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The Abortion Decision, Haunted by Brown v. Board of Education

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WASHINGTON — In the Supreme Court decision that eliminated the constitutional right to abortion, the justices engaged in an extended debate over the meaning and legacy of Brown v. Board of Education, the 1954 decision that said the Constitution does not permit racial segregation in public schools.

The connection between abortion and education may seem elusive. But the justices cited Brown 23 times, using it to make points about precedent, about popular opinion and, most tellingly, about how to interpret the Constitution.

Justice Samuel A. Alito Jr., writing for the five-member majority, invoked Brown as an example of a decision that had properly overruled a precedent. Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional, was plainly and egregiously wrong, he wrote, and so Brown had been right to overturn it.

The same was true, Justice Alito wrote, of Roe v. Wade, the 1973 decision that had guaranteed a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that had reaffirmed Roe’s core holding.

Chief Justice John G. Roberts Jr., in a concurring opinion that would have stopped short of overruling Roe, failed to see the parallel. “The opinion in Brown,” he wrote, “was unanimous and 11 pages long; this one is neither.”

Indeed, the three dissenting justices wrote in a joint opinion, “a bare majority” of the current court had overruled the two abortion precedents.

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote.

Justice Alito also cited Brown, which was deeply unpopular in the South, in support of a second point. “We cannot allow our decisions to be affected,” he wrote, “by any extraneous influences such as concern about the public’s reaction to our work.”

But the most intriguing mention of Brown was made almost in passing in the dissent. It said the court that had decided Brown might not have done so had it used “the majority’s method of constitutional construction.”

That method was originalism, which seeks to identify the original meaning of constitutional provisions using the tools of historians.

But Brown has always been problematic for originalists. The weight of the historical evidence is that the people who from 1866 to 1868 proposed and ratified the 14th Amendment, which guaranteed “equal protection of the laws,” did not understand themselves to be doing away with segregated schools.

Yet Brown is generally considered to be a moral triumph and the Supreme Court’s finest hour. A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.

Originalists hate talking about Brown. When Justice Antonin Scalia, an enthusiastic originalist, used to be asked about the case, he was prone to say, “Waving the bloody shirt of Brown again, eh?”

Justice Alito’s critique of Roe was certainly steeped in originalism. In ruling that there is no constitutional right to abortion, he focused on the words of the Constitution and “how the states regulated abortion when the 14th Amendment was adopted.”

His approach echoed contemporary criticism of Brown on originalist grounds.

Justice Alito said that “the Constitution makes no mention of abortion.” A 1956 statement by Southern members of Congress who objected to Brown, which came to be known as the Southern Manifesto, made a similar point: “The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment.”

In the abortion decision, Justice Alito wrote that “by the time of the adoption of the 14th Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”

The Southern Manifesto again echoed the point.

“When the amendment was adopted, in 1868, there were 37 states of the union,” the manifesto said. “Every one of the 26 states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th Amendment.”

The unanimous opinion in Brown did not really quarrel with the idea that it could not be justified using the tools of originalism. “At best,” the opinion said, the historical evidence was “inconclusive.”

Before Justice Scalia died in 2016, he and Justice Breyer, who retired in June, would occasionally appear in public to debate constitutional interpretation. Justice Breyer liked to needle Justice Scalia about Brown.

“Where would you be with school desegregation?” Justice Breyer asked his colleague in 2009, at an appearance at the University of Arizona. “It’s certainly clear that at the time they passed the 14th Amendment, which says people should be treated equally, there was school segregation, and they didn’t think they were ending it.”

Justice Scalia did not give a direct answer. In other settings, he endorsed the decision. “Though Scalia says that he would have voted with the majority in Brown,” Margaret Talbot of The New Yorker wrote in a 2005 profile, “it’s hard to see an originalist justification for it.”

The majority in the recent abortion decision, Dobbs v. Jackson Women’s Health Organization, noted that both Plessy and Roe had survived about a half-century before being overturned.

The three dissenters responded that Plessy might still be on the books if the court in Brown had been committed to originalism.

“If the Brown court had used the majority’s method of constitutional construction,” the dissenters wrote, “it might not ever have overruled Plessy, whether five or 50 or 500 years later.”

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Four Students Are Injured in Shooting Near Philadelphia High School

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Four teenage students were injured in a shooting near a high school in West Philadelphia on Wednesday, just after classes were dismissed for Thanksgiving break, the authorities said.

The students, two 15-year-old girls and two 16-year-old boys, were taken to hospitals and were in stable condition, John Stanford, first deputy commissioner of the Philadelphia Police Department, said at a news conference on Wednesday.

The shooting happened just after 11:30 a.m. outside a beauty salon and about a block from Overbrook High School. Deputy Commissioner Stanford said a group of students had been standing outside the salon when someone inside a passing silver S.U.V. fired at them.

The police did not name the victims. One 15-year-old girl suffered gunshot wounds to her left shoulder and left thigh, and the other 15-year-old girl suffered a gunshot wound to her left shoulder, the police said in a statement. A 16-year-old boy was shot in the left hand and had a graze wound on his face, and the other 16-year-old boy suffered a gunshot wound to his right leg.

