability to distinguish between invidious and benign classifications and therefore must ban them all. Common sense is usually sufficient to tell the difference.
 

Professor Balkin: There is enormous irony in the Court's single black Justice, Clarence Thomas, pushing the same ideology and mouthing the same excuses that defenders of Jim Crow once used to defend the racial status quo.

This isn't "irony," it's treachery. Treachery of the servant ensconced in the comfort of the master's home, treachery of turning a blind eye to his kin in the fields. It isn't irony and it isn't new but it is an indictment of our nation that it can exist in our highest court. The ruling class will always have use for such renegades and traitors, and the false consciousness born of the cognitive dissonance produced by getting out from under the lash will ensure there is a steady supply of same and the masters will thus always have such exemplars to prove their moral righteousness.

But we know better. And we shouldn't lend our complicity with nerfed descriptions such as "irony" for the disingenuous sermons in support of the status quo from the selfish servant with no thought beyond their own position, removed as it is from the lash and the fields.
 

Steve: I dislike the conservative notion that we've lost all ability to distinguish between invidious and benign classifications and therefore must ban them all.

I agree. But I don't know that your statement puts the right historical order to things. I am under the impression that it was us liberals or progressives which turned "discrimination" into an all-pejorative term, at least with respect to race relations.

But since the time of Newt's "Contract...", if not before, the right wing has specialized in a tactic pioneered by the left: co-opting the language of the opposition. We see this when the right shouts down all discussion of race issues as "not politically correct" while at the same time crying about a mythical left agenda to limit free speech. Likewise we see here the right having taken the word "discrimination" and used it against us to further the separation of the haves from the have-nots. But I think we fashioned this cudgel for them by vilifying "discrimination" in the first place when what we meant was "prejudice". A discriminating palate is not prejudiced, neither for nor against, that which it has not tried. It is prejudice that we fight, the unjust pre-judging of matters or persons absent legitimate criteria and analysis, not discrimination, which in truth is the ability to discern and distinguish, as between right and wrong, good and evil.

Or so it seems to me.

Peace.
 

Racial separatism, especially by blacks, is good for their interests, and good for America. There is enormous irony in the Court's single black Justice, Clarence Thomas, pushing the same ideology and mouthing the same excuses that defenders of Jim Crow once used to defend the racial status quo.

Not if you realize the man is a black nationalist.
 

There is enormous irony in the Court's single black Justice, Clarence Thomas, pushing the same ideology and mouthing the same excuses that defenders of Jim Crow once used to defend the racial status quo.

Actually, Thomas's opinion is more likely to have been affected by the fact that he flirted with the Black Power movement when he was younger, and that movement thought it patronizing to suggest that blacks need integration in order to succeed. (You might also recall Thomas's opening line in his concurrence in Missouri v. Jenkins.)

Here are a few examples that I've come across in my own reading:

Carol Taylor, who helped found “Negro Women on the March,” told a newspaper in 1997 that “‘Our motto was, ‘Integration is the quiet conviction of the white man that all blacks want to be white.’ We were not for busing. We thought it better to send the best teachers to the black schools, and then, look out.’”

Stokely Carmichael and Charles Hamilton claimed that integration “is based on the assumption that there is nothing of value in the black community and that little of value could be created among black people. The thing to do is siphon off the ‘acceptable’ black people into the surrounding middle-class white community.” Even more starkly, they claimed that “[i]mplicit [in integration] is the idea that the closer you get to whiteness, the better you are.” Thus they concluded, “The real need at present is not integration but quality education.” Stokely Carmichael and Charles V. Hamilton, Black Power: The Politics of Liberation in America (New York: Vintage Books, 1967), pp. 41, 53, 157.

In 1964, Malcolm X said, “I just can’t see where if white people can go to a white classroom and there are no Negroes present and it doesn't affect the academic diet they're receiving, then I don’t see where an all-black classroom can be affected by the absence of white children. . . . So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out.” Malcolm X, “Answers to Questions at the Militant Labor Forum,”in By Any Means Necessary: Speeches, Interviews and a Letter, edited by George Breitman (1970), p. 17.

And Nathan Wright, the chairman of the 1967 National Black Power Conference, wrote that “Negroes should long ago have perceived that enforced ‘integration’ as a goal is a compromise of black Americans on its face. Negroes do not need the presence of white people either to give them worth or to learn.” Nathan Wright, Jr., Black Power and Urban Unrest (New York: Hawthorn Books, Inc., 1967), pp. 131-32.

Was there "enormous irony" in the fact that Black Power activists "mouthed" these sentiments?
 

And my goodness, I forgot to mention Alvis Adair's absolutely scathing book Desegregation: The Illusion of Black Progress.

