0:00:00.0 Andrew Parsons: We'll hear argument first today in 05-908, Parents Involved in Community Schools versus Seattle School District number one.

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0:00:11.6 Leon Neyfakh: 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.

0:00:24.6 Rachel Ward: The justice has ruled that education officials cannot use race alone to determine which schools students should attend. The court was split 5-4 with the conservative wing led by Chief Justice John Roberts in the majority.

0:00:37.7 Leon Neyfakh: In Seattle schools, where the racial make-up 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.

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0:01:07.5 Peter: 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 teacher's unions. [laughter] I'm Peter. I'm here with Michael.

0:01:19.1 Michael: Hey everybody.

0:01:20.9 Peter: And Rhiannon.

0:01:21.9 Rhiannon: Poignant. That was good, Peter. [laughter]

0:01:24.6 Peter: Yeah, I liked 5-4 until the metaphors started getting political. [laughter]

0:01:30.8 Michael: Stick to the Supreme Court. [laughter] Stick to podcasting.

0:01:34.6 Rhiannon: Stick to your day job.

0:01:36.2 Peter: 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.

0:01:56.7 Rhiannon: Sure. Yeah. Plus his was a big one. [laughter]

0:01:58.6 Peter: Look, okay, third best.

[laughter]

0:02:01.0 Michael: Well, he did say modern. You did say modern.

0:02:02.3 Rhiannon: Yeah.

0:02:04.1 Peter: 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 a 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.

0:03:07.5 Michael: That's right.

0:03:08.4 Rhiannon: Innovative.

0:03:09.7 Peter: So, Rhi, wanna walk us through this one? [chuckle]

0:03:12.0 Rhiannon: Yeah, a lot of history here. And you know what? I think we should say too, there are entire law school and grad school classes in education policy that are about school segregation in the US. 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 over-simplified. But there is an important fact to keep top of mind, and that is that today, many public school districts in the US are just as segregated now as they were in the early 1950s before Brown versus Board of Education.

0:03:53.8 Michael: That's right.

0:03:54.4 Rhiannon: 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. Like in the South and elsewhere, everyone knows that there were schools for white children and schools for black children, 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.

0:05:01.8 Peter: Well, according to the majority opinion, at least.

0:05:04.8 Rhiannon: Right, yes. Yeah, exactly, which we're getting to.

0:05:07.2 Peter: We'll get to that later, but yes.

0:05:09.4 Rhiannon: 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 actually was a result of societal discrimination, residential housing patterns, like white flight, and also school board policies and actions that help to create and encourage racial segregation. So yeah, 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 for white schools. And also the district maintained inferior facilities at black schools. They built more new schools in white areas, they use racial criteria to assign teachers and staff to white schools versus minority schools. It goes on and on.

0:06:25.7 Rhiannon: 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, 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.

0:07:55.3 Rhiannon: 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% 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 make-up of the school might be taken into account when deciding who to admit from a pool of over-enrolled students, so she started a non-profit 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.

0:09:09.4 Rhiannon: So Parents Involved, this non-profit organization, sued the school district and the State of Washington as well as the Ninth Circuit through their bullshit lawsuit out. Unfortunately, it got appealed to the Supreme Court and they turned all that shit right around.

0:09:25.2 Michael: Right. Can you imagine being so angry about where your daughter was placed for high school that you start a non-profit corporation. [laughter] That is next level, next level. I can't even fathom how that happens, how you're not like, I'm gonna sue, I'm gonna form a corporation to sue.

0:09:48.7 Peter: Well, it's classic Kathleen.

0:09:49.7 Rhiannon: 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. You think that's what happened, now, I understand why you did all of this, because you're crazy.

0:10:11.7 Michael: 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.

0:10:19.3 Rhiannon: Oh, I think that's right, yeah.

0:10:20.9 Michael: Just like the non-profit or whatever, if there was some corporate backers or whatever, some Republican donor types who were like, let's sue a school district for reverse racism.

0:10:34.3 Peter: Right.

0:10:34.8 Rhiannon: For sure.

0:10:35.8 Peter: 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 hasn't joined 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.

0:11:08.9 Rhiannon: Oh yeah, that always gotta go first.

[laughter]

0:11:10.6 Peter: Immediately. Right off the bat.

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0:11:12.5 Michael: I read it.

0:11:13.0 Rhiannon: God bless you.

