E Wayne Ross

Los Angeles Times
Who’s behind the integration decision?
It’s the Pacific Legal Foundation, champion of right-wing causes for 35 years.

By Mark Tushnet,

MARK TUSHNET teaches constitutional law at Harvard Law School.
July 7, 2007

THE SEATTLE school integration case decided by the Supreme Court last month was brought in the name of a group called Parents Involved in Community Schools on behalf of Jill Kurfirst and her ninth-grade son. But it was a little-known, Sacramento-based organization called the Pacific Legal Foundation — a conservative public interest law firm involved in the case from the beginning — that developed many of the legal arguments five justices ultimately found persuasive.
Where did the foundation come from? The story begins with former Justice Lewis F. Powell. Shortly before he was nominated to the court in 1971, Powell, then a Virginia lawyer, wrote a memo to a friend at the U.S. Chamber of Commerce titled “Attack on the American Free Enterprise System.” In it, Powell worried that liberal groups had nurtured specialist lawyers and developed litigation strategies to defend government regulation. Businesses, he argued, were suffering because they had a “disposition to appease” and weren’t able to present a countervailing view of what constituted the public interest.

Powell’s memo prodded the business community to help create a number of not-for-profit law firms devoted to arguing a conservative point of view. Ronald Zumbrun and Raymond Momboise, former advisors to California Gov. Ronald Reagan, founded the first one — the Pacific Legal Foundation — in 1973. On its website today, the foundation says it exists to fight “tyranny” engendered by “overzealous bureaucracies and government red tape” and that it is a foe of “government regulators and environmental extremists.” Other issue areas: fighting racial preferences, combating eminent domain laws and encouraging government to take economic impact into account when designating critical habitat for endangered species.

After some initial enthusiasm, big business found these new public interest law firms less useful than it had hoped. The firms’ case selection policies were erratic, and the winnable cases they brought — mostly against environmental regulations and land use laws — had few implications for the business community’s larger concerns.

Big business soon turned to a newly developed, specialized Supreme Court bar in Washington (of which Chief Justice John G. Roberts Jr. was a leading member) to pursue its more important priorities: tort reform through judicial restrictions on punitive damages and interpreting national statutes in a business-friendly manner to reduce and eliminate penalties for business misconduct. Conservative public interest law firms played only minor roles in these cases.

By the time Chief Justice William H. Rehnquist died in 2005, most of the initiatives championed by the conservative public interest law firms — restricting federal power, putting constitutional limits on regulation and fighting environmental regulation — had hit a wall.

Still, Pacific Legal Foundation and other such law firms continued to operate, funded by donors interested in a conservative agenda. But always needing to raise more money from outsiders affected what the firms could do. They had to pick cases that garnered a lot of publicity, which meant they were not always the best for giving constitutional law a conservative cast. You can win cases (and publicity) if you can find “horror stories” about government regulation, but winning such cases makes few inroads toward more reasonable government regulations.

The Seattle case shows that conservative public interest law firms can win some big cases. These firms, however, are notorious for lacking follow-through. They get publicity from winning in the Supreme Court, not from slogging through the lower courts time and again to define the contours of the law on the ground. Winning in the Supreme Court may excite donors, but haggling with school boards over how to enforce the court’s decisions does not.

The foundation’s press release called last month’s ruling “the most important decisions on the use of race since Brown vs. Board of Education.” Five years earlier, Clint Bolick, a co-founder of the Institute for Justice, another conservative public interest law firm, hailed the Supreme Court’s decision upholding the constitutionality of Cleveland’s school voucher program as a Brown for the 21st century.

These invocations call for some historical perspective. What’s happened with school vouchers since 2002? Basically, nothing. Indeed, what happened after Brown itself? Again, basically nothing — for a decade. As late as 1964, only a handful of African American children in the deep South attended schools with whites.

Things changed after 1964 not because of Brown but because that was the year Congress enacted the Civil Rights Act. It also made significant amounts of federal money available to schools for the first time, and threatened to deny that money to schools that didn’t desegregate.

Brown began to matter because the NAACP was determined to see the decision enforced, because its lawyers had organizational staying power and because the political environment favored integration.

We won’t know for a while what the fate of this year’s integration rulings will be. But the track record of conservative public interest law firms suggests that they won’t carry through on their victory. And what the political environment will be over the next decade is in our hands, not theirs.

