The Constitutional Ghetto

Abstract

The goal of this Article is to assess two Supreme Court desegregation decisions. It is our view that Board of Education v. Dowell and Freeman v. Pitts are, by almost every measure, seriously flawed decisions. The opinions of the Court rest on epistemic premises - reductionist views of race and racism, and an absurdly formalistic conception of equality - that are by turns either anachronistic, cramped and inauthentic, or demonstrably wrong. Worse, they promote a vision of American society - fragmented, hierarchical, and shamelessly individualistic - that is fundamentally inconsistent both with the egalitarian norms embodied in the Fourteenth Amendment and with the moral mandate that the Court once assumed on behalf of all Americans. And if our own jurisprudential leanings do not permit us to declare that these decisions are in error, they do not preclude us from insisting that Freeman and Dowell are, in human terms, utterly tragic. In the end, what Freeman and Dowell achieve may be nothing less than the virtual death of desegregation. The project is torn from its constitutional moorings; stripped of its history; isolated from its cultural contexts; and divorced, finally, from its moral underpinnings. What is left is an empty shell: a jurisprudence that is isolated, marginalized, and vacant. Consigned, perhaps, to irrelevance, the law of desegregation survives, for now, in a constitutional ghetto: an insular doctrinal realm where comprehension is impoverished and compassion subordinated. It is a place where human initiative seems futile, a place fast running out of hope.

Keywords: Desegregation, Race, Racism, Racial, Equality, Inequality, Fourteenth Amendment, Equal Protection, Race neutrality, Segregation, Public schools, School system, School district, Constitutional law

JEL Classification: D63, H52, I21, I28, K31, K32, J15, J18, J71, K00