0:11:14.8 Peter: Oh, God. I don't know why. And legally, look, we're gonna 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, there's actually sort of relevant question standing that Roberts just sort of... And then it's not clear that this person has standing 'cause 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 gonna 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 this 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?

0:12:20.7 Peter: 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 Rhi mentioned, had never had explicit legal segregation, meaning the law in Seattle never openly segregated students by race. 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 Rhiannon 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, etcetera. So Roberts' statement that there was no legal segregation is only true in the most pedantic sense.

0:13:13.0 Rhiannon: Right, exactly.

0:13:13.9 Peter: It's true that there is 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.

0:13:23.2 Rhiannon: In fact, exactly, yes.

0:13:24.8 Peter: 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? [chuckle]

0:14:09.7 Michael: I think it goes the other way, doesn't it?

0:14:12.1 Peter: Didnt you make the exact opposite argument, right?

0:14:14.3 Michael: 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.

0:14:26.7 Peter: Right. And if it was impacting a lot of people, a lot of students, you know that Roberts would be making the exact opposite argument, right?

0:14:32.1 Rhiannon: Exactly.

0:14:32.9 Peter: It impacts so many students, that shows it's not narrowly tailored.

0:14:35.9 Michael: Unbelievable. Well, I mean, totally believable. Total bullshit.

[laughter]

0:14:40.8 Peter: A quick aside, like one of the more surprising things about doing this podcast is that John Roberts cannot write a compelling opinion.

0:14:49.2 Rhiannon: No.

0:14:49.7 Peter: I sort of just gave him credit, I guess, in the past when I wasn't reading them so much, but this dude cannot put an A and B therefore C argument together that makes any sense.

0:15:01.3 Rhiannon: Can you imagine how mad Alito is? I kinda get it now, he's like, "This guy can't even fucking write opinions."

0:15:07.1 Michael: I should be Chief Justice. Yeah.

0:15:08.2 Rhiannon: Yeah. [laughter]

0:15:08.8 Peter: Right, yeah. No, exactly. 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 and schooling is entirely a problem of the past, and then he closes with this now infamous line, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

0:15:38.6 Rhiannon: Wow.

0:15:39.0 Michael: Oh my God.

0:15:41.2 Rhiannon: A+ Legal thinking.

[laughter]

0:15:46.8 Peter: That's one of those things when you read it, it's like Twitter reply level sort of argument, and there it is like book ending a Supreme Court decision, book ending's not the right word, 'cause it's only on one end. Whatever. [laughter] It's at the end. He's...

0:16:03.9 Michael: Punctuating.

0:16:05.3 Peter: Nice.

0:16:05.4 Rhiannon: Yeah, there you go.

0:16:05.8 Peter: You're looking at it like, "What? Like what the fuck are you doing dude?" [chuckle] The arguments that he's putting forward here are so hollow that it's hard to do anything other than just mock them, but I wanna 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.

0:16:28.1 Rhiannon: 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. That's discrimination to John Roberts, and so that's how you end it, is to stop using race-based classifications.

0:16:51.2 Michael: Right. It's to look at all these old opinions when there was slavery or Jim Crow or other forms of segregation and high-minded rhetoric about our color blind constitution, just favoring these things and saying, "Yeah, our constitution is color blind, so who cares if the context is reversed?

0:17:12.1 Rhiannon: Exactly.

0:17:12.3 Michael: When we're talking about remedying segregation and discrimination, the constitution's still color blind and sorry.

0:17:20.0 Peter: Yeah, 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 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-consciousness.

0:18:02.2 Rhiannon: Exactly, yes.

0:18:03.4 Michael: So I do wanna give Kennedy some credit in his concurrence, 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 paralysis 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 props to him for being like, "Give me a fucking break man." [laughter] Are you serious with that shit? Like you really think this intractable century old problem, the solution is some sort of fucking fortune cookie style aphorisms, like it's really what you're trying to pull here. So I wanna give Kennedy some props for that. The other thing that stuck out to me about the Roberts' opinion, there's this sub-section where diversity is supposed to bring educational benefits and not just to minority students, it's suppose to have pedagogical benefits for white students as well.

0:19:21.1 Michael: And Roberts says, when talking about how these plans are not narrowly tailored because they seek to match the district's demographics, and he says, "The plans are tied to each district 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?"

0:19:52.2 Rhiannon: Exactly.

0:19:53.8 Michael: That's right. And not one more. Not one more than that. That's what he's saying. That's what narrow tailoring looks like to him. It's an unreal line to put in the Supreme Court Reporter, if you give any thought to it. It's unbelievable.

