Serene Idealists -- and Cynics

May 15, 1994|By GEORGE F. WILL

WASHINGTON — Washington. -- Forty years on, the constitutional earthquake of May 17, 1954, is still causing aftershocks. The Supreme Court's school-desegregation ruling in Brown v. Board of Education was sound social policy and the correct constitutional outcome. However, the reasoning by which the court reached that outcome, combined with the moral prestige the ruling gave the court, has produced an era of anti-constitutional judicial policy-making, and of racial discrimination by government.

The court held that assigning white and black children to separate schools on the basis of race violates the 14th Amendment's guarantee of equal protection of the laws. Unfortunately, the court's ruling was insufficiently radical.

The court waxed sociological, citing such data as the preference of some black children for white dolls, which may have been related to school segregation. And the court cited studies -- studies more problematic than the court assumed -- concerning the effects of segregation on children's abilities to learn. By resting the ruling on theories of early-childhood development, the court's rationale limited the anti-discrimination principle of the ruling to primary and secondary education.

As Robert Bork has written, making the ruling contingent on sociological findings ''cheapened a great moment in constitutional law.'' The proper, more radical rationale for the Brown outcome was simply that government should not use racial classifications in making decisions.

Had the court said that plainly in 1954 -- had the justices been content to apply not sociology but the sweeping legal principle that racial classifications by government are inherently violative of equal protection -- much subsequent court-produced mischief might have been avoided. Instead, before a generation had passed the court was ordering busing -- the exclusion, on the basis of race, of children from neighborhood schools, and the transportation of them to more distant schools.

The Brown decision led directly to the 1964 Civil Rights Act, in which Congress stipulated non-discrimination for much of public life, proscribing discrimination by government and by individuals employment and public accommodations. Or so Congress thought. Just four years later the court was saying otherwise.

The 1964 act defined school ''desegregation'' as ''the assignment of students to public schools . . . without regard to their race.'' But in 1968 the court held that compliance with Brown involved more than ending segregation, which hitherto had been understood as the government-compelled separation of the races by the law. The court said that when all-white or all-black schools -- so-called ''de facto segregation'' -- still existed, government-ordered racial discrimination was required.

The tragedy of racial policy since Brown is that the 1964 Civil Rights Act was twisted, against legislative intent, by people whose idealism made them serene in their cynicism. As Professor Lino Graglia of the University of Texas Law School writes, the act was seized and turned inside out by bureaucrats and judges who considered ending racial discrimination by government and businesses too modest a goal. Instead, they wanted -- still want -- to produce, by decrees, proportional representation by race in many institutions and activities.

Racial discrimination is any action based on race. The 1964 act forbade discrimination in employment. Yet the court has held that the spirit of the act requires what its letter forbids -- that employers often must take race into account for various ''affirmative action'' purposes. The court also has held that Title VII of the act does not prohibit discrimination against whites.

In Brown the court held that racial discrimination stigmatizes those who are discriminated against. Post-Brown decisions have proved that discrimination can stigmatize its intended beneficiaries. Professor Graglia notes that racial preferences presuppose -- and teach -- that this is a racist nation, that blacks cannot compete on merit, and that self-discipline, industriousness and responsibility are less important for blacks than establishing claims of victimization. This, says Mr. Graglia, is a prescription for black self-destruction and a cycle of racial hostility.

The rightness of Brown as social policy established in many minds the principle that it is not merely permissible for judges to make social policy, but that policy made by judges is inherently superior, morally, to policy made by elected representatives of the people. The resulting four decades of judicial activism have weakened the ethic of self-government -- elected representatives exercising responsibility. But as Professor Graglia says, morality often is a casualty of moral crusades.

George F. Will is a syndicated columnist.

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