A Law Professor to Admire

I balance my dismissal of UT lawprof Brian Leiter by endorsing his senior colleague, Lino Graglia. In an interview with Columbia Law School Report on the occasion of the 50th anniversary of the Supreme Court's decision in Brown v. Board of Education, Graglia had much to say, including this:

The overwhelming negative effect of Brown is that it changed the view of many people - certainly of most professors of constitutional law and, most important, of the justices themselves - as to the proper role of the Supreme Court in our system of government. If the court (as was believed) could do so great and good a thing as end racial segregation, what other great and good things could it not do? Did not Brown demonstrate that decision-making by judges on issues of basic social policy is superior to decision-making by elected representatives? The result has been a perversion of the system of government created by the Contitution, the basic principles of which are self-government through elected representatives, decentralized power (federalism), and separation of powers. At least in part as a result of Brown, we have arrived at the antithesis of this system: government by majority vote of a committee of nine unelected, life-tenured lawyers making the most basic policy decisions for the nation as a whole from Washington, D.C. The acclaim the court received as a result of Brown emboldened it to go on to such further decisions as Roe v. Wade, purporting to find that the Constitution, incredibly enough, guarantees rights of abortion, thereby converting an issue that was being peacefully settled on a state-by-state basis into an intractable national controversy.

On the race issue itself, the eventual success of Brown as a result of the 1964 Civil Rights Act emboldened the court to move from Brown's prohibition of segregation - prohibiting the assignment of students to separate schools by race - to a vastly more ambitious and questionable requirement of integration - requiring the assignment of students to schools by race, now to increase racial mixing. Compulsory school racial integration, given residential racial concentrations, could only be attempted by ordering cross-district busing, but the justices now felt powerful enough to think that they could order even that. The result has been not to lessen but to increase school racial separation - as middle-class parents, black as well as white, fled school systems subject to busing orders - and the expenditure of billions of dollars and devastation of public school systems across the nation with no educational or other benefit....

Segregation should have been ended by Congress, as it in fact eventually was, and it is most unfortunate, as shown above, that the issue was purportedly decided instead by the court. The court's supposed reliance on the totally discredited so-called sociological evidence in Brown illustrates only that constitutional law need have no relation to truth or reality....

It is misleading to state that "public schools in America remain segregated," even after adding "though not officially by law," seeming to suggest some inconsistency with Brown when in fact it is compulsory integration that violates Brown's prohibition of all official race discrimination. For social, economic, and perhaps other reasons, areas of residential racial concentration are the norm, and neighborhood schools (which have many advantages) necessarily reflect residential patterns. This does not make the schools "segregated" any more than the neighborhoods are "segregated." The pursuit of school "racial balance" is not only largely futile or counterproductive, but essentially pointless. The problem to be faced in regard to black education is the astounding fact that the average black 12th grader performs at about the level of the average white or Asian eighth grader in reading and math, and blacks from high income homes score below whites and Asians from low income homes. Some schools with the highest per pupil expenditures, as in Washington, D.C., and New York City, have the lowest levels of pupil performance. The pursuit of school "racial balance" - the dispersal of black students among whites and Asians (but not among Hispanics who have similar, though lesser educational difficulties) - will do nothing to change these facts. It will serve only to divert attention from possibly effective efforts and keep racial activists in business.

Graglia for Chief Justice. (If only he weren't "too old" and "politically incorrect.")