Civil Rights and the Supreme Court

0:00Okay, well, I think we're all familiar with, or we may be familiar with, this Plessy v. Ferguson case from about 1896, which establishes the separate but equal principle. What was before the Court was the issue of whether the 14th Amendment to the Constitution, in fact, prohibited racial segregation. And the argument was that the 14th Amendment called for the extension of the equal protection of the laws to people in the states. and the Court came to the conclusion that nobody who drafted the 14th Amendment seriously imagined that it prohibited segregation, so that as long as the segregated facilities were in some sense equal, then the 14th Amendment requirement of the equal protection of the laws was satisfied, hence the doctrine of separate but equal.

0:51And today there's nothing more fashionable than to condemn that decision, and you may have good reasons to condemn it, But strictly from the constitutional point of view, I mean, that was what the 14th Amendment drafters obviously believed. The drafters of the 14th Amendment, the same people who voted to ratify or to approve the 14th Amendment in Congress, also voted to establish segregated schooling in the District of Columbia. They obviously did not believe that it was incompatible with segregation. So just being honest about it, if you just want to be honest, that does seem to be the constitutional doctrine. Brown vs. Board of Education

1:56In this decision, the justices clearly wanted to overturn the principle established in the Plessy case. They wanted to overturn separate but equal, but they felt constrained by the history of the Fourteenth Amendment. It did seem clear that the 14th Amendment did not in and of itself prohibit segregation. So they had to reckon with that. They didn't simply want to seem to just depart entirely altogether from Plessy because the Supreme Court at least at that time had some sense that it needed to rule in accordance with prior tradition.

2:44So they had to think of some way out of this and the way they managed to do it was they They came to the conclusion that modern sociological and psychological data that had been unavailable to the justices at the time of Plessey concluded that separate educational facilities were inherently unequal, that no matter what you did they would always be unequal because they instilled in black students a sense of inferiority and that would impair their ability to succeed in life from that point on in their career endeavors and so on and so forth and so you You couldn't have separate but equal educational facilities. If they were separate, then they were in and of themselves unequal. And this way they could claim that they weren't really going against Plessy.

3:30They were simply acting on new information that had been unavailable to the Plessy court. And so by a unanimous decision, they established that the segregation of schools by law was was not constitutionally acceptable and that the desegregation of the schools had to commence. A key piece of evidence that was used to support the idea that segregated schools, in fact, encouraged low self-esteem in black students were the famous Kenneth Clark doll studies. Kenneth Clark was a psychologist who had done some studies in which he would show dolls, He sent a black doll and a white doll to students, to black students and asked them which one they found more attractive, they identified with more, and he found that in the segregated schools of the South that the black students were choosing the white doll, and he felt that this was an example of how segregation had sort of alienated these students from their own people, that they would identify with the doll of another race.

4:36This was seriously advanced as evidence. Well, what Clark chose not to disclose was that when he had performed the same studies in the North, where you had more, at least somewhat more racial integration, and when he went to integrated schools in the North, he found that those black students were even more likely to choose the white doll. So by his logic, they had even less self-esteem in the desegregated schools. So the studies were of, shall we say, dubious merit. I quote in the book, as you may have noticed, that even a lawyer for the NAACP admitted later, in reference to the Kenneth Clark Dahl studies, he said, quote, I may have used the word crap to describe them. But nevertheless, that was the modern authority that was cited and that had enough strength to overturn the precedent in Plessy.

5:28Well, this decision really astonished a lot of people and it inspired a lot of lawyers and activist judges because they came to the conclusion that if the Supreme Court could get away with this, just with a sheer exercise of will, with no legal authority behind them, no precedent behind them, they could just carry this through, well, then it seemed to a lot of budding young lawyers and judges Eugen von Mises, Murray Rothbard, Friedrich Hayek, Eugen von Boehm-Bawerk, Jean-Baptiste Say, Frederic Bastiat, Israel Kirzner, Hans-Hermann Hoppe, Roger Garrison, Hans-Hermann Hoppe, Lew Rockwell, Roger Garrison, Mises Institute, Austrian School, Praxeology, catallactics, malinvestment, entrepreneurship, marginal utility, Human Action, Man Economy and State, The Theory of Money and Credit

6:25It's interesting to note, by the way, that the key issue in Brown was the idea that children of tender years could be irreparably harmed psychologically by the mere fact of being educated in separate facilities. But following the Brown ruling, legal challenges reached the Supreme Court with regard to segregated courtrooms, beaches, golf courses and parks, where the rationale in Brown obviously did not apply. But the Court reflexively ruled these examples of segregation also to be unconstitutional, with nothing more to substantiate its decisions than a citation of Brown.

