Equalizing Down

In 1963, the City of Jackson, Mississippi had a choice: they could comply with federal law and desegregate their public facilities, or fight a losing court battle to maintain their vision of “white supremacy” to the last possible hour. Incredibly, Jackson found a third way — they desegregated their parks and other facilities, but closed their public pools. To everyone. And in so doing, they found a hole in equal protection theory, one the Court has never closed:

It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities.

Palmer v. Thompson, 403 U.S. 217 (1971).

In some situations, the Court has taken to looking fairly closely at the real equities involved in discrimination cases — therefore, when states ban interracial marriage, although the ban applies “equally” across races, the message of racial inferiority is distinct, palpable, and the presence of a “formal” equality can’t mask the obvious substantive inequality.

The Palmer strategy — break the toy, rather than share it — succeeds because it exploits gaps in the court’s vigilance to meet that goal. After all, it’s a lot more controversial to enforce an affirmative act than it is to order the end of one. It also shows the depths to which people will go, and the harm they’ll willingly inflict on themselves, to maintain their prejudices. Given the strategy’s efficacy, and its truly stunning capacity to offend, we shouldn’t be surprised to see it resurface in a new context. But it’s still disappointing:

The American Civil Liberties Union filed a lawsuit today against a Mississippi High School that has canceled prom rather than let a lesbian high school student attend the prom with her girlfriend and wear a tuxedo to the event. In papers filed with the U.S. District Court for the Northern District of Mississippi, the ACLU asks the court to reinstate the prom for all students at the school and charges Itawamba County School District officials are violating Constance McMillen’s First Amendment right to freedom of expression.

The First Amendment gloss gives the ACLU a plausible chance for success here. But not much of one. Disgusting, but some fights we’ll only win with time.