Milliken v Bradley, 1977 and Chemerinsky 2003

I have been asked to comment on a proposal for SCOTUS action based on the Chemerinsky 2003 article found in the North Carolina Law Review. Please note that while I am making some arguments, this essay is not to be cited. I still have friends and interests in certain activities and this essay’s citation would require a discussion with which I am not concerned. This essay is a vehicle for me to help organize some thoughts and a place to begin research on the issue at hand.

There is a call among some scholars for the Supreme Court of the United States to overturn Milliken v Bradley (1977) on the grounds that the requirement for proof of discriminatory intent places an undue burden on the plaintiffs instead requiring proof of discriminatory impact. I think this approach is inadequate and an imprecise reading of the Chemerinsky article.

It needs to be clarified at the outset that Chemerinsky, at least in this article, makes no call for Milliken’s overturning. The closest he comes is when he lists an alternative decision among a litany of other alternative decisions as things that would have caused a substantially less resegregated public school system. At no point is there an argument that reinterpreting Milliken would rectify the harms contributed to by the earlier decision. That genie has left the bottle and other facts presented in the Chemerinsky article prove this.

Chemerinsky finds Milliken irrelevant in Southern States, because it is easy for plaintiffs in those cases to demonstrate de jure segregation. The Milliken problem is in the northern states where state policies are discriminatory in their impact and not necessarily in their intent (a discriminatory housing policy may cause a segregated school district but because it is not an educational policy it is deemed to not intentionally cause a segregated school district.)

Chemerinsky’s discussion of more recent court decisions proves the ineffectualness of the proposed Milliken decision. Courts are no longer willing to issue new desegregation orders, even in the face of irrefutable proof of school resegregation. Milliken provides the court with a type of remedy to mandate upon school districts, but a lack of court willingness to even issue a desegregation order means the Milliken revision would do nothing. Chemerinsky discusses 3 cases that halt the issue of new orders; the Milliken revision would need to be accompanied by action on these precedents. Voluntary desegregation efforts fall under a different problem, one which was recently addressed in oral argument before the Supreme Court and the fate of which is still unknown.

Even if the court were to overcome a failing of the above plan and be able to order school districts to implement multi-district desegregation remedies, there are still some problems. The white flight problem is not entirely circumvented as there will be boundaries marking the limits of the interdistrict cooperation. A student in downtown Detroit cannot be bused to Ann Arbor because the drive would take too long. White flight would then still be a possibility, it just means the flight will go further out than just a single school district boundary.

Chemerinsky also tries to head off the private school argument. He contends people do not go to private schools to flee the desegregation efforts because they did not. Private schools account for 17% of status quo segregation (Chemerinsky cites a source which I have not investigated because of a lack of need.) Assuming this 17% figure is accurate we need to remember that it is a measure of white flight when there is a viable alternative (relocation to a suburb). If Chemerinsky is correct that Milliken overcomes the white flight possibility then the 17% would increase as private schools become more than they are in the status quo to those that do not want to be part of a desegregated school district. Overall, white flight would still be a problem which could easily mitigate a significant portion of any gains the Milliken revision might have accrued.

The ultimate limitation upon the judiciary to bring about social change is easily seen in this instance. People may be racist and want segregated schools and will act to make it happen. There are so many other decisions on the periphery of the issues at play in Milliken that actual enforcement will never happen without more comprehensive judicial revisions. An example would be the complicated school financing issue. Even if some districts cooperated to end segregation there would still be inequities in school financing which can cause the very ills desegregation is supposed to resolve.

One possible action Chemerinsky does advocate however needs to be discussed. I am curious how after reading this article someone can contend it argues for a change in the burden required by Milliken. What there is a call for is to recast education as a fundamental right. The court found in these education cases that a strict scrutiny standard is inappropriate because there is neither a suspect classification at work (the poor is not a suspect class) nor a violation of a fundamental right. Chemerinsky hints that the solution lies in getting to the strict scrutiny standard.

I do not want to argue that education is not a fundamental right, but Chemerinsky is right about why the court does not make that determination: because then there would be an increase in burdens placed on the government. Recasting education as such would force a heightened standard and arguably one that would cause Milliken and the other cases mentioned above to be recast. This is the appropriate mechanism for action on Milliken and the better reading of the 2003 Chemerinsky article. While this solution would open a whole new can of worms, it is the only possible action on Milliken alone that can overcome the deficiencies I have illustrated with the limited Milliken ruling.

This is a diverse and interesting body of literature and I am surprised someone has decided to make a call for SCOTUS action based upon this one article. It is even further disconcerting that the reading of this single article is a poor reading and too simplistic for the complexity at work.