Adair called for an outright “moratorium” on desegregation, pointing to “the closing, merging and demotion of traditionally Black schools, . . . the creation of a trend toward universal ‘minority status’ for Black children in classrooms and schools. . . , the elimination of Black teachers and principals who serve as models for Black children, the added burden of hostile and estranged school environments in which Black children are forced to learn and the disproportionate bussing imposed upon Black children.” He even said that “after 364 years of enslavement, Jim Crow, segregation and discrimination at the hands of Whites, Blacks [who support desegregation] simply concede power to Whites without a struggle: the most un-American act imaginable.”

Alvis Adair, Desegregation: The Illusion of Black Progress (Lanham, MD: University Press of America, 1984), pp. 1, 111.
 

The reason for integration is due to the superiority of white schools. Superior in facilities and teachers. Equal opportunity to an education requires integration.
 

Stuart Buck, quoting Malcolm: So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out.

A common misconception. There is more than one idea behind integration. Kids of every color need, desperately, NEED to be exposed to all other kinds of folks in order to recognize them as just that, other kinds of folks. That's one issue, normalizing relations between all the races, getting some experience that "we the people" means them people too, whites looking at blacks, blacks looking at browns, browns looking at yellows, yellows looking at reds, &c, all looking at all and each other and our selves. Democracy is thwarted by demonization of the other, and segregation yields that demonization on both sides of the divide.

The other issue is money: integration was fought for not because the black kids are made better by being in the presence of white kids (one of the dumbest things I ever heard) but because the "white schools" had a disproportionate share of the money, hence better resources. School integration, then, can be viewed in this context as a wealth-redistribution scheme in sheep's clothing; instead of moving the money we'll move the recipients.

"Separate but equal" was supposed to achieve quality education for all evenly, but was deemed to have failed...or, more properly, was eventually deemed as incapable of succeeding. There are those who argue integration has failed as well, but I've yet to see a credible argument that it is incapable of succeeding. The more we each meet each other in shared environments the sooner we each call the other brother.

Which is why certain interested parties work so hard to keep us apart...
 

Steve said...

I dislike the conservative notion that we've lost all ability to distinguish between invidious and benign classifications and therefore must ban them all. Common sense is usually sufficient to tell the difference.

There is no such thing as benign racism. The issue here was that the government provided an educational benefit to one person over another on the basis of racial discrimination. This is always an abomination.
 

Robert Link said...

Professor Balkin: There is enormous irony in the Court's single black Justice, Clarence Thomas, pushing the same ideology and mouthing the same excuses that defenders of Jim Crow once used to defend the racial status quo.

This isn't "irony," it's treachery. Treachery of the servant ensconced in the comfort of the master's home, treachery of turning a blind eye to his kin in the fields.

Good God man.

In your world of race loyalty, since you expect all blacks to think alike, should all white people also think alike or is this rule only good for blacks?

In your United States as plantation world view, are you a race traitor for not thinking like a white slave owner?

Do you truly listen to yourself?
 

I'm happy to have the modern conservative movement claim the legacy of the Black Panthers (in their post-King years). 20 years from now they'll be celebrating Louis Farrakhan.
 

Matt says:

"There is no such thing as benign racism. The issue here was that the government provided an educational benefit to one person over another on the basis of racial discrimination. This is always an abomination."

If he's talking about the current case I'm curious what educational benefit was provided to some that was not provided to others?
 

If Thomas is a black nationalist, he's a funny kind of black nationalist. He marries white* and, apparently, hangs around with a white crowd. A profile on Thomas a week or so ago indicated that while a child in Georgia, he was often taunted by those not as a dark skinned as he. I think the bitterness from that exprience explains a great deal of his attitude.

*Another irony is that, given Thomas' philosophy, he likely would have dissented in Loving v. Virginia, resulting in his current marriage being illegal.
 

Matt: ...are you a race traitor for not thinking like a white slave owner?

Do you truly listen to yourself?

I'm sure there's plenty of folks who would call me exactly that, a race traitor, for thinking we should all be engaged in the process of looking to our common humanity. I do indeed listen to myself, and, within the extended metaphor which seems to have upset you so, bear the weight of the guilt for my kin as I hear them crack the whip, and hear the cries of my kin who feel its bite, and seek to rid my family of both sides of that particular equation. I may reasonably be accused of betraying my race in favor of the larger family, my species in which all the races are siblings. I don't think there is a credible argument that Justice Thomas's opinions could be construed thusly.

Meanwhile, suppose you tell us what you have done lately to end the outrages committed by the status quo on the oppressed? 'Cause all I hear is assent to the way the right wing has co-opted the language of resistance to instead serve the interests of the elite. If that's your notion of social justice, then bravo, but I'll pass all the same.
 

Another essay that might prove enlightening, from Mark Tushnet: Clarence Thomas's Black Nationalism.