0:20:10.6 Rhiannon: Right. No, it's incredibly offensive. Yeah.

0:20:12.5 Michael: Yeah.

0:20:13.1 Peter: So, there's a real degree to which Roberts' opinion, really, it's built around the idea that color blindness is the key to solving racism. And the obvious response is purported color blindness will leave these entrenched inequities in place. If you turn on the blinders, you don't see disproportionate black poverty, lower educational attainment, worse medical outcomes, etcetera, etcetera. You're taking a neutral position after the inequities have been created, but not before they've been remedied. But 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 affirmative action. 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 hard-working, having an inferior culture, whatever they think.

0:21:30.4 Peter: 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, because they're looking to legitimize the socioeconomic disparities that we all see across racial demographics. They want to explain why those are not just okay, but inevitable and, sort of, implicitly make the case against any sort of remedy.

0:22:00.0 Rhiannon: Exactly.

0:22:00.5 Michael: So, we should turn to the Thomas concurrence, which before I get into the substance of it, I wanna say, we've joked about this before, but this is a particularly great example of Thomas just citing himself, and there are entire paragraphs in this, where every sentence has a citation, and every single citation is to another Thomas concurrence. Not even like in a majority opinion he wrote, another opinion where he didn't get any other votes. It is legitimately awesome. I have come around to this, it makes me so happy when I see it, it's like such a boss move, he's like, "Yeah, I've built up my own entire jurisprudence and I'm gonna shove it in your face now, and you have to read it."

0:22:45.6 Peter: I do that on the podcast. Everything I just said about race, I've said in some form or another, but you gotta replay your hand.

0:22:51.6 Michael: Yeah, that's right, that's right. It's so good. But 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 the degree to which he does not trust white people at all. I think 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.

0:23:42.6 Rhiannon: Right, he just doesn't buy it.

0:23:44.0 Michael: Right. It's sort of black letter law that it's something that they can do in higher education, but he talks about all the very things specific to higher education, like diverse view points and open fora and all that, that sort of make it maybe sort of unique in that regard. But that most education is not that way, and in general, he's skeptical of the factual underpinning for it, in any event. He puts a lot of effort in the opinion to detail the successes of all-black schools, and all-Latino schools and cast out onto social science that suggests 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. So, it's possible.

0:24:45.7 Rhiannon: Absolutely.

0:24:47.4 Peter: Yeah, 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?

0:24:58.8 Rhiannon: No. No, no, no.

0:25:00.6 Peter: The interesting thing about Thomas is always gonna 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. We talked about this in one of our first episodes, in Fisher v. Texas, where he has basically said, "People thought less of me because they thought I got into Yale through affirmative action." Now, the sad irony ends up being at the pinnacle of his career is something that was almost certainly the result of him being black, right? He was given a very good Marshall seat, and him being black was like unquestionably a part of it. And it's hard not to just look at his opinions on this stuff and see an impenetrable line of psychology. I'm just looking at this and I'm like, "Oh man."

0:25:53.6 Rhiannon: Oh yeah, there's a lot of brain stuff happening here.

0:25:56.8 Peter: Let's book a couple more sessions, Clarence. We need to talk about this next week.

0:26:01.3 Rhiannon: Can you imagine? Sorry, I was just thinking about Clarence Thomas and Jenny Thomas in a couples therapy session.

0:26:09.6 Michael: Oh my God.

0:26:09.7 Rhiannon: That's dark.

0:26:11.1 Peter: There is no single therapist qualified to handle that.

[laughter]

0:26:15.4 Rhiannon: Okay, so, turning to the dissents a little bit, 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 short dissent, but I think pretty powerful. What he brings up is that 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 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 another?

0:27:31.3 Rhiannon: 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? Is the remedy to never classify people based on race, to be color blind in all policy making? 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 color blindness 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.

0:28:35.8 Michael: That's right.

0:28:36.3 Peter: Yeah. 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.

0:28:49.0 Rhiannon: Yes.

0:28:51.2 Peter: You have it coming out after the Civil War as a fairly explicit rebuke of the South and a tool for creating, 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. And the way we read it now is, of course, to actually acquire equality. And the way that conservatives have conceptualized equality, it runs parallel to how they conceptualize equality in the economic context. Have you ever heard them make comparisons between equity and equality? And they're like, "One is a quality of outcome and the other is a quality of opportunity." And they rail against equality of outcome. 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 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." 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."

