Law, like history, comes full circle

Paul Greenberg

2/16/2007 12:01:00 AM - Paul Greenberg

This country, in contrast to Europe with its wars and revolutions, has been blessed with a remarkably continuous history - with the exception of that unfortunate interlude from 1861 to '65, aka the late unpleasantness.

In a curious reversal, both sides in that terrible conflict switched their legal positions once the Union was restored and peace finally returned:

The Southern states that had left the Union explained that, since they were now back, they were entitled to all the powers and perquisites pertaining to statehood, including full representation in Congress.

On the other side, the Republican Radicals who had insisted during the war that the Union was indissoluble, explained that the Southern states, having broken the compact, were no longer full-fledged states but "conquered territory," and should be treated as such.

Here's the moral of that story: Law may reflect not so much legal principles as the interests and desires, passions and prejudices, of those debating it.

Much the same curious reversal seems to be taking place in the current, and apparently endless, debate in this country over schools, race and the law. Little Rock's school integration, for example, is still in the courts after half a century of litigation, even if it's styled differently from time to time.

Back in 1958, after it had become the focal point of a constitutional crisis, Little Rock's school district asked the federal courts to delay racial integration for a couple of years in order to preserve the "educational quality" of its schools.

Underlying that appeal was the assumption that educational quality emanates from the presence of white students, and the fear that, if they fled integration, the public school system would be doomed.

To quote Virgil Blossom, Little Rock's school superintendent at the time, "Our purpose was minimal compliance with the law in a manner acceptable to the courts and the community - not to wreck the school system by arousing resentment." (By community, of course, he meant only the white community.)

That argument, though successful on the district level, was turned down on appeal, first by the Eighth Circuit and then by the U.S. Supreme Court in emergency session. In the eyes of the justices, the individual rights of black students trumped arguments about the need to preserve "educational quality" and the stability of the school district. And those black students were not to be discriminated against solely because of their race.

Today, half a century later, two other school districts - one in Seattle and another in Louisville, Ky. - have now come before the U.S. Supreme Court echoing what was the Little Rock School District's chief argument in 1958. Only this time it is white students who must be discriminated against in order to preserve the "educational quality" and stability of these school districts.

Because, it is argued, if white students are allowed into the schools of their choice, and which they would have every right to attend if they weren't the wrong color, then these school districts would soon be re-segregated and the quality of education lowered unacceptably.

It is still assumed that, by some mysterious process of osmosis, educational quality emanates from the presence of white children in the classroom. And if they were removed from the largely black schools they've been assigned to, their black classmates would suffer unjustly, even unconstitutionally.

Whether this argument is called racism or classism or just realism, it still places the interest and desires of the school district, the group, the "community," above the rights of individual students. Just as Little Rock's appeal did in 1958. The only difference is that this time the kids being discriminated against on account of their race are white.

There was a time, back in the '50s and '60s, when a legally enforced system of racial segregation had to be broken up. Back then, this numbers game played with black and white chips may have been relevant. It showed, by the numbers, whether Jim Crow education was really being ended.

But half a century after Brown v. Board of Education, the game grows less and less relevant-or useful.

Just imagine if all the futile effort and expense put into this endless litigation had been invested in improving education for all. That is, invested in innovations like vouchers, charter schools, individual tracking of students, merit pay for teachers, basic accountability. Š Would many of us care about the color of the child next to ours in school if both were getting a first-rate education?

While listening to the attorneys and justices arguing this case - what a useful innovation C-SPAN is! - what struck me was how little had changed since 1968. But this time it was the "liberal" justices of the court like Stephen Breyer and Ruth Bader Ginsburg who were arguing in favor of racial discrimination in order to achieve some loftier goal, like educational quality and community stability.

Once again a curious reversal has taken place, and things have come full circle.