7:14So whatever social outcome members of the court consider desirable could be brought about by a judicial fiat. And this did not alarm many people at the time because this seemed to be so obviously the morally correct decision that no one considered the possibility that perhaps the Supreme Court someday may hand down rulings that they didn't like that were based on essentially nothing more than the justices own personal opinions. Well, following the Brown decision then, 14 years later, comes this Green decision. Brown and Green, Green versus County School Board of New Kent County, this is a case in Virginia, deals with circumstances there. And this is interesting because here we see somewhat of a different opinion from the one reached in Brown.

8:00Brown is saying that you can't consider race when assigning students to schools. Green is arguing that you have to be obsessed with race when assigning students to schools. Brown was what we might call a desegregation decision, whereas Green is an integration decision. Because the circumstances were that you had two schools in this county, you had a white school and a black school, and that in the wake of the Brown decision, it had been decided that anybody could go to whatever school he wanted, There's a free choice plan introduced, but that in fact, none of the white students chose to go to the black school and a very small fraction of the black students chose to go to the white school. So in practice, they remained, in effect, a white and a black school. But it seemed to best anyone could tell that the people of this county had conformed, their plan conformed to the requirements and demands of Brown because nobody was forced to go to a particular school.

8:58The Theory of Money and Credit

9:28That principle held in the case of schools, but the court decided that it did not. That in fact, yes, Virginia and anybody else in this county in Virginia was free to come up with whatever plan they wanted to to desegregate the schools, as long as the outcome was the one that the court wanted. As long as you can do it any way you want, as long as the result is that blacks and whites are mixed. So it was not simply a matter of everybody has the opportunity to go to the school they want. The results have to be a certain way, the results have to be racial mixture. So some people have said that green represents a substantial departure from the precedent of brown, because brown had been colorblind, whereas green is saying you've got to assign people, you've got to make sure there is racial mixture, and you've got to make sure there are enough of this group and that group together.

10:17But you could just as easily argue that green in fact follows logically from the logic in brown, Because Brown had said that what is it that makes segregated schooling unequal? It's the fact that black students do not have the opportunity to study with white students. It imbues them with a sense of inferiority. So it's the lack of white students in the black schools that's making them unequal. So therefore, the logical result seems to be in green. Therefore, we've got to do whatever we have to do to bring white students into those schools. It does seem, in fact, to follow from that logic. Then a few years later, in the early 70s, you get the cases of both the Swan case, which is sometimes called the Charmec case, because it's Charlotte Mecklenburg in North Carolina, and then the Keys case, which is the North in Denver, Colorado.

11:07The Swann case makes clear that the federal government, the federal courts are saying that it's legitimate to have forced busing schemes to establish racial balance in the schools. And so you had situations where students were being bused as much as up to an hour to an hour and a half one way, not even round trip, so as to satisfy some racial balancing requirement. and in my book I go into details about what happened in Boston where you had a basically a war zone in the schools because of the way an entire grade levels and the entire 11th grade was just sent to some school you know halfway across the city and vice versa this did not in fact lead to a big love fest among everybody to some to everyone's amazement in fact it led to more tension than ever of course and in fact even black parents only a slim majority of whom had favored these busing schemes The Keyes decision made clear that even if your school had not officially discriminated in the past, the federal government could still impose busing on your community if necessary to bring about racial balance, so no one in the country was exempt from these busings.

12:33Busing Schemes Well, I think it's worth considering what were the effects of these plans on black educational performance, right? I mean, we would at least have the right to expect after literally billions of dollars spent on busing schemes and communities disrupted and uprooted and racial chaos all over the place and violence that at least There's some good news to report in terms of educational performance. Well, I want to begin this part of the discussion by noting that the social science literature, well before the Brown v. Board of Education decision, had sprinkled throughout something called the harm and benefit thesis.

