Parents Involved in Community Schools v. Seattle School District No. 1

hear argument first today in 05908, Parents Involved in Community Schools versus Seattle School District No.

1.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about school desegregation.

In this case from 2007, the justices ruled that education officials cannot use race alone to determine which schools students should attend.

The court was split five to four with the conservative wing led by Chief Justice John Roberts in the majority.

In Seattle schools, where the racial makeup of the student population differed significantly from that of its district, race was used as a tiebreaker in admissions.

Seattle argued that the policy was meant to create more equitable and diverse schools.

In his opinion, the Chief Justice called it racial discrimination.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have abandoned the principles of our founding, like Democrats have abandoned teachers' unions.

I'm Peter.

I'm here with Michael.

Hey, everybody.

And Rhannon.

Poignant.

That was good, Peter.

Yeah, I liked 5-4 until the metaphor started getting political.

stick to the supreme court

yeah stick to podcasting stick to your day job today's case is parents involved in community schools v seattle this is a 2007 case about racial integration in schools that perhaps encapsulates the modern conservative mindset on race better than any other case in history

outside of dred scott sure yeah plus he was a big one look okay third best best.

Well, he did say moderate.

He did say moderate.

Yeah.

Oh, that's right.

I did.

Good caveat.

This case is about attempts by a Seattle school district, although actually two school districts, but for the sake of simplicity, we'll focus mostly on Seattle, to maintain diversity across their schools.

They allowed students to apply to any high school in the district.

That would sometimes result in multiple students contending for the same slot at a given school.

In those cases, Seattle would institute a series of tiebreakers.

The first tiebreaker was whether you had a sibling at the school.

But the second tiebreaker was race.

If a given school deviated too much from the racial demographics of the broader school district, race could be taken into consideration in assigning a student to that school.

The basic point was to ensure a baseline of diversity across the district and prevent the entrenchment of de facto segregation.

But the court shot this down, claiming that when you think about it, the real racism is when you classify students based on their race.

That's right.

Innovative.

So, Ree, want to walk us through this one?

Yeah, a lot of history here.

And you know what?

I think we should say too: like, there are entire law school and grad school classes in education policy that are about school segregation in the U.S.

There is a lot of background to cover.

So, like Peter said, we are just going to focus on the Seattle case here.

And even though we're only focusing on the Seattle case, I promise that even this information will be oversimplified.

But there is an important fact to keep kind of top of mind.

And that is that today, many public school districts in the U.S.

are just as segregated now as they were in the early 1950s before Brown versus Board of Education.

That's right.

And many metropolitan area public schools are just as segregated as they were in the 1960s, just after Brown v.

Board, but before integration efforts really had any effect.

And this Supreme Court, it's important to keep in mind, this Supreme Court case is part of the last 70 years or so that resulted in this reality, this reality of continued segregation in public schools.

And this case and others made it harder for states, for local authorities, and for school districts to desegregate their public schools.

So let's start with what was going on in Seattle.

The majority opinion here puts a lot of emphasis on this distinction, the fact that Seattle schools never had de jure segregation, which is segregation mandated by the law.

You know, like in the South and elsewhere, everyone knows that there were schools for white children and schools for black children, right?

That was by law.

That was policy implemented segregation.

In Seattle, though, historically, there was never a law or official policy that explicitly segregated schools.

Well, according to the majority opinion, at least.

Right.

Yes.

Yeah, exactly, which we're getting to.

We'll get to that later, but yes.

But there was de facto segregation, segregation in fact, in reality, even without a law mandating it in Seattle.

The schools in Seattle were so segregated, in fact, that there was a lawsuit about it.

And the plaintiffs in the lawsuit showed that school segregation didn't result from a law that required separate schools for separate races, but but actually was a result of societal discrimination, residential housing patterns like white flight, and also school board policies and actions that helped to create and encourage racial segregation.

So yeah, like on the one hand, there wasn't a law that said white kids go to white schools and black kids go to black schools in Seattle, but historically the school district, for example, had permitted white students to transfer out of black schools while they restricted black students transferring into white schools.

The school district also drew the neighborhood enrollment boundaries for the schools in arbitrary ways that resulted in excluding black students from white schools.

And also, the district maintained inferior facilities at black schools.

They built more new schools in white areas.

They used racial criteria to assign teachers and staff to white schools versus minority schools.

It goes on and on.

So yeah, there wasn't a law that mandated segregation, but the school district and the school board had a definite role to play in the de facto segregation that resulted historically in Seattle.

So as a result of this de facto segregation, there were multiple legal challenges in Seattle, and the school district over the course of decades came up with new plans to try and remedy the segregation.

They implemented, for example, race-based transfers of students.

There was a mandatory busing program at one point, you know, plans that explicitly took race into account in an attempt to remedy the de facto segregation.