0:30:24.4 Rhiannon: Exactly.

0:30:24.4 Michael: That's right.

0:30:25.3 Rhiannon: I have to go to the bathroom, real bad.

0:30:26.8 Peter: Another perfect ad break.

0:30:28.1 Michael: I think you should use that as the outro. So, we should also talk Breyer's dissent, 'cause it's excellent. We should talk how I was like, "Rhi, 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' dissent was like, 10 pages and Breyer's was, like, 60. I was like, "Okay, Rhi. [laughter] I see you."

0:30:53.8 Rhiannon: I didn't know beforehand, I swear I didn't.

0:30:56.3 Peter: I actually think Stevens' was shorter than 10 pages, I'm sorry.

0:31:01.4 Michael: But even before you read Breyer's dissent you know it's good because Roberts' opinion is 40 pages and he spends 12 of them responding point-by-point to Breyer. And Thomas says he wrote his entire 36-page concurrence in response to Breyer. So that is 50 pages of conservatives being like, "We have to answer this, we can't just let it stand on its own."

0:31:24.0 Peter: Yeah, and you know you're wrong when Stephen Breyer is just schooling you.

0:31:28.8 Michael: Yes.

0:31:30.4 Rhiannon: Right. Exactly.

0:31:30.9 Peter: Like, up and down the court, you're getting crossed over by Kwame Brown.

0:31:36.2 Rhiannon: Yeah. Broken ankles all over the place.

0:31:38.3 Michael: Brian Scalabrine has just dunked on your head and stepped over your body on the ground. [laughter] So one thing Breyer does really well is chronicle the history of segregation. And the history of remedial efforts as well. Which I think is important, not just to demonstrate that there has been segregation in fact, but also to 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 bussing to other plans that include race consciousness. All the way down to this one where they are very close to being done, is his point. Like the majority says, it's only a few dozen, maybe 100 students that this is impacting and at only a few schools, because not all of them are integration positive.

0:32:41.3 Rhiannon: Right, exactly.

0:32:42.4 Michael: 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 it spends responding to him and Thomas, the point that neither of them can answer, I think is his best one, which is that, they say there was no de jure, there was no legal segregation. And Breyer says, "Well, says who? According to whom?" Yeah, a court never found that, but that's because they settled rather than litigate that issue.

0:33:31.7 Rhiannon: Exactly. Over and over again when they were sued.

0:33:33.0 Michael: 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.

0:33:48.5 Rhiannon: Exactly.

0:33:48.9 Michael: Right. He's like, "There are hundreds of school districts throughout the country that had legal segregation, that voluntarily desegregated. And are we just gonna say, since there was 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 they use lawsuits in addition to alleging societal discrimination, also mentioned school board policies, which would be legal segregation, right?

0:34:24.8 Rhiannon: That's right.

0:34:25.4 Michael: And this is important because one area where even the conservatives have basically conceded ground on the ability of the government to use race-based classifications is to remediate de jure segregation. When the government has actively engaged in segregation or discrimination, it can turn around and use race-based criteria to remediate those harms. So if that's what happened here, then of course the plans are constitutional, just as a black letter law, and so they wanna deny that. And I think Breyer 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. He does a great job of chronicling not just the school districts in question, but generally re-integration issues throughout the country and 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 lily-white enclaves with well-funded schools. And then mostly minority inner city areas that have poorly funded schools.

0:36:00.3 Rhiannon: Exactly.

0:36:00.6 Michael: Without having a law in the books that say, "This school's for black kids and this school's for white kids." It's excellent.

0:36:05.0 Peter: Right. And two things, first, the sort of contrast between the majority. The majority reminds me of the Shelby County decision, in that you have this sort of underlying claim that's not entirely explicit, but is almost explicit that racism is primarily a problem of the past. And then you have that market contrast between that and Breyer just outlining exactly why it's false.

0:36:34.1 Rhiannon: Yeah, yeah.

0:36:34.9 Peter: But the response of the conservative 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. "Doesn't it feel like racism has gotten better?"

0:36:46.7 Rachel Ward: Yeah, yeah. Exactly.

0:36:49.5 Michael: Yeah.

0:36:49.7 Peter: And the other thing I wanna 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. Whether it's explicit in the law, or whether it's something that's 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 on the Jim Crow south. And yet I just think that those are almost completely overlapping, overlapping for all material intents and purposes, but under the law they're completely separate things, and to me it's ridiculous.

