Jonathan Turley
Good Intentions Aside, Separate Still Isn't Equal
http://www.NewsAndOpinion.com |
Few legal doctrines are more dangerous or despised than that of separate but
equal rights — the philosophy that legitimized racial apartheid in the
United States. It took the sacrifices of the civil rights struggle to put an
end to both this doctrine and the officially sanctioned segregation that it
justified.
Yet only months after the nation celebrated the 50th anniversary of Brown v.
Board of Education — the landmark Supreme Court decision that struck down
the doctrine as unconstitutional — some public and private institutions are
again dabbling in separate but equal policies.
Two examples highlight this insidious trend. The first comes in the very
area in which the battle for civil rights was waged most fiercely decades
ago — the schools. It involves a New York City high school created
specifically for gay and lesbian students two years ago. The second concerns
the California prison system, whose 25-year policy of strict racial
segregation of incoming prisoners has been challenged in a case now pending
before the U.S. Supreme Court. Both plans are being vigorously defended on
pragmatic grounds — arguments long used by segregationists. From the
court's first articulation of the doctrine in 1896, separate but equal was
always an exercise of pragmatism over principle. Rather than confront racial
animus, society chose to yield to it — to achieve the appearance of racial
coexistence through racial separation. While there are clearly differences
between the old segregationists and the new (particularly in terms of their
motives), there remain striking similarities in their methods.
New York's Harvey Milk High School was created with the best possible
intentions. Named for the assassinated San Francisco gay rights leader, it
was meant to provide a sanctuary for gay and lesbian students who face
tremendous pressures and even violence in many schools. Gay rights activists
have long modeled their work on the civil rights movement. But such civil
rights leaders as Martin Luther King Jr. and Thurgood Marshall steadfastly
refused to accept segregation in public schools — even though thousands of
black students faced violence in desegregated systems. They understood that,
to be truly equal, blacks had to be assimilated into every aspect of
American life, even if the objective could only be reached after a period of
painful confrontation.
Much like the integration of black students into white schools, the rise of
a new generation of openly proud gay and lesbian students has led to greater
tensions in New York schools. The city's response was to essentially remove
the victims and call it an act of reform. Mayor Michael Bloomberg defended
the policy on the grounds that a separate school "lets them get an education
without having to worry." Yet, in classic civil rights terms, it is hard to
see how removing gay students is any more a solution to homophobic violence
in New York schools than removing James Meredith would have been a solution
to racial violence at the University of Mississippi.
Harvey Milk — or Gay High, as it is often called — has become a lesson in
the unintended consequences of segregation. Its creation reinforces the
stereotype of gay students as fundamentally different and in need of special
treatment. Some have suggested that the $3.2 million spent to establish the
school could be better used to create a systemwide program of counseling and
education for all students on the issues of sexual orientation and
discrimination. In a city with roughly 300,000 public high school students,
Harvey Milk's 100-student capacity can handle only a small fraction of the
city's gay, lesbian, bisexual and transgender teenagers. The remainder must
deal with the stigma of a segregated group and predictable taunts that they
should "go to Harvey Milk," where they belong.
On America's other coast, California provides a second example of a separate
but equal policy. The state prison has sought to control violence and reduce
gang activity by temporarily segregating incoming prisoners on the basis of
race. Hispanic prisoners from Southern California are separated from those
from the north; Japanese and Chinese inmates are kept apart; and smaller
groups — Laotians, Vietnamese, Cambodians and Filipinos — are segregated
as well.
Other large states such as Illinois and New York face similar gang
demographics, but none has adopted this sort of automatic segregation.
California's policy of yielding to racism rather than fighting it began
almost three decades ago with small concessions, and escalated into a
systemwide policy of apartheid for convicts entering any prison. In 1999,
when tensions between northern and southern Hispanics erupted into riots at
Pelican Bay State Prison, the standard response of corrections professionals
elsewhere would have been to crack down on the inmates with a policy of zero
tolerance of violence. Instead, California solved the problem by sending
each group to its own prison, where it could reign as the dominant Hispanic
gang.
