Tuesday, March 26, 2013

Oh Ye Liberals, Thine Courts Will Not Save Thee

While you weren't paying attention, the last of the great desegregation plans of American Public Education faded into history. And one of the great legal monuments of the 20th Century, Brown v Board of Education went with it. It happened in Boston, the home of JFK where later in the 60's and 70's, or as some say "some time ago" busing and desegregation was met with raw hatred. You can just watch that to 32 seconds and get a feel for the time, the first day of busing and court ordered desegregation, which was met with brick throwing and near riots, and platoons of riot police to enforce the court order.

Now things are a little different. Basically the Boston School Committee vote six to one to get rid of the last vestiges of desegregation busing program implemented in 1974, and instead focus on neighborhood schools. Boston's Mayor Thomas Menino, perhaps one of the most liberal mayors in the country, praised the plan as, "Tonight’s historic vote marks a new day for every child in the city of Boston..." This represents a remarkable change from the liberal ideals of the past, where large scale busing to desegregate schools was seen as a noble and achievable goal. While some liberals still call for this sort of the thing, the reality is that very few voters or politicians seem to care at all.

Looking back on the whole history of desegregation of public education in the past 50 years an interesting trend emerges. The liberal reforms enacted via the landmark Brown v Board of Education Decision led a short burst of radical, and highly controversial change, followed by a long period of roll back and retrenchment that has made many school systems as segregated now as they were 50 years ago. I'd argue that this was due to a fundamental flaw in the strategy that desegregation proponents advocated all those years ago. In short, they sought to bypass the problematic nature of public opinion and daily grind of politics and instead turn to a single decisive judicial decision to overturn a immoral and dysfunctional system. And while they did succeed in winning that pitched battle and getting the de jure systems of segregation formally ended they never succeed in changing the political, economic, governmental and social dynamics that now lead to de facto segregated public schools changed.

I'd argue that the lesson here is not to blame Obama, as Thomas Sugrue does in the link above, but to accept the reality that a judicial strategy to social change is not some panacea to our social and political ills.  Indeed if you look at the whole history of our Judicial Branch you see a profoundly reactionary group of institutions that impeded reform from the founding of the country to the 1930's.  And now this same branch is considering things like ending affirmative action in higher education.

This brings me to the marriage equality case that went into oral arguments today before the Supreme Court.  First of all, most of the predictions and "analysis" you read about the arguments are no more likely to be right than you just taking your own uniformed guess.  This is because trying to get inside the heads of Supreme Court Justices is just too hard and in reality there are a multitude of different routes the Court could take including just throwing the whole issue back to the Ninth Circuit.  In the end though, the idea of some judicial Superman coming to win the political battle over marriage equality in places like Mississippi and Utah simply is not a very sustainable strategy for long term social change.  Let alone the fact that basing a political strategy on what Anthony Kennedy may or may not do is far from a sure thing.  This is not to say it was wrong to pursue this court case, indeed it might turn out to be a good idea, we'll know more when the court rules.  But as a strategy for remaking American society it, like Brown, may prove to be lacking. 

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