Chief Justice George Orwell Writes For The Majority

Justice Roberts, "restricting the ability of public school districts to use race to determine which schools students can attend," [1] wrote for the plurality of Scalia, Thomas, and Alito that, "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin."

If I were a high school teacher and young Johnny Roberts wrote this on an exam on civil rights history, I would give him an "F." The idea that the Chief Justice of the Supreme Court could cough up such a ludicrous hairball is evidence of a nation gone mad with amnesia. Or, if you prefer, a conservative intellectual class that knows the history full well, and has simply let itself lie.

Do educated people really need this explained to them? It wasn't merely "before Brown" that "schoolchildren were told where they could and could not go to school based on their color of their skin." It was long, long after the Supreme Court's unanimous decision [2] in Brown v. Board of Education of Topeka - for the next seventeen years at least.

I mean, do I really have to explain this? In 1955, the year after Brown, the Supreme Court specified the compliance language for the first decision: Southern school districts would have to comply "with all deliberate speed."

Instead, they did not comply at all. Instead, the region staged a self-consious movement of "Massive Resistance." Nearly every Southern congressman signed a manifesto pledging to defy the Court by "all lawful means." In Virginia senator and former Klansman Harry Flood Byrd's minions pushed through the state assembly an order to close any school under federal court order to integrate. And in 1957 in Little Rock—well, has Justice Roberts never heard of this [3]?

Since most Dixie municipalities had one school district for whites and another entirely separate district for blacks, and simply did nothing, the federal courts in 1964 ruled that all "dual school districts" not already under court order to do so would have to file desegregation plans with the Department of Health Education and Welfare. Congress was able to help in 1965, after the passage of the Elementary and Secondary Education Act provided the first serious federal funding to local school districts. Since the 1964 Civil Rights Act had provided that no segregated public institution could get federal funds, this was, finally, a chance to punish the vast, vast majority of Southern school districts who kept on telling schoolchildren where they could and could not go to school based on the color of their skin - read this carefully, Justice Roberts—11 years after Brown outlawed telling schoolchildren where they could and could not go to school based on the color of their skin.

By that point only 6 percent of Southern schoolchildren attended classes with children of another race. How did we know? Because the federal government counted.

In 1966, HEW published guidelines specifying that schools with no black students or staff would have to show evidence of "significant progress"; those with 4 to 5 percent black students or staff would have to triple that number within the '66-'67 school year; those with 8 to 9 percent would have to double them.

How did the South respond? By openly defying the law. In the same manner as a criminal who, told to halt by police, simply ran as fast as he could in the other direction.

Alababa Gov. George Wallace had the entire state's congressional delegation stand by his side as he read a statement calling the guidelines "illegal," totalitarian" and a "blueprint devised by socialists." His school superintendent said that under the Alabama constitution and by the "absolute mandate in the recent statewide election" districts were actively forbidden from complying. And Wallace got a standing ovation, in an address broadcast on statewide TV, for claiming the new guidelines had "the unqualified, 100 percent support of the Communist Party USA, as well as all its fronts, affiliates, and publications." And 18 of the 22 senators from the states of the Old Confederacy signed a letter to the president calling the revised guidelines an "unfair and unrealistic abuse of bureaucratic power."

Two years after that, 14 years after Brown, the vast, vast majority of Southern school districts still told schoolchildren where they could and could not go to school based on the color of their skin. How did we know? The federal government counted.

The Supreme Court revisited the issue May 27, 1968, handing down a unanimous decision concerning New Kent County, Virginia, a rural district with two schools, an evenly scattered black and white population—and 21 separate bus routes to keep those schools racially segregated. Green v. New Kent County rang with eloquent finality: "This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable." School districts now had to "fashion steps which promise realistically to convert promptly to a system without a 'white' school' and a 'Negro' school, but just schools."

How did the South respond? In the same manner as a criminal who, told to halt by police, but simply ran as fast as he could in the other direction. How did we know they weren't following the law? The federal government counted.