The police said that no arrests had been made and no weapon had been recovered. Deputy Commissioner Stanford said it was too early in the investigation to know if the students had been targeted.

“Just another incident of gun violence in our city,” he said at the news conference.

Gun violence in Philadelphia has been particularly bad this year. More than 1,400 people in the city had been shot as of August, a higher toll than in the much larger cities of New York and Los Angeles. Officials are struggling to respond to the number of guns on the street. For every illegal gun seized by the police in Philadelphia between 1999 and 2019, about three guns were bought or sold legally, according to a city report released this year.

“We’re going to have to have some real serious help to get our arms around our city problem with these guns,” Tony B. Watlington, the Philadelphia schools superintendent, said at a news conference on Wednesday.

In September, a 14-year-old student, Nicolas Elizalde, was killed and four others were injured in a shooting near Roxborough High School. The five teenagers were leaving the field after a football scrimmage when the shooting occurred. Roxborough High School is about five miles north of Overbrook.

Four people between the ages of 15 and 21 have been arrested in connection with the Roxborough High School shooting.

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Sizing Up the First ‘Normal’ School Year

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The busy holiday season is here, and before we know it, many of us will be gathering for parties, visiting relatives and ringing in the New Year with friends. (Now is a good time to stock up on at-home rapid tests and high-quality masks and to consider getting an updated booster, if you haven’t already.)

Schools are also winding down the first half of what, by many accounts, was the first truly back-to-normal school year since the beginning of the coronavirus pandemic.

As we approach winter break, we thought we’d take a look at how the school year is unfolding during this stage of the pandemic. I spoke with my colleague Sarah Mervosh, who covers education.

What has the school year looked like so far?

Masks are not required in an estimated 99 percent of districts, according to Burbio, a school tracking site. I think by and large there’s a recognition in schools that the coronavirus is here to stay, and we’re learning to live with it.

Last year, we heard a lot about behavioral issues and mental health issues. Students were still adjusting from the traumas and the disruptions of the pandemic and adjusting to being back in the classroom. But this year, I’m hearing less about that and more about the urgency around helping students recover academically.

How are students doing academically?

During the pandemic, kids learned less. We got a sense of how seriously they were affected this fall with the results of a key national test, the National Assessment of Educational Progress, which tests fourth and eighth graders in math and reading. The results were pretty devastating.

Eighth grade math scores fell in 49 out of 50 states. Only about a quarter of eighth graders were proficient, down from about a third in 2019. Fourth graders fared a little better: There were declines in 41 states in math, with just 36 percent of fourth graders proficient in the subject, down from 41 percent in 2019. Reading ability declined a bit less across the board, but scores still fell in more than half the states. In both fourth and eighth grade, only about one in three kids were proficient.

The stakes are high for kids because establishing literacy in early elementary school is important for their future success in high school and beyond. Similarly, it’s important for eighth graders to be set up for success as high school freshmen, a crucial transition year. And districts and schools are on a tight timetable to use pandemic relief money to help kids catch up.

How so?

There were three rounds of pandemic relief funding, and the last one, at $123 billion, was the federal government’s single largest investment in American schools. That’s about $2,400 per student. At least 20 percent of the money has to be spent on academic recovery and needs to be allocated by 2024. This is a big year for actually spending the money and getting the interventions that kids need.

What approaches are working?

There has been a lot of focus on tutoring. When done in small groups of three to four students with a trained tutor multiple times a week during the school day, it can be quite effective. It can be even more effective than lowering class sizes, for example, or summer school.

Some experts have advocated extending the school day or year, and lots of places are doing summer school. No one strategy is going to be the thing that is potent enough to help kids recover.

What about the argument that every child experienced the pandemic, so if they’re all a little behind, it might make less of a difference?

This is a very important question. I can see why it’s appealing to say, “Well, everyone was affected, so why does it really matter? This whole cohort of children is sort of in a similar place.” But that’s not actually true.

We know that in fourth grade math, for example, Black, Hispanic and Native American students lost more ground than white and Asian students. This deepened divides in outcomes, because white and Asian students were already scoring at a higher level for many reasons, which include structural societal advantages. And we are also seeing a troubling drop-off among the country’s lowest-performing students, particularly among younger students and in reading. So it is the very students who were struggling most coming into the pandemic who were most affected, and will now need the most help.

What does the future look like?

The pandemic and everything that came with it disrupted kids’ lives in huge ways. So that means that this recovery is going to need to be long-term. I’ve talked to people who are concerned that one day, when this is all sort of in the rearview mirror, we’re going to forget that the pandemic happened and we’re going to blame some kids for being behind. Or we’re going to say, “Well, these kids recovered from the pandemic easily. Why didn’t those kids?” It’s important to remember that some kids have a higher mountain to climb. They have a longer path to recovery, and this is not going to be something that is fixed overnight.

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We recently asked students how being back in the classroom felt this year. Thanks to all of you who wrote in.

