How Not to Think About Race While Thinking About It

The following essay by Gerald Torres, Bryant Smith chair of law at the University of Texas at Austin School of Law, is one of the final posts for our Race and the Supreme Court program.  Professor Torres is the former president of the Association of American Law Schools and a leading scholar of critical race theory.

Brown v. Board of Education is by now a sacred text in American law. For fifty-two years it stood for the aspiration that we, as a people, were constitutionally committed to redressing the wrongs of slavery and Jim Crow. As Justice Breyer has acknowledged, Brown was aimed at policies that “perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination.” Yet, there was always some ambiguity as to how far the Court would go in reducing social inequality, as was evidenced by San Antonio Independent School District v. Rodriguez (1973). There, the Court declined to make education a fundamental right in a case brought on behalf of Mexican Americans. As impoverished a reading of the Constitution as San Antonio was, the Roberts Court has now worked the reverse alchemy of transforming Brown v. Board of Education from an instrument that held out the promise of equality to one that reinforces racial inequality.

In 2007, the Court dispatched a commitment to procedural formality to work this reverse alchemy. Its moral chemistry was performed in the laboratory of the case of Parents Involved in Community Schools v. Seattle. Both Louisville and Seattle’s democratically elected school boards adopted policies “as to how best to include people of all races in one America.” Because they required an acknowledgement of our racial history, in 2007 these programs suddenly became constitutionally suspect. For the Roberts Court, the identification of students by race was the harm.

In fact, there was no proof in the case that empirical harm was done by the state to the students or the community.  Instead, the harm was the imputed psychic damage caused by the state having to notice the racial identity of students for educational purposes that would benefit the community as a whole.  There was no dispute that the community as a whole would benefit.  The harm was the presumed stigma that noticing race itself imposed, even if the net result was to improve the delivery of public educational services for everyone.

The Roberts Court’s claim in Parents Involved that it was affirming Brown can only be understood in terms of this psychological damage thesis.  The harm in Brown, however, was specifically tied to the demeaning message of inferiority as to the status of black minority children. Yet, here those suffering the stigma of race were the white students, who were in the majority, who did not get their first choice of kindergarten assignments, but there was no evidence that they would receive any educational opportunity that was inferior to that available to any other student.

In his oral dissent in Parents Involved, Justice Breyer noted with dismay that “it is not often in the law so few have so quickly changed so much.” The Roberts Court, however, did not produce this change on its own.  A social movement helped generate the opinion.  In fact, Parents Involved shows that the process of changing the law can be a long and not strictly legal one. Both legal results, Brown and Parents Involved, grew out of a dynamic between lawyers seeking change and social movement activists.  In Brown, the civil rights activists sought equalization of resources and, in Parents Involved, the conservative activists sought to cast efforts to achieve racial equality as equivalent to efforts to demean one racial group.  The conservative movement successfully reframed the conversation limiting the state’s obligation to procedural formality by the government and an obligation not to notice race.

Parents Involved illustrates the important role of social movements in creating the foundation for stable legal understanding. Brown could not be overruled because of its iconic status. Nonetheless, Brown was vulnerable to reframing for several reasons. Starting in the 1970s, the deference of grassroots civil rights activists to the elite bar created a discursive vacuum that was ultimately dominated by the conservative social movement. In that vacuum, conservative activists argued that racial neutrality was a logical extension of Brown, rather than as a repudiation of it. The conservative movement appropriated one sentence from Martin Luther King, Jr.’s I Have a Dream speech and imputed it to Brown. Brown, however, was always vulnerable to this reframing because of some litigation choices (for example, the evidentiary emphasis on psychic damage to the children) and the reasoning of racial liberalism, which interpreted the racial caste system as a system of individual prejudice. It was also vulnerable because its substantive vision of equality was ultimately reduced to a rule that was limited to insuring that the state acted in a procedurally fair manner and was untethered from the material conditions from which the claims arose. The Roberts Court, with the support of a conservative social movement, took advantage of these vulnerabilities to limit the reach of the Civil War Amendments. The Roberts Court in Parents Involved seems willing to disable the government from doing anything other than ignoring race to equalize the conditions to ensure that guarantee of our political life.

A refusal to confront inequalities in material conditions goes to the heart of what it means to be a full member of the political community. Political equality is not a mere formal condition.  Without the material foundations to support the possibility of economic and social equality, political equality withers to a mere husk. As I have said elsewhere, “making the claim for equalization of educational opportunity into one about the correctness of government use of racial classifications. . . takes a concrete injustice (funding black or Mexican American schools at a lower rate than white schools) and converts it into an operating procedure that is not essentially connected to a correction of the complained inequality.”

There is an internal doctrinal consistency in the Roberts Court’s position, one that lawyers and logicians can appreciate, but there is a social disjunction that creates a kind of cognitive dissonance.  The “expressive” harm of classification has been deemed more invidious than the substantive harm of actual resource inequality.  It is a lesson in the impossible: how not to think about race while thinking about race. It is also corrupting to our public discourse when the Court takes the moral gold of the promise of improved public schools and converts it to the lead of impoverished public life.