« Gentrification | Main | Double Death »
Bye, Bye Brown
Reading Balkin versus Whelan on whether originalists can say that Brown v. Board of Education was rightly decided leads me to muse. What would happen if the Court reversed itself on this question? Nothing, right? The Civil Rights Act bans school segregation. And even if it doesn't, I'm quite sure that even a GOP-dominated congress would happily attach a "no segregation" requirement to Title I education money or some such thing. And even if congress couldn't make that stick, it's extremely hard to imagine that any state government would allow school boards to resegregate. Which is not to say that Brown made no difference at the time, but nowadays it seems pretty irrelevant.
May 15, 2005 | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8345160fd69e200d83423311153ef
Listed below are links to weblogs that reference Bye, Bye Brown:
» Ah, the young from Hellblazer
Matt has been making a lot of very interesting statements. The one that has me rolling on the floor laughing is his latest on a theoretical reversal of Brown v. Board of Education.What would happen if the Court reversed itself... [Read More]
Tracked on May 15, 2005 10:14:39 PM
» Still bananas from War Liberal
Matthew Yglesias: Bye, Bye Brown Matt is so innocent. He honestly thinks that no state government would allow segregation if the Supreme Court reversed Brown v. Board of Education. Is he aware that, for instance, segregated schools are still the law of... [Read More]
Tracked on May 16, 2005 1:06:45 PM
Comments
By those standards, the 13th Amendment is pretty outdated as well.
Posted by: Dan Glick | May 15, 2005 8:58:53 PM
This must be wander off the ranch week for MY.
Brown v. states a very fundamental, and very important, Constitutional principle: separate is never equal in education.
That principle is worth preserving at the cost of a political war, if necessary.
Once the Congress is free to make laws disregarding that principle, who knows what we will end up with. Women not allowed in 'male' schools', like the service academies? Non-Christians separated from Christians? Impossible you say? What would prevent it?
In addition, overturning a major cornerstone of civil rights history would certainly not be received well in minority communities.
I can't quite understand what these kind of musings are intended to achieve.
How about overturning Marbury v. Madison, and making the Supreme Court subordinate to Congress and the Executive? Would that be a good idea too?
Posted by: JimPortlandOR | May 15, 2005 9:20:25 PM
I believe that the Alabama state constitution still requires segregated schools. They tried to repeal that provision in the 2004 election, but it failed.
So, if Brown were repealed, Alabama would have segregated schools at least until the 2006 elections when they could change their constitution.
Posted by: Noah Snyder | May 15, 2005 9:39:17 PM
Wow. It really is a slow news day.
First of all, any court that might reverse itself on Brown might also strike down the Civil Rights Act, or at least large portions of it, under the conservative view of the Commerce Clause.
Second, there are plenty of school districts that would resegregate.
But this is more pie-in-the sky than imagining proportional representation or national at-large senators.
Posted by: Electoral Math | May 15, 2005 9:45:46 PM
The point is not that originalists should think Brown itself should be overruled. The point is that Brown stands for every progressive cause being attacked by conservatives and originalists. In this debate, Brown stands for the principle that the courts should protect minority rights in ways that might not have been envisioned when the Constition or its amendments were passed. And so its enormously relevant to people fighting over abortion rights, gay rights, the death penalty, etc.
Posted by: Joseph Hovsep | May 15, 2005 9:52:45 PM
It's "irrelevant" if you don't understand the difference between law as made by the Legislature, and the Constitution.
When SCOTUS says a particular practice--say, separate but equal--is unconstitutional, that can't be overruled by legislation, and it's a principle that can be applied to areas other than the specific facts of Brown.
Posted by: mythago | May 15, 2005 10:05:36 PM
[I]t's extremely hard to imagine that any state government would allow school boards to resegregate.
Haven't traveled much in the South, have you?
Posted by: bobo brooks | May 15, 2005 10:05:56 PM
And even if it doesn't, I'm quite sure that even a GOP-dominated congress would happily attach a "no segregation" requirement to Title I education money or some such thing.
Have you even been paying attention, Matt? I don't think there are any limits on what they may or may not do. I would not have thought the 'nuclear option' would ever be discussed among the Senate leadership. I would never have thought that impeachment over a bj could have happened. I thought that the SCOTUS would uphold the Florida election laws.
You have way too much faith in the current GOP leadership.
Posted by: exgop | May 15, 2005 10:07:23 PM
The reason Brown is irrelevant is because it's not being enforced. The courts started backing away from implementing it and we now have a tremendous resegregation of schools.
So if it wouldn't make a difference it's because it's being allowed to lapse, not because it's not significant, even now. Its current significance is in it's very purposeful neglect.
Christopher Edley, Jr. of the Harvard University Civil Rights Project has written about this.
Posted by: Oleary25 | May 15, 2005 10:15:41 PM
"Brown v. states a very fundamental, and very important, Constitutional principle: separate is never equal in education."
That is true. However, look around in most states today, and you will in fact still see "separate" schools (permitted because it is based on where people live -- which happens to coincide with wealth or lack thereof -- rather than state action) that are anything but "equal."
It can be argued that those individuals (minorities and non-minorities alike) living in less affluent areas would be better served today if Brown was argued and held that all schools must be equal (or as close to it as possible), rather than non-segregated (which happens anyway, only now for a different reason).
Posted by: BizGK | May 15, 2005 10:20:05 PM
I'm quite sure that even a GOP-dominated congress would happily attach a "no segregation" requirement to Title I education money or some such thing.
like Exgop, I really can't imagine what makes you say this. We have a blog's worth of evidence that you have, in fact, been paying attention over the last few years. So what on Earth are you thinking?
