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6/29/2007
THE LAW AND COMMON SENSE

If the reaction by the special pleaders in the civil rights lobby and their various mouthpieces in the media is any indication, one would think that the Supreme Court ruling striking down some race-based preference plans for purposes of “integrating” schools thus making them more “diverse” will bring back the bad old days of little black children being barred from entering the pristine halls of white schools while men with white hoods hover in the background with ropes and burning crosses.

In fact, the more exaggerated the response to decisions like this, you can bet that there is precious little the left can do to argue based on the facts. Substituting hyperbole and issuing dire pronouncements about the imminent return of segregated schools and the evisceration of Brown v. Board of Education only obscures the unsettling nature of the decision itself; and that is that quotas suck.

Now I’m not a lawyer. But I have been blessed with my fair share of common sense which, when talking about the law, should more than suffice in forming an intelligent opinion regarding the efficacy of one legal issue or another – usually. The problem (and I’ve written about this before) is that the American people have become disconnected from the law in a way that the Founders could never have envisioned. Its complexity, its obscurity, its sheer, mind numbing, all-encompassing embrace of every facet of our lives breeds ignorance and contempt for not only the law but those who seek to interpret it or use it for one purpose or another.

So all the overwhelming majority of us have when it comes to trying to gauge the fairness or unfairness of the law is our common sensical notions of right and wrong as well as a dependence on those who do, in fact, have the expertise to interpret it. The problem, if you’ve read enough about this school quota system case, is that not everyone sees the decision the same way. There are different interpretations, different issues emphasized.

In the end, even after educating ourselves, all that we non-legal experts are left with is good old fashioned American ideas about fairness and justice. Come to think of it, that’s not such a bad way to interpret the law in the first place.

As mentioned above, the left is having an apoplectic fit:

The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Yesterday, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality.

Since 1954, the Supreme Court has been the nation’s driving force for integration. Its orders required segregated buses and public buildings, parks and playgrounds to open up to all Americans. It wasn’t always easy: governors, senators and angry mobs talked of massive resistance. But the court never wavered, and in many of the most important cases it spoke unanimously.

Yesterday, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated.

Is that true? Did the Supreme Court of the United States really throw out 50 years of desegregation law and order schools to “Resegregate” as the New York Times helpfully coins the word of the day?

Not so fast.

Race conscious policies using non racial means are favored and must be attempted first; race based assignment policies that target individual students (as opposed to structural reforms like school siting policies) are permitted if they make individualized determinations and use race as only one factor.

Oh my, here goes those evil conservatives again, wanting to treat people as individual human beings rather than as a member of a “group” or “class” or “protected group.” What’s a civil rights lawyer to do?

There’s much more at that Balkinization link and you should read the whole piece because Mr. Balkin and others (including Paul Mirgenoff at Powerline) are training their legal eyes on the concurring opinion of Justice Kennedy who Eugene Volohk points out, has been the swing vote in every single 5-4 decision this term.

As I understand it (and anyone out there is more than welcome to correct me if I’m wrong), while the majority opinion – written here by Chief Justice Roberts – forms one leg of the law, concurring opinions can be given weight by lower courts as well – assuming they are well written and clear enough in where they dissent from the majority opinion. In this case, Justice Kennedy concurrence becomes extremely important because he dissented from Robert’s opinion in a couple of key areas. Powerline has one:

Today’s Supreme Court decision in the race-based school assignment cases turns out to be a disappointment. Chief Justice Roberts wrote an excellent opinion explaining why the two plans are unconstitutional, and four other Justices agreed with the result. However, one of them, Justice Kennedy, would not sign on to a key part of the Roberts opinion—the part that says assigning students to schools by race cannot be justified as a means of achieving a racial balance in particular schools that reflects the school district’s racial demographics. This leaves the door open for school systems to develop different types of plans for assigning students by race for that purpose, and then to try and persuade sympathetic lower courts that the plan in question does not run afoul of what Kennedy said in his concurrence.

Beyond the inherent undesirability of this result, Kennedy’s opinion strikes me as a poor vehicle for it. Unless I’ve missed something, Kennedy does not provide much guidance about the kinds of plans for assigning students to public school using race as a factor he would uphold. Kennedy’s opinion will become the touchstone by which the constitutionality of racial discrimination in public school assignment will be judged. Having conferred this role upon himself, he should have been more clear about what he will and will not accept. His lack of clarity may leave school districts confused and lower courts unbound.

