Tuesday, December 05, 2006

What Would Bork Do?

Given that oral argument in the integration cases seems to have focused on Brown v. Board of Education, here’s an interesting question: how would a committed originalist decide these cases?

According to the originalist account, the 14th Amendment was not intended to prohibit racial segregation in public schools. Originalists point out that the Reconstruction Congress permitted segregation in the D.C. public schools, that the spectators in the gallery listening to Senate debate on the 14th Amendment were separated by race, and that the sponsors of the Civil Rights Act of 1866 – which served as the model for the 14th Amendment – disclaimed any intent to interfere with segregated education. Therefore, originalists argue, mandated racial segregation in the public schools is permissible under the 14th Amendment. If this is true, doesn’t it follow logically that mandated racial integration is also permissible under the 14th Amendment?

Many originalists have accepted Brown out of respect for stare decisis. But stare decisis only requires an acceptance of Brown itself; it does not require that Brown be extended. Striking down the school integration plans in Seattle and Louisville would seem to extend Brown beyond its holding, which was limited to school segregation. So shouldn’t a committed originalist vote to uphold the Seattle and Louisville plans? Maybe that explains why Justice Thomas didn’t ask any questions yesterday: as the Court’s most devoted originalist, he had already decided to uphold the plans!

14 comments:

Anonymous said...

And if Brown is extended into absolute "colorblindness" as a standard, what impact would that have in other settings -- e.g., focused government outreach programs to get more minorities to apply to college, etc?

The way Linda Greenhouse described the debate yesterday, it's not a matter of if the KY / Seattle programs will get thrown out; it could be a question of whether a tidal wave lies behind the decision.

But I'm guessing the majority will be careful to not totally blow Bakke and Grutter out of the water. They won't want to alienate Kennedy -- he was in the Grutter dissent, right?

Andrew said...

By its terms, the Equal Protection Clause only applies against the states, rather than against the federal government, so it appears that the framers intended for Congress to control its own racists tendencies, rather than to give that control to the courts.

This is confirmed, rather than contradicted, by the congressional tolerance of segregation in the D.C. public schools, and by the segregation of spectators in the gallery listening to Senate debate on the 14th Amendment. Is it so unthinkable that the 14th Amendment means what it says? The racism exhibited by Congress in 1868 has absolutely no bearing on whether Congress intended the states to refrain from racism. That viewpoint was no more unthinkable than the old proverb: "Do as I say and not as I do."

And none of the foregoing suggests that Bolling v. Sharpe was wrongly decided. Congress merely tolerated segregation in the DC public schools, but failed to legislate it.

Thomas Healy said...

I hope it was clear that I'm not endorsing the originalist account of the 14th Amendment. I haven't read enough of the history to know what the original understanding or intent was and am generally skeptical that we can even discover the collective "intent" or "understanding" of all those who voted to ratify a constitutional provision.

I just appreciate the irony that if Bork and Thomas followed their theory to its logical conclusion they would be forced to acknowledge the constitutionality of the Seattle and Louisville plans.

Andrew said...

Thomas:

If you don't know what the original understanding or intent of the Equal Protection Clause was, then how can you conclude that an originalist would come to any particular conclusion regarding the Seattle and Louisville cases?

The segregation of the Senate galleries and of the DC public schools is largely irelevant to how the framers of the Equal Protection Clause wanted that clause to apply against the states.

It seems very obvious to me that the framers wanted one constitutional equality standard to apply against the states, and another constitutional equality standard to apply against Congress. Otherwise, they wouldn't have specifically limited the scope of the Equal Protection Clause to the states.

So, I don't understand why an originalist analysis of the Equal Protection Clause should really pay any attention to what Congress did to its galleries or to its local schools.

If you follow an originalist analysis to its logical conclusion, it's that Congress didn't want the state governments to discriminate based on skin color.

Andrew said...

By the way, Bork's support for the decision in Brown v. Board of Education has nothing to do with Stare Decisis. Here's what Bork wrote about Brown v. Board of Education, in his book "The Tempting of America" (page 82):

"By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law."

Thomas Healy said...

Andrew:

You may think the historical evidence I mentioned is irrelevant to application of the equal protection clause against the states, but there are originalists who cite this (and other) evidence to argue that Brown was inconsistent with the original intent/understanding of the 14th amendment. It was those originalists I had in mind when asking my question. If you don't like their account, take it up with them, not me.

As for Bork, I haven't read the Tempting of America, but look over that passage again. Doesn't it indicate that Bork does believe that segregation was consistent with the original understanding of the 14th amendment? He says the Court's realistic choice was either to abandon the quest for equality or to forbid segregation and that "either choice would violate one aspect of the original understanding." The Court had to forbid segregation only because experience had shown that segregation and equality could not co-exist, and equality trumps segregation.

The passage also suggests that Bork would not necessarily extend Brown to the Seattle and Louisville cases. What forced the Court to act in Brown was the unresolvable conflict between segregation and equality. But there is no unresolvable conflict between integration and equality. A voluntary school integration plan subjects blacks and whites to the same rules and doesn't necessarily burden one race more than the other.

Andrew said...

Thomas:

My understanding is that the integration plans in the Seattle and Louisville cases were only "voluntary" in the sense that they weren't court-ordered. They were NOT voluntary in the sense of being optional for the students involved. After all, in both cases, parents brought suit after their children were denied access to their preferred schools.

So, in keeping with the title of your post, the question is what Bork would do. I think most everyone (including Bork) would agree that discrimination based on race should at least be closely scrutinized by the courts, given that such discrimination has led to severe inequalities in the past.

I don't know how Bork would decide these cases, or even how I would decide these cases, because there must be a very fact-intensive analysis. First and foremost, one would have to ask WHY the plaintiffs preferred one school over the other. Was it because of proximity, or because of race, or because the schools offered unequal educational opportunity, or some combination of these factors, or were other factors involved? I don't know the answers, not having studied the cases in great detail.

My main point was just that it's really not clear whether Bork would uphold and affirm the discrimination in these cases.

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