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Mourning in America | The Nation

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Diary of a Mad Law Professor

Mourning in America

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Years ago, at a conference for lawyers, the topic of Martin Luther King's assassination came up. People began to recount where they were when it happened. One woman recalled that she was in high school in Texas and that they were working on the school play that day. "We decided that the show must go on. I think he would have wanted us to move on." She paused. "We weren't one of those schools that cheered at the news."

Correction: An earlier version of this story erroneously stated that Antonin Scalia was nominated to the Supreme Court by President George H.W. Bush. In fact, Ronald Reagan nominated him in 1986.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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This particular revelation brought forward a heretofore invisible divide. Although everyone professed commitment to the legacy of the civil rights movement, there were hidden fault lines of passion among us. Many of the white participants, like the woman from Texas, had been in places where King's assassination was remarked upon but generally passed over, hastily tucked into the background. For the black participants, his death was seismic. Even though King was past the height of his popularity within the black community, the assassination was a deeply disturbing harbinger of the riots to come, of unspeakable grief, of welling anger, a reminder of an endless array of martyrs. It was one of the few times I saw my father cry.

I have been thinking of that divide in perception in the wake of the Supreme Court's recent round of decisions, all signaling a sharp turn to the right. There will be reverberations for many years from the opinions regarding abortion, employment discrimination and price-fixing. But the ruling that I find most grievous in its implications is the holding in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. I have discussed in this column the absurdity of a rule that equates voluntary integration programs with legalized segregation so I won't repeat myself now, much as I want to. What concerns me at the moment is the general lack of outcry that has met the decision that public school districts cannot take voluntary action to overcome racial inequality. This represents, for all intents and purposes, the overturning of Brown v. Board of Education. Yet the response in many quarters has been to put a positive spin on it. At least it was a plurality decision. At least Justice Kennedy allowed that diversity is an interest.

The July 1 New York Times Week in Review carried an upbeat analysis by Jeffrey Rosen, headlined "Can a Law Change a Society?" It was representative of many of the analyses that filled the papers of record. Rosen interviewed five constitutional law professors about the long-term impact of the ruling. There were a number of assumptions built into the structure of the interviews, assumptions that incorporated unquestioningly the premises of Chief Justice John Roberts's ruling. The most conspicuous was that there are two clear "sides" to the debate, in which "colorblindness" signifies the antithesis of "diversity." Rosen writes that "the effects of last week's decision may be limited by the fact that American society is divided on just how colorblind or integrated society should be." But King used colorblindness to mean a lack of prejudice, an acceptance of diversity and an openness to racial, ethnic and religious variety. Colorblindness, as Roberts and Rosen use it, means that any openness to race as a social factor is by itself the vice of prejudice. Diversity, rather than being the product of colorblindness, is now a pernicious form of color-consciousness, no matter whether in pursuit of integration or segregation. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," wrote Roberts in his decision. There's a subtext of silliness to this, which in essence makes any seeing of race precisely equivalent to racism.

Another theme in Rosen's piece is that Brown didn't really make that much difference in US history, so this case won't either. According to the New York Times, Michael Klarman of the University of Virginia says that "just as the court couldn't bring about integration on its own in 1954, so it won't be able to mandate colorblindness on its own today." David Strauss of the University of Chicago says that he "wouldn't expect a large-scale retreat from what public schools have tried." Berkeley's John Yoo, architect of Bush's torture policies and much of the Patriot Act, was similarly chipper: "School administrators and bureaucrats are so heavily invested in the idea of diversity that they will try an amazing array of policies to get around the ban of the use of race."

Rosen concludes his piece with this observation: "In the end, the Supreme Court throughout its history has rarely precipitated social transformation on its own; instead it has been most effective when it acts in conjunction with the president, Congress and ultimately a majority of the country." But this President knew exactly what he was doing when he appointed Roberts and Alito, as did his father in appointing Thomas. Congress waved their nominations through. The Office of Civil Rights under Bush has moved away from prosecuting civil rights cases involving race and gender and has spent more of its resources pursuing discrimination cases against religious groups (ironically all while funneling federal funds to churches that openly discriminate in hiring, based on belief). And while the Supreme Court may force schools and employers to turn a blind eye to racism's ruinous cost of illiteracy, unemployment and poverty, the "war on terror" has reinvigorated profiling by race, religion, ethnicity and lord-knows-what-else. We seem well on our way to resurrecting a dual society, at one level of which no one sees a thing--the show must go on, so to speak. But some of the rest live in a shadow nation where race is a mark of unspeakable yet indelible consequence.

As for how "a majority of the country will respond," the Pacific Legal Foundation, lawyers for the white parents in these cases, says: "With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop." The wrong message? Most of the students in the New York City public schools are black or Hispanic; 50 percent of them do not graduate from high school. The statistics are similar in many places around the country. If no one's vulgar enough to cheer about this, maybe we should be wondering why no one's crying either.

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