Does Brown v. Board of Education constitute the Supreme Court’s one free pass? *UPDATED*

Don Quixote and I had a very interesting conversation yesterday about the libertarian way to change societal evils. I don’t recall how the conversation wandered over to that topic, but it seems to me it started with a chance reference to a very well known incident in California in the late 1970s.

Back then, a landlady made headlines when she refused to rent one of her apartments to an unmarried couple, since she believed to do so would condone a sin.  (And yes, it is hard to believe that such an antiquated notion was still prevalent in certain quarters as little as thirty-odd years ago.)  I cannot remember if the matter was resolved by judicial fiat or legislation, but resolved it was — and against the landlady’s religious preferences.

The libertarian way to deal with the situation, of course, would have been to let the market decide which way housing should go.  If there were enough unmarried couples seeking housing, the landlady would either have abandoned her principles in favor of profit, or ridden off into the sunset, proud and broke.  As it was, government threats, rather than the profit motive, bullied the landlady into the Hobson’s choice of eschewing her beliefs or abandoning her home.  There’s a crude, high speed bullying to the latter force, that is absent when the market shifts organically.

But what, I asked Don Quixote, can one do when society condones a something that is absolutely wrong?  Of course, nowadays wrong is a fuzzy concept.  In this day and age, short of abasing himself on the floor and giving away all his money, everything the average white male does is wrong.  Rather than get into that mess, I wanted to treat the discussion in a pure, abstract way.  Both DQ and I therefore scoured our brains for a big wrong in the modern era.  We simultaneously came up with the same thing:  the way in which the Jim Crow South denied blacks their rights.

In a perfect libertarian world, two forces would have converged on the Jim Crow South, forcing a change in those bad racist habits.  First, blacks would have left en masse and second, the disapproval of the rest of the United States would have weighed heavily on the South.

Both of those things did happen, of course.  There was a huge black exodus from south to north, spanning the first half of the 20th Century.  Detroit, Chicago and Philadelphia, among other cities, were flooded by Southern blacks.  But a whole bunch of blacks remained in the South — more than enough to suffer the indignities, fear and poverty of Jim Crow.  Likewise, there were many in the North who looked upon the South with great disapproval, but the South was sufficiently insular that Northern condescension seemed to make little difference.

It is true that, given time, Jim Crow would probably have died on the vine.  Lots of evils, if allowed to play out, will die.  One interesting one we’re watching right now is taking place in China and India:  In those countries, girls are second (nay, fifth) class citizens, a situation that is made especially manifest by the fact that those boy-oriented cultures abort an overwhelming number of girl babies.  Currently, the situation is awful for girls, whether born or unborn.  However, as there are fewer and fewer girls, their stock is going to have to rise.  It will be impossible for either culture both to maintain its rate of female genocide and survive.  Given enough time and enough female deaths, female infanticide will die out.

A problem arises, however, when moral people don’t want to sit around and wait for the inevitable.  They cannot tolerate the pain and suffering that will lead to the ideology’s demise.  They want to do something now.

In the case of the Jim Crow South, to those paying attention, some decisive action seemed absolutely necessary.  With the “malcontents” of the black population having emigrated, leaving a more massive and easily bullied black population, and with most of the world looking away, it seemed as if the South had achieved some form of stasis (no matter how foul) that would enable it to continue its un-American practices indefinitely.

There is a reason that, in the previous paragraph, I highlighted the phrase “to those paying attention.”  Libertarianism works, as much as anything, by having a critical societal shift.  People decide something is wrong, and they stop sending money that way; conversely, they decide something is right, and flood that market with their wealth.  The problem was that much if the nation (a) didn’t care; (b) sort of agreed with Jim Crow; or (c) wasn’t paying any attention at all to the situation.

What made people care, what made them sit up and pay attention, was the fallout from an activist Supreme Court opinion:  1954’s Brown v. Board of Education.  The opinion said, as we all know, that it is impossible for separate to be equal.  That is silly.  In terms of government providing equal education, it would have made more sense to say that school districts have to ensure that all students have precisely the same facilities, precisely the same quality of teachers, and precisely the same resources as white students, in order for their education to be considered equal.  That ruling would have made sense.

The sensible ruling would also have been a back door to desegregation, because no Southern school districts could have afforded having two perfectly equal school systems, one for blacks and one for whites.  The districts would have had to raise taxes or lower educational offerings to their white students . . . or bitten the bullet and let the blacks in.  It would have been up to the districts which they chose, but the results would almost certainly have been desegregation. As it was, though, the Brown opinion forced instant desegregation by creating a crackpot legal, education and social theory out of whole cloth.

Brown’s real important, though, didn’t lie in silly legal opinions that basically affected only a small number of blacks (the children).  Instead, it’s real importance was the fact that, at the start of the media age, its publication caused all American eyes to turn to the South.

As I noted before, before Brown, the rest of America wasn’t paying attention, or didn’t care, or even sort of agreed with the Southern system.  By turning up the heat on the South, though, and forcing a sea change without the gradualism of libertarianism, Americans suddenly had images of the Little Rock Nine being escorted by troops and excoriated by white citizens on television screens and in newspapers and magazines:

Thanks to the spotlight the Supreme Court turned on the South, Americans were riveted and disgusted by a spectacle they’d chosen earlier to ignore. The South, with American eyes upon it, opted for self-immolation. Rather than yielding gracefully to what it should have perceived as the inevitable, the South, led by the practically retarded Bull Connor, provided even more fodder for the media.

In the years subsequent to the Brown decision, Americans were treated to even more grotesque images from a backwater they’d previously ignored:

Societal pressure against Jim Crow became overwhelming.  The Federal Civil Rights Act wasn’t the leading edge, it was the last swipe at a system that had begun to die with great speed in the wake of the immediate changes wrought by Brown v. Board of Education.

Considering the evil that was the Jim Crow South, and considering that the system would have taken decades to die out on its own, here’s the big question:  Was it a good thing that the Supreme Court jump-started Jim Crow’s death by issuing an activist decision that was both Constitutionally incorrect and factually just a tiny dent in the system, but that worked to turn America’s eyes onto a great wrong being done in its own back yard?

My answer is that, righteous though the results were, the decision was still wrong.  Keep in mind that the societal benefits in Brown‘s wake were not the intended consequences of the decision.  Instead, the benefits flowed from an unintended consequence:  the novelty of media attention focusing on an issue most Americans had managed to disregard.  In other words, it wasn’t the Court decision that brought about the change; it was the dumb luck that flowed from that decision. While the decision is viewed as carte blanche for activism, because it was followed by a successful societal change, the change flowed, not from the decision itself, but simply from the attention it garnered.

Sadly, when courts get all activist about education, rather than having a great wrong righted, you’re much more likely to end up with the situation in the Kansas School District.  In that District, a federal judge micromanaged billions of dollars in expenditures, only to end up with exactly the same situation as before:  poorly performing minority students.  Funnily enough, in light of my comments about Brown, the Kansas court could reasonably have said what the Brown court should have said:  expenditures must be equal.  End of story.  Let the communities figure out how to make that happen. The Kansas judge, however, took his activism much further and ordered, in great detail, that the Kansas school district create perfect schools, schools that could only be dreamed in the fantasy world of an education school’s wet dreams.  Unsurprisingly, everyone suffered.

That’s my two cents.  What’s yours?

UPDATE:  I wrote the above post in response to a conversation about the libertarian versus the Leftist (liberal/Progressive) approach to dealing with societal evils.  It occurs to me, though, that it’s a worthwhile post to consider in light of the upcoming hearings for a new Supreme Court justice.

Image: Newsreel screenshot