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Article Excerpt
Theron Britt 142 Law of the Intangible: Desegregation, Diversity and the Individual
This essay examines two related U.S. Supreme Court eases concerning school desegregation, Brown v. Board of Education 347 U.S. 483 (1954) and Parents Involved in Community Schools p. Seattle School District No. 1,551 U.S.--(2007) and argues that United States law regarding race is based not, as is explicitly claimed by the Court, on precedent but on unexpressed ideas of how an individual achieves his or her identity. By in effect shifting its conception of the individual from one that recognizes identity as formed in relation to others to an older one that figures identity as "intangible" and autonomous, the more recent Supreme Court decision has been able partially to reverse the earlier Brown decision and strike down recent voluntary school desegregation plans and throw into question current law supporting diversity.
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In 1951 in Topeka, Kansas, Linda Brown, a young black girl, tried to register at a grade school seven blocks from her home and was turned away because of her race; at the beginning of the 2002-03 school year in Louisville, Kentucky, Joshua Ryan McDonald, a young white boy, tried to register for kindergarten at a school within a mile of his home and was turned away explicitly because of his race. In the first instance, Linda Brown, as a proxy for a whole string of cases, became the individual at the center of the landmark case of Brown v. Board of Education 347 U.S. 483 (1954), (1) in which the U.S. Supreme Court desegregated United States schools. This case not only looms large in civil rights law but also currently figures prominently on both sides of a divided opinion in a recent school desegregation case. Joshua McDonald's appeal eventually became appended to a case decided in June of 2007 by the U.S. Supreme Court, Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S.--(2007). (2) In this case, a seeming inverted mirror to Brown, the Court stuck down in a five to four decision the voluntary desegregation plans of two separate school districts, one in Seattle and one in Louisville, Jefferson County, Kentucky. It seems appropriate, then, to look at these two cases in tandem, since one desegregated American education fifty plus years ago, and the other may, depending on how it is implemented, radically revise the premises if not the purpose of the first. The second more recent case indicates that after five decades of court-mandated desegregation in higher education and secondary schools, the legal focus has gradually shifted. Through a series of cases the Supreme Court has moved from the clarity of Brown's stiff rejection of de jure racial discrimination to the more subtle and difficult-to-address issues following immediately upon desegregation: affirmative action supported by the goal of diversity. If many rightly regard Brown as one of the most important decisions in American history, its legacy some fifty years on is in hot dispute, most recently in Parents Involved. (3) And the key to this dispute, I would like to argue, is in how each case resorts to a decidedly literary conception of the individual.
Brown does not, as some may suppose, directly overturn the "separate-but-equal" provision of relevant precedent in Plessy v. Ferguson 163 U.S. 537 (1896), which affirmed that the government could not force citizens to commingle on common carriers (e.g., trains). Like previous courts, the fractious Warren court that decided Brown made every effort to connect itself to existing law, and so it cast itself, as had courts before and after it, in the role of extending or filling in existing principles of law. Precedent in the form of Plessy, however, supported what was to a growing segment of society the morally insupportable situation of segregation. Simply put, in Brown v. Board of Education the Court had to resolve the cultural problem of finding a way to square much-needed social change with both American legal tradition and the tradition of individual liberty. Paradoxically, what the Court embraced to protect the Fourteenth Amendment rights of individuals to equal protection under the law against the power of the State, and thus ensure racial justice, entailed a vision of the necessary and constitutive relation of the individual self to its surrounding cultural community. In other words, in response to racial inequalities, through Brown the Court participated in and gave legal expression to the beginning of a shift in concepts of identity happening on several cultural fronts in 1950s America, a shift from an older unitary, isolated self to a more fluid, plural, and socially constructed sense of subjectivity.
Whatever the lived contradictions of American life, by the 1950s the many conflicts in the American rhetorical tradition consistently had been resolved, at least at the level of discourse, to favor the individual over society. In this regard the literary exhortation from Emerson's "Self-Reliance,""Ne te quaesiveris extra" ("do not seek yourself outside yourself"), can be seen at work in the legal world as well, for the problems of protecting the rights of the individual from encroachment by society remained central not only to American literary tradition as it was reproduced in the forties and fifties, but also to much American legal doctrine.(4) But what if this enduring American emphasis on individualism as it entered the realm of community seemed to be aiding such a socially unacceptable practice as segregation? The American tradition of individualism, in other words, when publicly and polemically confronted with the fact of racial discrimination, to many in 1950s America had begun to seem hollow. Call it states rights or what you will, racial discrimination was maintained in law at least in part on the basis of the rights of individuals democratically to segregate themselves into "separate-but-equal" groups. Though by the mid-fifties segregation had slowly been receding from parts of American society, and for many jurists and legislators it had long been recognized as manifestly unjust, unfair, and discriminatory, this recognition did not lessen the fact that its force as law had been maintained for the fifty years since Plessy in the name of the individual's Fourteenth Amendment rights to due process and equal protection under the law. In other words, on the basis of the rights of the individual, precedent clearly seemed to say that segregation was lawful. And so, given the growing calls for change that led to Brown, the Warren Court needed a way both to hold to precedent which was based in long-held American doctrines of individual liberty, while nevertheless addressing the need for a radical change to the social life of everyone, black and white, in America. The familiar Emersonian conflict between self and society at the heart of Brown offered...
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