Washington Post series: Angler: The Cheney Vice Presidency

The Nation: Cheney, Cornered

Editorial: White Supremacy Is Not Color Blind

Spring 2007

By the Editors of Rethinking Schools

In the publishing industry, it’s customary to pre-write the obituaries of famous people who, due to either age or ill-health, are expected to die soon. Then, when death occurs, the obituary is ready to go.

Unfortunately, an obituary pre-write is needed for the 1954 Brown v. Board decision, in which the U.S. Supreme Court took aim at a major structure of Jim Crow racism and outlawed separate- but-equal schools for blacks and whites.

Over the years, the Court has so chipped away at Brown that it is a mere shell of a decision, honored in speeches every Martin Luther King Jr. holiday but ignored in practice 365 days of the year.

By summer, the Court is expected to issue a ruling that will get rid of even the shell. Brown will die.

The decision involves voluntary integration plans in Seattle and Louisville that have been challenged because race is one of several factors used to maintain diversity as students are assigned to schools. Few expect the court to uphold the Louisville and Seattle efforts.

“The only question was how far the court would go in ruling such plans unconstitutional,” the New York Times noted after the Dec. 4 oral arguments.

Widespread Repercussions

The significance of the cases goes beyond schools. As Theodore Shaw, president of the NAACP Legal Defense and Education Fund, has noted, opponents of voluntary integration make an argument that “if followed to its logical end, would make it illegal and unconstitutional in this country to do anything voluntarily and consciously about racial inequality.”

Shaw was one of several commentators at a November gathering in Washington to discuss the Supreme Court cases. At the meeting, Roger Clegg, president of the Center for Equal Opportunity, articulated the prevailing conservative view that those who promote race-conscious integration policies are no different than the segregationists of old because both make determinations based on skin color. What’s more, conservatives argue, race-conscious policies are no longer necessary because the United States is becoming a multiracial, multiethnic society.

But, as Shaw responded, “This country has always been a multiracial, multiethnic society. The problem in this country has never been mere race consciousness. It has been white supremacy.”

There is “no symmetry, moral or legal,” Shaw continued, between the race-consciousness of those struggling against institutions of white supremacy and the race-conscious discrimination of those who believe in the superiority of white people. The first is used to include, integrate, and promote equality for all, while the second is used to exclude, segregate, and subordinate those deemed inferior.

The seriousness of the Supreme Court’s likely U-turn on school integration is particularly apparent in the Louisville case. The school system had been under a federal court desegregation order from 1975 to 2000 — in other words, the courts mandated a race-conscious desegregation plan. When that court order expired, the district voluntarily adopted a plan to prevent resegregation. That plan is now under attack.

One of the most galling aspects of the attack is that conservatives are using the historically specific demands of Brown and the civil rights movement — that no one should be denied equal opportunity on the basis of the color of their skin — to argue against the substance of Brown and to bolster white supremacist policies that lock African Americans into segregated, inferior schools.

Justice Ruth Bader Ginsberg most articulately picked up on the Alice-in-Wonderland aspect to the oral arguments. “What’s constitutionally required one day gets constitutionally prohibited the next day,” she noted. “That’s very odd.”

Meanwhile, every year U.S. schools are increasingly segregated.

Given the Court’s hostility to race-conscious efforts to promote equality, the debate will of necessity have to focus on new ways to struggle against segregated schools. Merely decrying the Court’s direction is insufficient.

There are no easy answers, but clearly the debate must evolve. Public education plays a central role in our society. Just because the Court may declare voluntary integration policies illegal does not mean teachers and schools can give up the fight against white supremacy and racial inequality.

Spring 2007

Check out: www.rethinkingschools.org

“If you haven’t played a computer game since Frogger, then this two-part documentary detailing the contemporary gaming industry is sure to … all » astound. An industry that now rivals the wealth and reach of Hollywood – globally it’s worth US$25 billion (A$32 billion) a year and boasts 800 million regular players. This is an entertaining peek that looks at games as propaganda among other issues.”

Of particular interest is the section of the Gamer Revolution (Part 1), which describes how the US Army is investing millions of dollars to use computer games as recruiting tool, luring young people into the military—The battle for the hearts and minds of the gamers generation.

The Pentagon has bankrolled a computer game called “America’s Army,” which has been downloaded by more than seven million people and played on military’s own servers. The game is designed to put gamers in direct contact with soldiers and includes links to US Army recruiting web site.

Well, you could see this coming from a mile away. (At least Taco Bell High would come with a built in mascot and school slogan!)

“TACO BELL HIGH” OR “WAL-MART PUBLIC SCHOOL” SOON IN CANADA?

