The Return to Separate But Equal

The Washington Post
February 13, 2005 Sunday

HEADLINE: Good Intentions Aside, Separate Still Isn’t Equal

BYLINE: Jonathan Turley


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.