Friday, July 20, 2007

History, Principle and Affirmative Action

Published: July 14, 2007

On its face, the affirmative action case decided on June 28 by the Supreme Court turns on whether two school districts in Washington and Kentucky violated the 14th Amendment’s equal-protection guarantee when they assigned children to schools on the basis of race.

But the underlying issue is whether the court should be attentive to history and the societal consequences of its decision, or should turn a blind eye to those consequences and attend only to the principled protection of individual rights. The plurality opinion, written by Chief Justice John Roberts, strongly affirms the latter position, citing Justice Anthony Kennedy’s declaration (in Metro Broadcasting Inc. v. F.C.C., 1990) that: “Our Constitution protects each citizen as an individual, not as a member of a group.”

From this it follows that while groups may suffer disadvantages in the course of history, race-conscious efforts to ameliorate those disadvantages sacrifice constitutional principles, which are timeless, to the achieving of a result that is considered good by the ephemeral standards of the time.

Chief Justice Roberts acknowledged that the motives for race-conscious policies may seem benign, but he quoted Justice Sandra Day O’Connor’s admonition (again in Metro Broadcasting) that “ ‘Benign’ carries with it no independent meaning, but reflects only ... the current generation’s conclusion that a politically accepted burden, imposed on particular citizens on the basis of race, is reasonable.” By “independent meaning,” Justice O’Connor meant a meaning independent of history.

In dissent, Justice John Paul Stevens accused the majority of ignoring history and thereby obscuring what is at stake both now and when the 14th Amendment was passed. He is particularly incensed at Roberts’s invoking of Brown v. Board of Education (1954) in the concluding paragraph of his opinion. “Before Brown, schoolchildren were told where they could and not go to school based on the color of their skin.” Now, the chief justice said, it’s happening again.

Stevens retorted with irony and anger: “The chief justice fails to note that it was only black children who were so ordered.” That is, Brown and the 14th Amendment were not responses to an abstract principle of equality, but efforts to redress a historical injustice inflicted on one race by another. You don’t redress that injustice by barring attempts to mitigate its consequences.

The plurality, according to Stevens, failed to see that “a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason.”

No it isn’t, replied Justice Clarence Thomas. “Every time the government uses racial criteria to bring the races together, someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” He equates the minority’s arguments with those traditionally made by segregationists, who, he says, “repeatedly cautioned the court to consider practicalities and not to embrace too theoretical a view of the 14th Amendment.”

The conflict between the accidents and practicalities of history and the principle that race consciousness should not drive government policy is restaged around the distinction between de jure and de facto segregation. The distinction, Roberts explains, is “between segregation by state action and racial imbalance caused by other factors.” The results of these other factors — individual choice, economic inequalities, historical biases — may be regrettable and include de facto segregation, but in Roberts’s view, they should not be remedied by law.

Why? Because history, not government did it, and what history has done, history, not legislation, should undo.

That’s all very nice on paper, declares Justice Stephen Breyer in dissent, but it simply ignores “the long history and moral vision” that stretches from the 14th Amendment to Brown and beyond — the vision of “true racial equality,” not as “a matter of legal principle but in terms of how we actually live.” In other words, my principle — true equality — is more principled than yours.

This move of Breyer’s shows that while I have framed the opposition as one between history and principle, the identification of principle is itself the work of history, and history can always go the other way. This is Stevens’s point when he slyly reminds Roberts of one of his own recent pronouncements: “history is written by the victors.” In short, there will be another day. Count on it.

Stanley Fish, a contributing columnist to TimesSelect, is a guest columnist.