In 1954 the Supreme Court decided that racially segregated public schools violate the Constitution.
Given our Declaration of Independence's proclamation that "all men are created equal," the outcome of Brown v. Board of Education was obviously desirable and necessary. However the Court's reasoning supporting that outcome drew considerable criticism then and doesn't look compelling today.
The Court reasoned that assigning black students to separate schools would cause inferiority feelings, discouraging them from trying to learn. Desire to learn is necessary for a student to learn much, so this feeling would undermine their education and hinder their success in life. As the Court correctly noted, education had become a principle governmental responsibility.
According to the Court's reasoning, if government stopped assigning students to schools on the basis of their race, this should stop making anybody feel inferior. In this event, attendance at neighborhood schools wouldn't undermine anybody's motivation to learn, no matter what the racial mix of the students. For decades, though, courts have acted as if the mere fact that a school is "racially-identifiable" makes it unconstitutional or at least undesirable. This assumption has set off a mania for compiling racial statistics, at first in public primary and secondary schools, but later in all sorts of other public and private institutions as well. We now see a frenzy to strive for "racial balance" in corporations, universities, gifted children programs, Academy Award winners, the casts of plays, etc. For a few years, courts required transporting children to schools far from their own neighborhoods, pursuing this goal.
The statistics mania led to "affirmative action" programs, which originally meant that employers and other organization managers should cast their recruiting nets more broadly. They would encourage applications from minority people who otherwise, based on unhappy past experience, might not apply since they wouldn't expect to get anywhere. Affirmative action originally assumed that applicants would be considered based on their own individual merits, using uniform standards. Although this form of affirmative action improved opportunity for black people, it didn't produce racial balance. "Affirmative action" was then redefined to mean accepting applications by members of some minorities for college or employment based on lower standards than applied to other applicants.
Objections to "reverse discrimination" then led those seeking racial balance in all organizations to focus instead on working for "diversity." But the goal was a particular kind of diversity, one which paradoxically sought to make all the organizations making up society look the same demographically, to "look like America." Of course this goal is incompatible with a society in which there are diverse kinds of organizations. It tries to force everything into a preconceived pattern.
These side effects of the Court's Brown v. Board reasoning have not noticeably reduced racial animosities in the U.S. and may well have helped increase them.
When a Supreme Court justice agrees with a decision but disagrees with the reasoning with which the majority justified it, that justice can write a separate concurring opinion. This is worth doing because even if the majority's reasoning produced a correct outcome in a current case, it might produce unfortunate results when applied as a precedent to future cases.
A simple analogy illustrates this danger.
Imagine that you are told that to reduce a fraction, such as 16/64, to its lowest possible terms, look at the numerator, look at the denominator, and if there are digits in common strike them out. Finding a 6 in both places here, striking them out tells us that 16/64 = 1/4. This is correct, but the recommended procedure is not. Try applying it to 13/39. Eliminating the 3 in numerator and denominator tells us that 13/39 = 1/9, which it clearly isn't.
Since the decision that public school segregation is unconstitutional was correct, what we needed in 1954 was a concurring opinion with reasoning that would put an end to racially-based assignments to public schools without producing unfortunate side effects in society or as a precedent in future cases. But Chief Justice Earl Warren's opinion was endorsed by all members of the Court, so there was no concurring opinion. The justices probably did the best they could, given the available analytical tools.
My work as a political scientist beginning in 1964 produced a systematic analysis of human associations in which government's role as a trustee unexpectedly emerged as an important possibility. Thinking in terms of government-as-trustee for the nation's children now makes it possible to write a belated "concurring opinion," showing how we could have outlawed public school segregation without inviting the future problems that the Court's rationale in Brown v. Board of Education did. I will explain this "concurring" reasoning in my next column.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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