Despite the fact that this racial segregation policy has been in place for
25 years, California prisons continue to convulse with racial violence. In
2002, there were about 7,000 incidents of assault and battery and seven
deaths — the vast majority linked to racial gangs. Officials insist that
the violence would be worse without segregation for new prisoners. The
federal appellate court in San Francisco agreed last year, rejecting a
challenge from Garrison Johnson, a black prisoner who refused to join a gang
and felt more threatened in a segregated environment. Using a test heavily
weighted in favor of the prison, the court demanded that Johnson prove the
impossible — that violence would not occur in cells if the policy were
lifted.
Officials insist that they are just dealing with the realities of racial
gangs and their mutual hostility. One prison official observed that "if we
have a Northern Hispanic with a Southern Hispanic, they already have a
conflict before they come to prison" and the best thing is to simply give
them their own space. It is the very logic that the Supreme Court used when
it created the separate but equal doctrine in Plessy v. Ferguson, saying the
Constitution did not require "a commingling of the two races upon terms
unsatisfactory to either." Integration, the court said then, would have to
be "the result of natural affinities, a mutual appreciation of each other's
merits and the voluntary consent of individuals." It seems unlikely that the
white skinheads, black Crips, and Hispanic Fresno Bulldogs will achieve
"mutual appreciation" any time soon.
The decisions to embrace separate but equal policies in a high school and a
prison system are telling and tragic. Both schools and prisons represent
controlled environments that strive in part to shape future conduct through
compelled behavior and observation. High schools are the last such
environment before most individuals join the larger society — they are the
critical forum to teach not just basic curricular skills but basic
citizenship skills. Removing gay and lesbian students allows prejudices and
intolerance to continue unnoticed and unaddressed, permitting hateful
students to become hateful adults.
Prisons are populated by certifiably asocial individuals, who failed to
learn basic social principles and values. As a controlled and supervised
environment, the prison is supposed to reinforce social rules of conduct
through compulsory measures. The segregation policies of the California
prisons not only leave racist and violent impulses unaddressed, they
actually reinforce those impulses by yielding to them. A segregated prison
is fertile ground for gang recruitment.
Equally disturbing is the growing level of "self-segregation" in
institutions where there is no claim of racial violence or intolerance. Some
colleges and universities now hold official and separate graduation
ceremonies for certain minority groups; a growing number have created
separate housing aimed specifically at minorities. The University of
Pennsylvania houses almost one-quarter of its African American students at
the W.E.B. Du Bois College House, and other schools including the University
of Michigan and Dartmouth College have similar options. In a rhetorical echo
of the Plessy decision, the segregated dormitories at Dartmouth are called
"affinity houses."
While many of these are voluntary choices by the students, such
self-segregation still frames the academic experience in at least partially
racial terms. This lesson was not lost on one Latino student at Amherst
College, who was quoted in a report by the New York Civil Rights Coalition
as saying: "Before I came to Amherst, I wasn't thinking about race or class
or gender or sexual orientation, I was just thinking about people wanting to
learn."
The resurrection of separate but equal is not some reflection of its
inherent truth or merit. Rather, it is a reflection of a society that has
increasingly favored the most expedient over the most ethical means of
addressing contemporary problems. The separate but equal doctrine was the
very scourge of the civil rights movement, but it continues to have
pragmatic appeal — certainly over the more abstract principle of
integration. After all, principle is often quite costly while pragmatism
offers at least the outward appearance of tranquility at a bargain price.
However, as new citizens walk out of places like the New York schools and
California prisons, society may rediscover not just the convenience but the
costs of separate but equal programs.
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JWR contributor Jonathan Turley is a law professor at George Washington University.
Click here to visit his website. Comment by clicking here.