Another point that occurs to me: Clarence Thomas documents, in details, how every turn of Breyer's argument mirrors the arguments made by segregationists (i.e., about deferring to local officials, etc.)

Now the usual response is something like this: "How absurd. Breyer had a good purpose -- to defer to those who want to bring the races together -- whereas segregationist lawyers wanted the Court to defer to local racists who were trying to oppress black people."

OK. Anyone who admits the validity of the above point should also, for the sake of honesty, admit that Thomas is also writing from a purpose that is quite opposite to anything the segregationists said. Segregationists said, "Black schools are fine," but they didn't really believe it; they just wanted to keep black kids away from their own kids. Thomas says, "Black schools are fine," because he really believes it, and because he (like black nationalists and a lot of other black people, for that matter) thinks that it's condescending to assume that black people are essentially helpless to succeed without the beneficent presence of whites.
 

Also, Prof. Balkin, I forget -- in What Brown v. Board of Education Should Have Said, did you also marvel at the irony of how Derrick Bell was serving as a mouthpiece for segregationist arguments? It is more of an irony, you know, given Derrick Bell's history of filing numerous desegregation lawsuits after Brown, and given that Bell's current position is more radical than anything Thomas has said.
 

Stuart Buck: ...[Thomas thinks] it's condescending to assume that black people are essentially helpless to succeed without the beneficent presence of whites.

Stuart, a friendly question: Is that a position you support as well? Or are you playing devil's advocate, presenting views we should all be aware of? I commented up thread but don't know that you saw it, and am curious to know what you think.

Peace.
 

I'm very sympathetic to it, just as I'm sympathetic to the Black Power advocates from the 1960s. And I think it's very misleading when people suggest (perhaps unwittingly) that black nationalism is basically the same thing as Jim Crow.
 

As Elijah Mohammad said:
"We are the black fascists"

Can I make an amused comment about Eichmann's respect for Jewish Idealists now?
 

No
 

Ok then maybe I can comment of the sorry results of radical Zionism, another form of racial nationalism?

In fact I've always thought Derrick Bell had a point, as some feminists do in discussing sexually segregated education; but Stuart Buck's glib grotesquery does no justice to either argument. And Thomas' is the nastiest sort of cynicism.

Law is always the vulgarization of thought. Its necessity does not make it less so.
 

I'm at a loss to understand what criticism is intended of me or Thomas. DG's post scans grammatically, but semantically, it might as well be Lewis Carroll's nonsense poetry.
 

Then learn to read more carefully, or try reading it again when you're a bit older.
 

Stuart Buck: ...I'm sympathetic to the Black Power advocates from the 1960s. And I think it's very misleading when people suggest (perhaps unwittingly) that black nationalism is basically the same thing as Jim Crow.

It's a thorny one. Let me start by inviting private email where we can have a little more elbow room for exploring; I find such exchanges more forgiving than exchanges in comments threads. You can reach me at beau ( a t ) oblios-cap ( d o t ) com.

I can see being sympathetic, but that's not the same as agreeing. It is true that some well-intended people were (are!) nonetheless not yet fully free of prejudice and indeed pursued their liberal goals with an assumption of inferiority on the part of those they sought to aid. This is a reason to vilify such helpers? Liberal awakening comes in stages. Recognizing the evils of slavery is easier than rooting out the vestiges of (erroneously) presumed white superiority. But the proper response to that is education, not demonization of those who would be allies.

As for the other matter, first, there is a difference between comparing the rhetoric of two movements and comparing the movements themselves. There is nothing misleading in saying Thomas's rhetoric smacks of that used by segregationists...especially when he is openly opposed to integration. So the analysis of the rhetoric is certainly fair game and good people can disagree about the aptness of analyses which conclude such rhetoric parallels that of the oppressors. But there is another vector to consider: If Jim Crow laws were based on demonization of blacks and a desire to keep "us good people" separate and safe from "those bad people," then Thomas's words (and Malcolm's as quoted by you, and others) can indeed be fairly deemed as the same as Jim Crow, with the Black Nationalists expressing their desire to keep "us good people [the Black Nationalists]" separate and safe from "them bad people [Whites]". This is very bad, for Blacks, for Whites, for all of humanity.

Am I correct that, although taught as a youth to never trust any white man, Malcolm came, in later years, to view the world more in terms of our common humanity than our differences in physiology? Do you think such a view, a focus on our shared heritage, is such a bad thing?

Lastly, and this may take us beyond the scope of this thread, do you contemplate that the issue of race relations is made all the more complex by the overlay of class relations? Which do you see as the primary problem, class or race?
 

I don't want to be a man," said Jace. "I want to be an angst-ridden teenager who can't confront his own inner demons and takes it out verbally on other people instead."
"Well," said Luke, "you're doing a fantastic job.
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