Sabotage by Kennedy? Or common sense? Here’s Jack Balkin again:

Nevertheless, Kennedy has no problem with race-conscious policies by school boards that don’t involve the specific assignment of individual students to schools based on their race. That means that race conscious policies that site new schools or move old ones based on expectations about likely racial makeup are permissible. Policies that assign students randomly by lottery or use factors like geographic distance from a school are also perfectly permissible, even if they are designed to achieve a more diverse balance of students by race and ethnicity. For example, a school district that used magnet schools with assignments based on nonracial factors to promote racial diversity would be permissible under his model.

This seems eminently fair and equitable to me. I have no problem with diversity in our schools as long as it is achieved with a minimum of fuss and a maximum of common sense. Steven’s concurrence would seem to fit that definition although Paul’s caution about the vagueness of his wording should be taken to heart. But at least the Roberts opinion puts a brake on purely race based decisions by school boards – something that is long overdue.

What has happened to the idea of judging someone “not by the color of their skin but the content of their character,” as Martin Luther King pleaded for in front of the Lincoln Memorial so many years ago? We have gotten so far afield of the idea that the law’s protections are ultimately extended to individuals, not groups that when a ruling like this comes down, a “protected class” as defined by the law howls bloody murder.

No, we are not a color blind society – far from it. Institutional racism is not a thing of the past nor is it likely to decline without at least some intervention of government and the courts. This, ultimately, was what Brown v. Board of Education was all about; a recognition that only the federal government was powerful enough to overcome 300 years of bigotry and racism.

But in the last few decades, this intervention by the courts had proved in some cases to be arbitrary, capricious, and just plain unfair. The American people – both black and white – sensed this on more than one occasion and protested – to no avail. Pushed by the special pleaders in the civil rights lobby as well as a liberal credo that demanded we pay homage to “white guilt” while working toward a more “diverse” and “multi-cultural” society, “civil rights” lost its meaning and became just one more issue that high paid lobbyists worked the Hill to grab whatever goodies and special benefits they could from Congress for their constituencies.

Any opposition to orthodoxy as dictated by the special pleaders – be it on issues like affirmative action, or employment law, or any other issue they deem it necessary to apply their narrow interpretation of “fairness” or “justice” – will bring immediate cries of “racist” in order to tar their opponents with the slimiest epithet in the American political lexicon. This makes discussion impossible – unless you are willing to accept the parameters they set for debate.

This Supreme Court decision will cure none of this, of course. But it injects a little much needed common sense into our debates over how best to make the words in our Declaration of Independence and Constitution live for everyone and not just those who by accident of birth enjoy certain advantages over their fellow citizens.

By: Rick Moran at 8:45 am
5 Responses to “THE LAW AND COMMON SENSE”
  1. 1
    Heading Right » Blog Archive » Ed’s right - a little common sense please… Pinged With:
    9:21 am 

    [...] I tried my hand at the common sense angle this morning: The Law and Common Sense. [...]

  2. 2
    tHePeOPle Said:
    12:25 pm 

    “Oh my, here goes those evil conservatives again, wanting to treat people as individual human beings rather than as a member of a “group” or “class” or “protected group.” What’s a civil rights lawyer to do?”

    Exactly. Finally, a little equality for a change. I’m tired of hearing about how a perfectly qualified white guy gets passed up for a spot in college because some horribly unqualified guy had the LUCK of being born black. It’s time for white people to demand a little fairness in an already unfair system. I look forward to many more ground breaking 5-4 decisions in the future from what’s become my favorite court.

  3. 3
    john g Said:
    4:56 pm 

    Excellent commentary——In fact it isn’t just the “left” but the so-called “middle of the road” types that claim to be bipartisan—case in point E. J. Dionne’s anguish today seen on Real Clear Politics concerning Roberts and Alito. It seems once again that if you stand for the Constitution then you are a “judicial activist”—Why don’t these people read the opinions instead of relying on others when they purport to write “objective” commentary? Thanx

  4. 4
    Pajamas Media Trackbacked With:
    11:20 am 

    A Sporting Change: Tea, Scones, and Aces…

    Watching the matches at the All England Lawn Tennis and Croquet Club is just as important a 4th of July tradition as fireworks and barbecue for tennis fans. A part of that tradition in recent years has been watching Roger…...

  5. 5
    Dave Schuler Said:
    6:13 am 

    It’s actually very, very simple. All that schools need to do is use poverty rather than race as their method for classifying students for purposes of balancing. That’s it.

    I can’t help but feel there’s some unstated problem here, a ghost at the feast. I don’t know what it is. Concerns that support for funding the education the children of all the people out of the public purse will evaporate? Concerns about stratification within African American society? That’s already happening, too.

    My mom used to say that the schoolroom was the last kingdom. Could that be it? Are school administrators just accustomed to getting their own way?

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