Notes on Civil Liberties and Civil Rights
Our colleague, Chris Bray, passes along a recommendation that you have a look at: Bruce Schneier,"Strong Laws, Smart Tech Can Stop Abusive ‘Data Reuse'," Wired, 28 June. It's a thoughtful piece that grounds its argument in historical experience and warns about the growing problem of a"data shadow, which always follows me around but I can never see." Read the whole thing, as they say.
Mary Dudziak's"Brown as a Cold War Case," Journal of American History, 91 (2004), was cited in Justice Breyer's opinion for the dissenting justices in the school integration decision yesterday. At Legal History Blog, she argues that"Roberts Misreads Brown and its History in Today's School Case." See also: Dahlia Lithwick's"A Supreme Court Conversation," Slate, 28 June.
The 60 of us who signed the historians' amicus brief in Parents Involved in Community Schools v Seattle School District #1, et al. and Crystal D. Meredith, Custodial Parent ... v Jefferson County Board of Education, et al. got an e-mail from Yale Law School student Brian Deese yesterday. I've copied it below the fold. But, first, a word of explanation:
Brian contacted me in late September about filing a brief in the two school integration cases. He and a team of Yale law students were planning such a brief and wanted historical advice and contacts. Quickly, he brought me up to speed on how such things are done. I can say now that John Hope Franklin, Louis Harlan, Dan Carter, Glenda Gilmore, Jim McPherson, Vernon Burton and I did not sit around a table planning the brief. The Yale law students coordinated conversation among 60 historians and other scholars. Then, they drafted and revised versions of the brief. When, however, I wrote about the brief for History News Network last October, Brian and the other Yale law students wanted no mention of their role in creating it. They thought that it carried more weight as the expression of citizen-scholars intent on doing their civic duty. And, after all, it is that. But they also feared that a law clerk at the Court might slip a brief to the bottom of a stack of briefs if he or she suspected that it was the work of Yale law students.
I had my own reservations about the pretense that this was simply the work of" citizen-scholars intent on doing their civic duty." There'd been times in my career when I resented having to do"ghost-writing" for other people. Here, however, I was signing someone else's creation as if it were my own. Finally, I swallowed my qualms. If, after all, I were making an appearance in court, an attorney would be shaping my case. And, here, it was important that legal minds frame the argument for legal minds. What they needed from us was, first, our expertise and, secondly, our reputations as scholars. They had the skill to shape historical knowledge into a legal argument.
With that background, here is Brian Deese's reading of yesterday's Court opinion:
As many of you know, the Supreme Court today issued its decision in the Seattle/Louisville cases (attached). In a disappointing step backward from Brown v. Board of Education, a five-member majority struck down the school districts' plans. In doing so, the court has placed yet another barrier in the way of local governments, school boards, and families committed to providing a high-quality, inclusive, integrated and diverse education for all students.
However, while some will no doubt have trouble finding a silver-lining in today's decision, it is important to note that the decision was less damaging than many were expecting. Justice Kennedy's controlling concurrence provided a 5th vote for the position that there remains a compelling interest in pursuing integration (and avoiding racial isolation) at the K-12 level. And Justice Kennedy affirmed the right of local communities to pursue a range of affirmative measures to achieve those goals, including strategic site selection of new schools; drawing attendance zones with consideration of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance and other statistics by race.
Importantly, Justice Kennedy echoed the argument you presented as Amici that the late Justice Harlan's words cannot be misconstrued to support an ahistorical" color-blind" interpretation of the Constitution. His recognition that"as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle" should be seen as a victory for responsible historical constitutional interpretation.
In addition, Justice Breyer's artful dissent incorporates the core argument of your Amicus brief --that the framers of the 14th Amendment understood the difference between integration and segregation (see below). We can hope that, by recognizing and citing this historical information, Breyer's dissent will make a contribution to correcting the historical record in Supreme Court doctrine.
I hope this note finds you all well. Thank you again for your time and commitment to the Amicus process.
FROM BREYER'S DISSENT:"The [Fourteenth] Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race conscious criteria to further that purpose, namely to bring the races together . See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866–1904 (1996) (describing federal funding, through the Freedman's Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862–77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan,"Desegregation in New Orleans Public Schools During Reconstruction," 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865–1877, pp. 111–116 (1974) (same)."
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chris l pettit - 6/29/2007
that the Court misinterpreted and manipulated Brown v Board in the manner in which it did.
Thanks for signing on to the brief, Dr. Luker...it is good to know that those of us still concerned with protecting human rights and the essence of constitutional legal thought can count on quality scholars for historical context and expertise.
Sadly, I am not sure whether I can concur with the sentiment that Kennedy's opinion will be the controlling one. I am afraid that the sentiment is a bit of a fantasy given the paucity of our legal institutions and the influx of ideologically motivated judges on both sides of the divide. One thought that Kennedy would have the controlling opinion in the Clean Water Act cases, and thus far that has not come to pass. It will depend on what district cases are brought...for instance, the liberal position could be cited in a liberal district under the theory that since the opinion was a plurality (4-1-4), race can still be used as long as certain cursory steps are taken to demonstrate that it wasn't the ONLY factor (a very broad reading of Kennedy's concurrence). In a very conservative district (such as mine here in Florida), the justices may take the conservative ideologues opinion to be controlling simply because Kennedy signed onto the majority (despite his objections). THe fact is that our legal system is inexorably broken. As much as constitutional scholars try and convince their classes that Kennedy is the key opinion/vote (and I also follow this tact in my Con Law lectures), I fear that we are fooling ourselves in a way and that the reality is much more complicated than that.
I usually like it when constitutional theory gets more interesting and intriguing...not in this case. It has been a dark couple of weeks for the integrity of constitutional law, respect for precedent, and human rights in general. I guess this fits right in with the ideologues running things in the political realm though...