One does not need to be a great legal scholar to understand the bookends of the Plessy V Ferguson and Brown v Board of Education legal cases. These two cases are pivots points in the legal history of the United States and still serve as legal cases used to teach American history and Civil Right law. In essence, Plessy established the ‘separate but equal’ doctrine that allowed the Southern states to evade the 14th Amendment and set up segregated facilities all around the states. Brown reversed this ruling, stating that separate is not equal and never can be, thus setting in motion the desegregation of all public and nearly all private facilities in the United States.
This past week, the same court that issued Plessy and Brown issued another ruling, Students for Fair Admissions V Harvard, that also addressed the 14th amendment. This ruling essentially disallowed the use of race in college admissions and forbade other aspects of the ‘affirmative action’ regime, calling it for what is clearly is; another way to use race to distribute rights and privileges.
It is worth noting that there are two black justices on the court now, Clarence Thomas and Ketanji Jackson. Thomas replaced Thurgood Marshall, who was the lead attorney in the Brown case in 1954. In the Harvard case, Thomas came down on the side of the Student for Fair Admissions, Jackson on the side of Harvard. Thomas was appointed by a Republican, George H.W. Bush, and Jackson by a Democrat, Joe Biden. Jackson wrote the dissent, and it is here was find something quite interesting. Writing for the minority, she states:
For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
She then indicates where she took this bit of data and refers to it in the notes. It came from a brief provided in support of Harvard’s position form the American Federation of Teachers. That brief states:
In addition, just as students of color benefit from seeing teachers who look like them, patients of color experience tangible benefits from a more racially diverse healthcare profession. For example, Black and Latinx Americans report receiving better health care from physicians of the same race. Indeed, patients of color treated by doctors of the same race have been shown more likely to receive preventative services and needed medical care. Black men, in particular, are more likely to use preventative services after meeting with a doctor of the same race—and those doctors are more likely to write additional notes, indicating more attentiveness and the potential for better care. These findings are important because of persistent discrepancies in health outcomes among racial groups. Mortality risk is consistently higher for Black and Native Americans than for whites, and Black men have the lowest life expectancy of any major demographic group in the United States. And childhood obesity is more prevalent among Black, Latinx, and Native Americans than among whites and Asian Americans.
https://www.harvard.edu/admissionscase/wp-content/uploads/sites/6/2022/08/Amicus-Brief-AMERICAN-FEDERATION-OF-TEACHERS93.pdf
This long bit of health data is then referred to as having come from here:
David R. Williams et al., Race, Socioeconomic Status, and Health: Complexities, Ongoing Challenges, and Research Opportunities, Annals N.Y. Acad. Scis., 2010, at 69, 71,
https://nyaspubs.onlinelibrary.wiley.com/doi/epdf/10.1111/j.1749-6632.1999.tb08114.x
One may ask what any of this has to do with the 14th Amendment which is what the majority referenced in the ruling. They said that neither colleges nor anyone else can base important decisions on race and cited the plain text of the 14th Amendment as the justification. The 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
https://www.archives.gov/milestone-documents/14th-amendment
But further, one must ask what kind of world Jackson, Kagan, and Sotomayor have in mind. If, as Jackson argues, we need affirmative action to get more black doctors to help black babies, would not a 100% black medical school and a 100% black hospital be best for black babies and mothers? Before Brown, this is exactly what we had in the United States. Nearly all arguments put forward by Jackson and the Democrat left essentially are calls for more discrimination, just the good kind, and more segregation, just the good kind.
I cannot speak to the veracity of the report embedded in Jackson dissent, which came from the American Federation of Teachers brief, which in turn came from a paper written by David Williams. I suspect black health outcomes are like white, brown, red, and yellow (if we must use this horrible color matrix to subdivide people) health outcomes which are driven by individual choices. Make bad choices, get bad outcomes; it’s that simple. Racism has nothing to do with it.
The ‘systemic racism’ gambit that explains everything is a pseudo-science which reminded me of another odd bit of sociological history from the Brown case. In arguing that separate wasn’t equal, the lawyers in Brown cited a study done by a husband-and-wife team of psychologists, Kenneth and Mamie Clark. They conducted the “doll tests” which were cited as evidence that segregation was harmful to black children. In these tests, four baby dolls were used, two male, two female and they were identical except that two had black tinted skin and the other two had white tinted skin. Kenneth Clark told the story to PSB like this:
“The Dolls Test was an attempt on the part of my wife and me to study the development of the sense of self-esteem in children. We worked with Negro children—I’ll call black children—to see the extent to which their color, their sense of their own race and status, influenced their judgment about themselves, self-esteem. We’ve now—this research, by the way, was done long before we had any notion that the NAACP or that the public officials would be concerned with our results. In fact, we did the study fourteen years before Brown, and the lawyers of the NAACP learned about it and came and asked us if we thought it was relevant to what they were planning to do in terms of the Brown decision cases. And we told them it was up to them to make that decision and we did not do it for litigation. We did it to communicate to our colleagues in psychology the influence of race and color and status on the self-esteem of children.”
https://www.naacpldf.org/brown-vs-board/significance-doll-test/
What they reported was that ‘the majority’ of black kids liked the white dolls better. In the original data, a majority, in this instance, is slim. The origin paper is available and in it, the couple writes:
It is clear that the Negro child, by the age of five is aware of the fact that to be colored in contemporary American society is a mark of inferior status.
https://pages.uoregon.edu/eherman/teaching/texts/Clark%20&%20Clark%20Emotional%20Factors%20in%20Racial%20Identification.pdf
Well, no kidding. That is why the Civil Rights movement came into being in the first place, but nothing about black kids and white dolls is relevant to the 14th Amendment anymore than Ketanji Jackson’s assertion that black kids need black doctors. At a certain point, black kids, now 60+ years past segregated schools, must step up and own their own feelings and outcomes. And black parents play the dominant role here. A black parent must assess the medical system and they should not only evaluate the color of the doctor. They should look at the hospital, records, and the outcomes of other patients. Further, black parents and other black leaders, like Jackson, and not white people or ‘society’ are responsible for what black kids think of themselves and the world.
It is a wonderful measure of success in the United States that the two black supreme court justices can disagree on the points, but it is worth noting, neither Jackson, who is black, or Kagan, who is Jewish, or Sotomayor, who is Latin, seem to have a commitment to the 14th Amendment which has helped them so greatly. They cannot put their inflamed sense of self-righteousness aside and let the law be equal and the country move on. They won’t do it now, tomorrow, or ever. To get beyond the religious commitment the dissenters have to the faith that race drives all, we will one day have to rely on the 1st Amendment, which says that government shall establish no religion, which includes the religion of race.
TomRoushOnline 