13:20The harm and benefit thesis went something like this. Desegregation instills a sense of inferiority in blacks, damages their self-esteem and harms their academic performance. But desegregation, in addition to raising black self-esteem and educational achievement, would also have the benefit of reducing white prejudice against blacks, because whites would be able to observe the behavior and character traits of blacks for themselves, unmediated by stereotypes and ignorance. So in 1966 it turns out that the Department of Health, Education and Welfare released a study whose major conclusions were radically at odds with this harm and benefit thesis. It became known as the Coleman Report. James Coleman was the sociologist who led the group of scholars who prepared this report.

14:08And it found that contrary to the general impression, black and white schools at that time were roughly similar in expenditures, physical plant and other resources, and that any differences between them were as likely to favor the black school as the white. But the report also argued that black academic achievement, which was well below that of whites, could not be accounted for by any small differences that might still exist between white and black schools. That it was much more strongly correlated with the socio-economic background of a student's family. Well, that was not exactly what academics and politicians wanted to hear. So they ignored the Coleman Report and put much more stock in a report the next year by the US Commission on Civil Rights called Racial Isolation in the Public Schools.

14:55This report took the harm and benefit thesis to a new level. It was no longer just schools segregated by law that made blacks feel inferior. It was, according to this report, racially segregated schools in and of themselves, regardless of whether the segregation was mandated by law by Law, or was the innocent outcome of racially segregated housing patterns? That these schools harmed the self-esteem of minority students, whether or not this segregation was by law and were a contributing factor to their poor educational performance, and that became the conventional wisdom. By the 1990s though, proponents of this thesis were severely chastened and in retreat. Billions of dollars had been spent by the 90s, countless neighborhoods had been ruined, mandated busing schemes were the order of the day, and racial strife in the schools were as likely to have been aggravated as alleviated by these forced racial mixture programs.

15:55And black educational performance was still quite poor, so it became necessary to modify these assumptions. Now the story was that desegregation could only have these good effects if it was accompanied by a host of other changes. So, for instance, now it was alleged that we needed culturally sensitive textbooks. We needed the relaxation of disciplinary measures in order to take into account cultural differences between blacks and whites. We needed to abolish heterogeneous grouping or ability tracking, which meant that it used to be the case that students of a certain skill level were assigned to one class and a lower skill level to another and so on and on. But it was argued that this also hurts black self-esteem, so we can't have any ability tracking. Everybody, regardless of ability, should be heterogeneously mixed.

16:45Well, the statistics have not been heartening. The National Assessment of Educational Progress from a few years ago found that the average black student who is about to complete his senior year of high school performs at a slightly lower level than the average white eighth So that is, black students four years higher are slightly lower than the average white eighth grader in reading and American history, after all this stuff has been done, and far below the average white eighth grader in math and geometry, and I've got the statistics here, only 3% of black students could demonstrate more than a partial mastery of the fundamental skills necessary for proficient work in 12th grade mathematics, for whites the figure was 7 to 10 times higher.

17:31While 3.4% of white students were ranked as advanced in science and 2.2% in mathematics, the corresponding figures for black students were 0.1% and 0.2% respectively. From the 1970s through the late 1990s, which is the period that this data illuminates for us, the story has been one of overall stagnation, with the exception of reading scores, which show blacks improving from the 10th to the 23rd percentile. Now although some black progress was evident until around 1990 those gains have been completely erased by 1999 for reasons that are not altogether clear. During a period in which school class size has dropped and spending has gone up, particularly spending directed toward the least advantaged, black performance in math has slid back to its 1978 level.

18:21The numbers in science show blacks averaging in the eighth percentile in 1977 and the tenth in 1999. On the Math SAT, only 700 black students in the entire country scored above 700 in the year 2001, while over 16,000 Asian-American students did so in spite of being substantially outnumbered by blacks. The racial disparity in achievement and skill level is evident even in the earliest years. In the earliest years, the National Center for Educational Statistics found that blacks entering kindergarten were already disproportionately testing in the bottom quarter of students in reading, math and general knowledge. Between one-third and one-half of black students tested that low in the various subjects as compared to about one-sixth of whites.

