38 The Constitutional Ghetto
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38 The Constitutional Ghetto ROBERT L. HAYMAN, JR., AND NANCY LEVIT Three themes characterize latter-day desegregation law. First, Plessy originated, and recent decisions embrace, a concept of natural racism. This view holds that racism inheres in the human condition. Racism is innate and inevitable and, as a consequence, it must be tolerated-by the federal courts among others-as an unfortunate fact of human existence. The Constitution and the construing Court are powerless to alter the course of racial instincts; separation may not be equal, but it is entirely natural. Second, recent decisions complete another cycle begun in Plessy: the discrediting of racism as a barrier to constitutional equality. In several ways, segregation itself becomes an ironic metaphor for this approach: the law of desegregation becomes an insular body of rules, separated from the remainder of equal protection doctrine; it regresses to treat segregation in education as a phenomenon unconnected to other social causes; and it creates a category of people isolated from the constitutional norm of equality. Third, desegregation doctrine includes methodology of betrayal, of broken promises and of interpretive possibilities discarded. From its inception, desegregation law manifested a notable lack of candor. As the body of law developed, the test prescribed for determining liability immediately undercut the reach of the remedy. And now, Supreme Court jurisprudence attempts to convey that the promise of Brown has been met to the fullest possible extent; that those who placed their faith in Brown were doomed to disappointment by the unrealizable vision which inhered in Brown's quixotic project; and that the shortcomings of desegregation are the failures not of the state, not of the courts, but of the American people themselves, who suffer only what they choose. The Beginnings: Government-Sponsored Subordination In Plessy v. Ferguson, the Supreme Court upheld a statute requiring racially segregated railway cars and ruled that these separate but equal accommodations did not offend the Constitution. Racial prejudice was viewed as a behavior unalterable by legislation; laws would be "powerless to eradicate ... instincts."l The Court drew a sharp distinction between political and social equality, and relegated the success of social equality projects to "the result of natural affinities ... and a voluntary consent of individuals."2 Thus, the Plessy Court viewed racism as a "natural" state of affairs and commented that segregation reflected "established usages, customs and traditions of the people."3 The 1993 WIS. L. REV. 627. Copyright © 1993, by the Board of Regents of the University of Wisconsin System. Reprinted by permission of the Wisconsin Law Review. Copyrighted Material 240 Robert L. Hayman, Jr., and Nancy Levit Court concluded that "[the Equal Protection Clause] could not have been intended to abolish distinctions based upon color."4 For the Plessy majority, the differences between blacks and whites were inherent. And even if the "instincts" were not biological in origin, societal preferences embodied as majoritarian choices became the constitutional mandate. The Promise of Brown Brown v. Board of EducationS was a marvelous statement of constitutional promise. Brown condemned segregation in education because it created a stigma of inferiority in black schoolchildren; a unanimous Court insisted that separation of the races "generates a feeling of inferiority as to [blacks'] status in the community that may affect their hearts and minds in a way unlikely ever to be undone."6 Brown was more than a command to dismantle segregated schools; it was a call to uproot deeply entrenched racism. On the doctrinal level, Brown represented a marked departure from prior patterns of assessing the equivalence of black and white institutions. Brown was also extraordinary in terms of its intended symbolic effect. Brown's overruling of Plessy articulated a reversal of the assumptions that supported Plessy's social inferiority thesis. Brown carried a message designed, at a minimum, to make the white majority less convinced of its own superiority. Yet the Brown Court itself was troubled by the implications of its decision and waited for a consensus to develop. For one thing, the initial decision in Brown was delayed a year as the case was carried over from the 1953 Term to the 1954 Term. For another, the Court saved consideration of the relief issue for yet another year in Brown II. If Brown's commitment was still to be taken seriously, the Court in Brown II certainly expressed discomfort with what it unleashed. Resistance was viewed as inevitable, recalcitrance almost invited. Lacking from Brown II's commands was a specific relief order; instead , the Court directed federal district...