Posted by Jim Lindgren:
Not Loving the Chains.--
http://volokh.com/archives/archive_2007_12_23-2007_12_29.shtml#1198717869
Gail Heriot�s [1]post on mandatory sensitivity training in California
brings to mind a lively opinion by Judge Posner. She was particularly
bothered by the program�s teaching that white males who claimed that
they were victims of discriminatory action or who criticized
affirmative action were dangerous (tip to [2]Hans Bader and
Instapundit).
In a 2001 7th Circuit case (People Who Care v. Rockford Bd. of Ed.),
the Rockford, Illinois, school system was in federal receivership,
which despite draining the community of 238 million dollars had not
apparently accomplished its ultimate goal of substantially closing
racial performance gaps. [3]Posner addressed the argument that public
officials were not sufficiently enthusuastic about the program imposed
by the federal courts.
The plaintiffs' principal argument for the indefinite continuation
of the decree is that the school board has not been complying with
it in good faith. The difference between technical compliance and
compliance in good faith is that the latter form of compliance does
not exploit loopholes and ambiguities. . . . It is not, as the
plaintiffs would have it, that the school board must "actively"
support the decree, must express "commitment" to it, and, above
all, must not criticize it. The undemocratic implications of this
position leave us almost speechless. Are elected officials, the
members of the school board, elected long after and not complicit
in the illegalities that gave rise to the litigation, forbidden,
under threat of never resuming control of the public school system
that they were elected to govern, to criticize a decree that in
pursuit of an ambitious and possibly quixotic scheme of social
engineering has imposed a formidable tax burden on the people who
elected these officials?
Pressed at argument, the plaintiffs' able lawyer could not cite an
instance in which the school board has violated any of the numerous
provisions of the decree. He may well be correct that the decree
would have achieved more had it been enthusiastically embraced by
the board, but state and local officials are under no duty to love
the chains that federal judges, however justifiably, fasten upon
them.
Judge Posner's earlier opinion in the case is also worth a read.
References
1. http://rightcoast.typepad.com/rightcoast/2007/12/white-guys-have.html
2. http://www.openmarket.org/2007/12/26/diversity-training-backfires/
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/003200.html
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