And the busing program and other policies actually did lead to much more widespread integration, but white people hate busing and so does the Supreme Court.

So that plan was actually struck down.

Fast forwarding a little bit, we come to the late 90s when Seattle implemented the plan that's at issue in this case.

Instead of mandatory transfers, instead of mandatory busing, they implemented a plan that was basically based on student choice, and then they would take race into account for school integration purposes only in limited circumstances.

Like Peter said up top, families were allowed to choose which high school to send their students to.

But sometimes this meant over-enrollment at one high school over another.

So the district implemented tiebreakers to decide who from the over-enrolled population would get to go to that school.

The first tiebreaker, like you said, Peter, was if the student had a sibling who already attended that school.

The second tiebreaker was the one that took into account race of the student.

At the time, Seattle schools overall were about 40% white and 60% non-white.

So if a certain school was more than 10 percentage points outside that range, it was labeled integration positive, meaning that that second tiebreaker would be used to bring in students whose race would bring the school closer to balance, closer to the 40% white, 60% non-white breakdown of overall enrollment in the district.

So that was the plan that was in place.

But enter one Kathleen Brose, a white Seattle parent whose daughter did not get into her first or second choice high school around the year 2000.

Kathleen got real mad when she learned that sometimes the racial makeup of a school might be taken into account when deciding who to admit from a pool of over-enrolled students.

So she started a nonprofit organization called Parents Involved in Community Schools because she believed her daughter was not allowed to go to the school that she wanted on account of her race.

So parents involved, this nonprofit organization, sued the school district and the state of Washington, as well as the Ninth Circuit, threw their bullshit lawsuit out.

Unfortunately, it got appealed to the Supreme Court.

And they turned all that shit right around.

Right.

Can you imagine being so angry about where your daughter was placed for high school that you start a nonprofit corporation?

That is like next level.

Next level.

I can't even fathom how that happens.

How you're not like, I'm going to sue.

I'm going to form a corporation to sue.

Well, it's classic, Kathleen.

Yes.

I read an op-ed by Kathleen where she was talking about how it's morally wrong to tell a child that they didn't get into the school they wanted to go to because of their skin color.

And it's just like, oh, okay, like you think that's what happened.

Now I understand why you like

did all of this because you're crazy.

I did wonder and I looked around, but I couldn't find anything on it one way or another.

But I did wonder if there was some level of astroturfing.

Oh, I think that's right.

Yeah.

With like the nonprofit or whatever, if there was like some, you know, corporate backers or whatever, some Republican donor types who were like,

let's, let's sue a school district for

reverse racism.

Right.

For sure.

Yeah.

So talk about the law.

We should note off the bat: a ton of opinions here.

There's a majority written by Roberts, joined by the other four conservatives at the time.

Again, this is 2007.

But then there's a plurality opinion because Kennedy doesn't join the entire Roberts opinion.

He files a concurrence explaining his logic.

Thomas files a concurrence.

Stevens files a dissent.

Breyer files a dissent.

All in all, 185 pages.

And that's too much for me.

When I see 185, I cut out the Kennedy concurrence.

Oh, yeah.

That's

right off the bat.

I read it.

God bless you.

I don't know why.

And, you know, legally, look, we're going to try to distill this to the basics.

There's a lot of interesting questions here.

Interesting, depending on how much of a nerd you are.

This actually, like, sort of relevant question of standing that Roberts just sort of, and then, you know, it's not clear that this person has standing because it's not clear that they've been injured.

Roberts just sort of tosses that aside.

But the real basic legal question that we're going to talk about is, does this system, Seattle system, violate the Equal Protection Clause by treating citizens differently based on their race?

The way the court approaches this is by putting it through the strict scrutiny analysis, which we've talked about before, that asks two questions.

First, is what Seattle is trying to achieve a compelling state interest?

And second, if so, is the way they are doing it narrowly tailored to achieving that interest?

We've mentioned before that this standard is about as vague and open to interpretation as it gets, but the simple way to think about it is, one, is what Seattle is trying to achieve important?

And two, is the way they're going about it the best and most efficient way possible.

So, first,

Seattle had argued that their system was designed in part to remedy past discrimination.

But the court rejects that rationale outright because Seattle, like Rhea mentioned, had never had explicit legal segregation, meaning the law in Seattle never openly segregated students by race.

Right.

Now, Justice Breyer's uncharacteristically good dissent essentially addresses this.

It's true that Seattle never had an explicit regime of segregation in schools, but like Rihanna mentioned, they were sued multiple times in the 60s and 70s, in fact, by the NAACP for maintaining a system of segregation through the selective enforcement of rules, drawing segregated district boundaries, discriminating in teacher assignments, etc.

So, Roberts' statement that there was no legal segregation is only true in the most pedantic sense.

Right, exactly.

