Rep. Jackson: Supreme Court is no longer 'colorblind' or 'neutral'

By Rep. Jesse L. Jackson, Jr.

July 02, 2007, 12:30 p.m. - The recent Supreme Court education ruling in Seattle happens to contain the two issues that have been central to all of American history:  (a) who has the power, national or state and local governments; and (b) race. 

On the first, an ideologically radical conservative Supreme Court ruled in contradiction to its principles:  (a) of merely "interpreting" the Constitution, by engaging in "judicial activism"; (b) of violating its commitment to federalism, by undermining states' rights, local control and volunteerism; and (c) by showing Chief Justice Roberts to have been less than truthful during his Senate confirmation hearings about his view of precedent, including the precedent of the 1954 Brown decision. 

On the question of race, I believe history will demonstrate that this Court's alleged "colorblind" approach will bring us full circle (Plessey-to-Brown-to-Seattle) back to Plessy v. Ferguson's 1896 principle that "we can have separate but equal" schools that sustained the opposite result for 58 years. 

Brown overturned Plessy on both philosophical and practical grounds.  Philosophically, if schools are truly equal, why should they be separate?  But practically, history has shown that if public schools are separate they will not be equal.  Seattle will perpetuate and escalate - not alleviate - our current separate and unequal American educational system. 

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I'm not naive enough to believe the Court is colorblind any more than I believe it's ideologically or politically neutral.  Such blindness and neutrality is humanly impossible.  But I do believe that how an issue is framed may help us achieve a more equal and just society. 

The New York Times editorial reacted to Seattle by saying it "was a sad day for the court and for the ideal of racial equality."  In substance I agree.  I understand the difference between being racially sensitive for inclusion and being racially insensitive or hostile resulting in exclusion. 

But in terms of framing the issue, is "racial equality" really the American goal?  I understand why special interest groups - e.g., minority groups and women's rights advocates - would frame the issue thusly, but does that approach have the broadest appeal and properly state the American goal?  I think not! 

Today's conventional wisdom consistently appeals to racial and gender equality - i.e., affirmative action is necessary because of historic negative action - and that's true, but isn't the real goal equality for all citizens regardless of race, ethnicity, gender, sexual orientation, handicap or religion?  Are we entitled to equality and a just society on the basis of color (or gender or handicap) or on the basis of our U.S. citizenship?  If we are entitled to equal rights and protections under the law as citizens, then equality based on citizenship - not race, gender, handicap or class equality - is the real goal and the better way of framing the issue. 

Both Frederick Douglass and Dr. Martin Luther King, Jr., spoke of fighting for the rights of citizenship.  Frederick Douglass argued at the Massachusetts Anti-Slavery Society in 1865 that the Negro "has been a citizen just three times in the history of this government, and it has always been in time of trouble.  In time of trouble we are citizens.  Shall we be citizens in war and aliens in peace?" 

Dr. King, in his most famous "I Have A Dream" speech in 1963, said that "there will be neither rest nor tranquility in America until the Negro is granted his citizenship rights."  

It is sometimes said that a text without a context is a pretext.  The context of Brown 53 years ago was that African American students were being denied an equal educational opportunity because whites were in charge of the money and schools.  As a result blacks were not receiving their fair share.  The hope and strategy of Brown was that by desegregating the public schools - putting black and white students together in one school - whites in charge of education would be forced to treat black and white students alike in order to save public education for their white children.  

Brown hasn't worked that way as African American and Hispanic students are increasingly being re-segregated and the education they receive is pushing most of them further behind.  They lack adequate and equitable funding based on a constitutional principle that would guarantee an equal high quality formula.  

With both sides on the Court appealing to Brown, maybe we should try a new approach that supersedes Brown.  

In Rodriguez (1971) the Supreme Court ruled that the Constitution does not grant a citizenship right to an education.  

But if we add an education amendment to the U.S. Constitution that guarantees a citizenship right to a public education of equal high quality, obligates Congress to structure and fund such a system, and forces the courts to deal with this specific language, then we will no longer be arguing over the rights of black and brown children, but over the right of every American student as a citizen - with the force of our highest law behind them - to be guaranteed an equal high quality public educational opportunity.

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