Thursday, August 02, 2007
Opinion

Justice and race

The recent Supreme Court ruling that race cannot be a factor in the assignment of children to public schools should have led to a searching discussion...

By Bob Zaslavsky

The recent Supreme Court ruling that race cannot be a factor in the assignment of children to public schools should have led to a searching discussion of what ethnic integration means for this country, how we have tried to achieve it in the past, and what we need to do to achieve it in the future. It did not.

The court was torn over the issue, as was indicated by the 5-4 decision (although with Justice Anthony M. Kennedy’s partial concurrence, it was probably more like four-and-three-quarters to four-and-one-quarter). The length of the opinions of the justices clarifying their votes was also some sign of how conflicted they were feeling.

Having read the full opinions (185 pages, including the seven-page introductory “syllabus”), I find myself as torn as the court. On the one hand, I agree with much, perhaps even most, of what was said by Justice Stephen G. Breyer, a person whose blend of gentleness, humor, compassion and erudition makes him stand out even on this court. On the other hand, I also agree with much of what was said by Chief Justice John Roberts, a person whose blend of toughness, principle and rationality is as impressive in its way as Breyer’s is in his.

I have struggled for weeks to express my thoughts about the decision in a clear-headed way. This has been difficult for two reasons, personal and professional.

The personal difficulty is rooted in my aversion to the pervasive use of the word “race” to categorize an ethnic group. I was born and raised a Jew during World War II and its aftermath, when we Jews became painfully aware of the pernicious consequences when race and ethnicity are confused. To this day, too many—with no tinge of Nazism—still consider “Jewish” the name of a race. In actuality, it designates a religion that encompasses an ethnic diversity ranging from the olive-complected Sephardim of Spain to the pallid Ashkenazim of Eastern Europe to the black Falashim of Ethiopia.

Therefore, in my teaching career—especially in my high school sociology and psychology classes—I took great pains to make students aware that, with respect to humans, biologically, there is only one race, the human race. Therefore, the “races” to which we so cavalierly refer in our public discourse are fictions designed to satisfy certain psychological needs, and they do not correspond to the way that things truly are. Why humans have felt obliged to construct a social world so at variance with the natural world is beyond the scope of this column.

I then faced a professional challenge because those who have reported or commented on the decision revealed only a superficial knowledge of its historical background, without understanding the subtleties and nuances of that background. Without that, the canvas on which both Roberts and Breyer were careful to paint their statements is invisible.

That canvas contains three post-Civil War amendments to the U. S. Constitution and two landmark U. S. Supreme Court decisions.

The constitutional history involves the 13th amendment’s abolition of slavery (1865); the 14th amendment’s guarantee of citizenship, due process and equal protection; and the 15th amendment’s guarantee of the right to vote to all citizens regardless of “color, or previous condition of servitude.”

In Plessy v. Ferguson (1896), Justice Henry Brown presented the opinion of the court under Chief Justice Melville Fuller regarding segregated seating on the East Louisiana Railway. The court upheld the constitutionality of “equal but separate accommodations” (a locution that Brown used twice). If he had not added the criterion of race, the court’s opinion would be unassailable. There is nothing unconstitutional about “equal but separate,”--as opposed to separate but equal--as the existence of same-gender schools indicates. In his presciently brilliant dissent, Justice John Harlan reversed the key phrase into "separate but equal accommodations" to emphasize the racism in the decision. He added, "[T]he judgment this day rendered will, in time, prove to be quite as pernicious as . . . the Dred Scott Case." He was right.

The decision stood until the court heard Brown v. Board of Education of Topeka (1954). The arena now was education. Chief Justice Earl Warren presented the unanimous opinion of the court: “[I]n the field of public education the doctrine of ‘separate but equal’ has no place.”

I urge you to consider this background when you read—as you should—the full decision of the court. Chief Justice Roberts argues from the perspective of legality, Justice Breyer from that of morality.

Which one is right? You decide. However, think deeply before you do. SP

Bob Zaslavsky is a retired teacher of our much neglected humanities.