Race and History
By Stanley Fish
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.” . . .
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.
Read more . . .
Affirmative Action Stanley Fish Supreme Court John Paul Stevens Bush Segregation Race Justice John Roberts News Politics