19:08Two years later, when the same students were tested again, the black-white gap was unchanged. Behavioral differences are also evident that early and persist into the future. On average, black students are much less likely than whites to be described by kindergarten teachers as attentive, eager to learn and persistent in carrying out assigned tasks, and more likely to be described as argumentative, quick-tempered and violent. These discipline disparities persist over time. Later in life, blacks are two and a half times as likely to be suspended or expelled from school as whites. Faced with statistics like these, the so-called civil rights groups typically accuse white teachers of arbitrarily singling out blacks for punishment. But to the contrary, black teachers have been found to be even more critical of black students than white teachers are.

19:58Moreover, Asian students are less than half as likely as whites to be suspended or expelled. Are we seriously to believe that an anti-white, pro-Asian bias permeates the American educational system? Educational disparities between the races persist even when social class is taken into account. Now, it's true that students from higher socioeconomic backgrounds do better than students from lower ones, but since this phenomenon is true for blacks and whites alike, the racial gap between them becomes only marginally smaller as we compare blacks and whites from similar backgrounds. For example, Shaker Heights, Ohio, as an example is often cited, is an affluent Cleveland suburb. Its black residents are slightly below their white counterparts in education and income levels, but they're nevertheless roughly comparable to their white neighbors.

20:48The high school spends 50% more per pupil than the national average, and the racial gap in achievement persists there. The Thurnstrom, Stefan and Abigail Thurnstrom are two accomplished scholars in the area of race. Stefan Thurnstrom was my professor at Harvard in courses on race and social history, History, and they run down the statistics for Shaker Heights. For one thing, even though the school makes a special effort to urge black students to take advanced placement courses, students can take whatever courses they want regardless of test scores or past grades, only 30% of black students do compared with 87% of whites. Two-thirds of the city's blacks failed at least one of Ohio's state proficiency tests in 1999 and 2000, whereas says the same was true of only one sixth of whites, and while over half the white students passed the tests with honors, only four percent of blacks did. That number was no higher than the statewide average for African Americans despite the fact that the income and educational

21:48levels of black families in Shaker Heights were far above those for blacks in Ohio as a whole and their children were attending integrated schools that were regarded as among the best in the state. While various explanations have been advanced to account for these discrepancies, among them the much greater prevalence of single parent families in the black community than among whites or Asians, as well as cultural differences between racial groups, reflected for example in parents' expectations of children, emphasis on academic achievement and other factors. These points are typically ignored, but there is for example a study that asked students Students from various races, what grade would you have to get before you get in trouble with your parents? On average, Asian students responded that anything below an A-minus was liable to get them a lecture from their parents. For whites, the threshold was B-minus. But blacks and Hispanics reported that they got into trouble only for grades below C-minus.

22:48Well, you have the occasional renegade black intellectual like Shelby Steele or John McWhorter or Bill Cosby, who identifies this as a problem that the black community has to address but the black establishment has become so hostile to obvious observations like these that we have actually reached a point at which it's considered newsworthy, even courageous, when a prominent member of the black community simply steps forward and states the obvious. Well even in light of all this, there are some activists who have tried to hold out hope that we have in fact found a formula for at least partially reducing the black-white Black-White Gap, Desegregation. As we've seen, some progress was made in narrowing the black-white gap until about 1990.

23:33And since the 20-year period from 1968 to about 1988 saw a greater increase in the proportion of desegregated black students than any other two consecutive decades, it's been easy to attribute these happy results to desegregation itself. But the statistics refuse to support that explanation. In 1975 and 1988, the years of the greatest black improvement, black thirteen year olds in predominantly minority schools achieved essentially the same gains in reading scores as their counterparts in majority white schools, in the integrated schools. Blacks in predominantly minority schools actually gained ten points more in math than blacks in majority white schools. Other age groups show similar results. David Armour, for example, reports that during For the same period, age 9 blacks in segregated schools gained 12 points in reading and 17 points in math, compared with 11 points and 16 points respectively for blacks in desegregated schools.