Conolly 2002

Ther Iraq Study Group presents an interesting problem for American foreign policy. Clearly there are questions about if Bush will follow the recommendations and how so. There is also an interesting question about qualifications, some saying the ISG proves the current Republicans are immature and incompetent, whereas the old guard still possess erudite qualities.

But there is another question that needs to be pressed to this scenario, and it is one easily confused with the first question I highlighted. What will Bush do? But I am not concerned (not here, at least) about the political calculations involved. I am instead more concerned with Bush’s resistance to the ISG and how it will effect the political decisions sure to follow.

There is an Oedipal connection to be explored as Bush measures the recommendations from key members of his father’s foreign policy apparatus (most notably James Baker.) William Conolly (2002. The Augustinian imperative. NY: Rowan & Littelfield Publishers, Inc. pp. 52-3.) provides in the passage below and exploration of the difficulty of actually doing what one knows she ought to do. This passage contains some block quotations itself from Augustine, so the formatting may seem off. I am also going to bold portions of the passage to further bring out what I think are the most important parts. None of the bolding is Conolly’s.

As Augustine confesses the sins of his past and the problem of evil he is moved to ponder the character of human will. The confession here parallels the confession of memory. Augustine finds that he has done things he did not will and has willed things he did not do. This leads him to suspect that the source of evil and human suffering resides deeply within the will itself, in the very structure of human will and desire. [Begin Conolly's block quotation of Augustine]

Why should it be? Mind commands body, and it obeys forthwith. Mind gives orders to itself, and it is resisted. Mind gives orders for the hand to move, and so easy is it that command can scarcely be distinguished from execution. Yet mind is mind, while hand is body. Mind commands mind to will: there is no difference here, but it does not do so. Whence comes this monstrous state? Why should it be?

[End Conolly's block quotation] Augustine is not worried about the mind/body problem that has perplexed Western thought at least since a mechanistic conception of nature became popular in the 17th century. This is not a Cartesian question about how the mind interacts with the body. For that relation is pretty reliable: “Mind gives orders for the hand to move, and…command can scarcely be distinguished from execution.” Augustine is concerned about a mind/mind problem, about a perplexity or dissonance interior to the will itself. You will not to invite your attractive friend for a late drink, but the words crawl out of your mouth anyway. Augustine wills to be continent, but he is incontinent. His friend, Alypius, wills to forgo the violent blood of the circus, but under the prodding of friends he sinks into it again. The question is not whether those acts are okay despite the values of those who resist them, but why one does the thing one wills not to do once one has willed not to do it.

The answer, for Augustine, is not that the body overwhelms the will or that the will is in combat with dark forces that sometimes overmatch it. The first answer would take him too close to Platonic paganism and the second too close to the heresy of Manicheanism. The source of the conflict must therefore be a division within the will itself. [Begin Conolly's block quotation of Augustine]

It does not will it in its entirety: for this reason it does not give this command in its entirety. For it commands a thing only in so far as it wills it, and in so far as what it commands is not done, to that extent it does not will it…But the complete will does not give the command and therefore what it commands is not in being.

I hope this passage helps us understand a reason why things go wrong. It is especially helpful for why things may go wrong in the worst possible places for them to go wrong: Iraq. Maybe the abuses US soldiers are accused of are not a failing of leadership or even training. Instead they may be the inevitable outcome of placing people in situations predicated on violence and death. Maybe the insurgents are merely acting out this mind/mind problem and there is nothing the US can do to ease the problem.

I find it unlikely that Iraq is a hodgepodge of forces that can be identified and dealt with. There are things at work we may never understand and while some may call that life, given the circumstances in Iraq we instead call it death. This is a sobering possibility and one that right now is too abstract to provide an ethic for dealing with Iraq, but with time and work maybe Augustinian insights can provide some help and relief. Everyone sees the status quo and asks the same question: why should it be?

Resistance

There is an old newspaper account of a mass execution in 1922 of some Greek leaders after a failure in a military campaign against Turkey. The Greeks were brought into a courtyard and one of them was very ill, barely able to walk to the execution site. Supposedly, this one man was unable to stand for his execution and despite efforts to stand him up, the executioners decided to shoot him with his head on his knees. This account is somewhat misleading.

People interpret this as the man being very ill, but why is that necessarily the case? Could it also be that the man was resisting. If he is about to be killed, why make it any easier on his executioners? Why allow them to think there is a dignity in the process? Maybe the scene was filled with the dignity of a Picasso, a scene rife with challenges and hegemonic forces encountering their own resistances.