Monday, December 04, 2006

The Integration Cases from today

I just read Linda Greenhouse's article from tomorrow's New York Times summarizing today's Supreme Court arguments in the racial integration cases. It sounds as though the parties initially expected to be arguing over whether to characterize racially-based distribution of students at public schools as affirmative action or as something less controversial, but a majority of the Court instead appeared to view racial distribution for the purpose of achieving integration as no different from the segregation outlawed in Brown v. Board of Education. As in Brown, Chief Justice Roberts pointed out, every student is assigned to a school, and as in Brown, the assignment is based on the race of the student. Predictably, Justices Stevens, Souter, Ginsburg, and Breyer did not see the two as equivalent. (And frankly, I believe it is frighteningly shortsighted to see the two as equivalent). The "swing" Justice Kennedy appeared unhappy with racially based allocation of students (which perhaps struck him as comparable to the racially gerrymandered districts in Shaw v. Reno), but he would have liked the idea of creating a public school in a location that would foreseeably result in an integrated student body. Justice Souter aptly pointed out that this seemed like a game of hide-the-ball, because acting in a way that is intended to achieve racial balance (without explicitly classifying students by race) is just a less candid way of doing what the districts did in this case. If the outcome is desirable, then why not just be honest about it? Why indeed. After all, the infamous literacy tests that were purposefully adopted to disenfranchise African Americans were neutral on their face. (Of course, the other Justices in the majority might well object to the placement of the school in a location that would maximize integration, so perhaps Justice Kennedy is the only member of the majority who actually believes an integrated public school system is a desirable objective).

In addition to the obvious implications of these colloquies for debates about integration, they struck me as bearing as well on the lively and interesting discussions about purpose and knowledge with respect to Alon's post regarding the German Constitutional Court's decision invalidating legislation authorizing the shooting down of a hijacked airplane. If a school district builds a school in a location that maximizes integration (due to existing housing patterns), then it has acted in a nominally race-neutral manner with the knowledge and purpose of achieving integration. Similarly (though not so similarly), the government that shoots down an airplane to prevent hijackers from using it to kill people on the ground is acting in a way that it knows will kill passengers but which it does not intend to kill passengers. Is there a difference between knowingly killing passengers by shooting down their plane and deliberately killing passengers by shooting down their plane? Yes. The difference is that in the first scenario, someone else, namely the hijackers, have created the circumstances under which doing nothing will result in greater civilian casualties than doing something, and the government does not have the luxury of doing nothing and then claiming no responsibility. One could say the same thing of the effects of our toxic history of race in this country that have led to segregated housing patterns, etc. But it is not clear that there is any difference between deliberately placing particular students in particular schools to achieve integration and deliberately placing a school in a location that will attract an integrated student body in order to achieve integration. If the school district learns that this location does not achieve integration, it will be unhappy and try something else. On the other hand, if it turns out that the passengers survive the downing of the plane and only the hijackers die, then so much the better -- everyone wins. It does, in other words, make sense in some contexts to distinguish between purpose and knowledge (especially when acts and omissions are not sensibly distinguished), but it strikes me (and, apparently Justice Souter) as foolish to distinguish between purpose and purpose, depending on whether the purpose is explicit or not. Nonetheless, I suppose I should be glad that Justice Kennedy -- alone in the majority -- did not see the attempt to integrate schools in areas that had been until recently under court-ordered desegregation decrees as the equivalent of Jim Crow and mandatory segregation of the races that preceded 1954.