Canadian students could soon be graduating from “Taco Bell High” or “Wal-Mart Public School” if trustees here go ahead with a scheme to sell school naming rights to corporations to raise extra funds.

The proposal has pitted members of the cash-strapped Ottawa-Carleton (Ont.) District School Board with public education advocacy groups who fear it would jeopardize universal education.” No one wants to go to Taco Bell High,” Ellen Dickson, chair of the Ottawa Carleton Assembly of School Councils, told the daily Ottawa Citizen.

But proponents say it would help eliminate growing budget deficits at many of Canada’s school boards, hit by rising enrollment and cuts in provincial funding. The Ottawa school board, for example, passed a $701 million budget last week, but even after deep cuts, it as left with a deficit of $7.3 million.

Ottawa trustee Riley Brockington told the Citizen in support of the plan: “I have no problem with the Loeb Library or the Cognos Centre of Performing Arts,” invoking the names of a grocery chain and a software firm, respectively. But Annie Kidder of the parents group People for Education countered: “The minute you end up with a Wal-Mart Public School … you are taking away the notion of the importance of public education, which is to provide every child, no matter where they live or the income of their parents, with an equal chance at success.”

The effects of racism are undeniable. There are many, many, recent (and ongong) high profile (Katrina/New Orleans) and off the radar (The Jena 6) examples of how racism shapes live in the United States.

Today the US Supreme Court, in a case involving public schools in Louisville and Seattle, sharply limited the ability of school districts to manage the racial makeup of the student bodies in their schools. The supremes declared the districts had failed to meet “their heavy burden” of justifying “the extreme means they have chosen — discriminating among individual students based on race by relying upon racial classifications in making school assignments.”

The “extreme means” of “discrimination” the supremes refer to is the use of racial categories to create integrated school systems.

The result, at least in Louisville, will be the dismantling of one of the nation’s most fully integrated school districts and, with the sharp racial housing patterns in the Jefferson County, KY, yet another large apartheid school district.

This decision will further the well established pattern of US federal courts striking down desegregation plans and re-creating the apartheid schools of the pre-Civil Rights Era.

Harvard Civil Rights Project research shows that:

• Whites are the most segregated group in the nation’s public schools; they attend schools, on average, where eighty percent of the student body is white. Whites attending private schools are even more segregated than their public school counterparts.
• Public schools are becoming steadily more nonwhite, as the minority student enrollment approaches 40% of all U.S. public school students, nearly twice the share of minority school students during the 1960s. In the West and the South, almost half of all public school students are nonwhite.
• The data show the emergence of a substantial group of American schools that are virtually all non-white, which we call apartheid schools. These schools educate one-sixth of the nation’s black students and one-fourth of black students in the Northeast and Midwest. These are often schools where enormous poverty, limited resources, and social and health problems of many types are concentrated. One ninth of Latino students attend schools where 99-100% of the student body is composed of minority students.

In addition to the “irony” of striking down school desegregation plans as the nation’s school’s are becoming both more multicultural and more segregated, there is the ongoing travesty of justice (and schooling) that is currently taking place in Jena, Louisiana.

In September 2006, a group of African American high school students in Jena, Louisiana, asked the school for permission to sit beneath a “whites only” shade tree. There was an unwritten rule that blacks couldn’t sit beneath the tree. The school said they didn’t care where students sat. The next day, students arrived at school to see three nooses (in school colors) hanging from the tree.

The boys who hung the nooses were suspended from school for a few days. The school administration chalked it up as a harmless prank, but Jena’s black population didn’t take it so lightly. Fights and unrest started breaking out at school. The District Attorney, Reed Walters, was called in to directly address black students at the school and told them all he could “end their life with a stroke of the pen.”

Black students were assaulted at white parties. A white man drew a loaded rifle on three black teens at a local convenience store. (They wrestled it from him and ran away.) Someone tried to burn down the school, and on December 4th, a fight broke out that led to six black students being charged with attempted murder. To his word, the D.A. pushed for maximum charges, which carry sentences of eighty years. Four of the six are being tried as adults (ages 17 & 18) and two are juveniles. [From WhileSeated.org
]

Here’s a photo story of the Jena Six:

Articles on the Jena Six:

The Town Talk (Alexandria, LA)
“All-white jury likely to hear racial fight case in Louisiana”, International Herald Tribune
“Looking for Justice in Jena, Louisiana”, CounterPunch
“Charges reduced for student in La. fight”, The Guardian
“Racism goes on trial again in America’s Deep South”, The Guardian
“‘Stealth racism’ stalks deep South”, BBC News