It's true that there was no explicit law requiring the government to enforce segregation in the past in Seattle, but it's also true that the government was enforcing segregation in Seattle.

Exactly.

So, Roberts is making a very facile kind of point there.

Now, the second argument that Seattle made was that their system promotes diversity.

And it's already been established in Supreme Court precedent that schools can in fact take steps to promote diversity in the student body.

So the question becomes, is Seattle's system an acceptable way to do that?

And the court says no.

First, Roberts argues that very few students are impacted by the so-called racial tiebreaker that Seattle uses, which he says shows that the school could use another method that does not rely on race and the plan is therefore not narrowly tailored under the law.

Which, like, does that follow?

I think it goes the other way, doesn't it?

Like, right, you make the exact opposite argument, right?

Look how narrowly tailored it is.

We have gotten this down to only a few dozen students being affected

per year in order to achieve our ends.

That's out of tens of thousands.

Right.

And if it was impacting a lot of people, a lot of students, you know that that Roberts would be making the exact opposite argument right if it impacts so many students that shows it's not narrowly tailored.

Unbelievable.

Well, I mean, totally believable, but total bullshit.

Yeah.

A quick aside, like one of the more surprising things about doing this podcast is that John Roberts cannot write a compelling opinion.

Like, no.

I sort of just gave him credit, I guess, in the past when I wasn't reading them so much.

But this dude, like, cannot put like an A and B, therefore C argument together that like makes any sense.

Can you imagine how mad Alito is?

I kind of get it now.

He's like, this guy can't even fucking write opinions.

I should be Chief Justice, yeah.

Right.

Yeah, no, exactly.

Anyway, then Roberts gets to the heart of the argument.

He directly compares Seattle's system to the racial segregation in the South that led to Brown v.

Board.

And he also comes as close as you can to saying that structural racism in schooling is entirely a problem of the past.

And then he closes with with this now infamous line, quote, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Wow.

Oh God.

A-plus legal thinking.

I like, that's one of those things when you read it, like, this is, it's like Twitter reply level sort of arguments.

And there it is, like bookending a Supreme Court decision.

You know, it's booking.

Bookending is not the right word because it's only on one end.

Whatever.

It's at the end.

Punctuating.

Yeah, there you go.

You're looking at it like, what?

Like, what the fuck are you doing?

Right.

Dude, it's, there's something like

the arguments that he's putting forward here are so hollow that it's hard to do anything other than just mock them.

But like, I want to try to take this a little bit more seriously.

And I think the sort of obvious inference you can make is that it's the result of rejecting the idea that problems like racism are structural.

Right.

That's exactly right.

It's about his definition of discrimination.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Well, that's based on John Roberts' definition of discrimination, which is just that race is used in a decision, right?

That's discrimination to John Roberts.

And so that's how you end it, is to stop using race-based classifications.

Right.

It's to look at all these old opinions when there was like slavery or Jim Crow or other forms of segregation and high-minded rhetoric about our colorblind constitution disfavoring these things and saying, yeah, our constitution's colorblind.

So who cares if the context is reversed when we're talking about remedying segregation and discrimination?

The constitution's still colorblind.

Right.

And sorry.

Yeah.

I mean, look, conservatives believe that being a racist is like an individual choice that a person makes, and therefore that racism itself as a societal problem is nothing more than the aggregate of those choices.

And from that comes the idea that

racism can be solved only through people making the choice not to be racist.

The idea that racism can be like perpetuated at an institutional level does not compute with them.

They don't believe in structural solutions to racism because they don't view it as a structural problem.

When they see liberals and the left prescribing race-conscious remedies, they view that as perpetuating the problem because they believe the problem is simply race conscious.

Exactly.

Yes.

Right.

Right.

So I do want to give Kennedy some credit in his concurrence.

You know, he writes in part to sort of affirm his continued belief that diversity is a compelling interest and all that.

And he responds to this line.

He does.

He says, the plurality opinion is too dismissive.

of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.

The pluralities postulate that the way to stop discrimination on the basis of race, to stop discriminating on the basis of race, is not sufficient to decide these cases.

50 years of experience since Brown v.

Board should teach us that the problem before us defies so easy a solution.

So like props to him for being like, Give me a fucking break, man.

Like, are you serious with that shit?

Like, you really think like this, you know, intractable century-old problem,

the solution is like some sort of fucking fortune cookie style aphorism or something.

Like, that's really what you're trying to pull here.

So I want to give Kennedy some props for that.

The other thing that stuck out to me about the Roberts opinion, there's this subsection where diversity is supposed to bring educational benefits and not just to minority students, supposed to have pedagogical benefits for white students as well.

And Roberts says, When talking about how these plans are not narrowly tailored because they seek to match the district's demographics, He says the plans are tied to each district's specific racial demographics rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits, which to me sounds like him saying, what's the minimum number of black people we need to make sure our kids don't turn out to be like racist pricks?

