John Payton Visits W&M ACS

On November 12, over fifty students crowded into room 124 to hear John Payton, a partner at the D.C. law firm of Wilmer Hale. Payton’s talk was on the new races cases and the legacy of Brown v. Board of Education, and he led of by stating that he intended to be provocative.

In the two races cases from Louisville and Seattle, the Court held that the voluntary public school integration plans were unconstitutional. But, according to Payton, these decisions were about something larger. In handing down the opinions, Chief Justice Roberts ended his opinion with a flourish, by invoking the heritage of Brown: “no matter what positives, no use of race should be tolerated.” Roberts referred distinctly to the arguments by plaintiffs’ counsel in Brown, but, posed Payton, would plaintiffs’ counsel from Brown have agreed with the new chief justice?

Indeed, the larger issue underlying the decisions in Seattle and Louisville was the legacy of Brown. When Brown was decided, widespread opposition existed and indeed, claims abounded that the entire Southern way of life was threatened. But the decision in Brown was not just about school integration, but also the meaning of the 14th Amendment and the requirements of democracy; it was about white supremacy and oppression, from a time not recognizable today.
In reading Warren’s opinion in Brown, no mention is made of white supremacy, but the opinion only makes sense in the context of white supremacy. The question at issue in Brown was: does segregation of children only because of race with all else equal deprive children of equal education opportunities. Without the concept of white supremacy, the answer “yes” makes no sense.

If everything is equal, then there is no inequality. But Brown was operating inside the context of white supremacy. In that context, separate but equal was no different than Orwell’s “war is peace.” It simply cannot exist if white is always better.

When Chief Justice Roberts quoted from Brown, he stripped the quotes of any of their meaning. Roberts’ belief that Brown was about a color-blind world eliminates the entire democracy argument that was at issue. When the phrase “we the people” was written, it included no women and no minorities. But, according to Payton, democracy requires that all be included and that people must see each other as equals, even though they aren’t all the same. With respect to what happens in democracy, there must be some sense of being a peer; there must be acceptance and understanding of differences, as peers in a shared enterprise.

The Court’s decisions in Bakke and Grutter rely on and expand this democracy principle. In Bakke, Justice Powell linked racial diversity and the democracy element. In Grutter, Justice O’Conner took Powell’s language to further reinforce the link between diversity and democracy; that diversity was essential to maintaining the fabric of society.

With that said, according to Payton, where are we today. First, we are in a far better place. But white supremacy has not yet been relegated to the dust bin of history. People today often say that the elephant in the room is race. This is not necessarily true. The elephant is the negative connotation placed on race. All these connotations are based on history and learned behavior. But social science research has shown that different learned behavior is developed by having kids sit next to kids of different races and cultures. They don’t have to unlearn negative connotations because they never learn those connotations.

However, this is a problem not easily solved. Some schools in the Brown-era didn’t change for years. Things today will not automatically fix themselves, especially those ideas deeply ingrained in our culture. We cannot just fix a problem and consider it done. This is especially true in our society where political issues like affirmative action are especially contentious, because they make us think of race as a zero-sum game, where someone gets in and someone gets out.

But when we talk about K-12 schools and voluntary integration, the situation is no longer a zero-sum game because where will second-graders go other than to third-grade. This is distinct from the college cases, because here the question is: is there value in integration? These cases are about the democracy principle, but it’s interesting to note that in the Grutter case, where a zero-sum system existed, the use of race was found constitutional. But in Louisville and Seattle, where no zero-sum system exists, the use of race was held unconstitutional.

Unfortunately, says Payton, we’ve become more separated by race than anyone thought we would be. Black segregated schools were almost always educationally inferior, but this was nowhere like today with the quality of education. Black and Latino boys drop out in higher and higher numbers, and race continues further into family issues and criminal justice issues.

This all undermines our ability to see ourselves as peers. It threatens to unravel the larger view on how integration is the glue that holds us together. Solving the problems of K-12 is the largest issue in our lifetime. Before, tons of jobs existed for people with limited education. But today, we don’t have jobs like that anymore. The consequences of not graduating today is to go into economic oblivion, thus education, more than anything else, is a fundamental building block of democracy.

According to Payton, to think of Brown as only color-blindness is to become blind to the underpinnings of democracy and the history of our nation. We must ensure a quality education for children that will allow us to see each other as peers, and the programs in Louisville and Seattle were meant for this purpose. But most importantly, we must hold on to the true legacy of Brown.

Published in: on November 26, 2007 at 7:02 pm Comments Off on John Payton Visits W&M ACS

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