0:37:46.0 Rhiannon: Yeah.

0:37:46.4 Michael: Yeah. Well, so much of educational. Look, I'm no educational expert, there's a policy level here that I would be totally out of my depth at, but it does seem like if instead of using property taxes to fund individual schools based on their local geography, each county insured same dollar spent per people 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 kids education, but that's an explicit policy choice that encourages these sorts of geographic clustering. Encourages or depending on the directionality, what you think, or blesses and closes the loop on what is a long project of re-segregation, which I do, I wanna 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, it created a whole new type of suburb.

0:39:29.9 Rhiannon: Right.

0:39:30.8 Michael: It's important, Dryer, I think, does a great job chronicling this, but I think what's important to know, there's a historian, Kevin Kruse, who wrote a book called White Flight that sorta argues that it wasn't just geographic clustering that happened here. It created the modern Republican party that the white suburbs were the birthplace of hostility to the federal government as a Republican principle, veneration of free enterprise as a Republican principle. And I think 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.

0:40:23.5 Rhiannon: Yeah.

0:40:23.7 Michael: Their political project were the construction of White enclaves and the protection of those enclaves. And so I think you can't understand this decision without understanding it as protecting those enclaves and they say it. Roberts 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." And so it is, in that sense, partisan. It's a very partisan decision.

0:41:19.2 Rhiannon: Yes.

0:41:19.8 Peter: Yeah. Republican messaging has continued to include the vilification of cities as dens of violence and moral decay. It was very pronounced during the George Floyd protests in 2020 and you had Fox News talking as if cities were just rife with chaos and lawlessness. And then throughout the pandemic, there's this idea touted by conservatives in op-eds and stuff that people had fled the major cities, like "New York City's dead," that sort of idea. None of that was backed by much data, it was just a series of anecdotes but they are 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 the Republican philosophy.

0:42:15.2 Michael: It's just kind of bullshit, top to bottom.

0:42:17.5 Rhiannon: Right.

0:42:18.6 Peter: Michael, earlier you said, "I'm not a policy expert," and that made me smile because neither is John Roberts, [laughter] and yet here we are. When you look at the basic premise of the quote, of his statement, that if you wanna stop racism, stop using racial classifications, that's a policy prescription. 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.

0:43:05.7 Michael: Yeah.

0:43:05.9 Peter: 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, etcetera. The body of research on this is enormous and it's why, you know, if you're a listener and you've taken a corporate diversity training in the past five years, I bet it was about bias elimination, right?

0:43:49.9 Rhiannon: Right.

0:43:50.6 Peter: Become conscious of your biases so that you can control them. That's proven to work quite effectively.

0:43:56.8 Michael: Yeah.

0:43:57.5 Peter: 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 wanna put the full picture out there. But just the idea that affirmatively acknowledging and utilizing racial classifications is inherently gonna lead to more racism, that is just absolutely not backed by science.

0:44:33.8 Rhiannon: Right.

0:44:33.9 Peter: It's pure bullshit and it's predicated on the idea that all racism is, is treating people differently based on race. That's what Roberts seems to believe.

0:44:44.9 Rhiannon: Right.

0:44:45.5 Peter: And that's why we are stuck with the most stunted discourse about racism that you could fucking possibly imagine.

0:44:55.4 Michael: Right.

0:44:56.2 Peter: And before we wrap, we might wanna take the opportunity to talk about the soon-to-be open Supreme Court seat.

0:45:04.1 Michael: Yes.

0:45:05.2 Peter: Because this exact discourse has emerged.

0:45:09.6 Rhiannon: Relevant.

0:45:10.1 Peter: We've been talking for a couple of years about Biden's campaign promise to nominate a Black woman to the Court.

0:45:15.2 Michael: It rocks that he's gonna follow through on it.

0:45:16.6 Peter: It's cool.

0:45:17.4 Michael: Yeah.

0:45:17.7 Peter: Look, he promised this a couple of years ago but of course now, it is front and center. Conservatives are clutching their pearls and saying it's offensive, that announcing that he's going to select a Black woman is offensive and racist against White dudes or whatever. Despite the fact that Ronald Reagan expressly announced his intention to nominate a woman before he nominated Sandra Day O'Connor. 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 Barret. They've done the exact same thing. The difference is that they are doing it to troll us. [chuckle] They're doing it to mock the concept of diversity and sort of throw it back in liberals faces.