Exactly.

That's right.

And not one more.

Not one more than that.

Right.

That's what he's saying.

That's what narrow tailoring looks like to him.

Like

it's an unreal line to put in the Supreme Court reporter if you like give any thought to it.

It's like unbelievable.

So it's incredibly offensive.

Yeah.

Yeah.

So there's a real degree to which like Roberts's opinion is really, it's built around the idea that like colorblindness is the key.

to solving racism.

Right.

And the obvious response is purported colorblindness will leave these entrenched inequities in place, right?

If you turn on the blinders, you don't see disproportionate black poverty, lower educational attainment, worse medical outcomes, et cetera, et cetera, right?

You're taking a neutral position after the inequities have been created, but not before they've been remedied.

But like the key thing to remember is that the reason that conservatives aren't persuaded by that is that they believe these inequities are organic.

They believe that hierarchies are not just good, but natural.

And they view liberals as naively trying to tinker with that natural order by implementing any sort of like affirmative action, right?

So when you point to all of this racial inequality, a lot of the conservative reaction, although they don't really say it out loud, is predicated on their belief that much, if not all of that inequality does not need to be addressed because it is a natural result of black populations being less intelligent, less hardworking, having an inferior culture, whatever they think, right?

That's why the right has always been enthralled with things like the bell curve, the famous right-wing book about race and IQ.

Yes.

Because they're looking to legitimize the socioeconomic disparities that we all see across racial demographics, right?

They want to explain why those

are not just okay,

but inevitable, and sort of implicitly make the case against any sort of remedy.

Exactly.

So we should turn to the Thomas concurrence, which before I get into the substance of it, I want to say, like, we've joked about this before, but this is like a particularly great example of Thomas just citing himself.

And there are like entire paragraphs in this where like every sentence has a citation and every single citation is to another Thomas concurrence, right?

Not even like in a majority opinion he wrote, like another opinion where he didn't get any other votes.

It is legitimately awesome.

I have like come around to this.

I think it makes me so happy when I see it.

It's like such a boss move.

It's like, yeah, I've built up my own entire jurisprudence and I'm going to shove it in your face now.

And you have to read it.

I do that on the podcast.

Everything I just said about race, I've said in some form or another, but you gotta, you gotta replay your hair.

Yeah, that's right.

That's right.

It's so good.

But, you know, he says he's writing in response to Breyer's dissent.

And I think an interesting strain of his thinking that runs through this is like the degree to which he does not trust white people at all, right?

Like, I think, you know, he's a conservative right-wing ideologue for sure, but I think there's a very real and visceral distrust of even well-intentioned white people and a disbelief that they could actually do anything about any social inequities that do exist.

So I think that's clear when you read this opinion, but the other thing to take away from it is his complete, I think, disregard for the idea that diversity is a compelling interest that the state can pursue.

Right.

He just doesn't buy it.

Right.

It's sort of black letter law that it's something that they can do in higher education, but he talks about all like the very things specific to higher education, like, you know, diverse viewpoints and open fora and all that, that sort of make it maybe sort of like unique in that regard, but that like most education is not that way.

And in general, he's skeptical of the factual underpinning for it in any event, right?

He puts a lot of effort in the opinion to like detail the successes of all black schools and all Latino schools and cast doubt onto social science that suggests, you know, diversifying schools leads to better outcomes.

So I think it's something that's worth being familiar with if this is an issue that is important to you, because affirmative action is up before the Supreme Court this term.

And I feel like Thomas has a little bit more of an opportunity to actually turn all these concurrences into law.

Right.

It's possible.

Absolutely.

Yeah.

I mean, it's possible that he's still to the right of the conservatives on this stuff.

But I mean, what are the chances of affirmative action surviving this term in its current form?

Pretty slim.

I mean, the interesting thing about Thomas is always going to be that the affirmative action stuff is quite personal to him, and

he is perpetually haunted by the idea

that he benefited from it or that people think he benefited from it.

Right.

Right.

You know, we talked about this in one of our first episodes in Fisher v.

Texas, where he has basically said that, you know, people thought less of me because they thought I got into Yale through affirmative action.

Now, the sort of sad irony ends up being that the pinnacle of his career is something that was almost certainly the result of him being black, right?

He was given third good marshals seat, and him being black was like unquestionably part of it.

And it's hard not to just look at his opinions on this stuff and see like an impenetrable amount of psychology, you know?

Yeah.

I'm looking at this and I'm like, oh man.

Oh, yeah.

There's a lot of brain stuff happening here.

Let's book a couple more sessions, Clarence.

Yeah.

We need to talk about this next week.

Can you imagine?

I was just sorry.

I was just thinking about Clarence Thomas and Jenny Thomas, like in a couples therapy session.