24:30For age 17 blacks, those in segregated schools gained 34 points in reading and 22 points in math, compared to 21 and 17 points respectively for those in desegregated schools. So what this meant in terms of overall results was that by 1990 there was a difference of only a few points in the reading and math scores of blacks in de facto segregated schools versus those in desegregated schools and hardly any measurable difference at all in the scores of black 17 year olds. So where after all these years is the harm and benefit thesis on the basis of which black and white communities alike were turned upside down by federal judges, where does that thesis now stand? After a thorough review of the existing scholarship on the issue, David Armour observes that no major component of the thesis receives unequivocal support from the available evidence.

25:22Well, I don't need to tell you that none of that information is considered newsworthy enough to be reported basically anywhere. Well, beyond these educational cases, we then have the Civil Rights Act of 1964, which is of course a legislative rather than a judicial act, that prohibited segregation in government facilities and in private facilities catering to the public, such as hotels and restaurants. It also prohibited employment discrimination. Now, it's interesting that at the time that it was passed, there is in Title VII there, it does say that this act does not in any way require employers to hire according to a fixed quota. Well, as the Supreme Court began to rule on the Civil Rights Act, however, it turns out that the Civil Rights Act meant something other than what the text of the Act actually said it meant.

26:23For instance, the Civil Rights Act made clear that discrimination is an intentional act. Act. You cannot be guilty of discrimination if you do it unconsciously, for instance. If you do it, like let's say you have an intelligence test and you say everybody who's going to be promoted in this company must pass this intelligence test. And let's say more whites than blacks pass the intelligence test, you would not under the wording of the Civil Rights Act be considered guilty of discrimination because you're basing the issue, you're basing Well, as the Supreme Court got its hand into this, it turned out that the reality was much different. This Griggs v. Duke Power Company case from the early 1970s found Duke Power Company guilty of discrimination because they were basing their promotion decisions on whether or not the candidate had a high school diploma or passed an intelligence test.

27:20and the court found that since more proportionately more whites passed the intelligence test or had high school diplomas than blacks that this was actually an insidious form of discrimination that was illegal and Duke Power Company could be punished for engaging in it. Now it's interesting that the court admitted that it did not believe that the Duke Power Company was actively and on purpose discriminating against blacks by instituting these criteria. They actually believe that Duke Power Company was a goodwill employer that did not in fact have any negative intentions, any hostile intentions toward blacks, but nevertheless, they were still guilty, regardless of the fact they hadn't intended to do this, they were guilty of discrimination, because their employment criteria had what was called disparate impact, because it impacted one race differently from how it impacted others.

28:16And so it became the principle from now on that employers could not have employment criteria that had a disparate impact on the races. So that it became illegal from this point on for an employer to ask whether you had a high school diploma, whether you had a dishonorable military discharge, whether you were prone, like for example a farmer could not even ask somebody a farm hand. If you were prone to back injuries, which is a good question, because obviously when you're farming, you might be liable to throw your back out, because blacks are more likely to have back injuries. So that was a, that was disparate impact as well. Now you may be thinking, well, I know for a fact there are employers that ask if you have a high school diploma.

29:02Well, it's true that there are such employers, but those employers are prepared to go to court and justify their employment criteria and say, look, we need people to have high school diplomas for these specific reasons. If you can't come up with specific reasons for why people need a high school diploma, then you can be cited for discrimination. And, you know, a lot of employers don't really want to be dragged into court and forced to justify their employment criteria. Half the time they don't have a specific reason. They just say, well, I don't know, it proves that people can complete tasks and they're responsible. But if you don't have a specific reason, you can be called to account for this, for alleged discrimination. Perhaps the best known of these cases is the Bakke case from the mid-70s, which involves 76 or 77, which involves a gentleman who was applying to medical school in the University of California system and he was turned down even though he had excellent grades, a very good grade point average, and what upset Bakke was the fact that there was in effect a minority set-aside program in the University of California

30:12California Medical School, this was a set-aside program in which no white had ever been admitted, so it's obviously a minority set-aside program, and Bakke argued that he had better scores than everybody in that whole program, that he had an average A-, A- average for his grades, they had a C+, for example, I mean it wasn't even close, and affirmative action of course This is always cited to us as these are cases supposedly where we're just giving a slight leg up to a disadvantaged group. But as usual, affirmative action always means huge advantages given to politically preferred groups. And the Bakke case was no exception. It turned out, for example, that on the MCAT, the medical school admission test, Bakke had excellent scores.