Although by then, the South had a powerful ally for their intransigence. That spring week in 1968, Richard Nixon, salivating to lock up the South to win the presidential nomination, traveled to Atlanta to meet with its state Republican chairs and promised a President Nixon wouldn't enforce the law. He did so arm in arm with Sen. Strom Thurmond, who had just released a new book arguing that the cause of "the War Between the States" was the "social revolutionaries" who "refused to stop at the Constitutional barrier" of Dred Scott v. Sandford. That was the 1856 decision in which Chief Justice Taney declared that free blacks "had no rights which the white man was bound to respect." One of the "social revolutionaries" who refused to stop at that barrier was the founder of Strom Thurmond's political party: Abraham Lincoln.

President Nixon kept his word. He let them defy the law. In the same manner as a criminal, told to halt by police, but simply ran as fast as he could in the other direction. Only this time their police chief, Richard Nixon, told them to stand down and let the criminal flee. The bureaucrats—whose job was the counting—quit in disgust. The federal government wasn't counting as carefully. And—wouldn't you know it?—the South kept on openly defying the law.

On October 30, 1969, the Supreme Court tried again—this time with the solicitor general of the United States arguing for the first time in history against school desegregation. He lost. Alexander v. Holmes County Board once more—you'd think things were getting redundant—outlawed dual school systems.

Fifteen years after Brown, when according to the current Supreme Court Chief Justice, schoolchildren were told where they could and could not go to school based on the color of their skin.

Can you guess how the South responded? By openly defying the law. The police chief told them that was just fine.

Nixon finally gave up with the 1971 decision Swann v. Charlotte-Mecklenberg. His reasons were political. Going into his reelection campaign, he realized the justices had granted him a favor. He could ruefully observe, I have consistently opposed the busing of our nation's schoolchildren to achieve a racial balance, but there is nothing I can do about it because the Supreme Court has tied my hands. Busing (always a canard, for as American should have seen in New Kent County, busing was far more often a tool for segregation than integration) would give something for Democrats to scratch each others' eyeballs out over during the primaries. And provide all the more reason, if you hated "busing," to vote for Richard Nixon: he would nominate more conservative judges.

And thus—pay attention, Justice Roberts—17 years after the Supreme Court made it the law of the land , for the first time it became difficult, as a practical matter, to tell schoolchildren where they could and could not go to school based on the color of their skin. Civil rights attorneys, and the federal government, devised mechanisms to try to assure it couldn't happen again. These required—obviously—counting how many blacks and how many whites attended various schools.

Which is what Justice Roberts just outlawed. We can't count any more. "The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons."

Because counting is racist. Note the assumption, as false as the claim that the sun rises in the west, that Americans only counted how many children of each race attended certain schools before the 1954 decision, and only then to make sure no blacks attended white schools. And that, after that, the counting stopped.

Roberts says: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Well, here's a question for our Chief Justice. We have been following, here at The Big Con, the story of Jena, Louisiana, where

In September 2006, a group of African American high school students...asked the school for permission to sit beneath a "whites only" shade tree.... The school said they didn't care where students sat. The next day, students arrived at school to see three nooses (in school colors) hanging from the tree.... The boys who hung the nooses were suspended from school for a few days. The school administration chalked it up as a harmless prank, but Jena's black population didn't take it so lightly. Fights and unrest started breaking out at school.... Black students were assaulted at white parties. A white man drew a loaded rifle on three black teens at a local convenience store.... on December 4th, a fight broke out that led to six black students being charged with attempted murder.... the D.A. pushed for maximum charges, which carry sentences of eighty years. Four of the six are being tried as adults (ages 17 & 18) and two are juveniles....

And to be sure, that's a whole lot of hassle, easily prevented if, quietly, Jena's school districts were sedulously redrawn so that blacks and whites attended separate schools. Though call me crazy—when official municipal policy judges blacks as attempted murderers for the same actions whites commit without consequences, is it that hard to imagine that within Jena's dual school system, the black schools might be less well taken care of? And that those same town fathers who claim they deliver equal justice to blacks and whites would claim these schools were equal, even if separate? That, as Chief Justice Earl Warren ruled with ringing finality in that decision Justice Roberts affects to so respect, "separate but equal," when the separation is between a historically privileged race and a subaltern one, is inherently unequal?

Under Justice Roberts's new ukase, we would never know. We wouldn't be allowed to call Jena's new schools "separate." Because that would require counting how many students of each race attended them.

And we can't do that. Because counting is racist. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."