Oh, my God.

Oh, that's dark.

There is no single therapist qualified to handle it.

Okay, so turning to the dissents a little bit, I think, so there are two dissents.

Like Peter said up top, Justice Stevens writes one, Justice Breyer writes the other.

Justice Stevens writes alone, and it's a kind of short dissent, but I think pretty powerful.

What he brings up is that, you know, what conservatives want to do is treat all racial classifications the same under the 14th Amendment.

And what that does actually, it denies the ameliorative purpose of the Reconstruction Amendments after the Civil War, right?

So, what this brings up is if you take 14th Amendment or have any sort of class that talks about desegregation in public schools, there are kind of two different ways of thinking about the holding in Brown versus Board of Education.

One is that

Brown versus Board of Education is an anti-classification case, and the other is that it's an anti-subordination case.

So the question is, what do you think Brown, the case, actually did?

Did it say that segregation in public schools was unconstitutional because people were being classified based on race?

Or did it say that segregation in public schools was unconstitutional because it subordinates one race to to another, right?

This distinction is important because of what flows based on which side you choose.

Did Brown versus Board of Education say that using racial classifications was illegal?

Or did it say that school segregation was illegal, right?

Is the remedy to never classify people based on race to be colorblind in all policymaking?

Or is the remedy to desegregate public schools?

And conservatives obviously would like the 14th Amendment to be as hollow and as meaningless as possible.

So they go with the anti-classification approach, the myth of colorblindness as the solution to racism.

And this is what Stevens is pointing out, that that fails to take into account that the 14th Amendment was written to ameliorate the power imbalance between the races after the Civil War.

And it fails to take into account that Brown versus Board didn't say that labeling a child as black or white was the problem, but separating children in education based on their race led to unequal outcomes and the further stratification of our society on the basis of race.

That's right.

Yeah.

You know, something I think we haven't talked about since very early in the podcast is the way in which the 14th Amendment has been sort of turned back against the people it was meant to help.

Yes.

Right.

You have it coming out after the Civil War as a fairly explicit rebuke of the South and a tool for creating, you know, I mean, let's be honest about the people passing the 14th Amendment, not equality, but certainly to enhance the rights of black people in the South, right?

And the way we read it now is, of course, to actually require equality.

And the way that conservatives have conceptualized equality, it runs parallel to how they conceptualize equality in like the economic context, right?

Have you ever heard them make comparisons between equity and equality, right?

Yeah.

And they're like, one is equality of outcome and the other is equality of opportunity.

And they rail against equality of outcome right to them you give people some sort of baseline and then the chips will fall where they may and they have sort of managed to take this very like

aggressive ameliorative amendment and turn it into something that is essentially only used against liberal left attempts to remedy past segregation and past discrimination.

Because that's the only time, knock on wood, that modern governments explicitly recognize race when they're trying to fashion a remedy for some sort of racial wrong.

And conservatives strike that down, saying that, no, this is what the Equal Protection Clause protects against.

It's like, no, no, man.

The Equal Protection Clause is explicitly meant to be a big middle finger to the regime in the South after the Civil War.

Exactly.

That's right.

I have to go to the bathroom real bad.

Another perfect ad break.

I think you should use that as the ad for

so.

We should also talk Breyer's dissent because it's excellent.

We should talk how I was like, Rhea, you should take one dissent and I'll take the other.

And I didn't know which one she took.

And then I looked at the outline and she was like, I got Stevens.

I was like, okay.

And then I looked and I saw that Stevens' descent was like 10 pages and Breyers was like 68.

I was like, okay, Rhea.

I see you.

I didn't know beforehand.

I swear I didn't.

I actually think Stevens is shorter than 10 pages.

yeah but you know like even before you read breyer's dissent you know it's good because robert's opinion is 40 pages and he spends 12 of them responding point by point to breyer yeah and thomas says he wrote his entire 36 page concurrence in response to breyer so that is 50 pages yes of conservatives being like we have to answer this we can't just let it stand on its own.

And you know you're wrong when Stephen Breyer is just schooling you're like up and down the court.

You're getting crossed over by Kwame Brown, you know?

Broken ankles all over the place.

Brian Scalabrady has just dunked on your head and stepped over your body on the ground.

So one thing Breyer does really well is chronicle like the history of segregation.

Right.

And the history of remedial efforts as well, which I think is important, not just to demonstrate that like there has been segregation in fact, but also to like frame this policy

in the larger context of like, look, they've been trying to do this for decades.

They've been trying to fix this problem for decades.

And they've gone from like bussing to other plans that include race consciousness, like all the way down to this one where they are very close to being done is his point.

Right.

Like the majority says it's only a few dozen, maybe a hundred students that this is impacting, right?

And at only a few schools, because not all of them are integration positive.

Right, exactly.