0:46:10.9 Michael: They're mocking the idea of 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, there's also identity issues in selecting a catholic like Scalia or someone from the Federalist Society. 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.

0:46:48.1 Peter: Now, you have someone like Biden and the segment of the Democratic Party that wants to see a Black woman's voice on 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? 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 an unfair benefit being conferred to Black women.

0:47:24.8 Michael: It's unbelievable.

[laughter]

0:47:26.6 Peter: Fucking get out. It's just so transparently bullshit that I don't even feel it needs to be substantively addressed.

0:47:34.9 Rhiannon: Yeah, it's hard to respond to because it's deeply, deeply offensive, but it's also so inaccurate, it's an absurd worldview and yeah, there's nothing to say about it. Except you are a fucking idiot.

0:47:48.7 Peter: And it's like I said, 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 there's a reason besides racism. It's perhaps? Maybe we're just better, maybe White guys are just crushing it, that is what's behind all of this and you can't say it enough.

0:48:09.0 Rhiannon: Absolutely.

0:48:10.1 Michael: Yeah.

0:48:10.5 Peter: The last thing I'll say about this is one argument that conservatives are making is essentially, if you limit your pool to Black women, you're missing out on this plethora of talent, and I think that's just getting it wrong. There are probably thousands of people who are qualified for the Supreme Court, in the traditional sense, just using the metrics that matter to senators and shit like that, fancy degrees, federal judgeships, etcetera, etcetera. So I reject out of hand the argument that we need to be selecting from the top 10 guys. Because those guys don't exist. There's a thousand way tie at the top and who gives a shit?

0:48:51.8 Rhiannon: Oh, yeah.

0:48:52.6 Michael: I just reject the idea that there's a singular best candidate or if there is, you could somehow divine it from qualifications or interviews with them. You look at the names on Biden's list of potential Supreme Court nominees, Black women, Leondra Kruger, Ketanji Brown Jackson, Michelle Childs, their resumes are phenomenal and look just like the resumes of...

0:49:22.1 Rhiannon: Of other Supreme Court justices.

0:49:23.5 Michael: Right, other Supreme Court justices, other people who would be on that list, like Leondra Kruger and Sri Srinivasan, who's on the DC circuit and a lot of people thought he would be Obama's nominee at some point. Their resume is like identical, so that she's on the Supreme Court of California instead of on the DC circuit, but it's like she's not a major state Supreme Court. Ketanji Brown Jackson, Michelle Childs, they have phenomenal resumes. The idea that there's some quality drop-off is laughable if you look at their actual qualifications.

0:50:00.5 Rhiannon: And racist.

0:50:01.7 Michael: 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 inherently lesser, and that is the exact word and phrasing Ilya Shapiro used. Lesser Black woman is what he said we would get. This is a guy that Georgetown Law just hired 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 know he's racist for years, he says racist shit on Twitter all the time.

0:50:42.6 Peter: So here's how it's gonna play out because we've seen it with Sotomayor. You can't quite attack the credentials per se, so you start picking apart things they've said and then make this claim and this is what they did with Sotomayor that she just doesn't seem that smart when you look at what she said. It just doesn't seem that smart, and everyone's supposed to read between the lines here. The woman of color has all the inferences working against her in a situation like that, and all your Tucker Carlson's have to do is wink at the audience a little bit. Doesn't it just seem like she's not qualified for this job? It's absolutely what's gonna happen, and the only good news is that if no Democratic senators die, they're gonna bring her through. It doesn't fucking matter what Ilya Shapiro or any 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 six-three for the next 20 years.

0:51:47.7 Michael: 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 anything.

0:52:00.1 Peter: It's true.

0:52:01.7 Rhiannon: Inshallah.

0:52:03.1 Michael: [laughter] That's right.

0:52:03.4 Peter: 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.

0:52:12.9 Michael: That's the upcoming abortion decision, yeah.

[laughter]

0:52:15.3 Peter: Yeah. [chuckle]

[music]

0:52:21.7 Peter: Next week, Ingraham v. Wright, a 1977 case also about schools, specifically about whether schools can hit children, corporal punishment. We're doing it. Follow us on Twitter @54pod, subscribe to our Patreon, patreon.com/54pod all spelled out. Ad free episodes, access to premium episodes, our Slack special events. All sorts of shit. We'll see you next week.

0:52:54.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.