Posted by: cerebrocrat | May 15, 2005 10:24:29 PM
If the SCOTUS says the 14th amendment doesn't require desegregation, then Congress can't require it under its section 5 authority.
Posted by: phil | May 15, 2005 10:29:24 PM
I'm with Cerebrocrat on this -- where do you get this idea that Congressional Republicans would lift a pinky to _prevent_ segregation, if it were ("oh, federalism demands that I wash my hands of this!") imposed by states or municipalities?
More to the point, and this applies as well to your recent softness on school prayer, have you learned no lessons about how many miles the GOP will take if you give them this kind of inch?
Posted by: Charlie Murtaugh | May 15, 2005 10:42:59 PM
Lame has become original in these parts. Spoiled spoiled spoiled.
Posted by: razor | May 16, 2005 1:46:03 AM
I don't know if I'm an originalist, but I am a literalist. And the 14th amendment guarantees equal protection. The 1st amendment guarantees freedom of association.
While I don't see that you should be able to outlaw a private school declaring that only whites can attend, I do believe that government must not discriminate in the allocation of education funds for public schools, nor can a government mandate segregation.
Posted by: Adam Herman | May 16, 2005 3:32:10 AM
We should take up a collection or something so Matt can venture out of the BosWash corridor sometime. Hey, one trip to central PA gave Bobo something to prattle on about for years.
Posted by: bunny | May 16, 2005 3:56:08 AM
"I believe that the Alabama state constitution still requires segregated schools."
You believe wrongly. It still states that an education isn't a right of citizenship, which position was used to facilitate legal arguments that it wasn't a rights violation to deny somebody an education on the basis of race. But it required nothing of the sort.
Posted by: Brett Bellmore | May 16, 2005 5:58:27 AM
Brett, you're wrong: "SECTION 256
Duty of legislature to establish and maintain public school system; apportionment of public school fund; separate schools for white and colored children.
The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years. The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein, and shall be so apportioned to the schools in the districts or townships in the counties as to provide, as nearly as practicable, school terms of equal duration in such school districts or townships. Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race."
Posted by: Ginger Yellow | May 16, 2005 6:57:11 AM
It's about time people started talking about this. I think most people would agree that, after all, school integration has failed. And that after decades of fighting over school bussing and so forth.
The FACT of the matter is, it is the BLACK community that would most like to see segregated schools allowed. Black people prefer to be with their own kind no less than white people, you know.
I don't think any community or state should be FORCED to have segregated schools. But they should certainly be allowed to if they want to. This is just basic 1st amendment rights and freedom of association.
The Supreme Court ruled against segregation because -- and ONLY because -- black schools were not getting the resources that white schools were, and that's not fair. And AT THAT TIME they had a point. But things are different now. As long as each school is supported by an appropriate amount of tax dollars, it should be OK. Hell, it would make black people BETTER off -- another reason why many in the black community favor resegregation.
Posted by: Don Stafford | May 16, 2005 8:22:01 AM
Guess you're right, I was mistaken; Had it confused with another case, I guess.
Posted by: Brett Bellmore | May 16, 2005 8:48:29 AM
As a child of privilege whose liberalism is about an inch deep, Matt is beginning to show his true colors. I give him five years tops before he discards it as a youthful error.
Posted by: JR | May 16, 2005 9:15:23 AM
The deal with the Alabama constitutional ammendment was, some people argued that by just removing the whole section that dealt with segregation there would somehow be a new right to everyone having a good education. It's unclear to me whether that's legally the case, but that was the political argument.
Opponents of the new ammendment said they weren't pro-segregation, just against state funding of public education.
Given that 4 years earlier 40% of Alabamans voted against repealing the "miscegenation is illegal" part of the constitution I'm a bit skeptical of the political argument, but that's what you were remembering.
Posted by: Noah Snyder | May 16, 2005 9:23:09 AM
Oleary25 above is right - the practical significance to education overturning Brown is about nil.
To get into a little more detail, the basic failure of Brown is that it hasn't been regarded as strong enough to allow urban districts to incorporate suburban districts. That weakness plus white flight means that you still have de facto segregation in many communities. White kids go to school in the suburbs, black kids go to school in the city.
On the other hand, Brown is an important precedent in the gay marriage cases. In the most recent California case the judge explicitly referenced Brown in arguing that civil unions would fail to pass constitutional muster.
Posted by: zwichenzug | May 16, 2005 9:56:20 AM
Don Stafford says:
I don't think any community or state should be FORCED to have segregated schools.
But you do, evidently, believe that a black child residing within a particular public school district can, against her will and the will of her parents, be excluded, perhaps FORCIBLY, from attending an all-white school.
Posted by: Donny | May 16, 2005 10:32:08 AM
Actually overruling Brown would probably also mean overruling the vast majority of the "equal protection" doctrine that has developed since Brown. It would almost certainly mean that Affirmative Action programs would no longer be Constitutionally suspect. It would also mean that most of the gender equality cases, including the VMI case, would be overturned. It would have a major impact on some other "suspect classifications" like alienage, etc.
After Brown the court developed extensive doctrine trying to realize the "equal protection" of the laws clause of the 14th. It's unclear what that should mean or what it was meant to mean, but the present doctrine is one decent shot at it. It certainly seems wierd to suggest that it should mean nothing, which is essentially what the separate but equal doctrine amounted to. I actually don't think the Brown decision is as hard to reach as many people do, but I also find the entire "Originalism" approach illusory and impossible to realize.
Posted by: MdtoMN | May 16, 2005 10:32:41 AM