So he's like, if you look at the broad historical arc of this, what you see is decades of efforts at remediating segregation, and you see close to being done doing it with a very narrow policy.

And so, of course, this is something that should be constitutionally permissible.

It's really good.

It's really strong.

But I think a point that the majority for all pages that spends responding to him and Thomas, the point that neither of them can answer, I think is his best one, which is that, you know, they say there was no de jure, there was no legal segregation.

And Breyer says, well, says who?

According to whom?

Right.

Like, yeah, a court never found that, but that's because they settled rather than litigate

that issue over and over again.

When they were sued, they settled and agreed on plans and then were sued again and settled again and voluntarily agreed to remedy the issues.

So, yeah, there's never been a court ruling that there was legal segregation, but that doesn't mean there wasn't legal segregation.

Exactly.

Right?

He's like, there are hundreds of school districts throughout the country that had legal segregation that voluntarily desegregated.

And are we just going to say, since there was never never any court ruling on that that those weren't de jure segregation either and he points to a memo in 56 like a member of i think a school board admitting that they had legal segregation and these lawsuits in addition to alleging like societal discrimination also mention school board policies which would be legal segregation, right?

So

and this is important because

one area where even the conservatives conservatives have like basically conceded ground on the ability of the government to use race-based classifications is to remediate de jure segregation.

Right.

When the government has actively engaged in segregation or discrimination, it can turn around and use race-based criteria to remediate those harms.

And so if that's what happened here,

then of course the plans are constitutional, right?

Just as a black letter law.

And so they want to deny that.

And I think Breyer like takes apart that assumption very well by going through the history and exposing the sort of absurdity at the heart of it, that it should rely on a court determination and not like what actually happened.

Yeah.

Right.

He does a great job of chronicling not just the school districts in question, but like generally reintegration issues throughout the country and sort of the reconstruction of segregation through housing policy and things like using property taxes to fund schools and all sorts of little things

here and there that have created a system where you can have like lily white enclaves with well-funded schools and then mostly minority inner city areas that have poorly funded schools, right?

Exactly.

Without having a law in the books that say the school's for black kids and the schools for white kids.

Right.

It's excellent.

Right.

And two things.

First, the sort of contrast between the majority, the majority reminds me of the Shelby County decision and in that you have this sort of underlying claim that's not entirely explicit, but it's almost explicit, that racism is primarily a problem of the past.

Yeah.

Yeah.

And then you have that marked contrast between that and Breyer just outlining exactly why it's false, right?

Right.

Yeah.

Yeah.

But the response of the conservatives isn't there because, of course, you can't make a substantive response.

Their response is always just sort of from a place of intuition, right?

Doesn't it feel like racism has gotten better?

Yeah.

Right.

Yeah, exactly.

And the other thing I want to point out is that there's a lot of sort of legally hinging on whether discrimination in a given place is de jure or de facto, right?

Whether it's explicit in the law or whether it's something that's sort of just happened more organically, so to speak.

I don't think that's a meaningful distinction, frankly.

And I think that 99% of the time, what looks at a glance like de facto segregation is in fact the results of the people who control government pushing policy in that direction, making it functionally indistinguishable from a situation where there's an explicit law

requiring segregation, like you saw in the Jim Crow salmon.

And yet I just think that those are almost completely overlapping, overlapping for all sort of material intents and purposes.

But under the law, they're completely separate things.

And to me, it's just, it's ridiculous.

Yeah.

Yeah.

Well, I mean, so much of like educational, like I'm no educational expert.

There's a policy.

level here that I'm totally like out of my depth at.

But it does seem like, you know, if instead of using property taxes to fund individual schools based on their local geography, each county ensured same dollar spent per pupil, no matter which school you go to in the county,

that would solve a lot of issues.

I don't know.

But nobody wants to feel like their tax dollars are paying for some other

education.

Right.

Right.

But that's like an explicit policy choice that encourages these sorts of geographic clustering.

Yeah.

Encourages or, you know, depending depending on the directionality, what you think, or blesses and sort of closes the loop on what is a long project of resegregation,

which I do, I want to talk about a little bit.

Rhiannon mentioned white flight at the top, and I'm sure most of our listeners are familiar with the phrase, but if you're not in the United States context, it's used in other countries too, but it refers generally to after the integration movement and the civil rights movement in the 50s and 60s, an exodus of white people from urban centers to suburbs that were lily white, leaving the urban centers almost entirely minority, which was a way of fleeing segregation.

And

this was a long process.

And as it was towards the later stages,

some minorities started moving out to the suburbs.

And so some white people fled to the exurbs, created a whole new type of suburb.

And, you know, it's important.

Breyer, I think, does a great job chronicling this.

But I think what's important to know, you know, there's a historian, Kevin Cruz, who's wrote a book called White Flight that sort of argues that it wasn't just like geographic clustering that happened here.