“It’s really stressful. I’m growing more nervous, anxious and stressed constantly. I sleep less, constantly worrying about everything and nothing. I feel like I have no relaxation time, that I can’t breathe. Covid times has made me incredibly anxious, and I don’t know how to calm down. My mind is too active.” — Yuxuan, Paris

“The school year started off really strong, but around mid-September the overall atmosphere of my campus changed drastically. Everyone began to suddenly slump into a deep depressive state and fall behind in their work. Professors were affected, too. Many of them would come to class drained and not even remotely enthusiastic about what they were teaching. I would hear students talk about failing back-to-back tests and just not caring.” — Nicholas L., Rohnert Park, Calif.

“The school year hasn’t been completely terrible, but it hasn’t been perfect. I feel like lots of students lost the ability to socially mature, resulting in a kind of split between their maturity level and actual grade level. I was in the seventh grade when everything stopped so I missed a chunk of middle school. Returning to school has been hard especially because I lost so much motivation and I never had the desire to really get it back. My biggest concern is that I won’t be prepared to enter adulthood because there was a gap in adolescent socializing.” — Zen James, Miami

“Overall, I would say that I am thrilled to be back in school and am having a fun and enriching experience. Seeing the full faces of my teachers and peers — and being forced to roll out of bed instead of opening a Zoom meeting on my phone — has definitely helped concepts in the classroom stick. For me, the larger concern is the decay of my healthy habits. Covid (and the online school) enabled me to sit in my room for hours on end, practically developing an entertainment dependency. I often scroll through my phone or watch videos for hours, and there are many times I glance at the clock in awe at how much time has flown right by me.” — Jake Glasser, Mercer Island, Wash.

“My school year so far has been difficult. I’ve noticed that I’ve distanced myself from my peers. I’m usually a hard-driven student with a strict schedule that I push myself to follow. Ever since the pandemic began and my school was pushed online, my will to stick to that schedule diminished. I’ve never felt burnout this way before Covid.” — Presha Kandel, Conroe, Texas


R.S.V.

Monkeypox


Thanks for reading. We’ll be off Friday for Thanksgiving. Stay safe this holiday, and we’ll be back Monday. — Jonathan

Email your thoughts to virusbriefing@nytimes.com.

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Gratitude for Arts and Science Educators

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This month, as we’re thinking about gratitude, I’m reflecting on the tremendous impact that educators have had on my life. I would not be where I am today without the many teachers, counselors, librarians, and mentors that have lifted me up, and, now as an educator and mentor myself, I hope to pass that encouragement on to the next generation of students.

From the teachers that pushed me to do my best in class to the guidance counselors that helped me apply to universities, I am grateful that so many people in my life helped me become a first-generation college student, and now a successful artist and scientist. Despite attending a Title 1 school in Memphis, Tennessee with defunded arts programs and a 95% math proficiency fail rate, my educators were dedicated to ensuring my peers and I had every opportunity in STEM and the Arts that they could manage. In my senior year, I received a full scholarship to attend American University in Washington, DC as a Computer Science major.

I quickly realized that I was set up for failure. As a first-generation college student, 900 miles away from my family for the first time, I was already trying to get my bearings, but the real struggles came in my introductory STEM courses. I was an eager and accomplished learner through grade school, and I was in the university’s honors program on a scholarship, so why did it feel like everyone was miles ahead of me every time I stepped foot in a STEM class? Thankfully, I had many professors and advisors that took me under their wings and helped me ‘catch up’ in math and science while also fostering my interests in arts and design as a corollary to my STEM work. Because of their willingness to mentor me, I graduated with a B.S. in Computer Science and left DC for graduate school at Rensselaer Polytechnic Institute in New York, where I earned an M.S. in Lighting in 2021 and am currently a Ph.D. student.

Through all of my experiences, I’ve found that both the arts and sciences are incredibly important components of a well-rounded education. I also understand that these programs are historically underserved, especially for low-income and disadvantaged students. The Arts[HA1]  teach students creativity and confidence, and STEM teaches students problem-solving skills and technological literacy. When these two subjects are left out of a child’s education, they miss out on key life skills and opportunities to explore potential passions and careers. I am so thankful for the educators in my life that enriched my educational journey with opportunities in STEM and the A[HA2] rts, and I hope to provide those opportunities back to more children.

As the reigning Miss United States, I am given the opportunity to nationally advocate for a cause of my choice. I have chosen to advocate for the importance of STEM and Arts education through my nonprofit Art Technically. Every child deserves a chance to grow as an artist and scientist regardless of their background. I have grown so much as an artist and scientist thanks to the dedicated educators that helped guide me. As a mentor to students in both STEM and the Arts, I am helping them grow as well-rounded individuals prepared to do great things for the world, just as my teachers did for me. That opportunity is what I am most grateful for.

Lily K. Donaldson is the reigning Miss United States and a Ph.D. student at Rensselaer Polytechnic Institute studying Built Ecologies within the Institute for Energy, the Built Environment, and Smart Systems (EBESS). Originally from Memphis, she’s passionate about advancing educational equity within traditionally underserved communities in the South and beyond, especially related to STEM (Science, Technology, Engineering, and Math) and Arts education. She’s the founder of Art Technically, a nonprofit dedicated to providing STEM and Arts educational opportunities to students at Title 1 and rural K-12 schools.




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