31:04For example, there were four portions of the test and he was in the 96th percentile in the first portion, then 94th, 97th and 72nd. The admittees under the quota program were scored in the 34th percentile, 30th percentile, 37th percentile and then 18th percentile. Now one of my friends who is a professor in Connecticut asks the legitimate question, what What if you learned that your physician had scored in the 18th percentile from the bottom on one of the MCAT sections? I mean, would that affect your choice of physician? And he asked the question, if a score in the 18th percentile does not lack, does not represent a lack of qualification, what would the 12th percentile, the 10th? And again, this is the The average score of the people admitted in the mid-1970s under this affirmative action program, this was the average score, which means some of them scored lower than the 18th percentile and were still being admitted.

32:08So it's not even in the ballpark. It's not that, well, there are a few points lower and let's give them a break. Not even in the ballpark. And so Bakke said, look, this is an institution that's receiving government money, So I have the right to equal protection under the law and so I demand that I be admitted to the school. And the court in a five to four decision came up with a very odd answer. They came to the conclusion that yes, Bakke should be admitted. He should go on and be admitted to medical school. But they argued that on the margin race could still be employed as a criterion. Well, this is obviously not on the margin. I mean, this is a huge, there's a vast gap here that's going on.

32:55But the Bakke case basically made clear that the Supreme Court was not in any way going to interfere with these type of set-aside programs. And I actually note, again, in my book, the case of one of the doctors who was admitted under this program program, ended up being a quack who had to have his medical license taken away and who was responsible for the deaths of several of his patients. He actually hid one of the bodies in his home for more than a day before he figured out what to do with it. And this was a guy who had been touted by Ted Kennedy and all these people. What a wonderful example. Look at this guy, he's a wonderful doctor, shame on all you people who are opposed to affirmative action. And then when it turned out that he was a quack who killed several patients, we didn't Well, finally, the Weber case is a case involving a steel worker who was passed over for a promotion, even though a member of minority groups who were employed by his employer were getting these promotions ahead of him, and he had more seniority and qualifications, and so he was convinced that they weren't allowed to do this, that he went back to the Civil Rights Act and said that nothing in here suggests that people should be allowed to do this.

34:09The Supreme Court found that no, he doesn't, that the employer is at liberty to do this, and the argument was that Weber was reading the Civil Rights Act too literally. He was reading the words of the Act, and what he should be reading was the spirit of the Act. The spirit of the Act was intended to help blacks, basically. And so this program helps blacks, so it's okay. And if you're reading that section of the Civil Rights Act, it's okay. of the Act was intended to help blacks, basically, and so this program helps blacks, so it's okay. And if you're reading that section that says no quota system should be established, you're really, you know, you're not really getting it, you know, you're not getting the spirit of things. And thank goodness we've got nine lifetime appointed lawyers who are going to tell you what the spirit of the act means. So that was the case with Weber. Now some people have tried to argue that, you know, these minority set-aside programs

34:59are not really such a bad thing and they're acceptable even on libertarian grounds because they're done voluntarily by private employers. But that argument doesn't work because if the employer doesn't engage in programs like this and let's say he's got only 3 or 4% of his workforce belong to minority groups but the surrounding population is let's say 20% minority, he's going to be sued. The Justice Department is going to come down on him. So it's in no way voluntary to engage in a program in the absence of which you would be hauled into court and have your business ruined. I have a friend, I'll close with this, I have a friend in Texas whose father runs an office supply wholesale company and they've got a largely white workforce, but it's not because of malice on his part or that he thinks it's a good use of his time to spend time thinking, How can I be mean to blacks for no reason?

35:53It just so happens that these are the people he's hired. So every year he gets a call from the local NAACP asking how much would he like to contribute to the big banquet they're having this year? And everybody knows what that means. How much would you like us to pay us to shut up about the fact that we don't think you've employed enough blacks? And this type of shakedown goes on every day. Jesse Jackson drives a very nice car, he's made a very good living shaking down banks, What can you do other than go along with it, because basically what you're going to have is a case heard in a kangaroo court that you couldn't possibly win. I mean, you'd basically have a better chance in one of Stalin's show trials than you would in a discrimination case in the US.