It created the modern Republican Party, that the white suburbs were the birthplace of like hostility to the federal government as a Republican principle, veneration of free enterprise as a Republican principle.

And I think, you know, if you've been politically active for any length of time, you're probably aware of the degree to which suburbs have played electoral importance and they've been a Republican base up until Donald Trump really kind of broke that spell a little bit.

But it has been a major part of the Republican Party's project, their political project, the construction of white enclaves, right, and the protection of those enclaves.

And so I think you can't understand this decision without understanding it as protecting those enclaves, right?

And they say it, right?

Like Robert says, the sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action.

That's literally saying, hey, you can't do anything about white flight.

The government's not allowed to do anything about white flight.

It doesn't matter if housing policy and school funding and all sorts of other governmental policies, small and large, are contributing to this and making it possible.

This is just the way it is, right?

And so it is, in that sense, partisan, right?

Like it's a very partisan decision.

Yes.

Yeah.

You know, Republican messaging has continued to include the vilification of cities as like dens of violence and moral decay, right?

It was very pronounced during the George Floyd protests in 2020.

And you had like Fox News talking as if like cities were just rife with chaos and lawlessness, right?

And then throughout the pandemic, there's like this idea touted by conservatives in like op-eds and stuff that people had fled the major cities, right?

Like New York City's dead, that sort of idea.

None of that, you know, was backed by much data.

It was just like, you know, a series of anecdotes.

But they are sort of like perpetually enthralled with the idea that just over the horizon is this opaque, but still very real and violent threat that must be kept at bay.

That's always been a part of like the Republican philosophy.

It's just kind of bullshit, top to bottom.

Right.

You know, Michael, earlier you said I'm not a policy expert, and that made me smile because neither is John Roberts.

And

yet,

you know, here we are.

When you look at the basic premise of the quote of his statement that if you want to stop racism, stop using racial classifications.

That's a policy prescription, right?

That's not a statement of any particular statute or common law.

It's not in the Constitution.

It's a statement of opinion about the best way to stop racism.

So no matter what you think about it, it is a policy position that is, of course, outside of the reasonable scope of the question the court is supposed to be addressing here, but also verifiably wrong.

Verifiably wrong.

I am also not an education policy expert, but I know a thing or two about employment law, and I know that there are plenty of situations where acknowledging racial classifications and differences in the employment context has positive anti-discriminatory effects.

Hiring managers being made aware of common racial biases and stereotypes, racial and gender, that's been shown to reduce discrimination in hiring decisions and increase diversity.

Same applies to all sorts of discrimination, gender discrimination, et cetera.

The body of research on this is enormous.

And it's why

if you're a listener and you've taken a corporate diversity training in the past five years, I bet it was about like bias elimination, right?

Become conscious of your biases so that you can control them.

That's proven to work quite effectively.

I think the other side of this, there is a body of research showing that in certain situations, I think quite narrow situations, being

made aware of your race before entering into certain situations, it sort of heightens your racist impulses.

But those tend to be very controlled situations.

I just, I just want to sort of put the full picture out there.

But, you know, I mean, just the idea.

that sort of affirmatively acknowledging and utilizing racial classifications is sort of inherently going to lead to more racism, that is just absolutely not backed by science.

It's pure bullshit and it's predicated on the idea that all racism is, is treating people differently based on race, right?

That's what Robert seems to believe.

And that's why we are stuck with the most stunted discourse about racism

that you could fucking possibly imagine.

And before we wrap, we might want to take the opportunity to talk about the

soon-to-be open Supreme Court season.

Yes.

Because this exact discourse has emerged.

Relevant.

We've been talking for a couple of years about Biden's campaign promise to nominate a black woman to the court.

It rocks that he's going to follow through.

It's cool.

Look, he promised this a couple years ago, but of course now it is front and center.

Conservatives are clutching the pearls and saying it's offensive.

That sort of announcing that he's going to select a black woman is offensive and racist against white dudes or whatever, right?

Despite the fact that Ronald Reagan expressly announced his intention to nominate a woman before he nominated Sandra Day O'Connor, right?

Republicans pretty expressly were aiming to nominate a black man when they nominated Clarence Thomas because he was taking Thurgood Marshall's seat.

And of course, Trump promised to nominate a woman to replace Ruth Bader Ginsburg with Amy Coney Barrett.

They've done the exact same thing, right?

The difference is that they're doing it to to troll us, right?

They're doing it to sort of like mock the concept of diversity and sort of throw it back in liberals' faces.

They're mocking the idea, right, like of

like racial and gender identity being an important consideration, but identity and politics have always played a role.

in this in every nomination, not just O'Connor and Thomas, right?

There's also identity issues in selecting a Catholic like Scalia or someone from the Federalist Society, right?

