[eDebate] FWD: Brown, Affirmative Action & 'overturning' SC decisions

Steve Mancuso spmancuso
Wed May 24 10:11:04 CDT 2006

David Breshears asked me to post this for him:

  Brown v. Board of Education is all but dead.? The Court has abandoned 
all pretenses of enforcing desegregation orders, and school districts 
across the country are resegregating.? Busing programs have been 
abandoned, majority minority schools have been (re)created, and all of 
this has been accomplished without overturning Brown.?

  I don't think most people realize how rare an actual overturning of 
past precedent occurs.? For example, y'all do realize that Brown v. 
Board of Education did not actually overturn Plessy v. Ferguson, 
right?? Plessy is still technically "good law," except insofar as it is 
contradicted by the ruling in Brown.? Not the same as being 
overturned.? Similarly, the Court will allow  the resegregation of 
society along racial lines, and is in fact doing just that right now, 
but they will do so without touching Brown.? In spite of its practical 
irrelevance, the Brown decision still holds some symbolic value, as 
evidenced by Dr. Warner's citation of the numerous homages & tributes 
that marked the occasion of its fiftieth anniversary a few years back.? 
Still, for all that, the decision is largely moribund.

  America's educational system is more segregated now than at any time 
during the past half century.? Ironically, schools in the South are 
slightly more likely to be desegregated than those in the North, but 
even this is starting to change.? In the wake of Milliken v. Bradley, 
Missouri v. Jenkins, Board of Ed. OKC v. Dowell, etc., the educational 
desegregation project has come to a close.? I'm not sure if this helps 
or hurts Dr. Warner's suggestion that overturning Brown be considered 
by the topic  committee, but it's a fact that needs to be considered.

  As far as affirmative action goes, and I haven't followed the 
discussion on eDebate at all, so my apologies if this is redundant, but 
overturning any of the recent SC decisions regarding affirmative action 
would create a bidirectional topic.? The majority opinions in each of 
these cases recognized the possibility of an affirmative action program 
that passed strict scrutiny, but invalidated each specific instance 
under consideration as not sufficiently narrowly tailored to pass 
muster.? So, overturning Grutter or Gratz could entail abandoning the 
strict scrutiny test (no more strict scrutiny for "reverse" 
discrimination), thus allowing broad-based affirmative action, or 
rejecting the idea that any program could pass such a test, thus 
eliminating any race-based affirmative action.? Again, apologies if 
this is redundant, but I have no intention of reading through all the 
aff  action posts just to see if this point has already been made.


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