These are ways you are talking to your base, you're signaling to your donors.

It's always been political.

It's just their identity markers are different.

Now, you know, you have someone like Biden and the segment of the Democratic Party that wants to see a black woman's voice in the Supreme Court, and they sincerely believe that.

And the right is freaking out because, of course,

race consciousness is what racism is, is it not?

I mean, that's what they believe.

And I have to say, I'm thoroughly enjoying it.

Just such a bunch of fucking morons.

To look at the world that we live in, especially things like the halls of power, and have your takeaway be that there is like an unfair benefit being conferred to black women.

Unbelievable.

Fucking get out of it.

Like, it's just so transparently bullshit that I don't even like feel like it needs to be substantively addressed.

It's just yeah, it's hard to respond to because it's so, I mean, it's deeply, deeply offensive, but it's also so inaccurate.

I mean, it's an absurd worldview.

And yeah, there's nothing to say about it except you're a fucking idiot.

And it's like I said, like they believe that the reason there's no black women in the seats of power is perhaps cultural or genetic or something else that is like, you know, there's a reason besides racism, right?

It's perhaps, you know, maybe we're just better.

Maybe white guys are just crushing it.

That's, that is, you know, what's behind all of this.

And you can't say it enough.

Absolutely.

Yeah.

The last thing I'll say about this is one argument the conservatives are making is essentially if you limit your pool to black women, you're missing out on this sort of plethora of talent.

And I think that's just getting it wrong, right?

Like there are probably thousands of people who are qualified for the Supreme supreme court yes like in the traditional sense you just using the metrics that like matter to senators and shit like that like fancy degrees federal judgeships etc etc right so i sort of like reject out of hand the argument that we need to be selecting from like the top 10 guys because those guys don't exist right there's a thousand way tie at the top and who gives a oh yeah i just reject the idea that there's a a singular best candidate or if there is you could somehow divine it from qualifications or interviews with them.

Like

you look at like the names on Biden's list of potential Supreme Court nominees, black women, Leandra Krueger, Katanji Brown Jackson, Michelle Schilds, their resumes are phenomenal and look just like

the resumes of other Supreme Court justices.

Right.

Other Supreme Court justices, other people who would be on that list, right?

Like Leandra Krueger and Sri Srinivasan, who's on the DC circuit and was like, a lot of people thought he would be Obama's nominee at some point.

Their resume is like identical, except that she's on the Supreme Court of California instead of on the DC circuit.

But it's like she's on a major state Supreme Court.

Katanji Brown Jackson, Michelle Traus, they have phenomenal resumes.

The idea that there's like some quality drop-off is laughable if you look at their actual qualifications.

And racist.

Right.

So the only thing that could explain this belief in their lower quality

is a belief that because they're black women, they are sort of inherently lesser.

And that is the exact word and phrasing.

Ilya Shapiro used, lesser black woman.

Right.

Is what he said we would get.

This is a guy that Georgetown Law just hired.

Right.

Like a week before he said this.

And now they've put him on administrative leave because

how the fuck do you hire someone who's so obviously racist?

Everybody who has half a brain has known he's racist for years.

He says racist shit on Twitter all the time.

So here's how it's going to play out because we've seen it with Sodomayor, right?

So you can't quite attack the credentials per se.

So you start picking apart like things they've said and then make this claim.

And this is what they did with Sodomayor that she just doesn't seem that smart when you like, look at what she said, right?

She just doesn't doesn't seem that smart.

And, you know, everyone's supposed to read between the lines here, right?

The woman of color has all the inferences working against her in a situation like that.

And all you're sort of like Tucker Carlsons have to do is sort of wink at the audience a little bit.

Like, doesn't it just seem like she's not qualified for this job?

It's absolutely what's going to happen.

And the only good news is that if no Democratic senators die, they're going to bring her through.

Doesn't fucking matter what Ilya Shapiro or any other other dipshit academic thinks.

Doesn't matter what complete nonsense fake reservation Susan Collins comes up with.

We're gonna put a black woman on the Supreme Court and it'll be good in a vacuum and then she'll lose 6'3 for

the next 20 years.

Hey, you never know.

Look, I still maintain hope one of them could die at any moment.

They're all old enough.

They're not so old that they're on death's door, but they're old enough that they could have an aneurysm or a heart attack or whatever, like any true.

Inshallah.

That's right.

That's true.

Although Alito is just reading the draft of the Dobbs decision and becoming more powerful by the moment

he's in his living room levitating.

Dobbs coming abortion decision.

Yeah.

Next week, Ingram v.

Wright, a 1977 case, also about schools,

specifically about whether schools can hit children.

Corporal punishment.

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5-4 is presented by Prologue Projects.

This episode was produced by Rachel Ward with editorial support from Leon Nefok and Andrew Parsons.

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