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This article originally appeared in FindLaw.
The Supreme Court has granted review in two cases
involving the use of race in pupil placement in public schools.
Though the cases themselves hail from Jefferson County, Kentucky
and Seattle, Washington, the Court's eventual decisions will directly
affect hundreds of other school districts, across the country, that
use race in some fashion in determining which students will attend
which schools.
The decisions will also go a long way towards revealing whether
our newly reconstituted Court will be changing from the moderately
conservative course it has charted on race issues for the last two
decades. And, as I will explain, they will help define the Court's
take on the highly contested legacy of Brown v. Board of Education.
Defining Brown's Legacy: Some Points of Debate
Brown v. Board of Education is surely the most important
legal decision of the Twentieth Century. Its holding alone – declaring
unconstitutional the state-mandated racial segregation of public
schools – was momentous. But its meaning was larger still: Brown
stands as a huge milestone in the long American journey to overcome
the original sin of slavery and redeem the Founders' promise of
equality for all.
Although Brown generated enormous controversy and furious
backlash in some quarters when it was first decided, the decision
(if not every aspect of its analysis) has, by now, become almost
universally accepted as constitutional gospel.
But for all Brown's importance,
and for all the praise it now receives from public officials and
aspirants to judicial office, Brown's historical legacy is
still very much in flux. After more than fifty years, we are still
re-thinking and re-shaping what it is that we believe Brown
actually means – both as a legal precedent and, more broadly, as
the foundation stone for our constitutional commitments on the issue
of race.
The leading commentator on Brown, Richard Kluger, described
the opinion's moral and historical significance as "nothing
short of a reconsecration of American ideals" – rightly so.
Yet we are still working out which ideals, exactly, the decision
actually champions.
I remember my constitutional law professor, Burke Marshall (who
had been head of the Civil Rights Division in the Kennedy Administration)
putting the following questions to me:
Does Brown mean only that states cannot require blacks and
whites to go to separate schools?
Or, when Brown says that separate educational facilities
are "inherently unequal," is it mandating some form of
actual integration, by creating a right for black school children
to attend a racially mixed school?
Or, did Brown mean something in the middle? Did it mean that,
on the one hand, states had to remedy their own affirmative acts
of segregation by affirmatively eradicating the effects of past
segregation, but, on the other hand, government did not otherwise
have to provide for racially balanced school systems?
Or, alternatively, is Brown,
when read against the backdrop of America's tragic history of race-relations,
best viewed as calling for a "color-blind" Constitution
– one in which government may basically never use race as
a factor in its decision-making, even when the government is
seeking to help minorities instead of stigmatizing them?
Every one of these positions can be plausibly defended as a way
to interpret Brown. In this sense, Brown is something
of a Rorshach Test for one's views about the nation's complicated
history of racial oppression, and its attempts to rectify the consequences
of this past.
Now, the new Roberts Court – as deeply divided about this issue
as about any other, and including two new Justices – is about to
take this test again.
The Facts of the Cases Before the Court
The first case, from Kentucky, involves what is known as a "managed
choice" plan – one in which the school district actively seeks
to maintain racial balance in its schools. Jefferson County, Kentucky,
which once ran a segregated system, administers its managed-choice
system in a way that takes into account student/parental choice,
while also ensuring that each of its schools maintains a minority
enrollment of between 15 and 50 percent. The district as a whole
is made up of roughly one-third minority students.
The second case, which comes from Seattle,
Washington, involves an "open choice" plan. Under this
plan, parents get to choose which school to send their children
to. But when schools are oversubscribed, the school district uses
certain "tie-breaking" factors to determine which applicants
will actually get to attend the school of their choice.
 Under
some circumstances, those factors include race. Specifically, if
an oversubscribed school is racially imbalanced – meaning that the
school's racial balance departs by more than 15% from the minority-majority
balance of the district as a whole – then the race of the applicant
may be considered in the district's school placement decision.
Seattle's race tie-breaker can effect both white and minority students.
A white student might be moved out of a school that had disproportionately
few minorities, despite that student's preference; and, by the same
token, a minority student might be moved from a disproportionately
minority school, despite the student's own choice.
The Lower Court's Grutter-Based Analysis of the Jefferson
County and Seattle Cases
The Jefferson County and Seattle programs survived constitutional
challenges in the lower federal courts. Both the U.S. Court of Appeals
for the Sixth Circuit (in the Jefferson
County case) and the U.S. Court of Appeals for the Ninth Circuit
(in the Seattle
case) ruled that the respective placement programs did not violate
the Equal Protection Clause of the Fourteenth Amendment.
Applying the rigorous test the Supreme
Court mandates when governmental programs that use racial classifications
are at issue, the two Circuits deemed their respective programs
"narrowly tailored" to advance "a compelling governmental
interest."
In reaching this conclusion, the lower courts were applying the
test with special attention to the Supreme Court's 2003 decision
in Grutter
v. Bollinger. There, a narrow majority of justices approved
the University of Michigan Law School's affirmative action in admissions
program, and held that the government has a compelling interest
in the societal and education benefits that flow from diversity
in the classroom.
As the Sixth and Ninth Circuits recognized, the Jefferson County
and Seattle plans sought to advance much the same kinds of interests
that were involved in Grutter. In the view of the school
districts, diversity in schools improves the critical thinking of
students, improves race relations in the community, and creates
a healthier body politic by inculcating tolerance and other positive
values in a new generation.
Neither the Sixth Circuit nor the Ninth Circuit saw any reason to
second-guess the empirical and experiential views of these local
educators about the compelling benefits of diversity. And, indeed,
the Court in Grutter had recognized the appropriateness of
deferring to such local judgments.
Will Grutter-Based Principles Withstand the Change in
the Supreme Court's Personnel?
But – and it's a major "but" – Grutter was a 5-4
decision in which Justice Sandra Day O'Connor, now retired, wrote
the majority opinion. Her swing seat on race issues is now occupied
by Justice Samuel Alito, who in the past has expressed quite conservative
views on these matters, including a strong aversion to affirmative
action. As a result, when the Court hears the Jefferson County and
Seattle cases, the Grutter-based principles that guided the
lower courts will themselves be up for grabs.
Which brings me back to Brown, and its legacy. It may be
that Brown was never intended to require states to
create and maintain integrated schools. And, to be sure, Brown
stands as a cautionary tale about the government using race as a
factor in its decision-making.
But can it really be that the Constitution should be interpreted
as preventing government officials from voluntarily seeking
to maintain integrated schools, especially when they do so in a
way that gives no racial preference, and creates no racial stigma?
This is the point underlying a powerful
opinion written by Ninth Circuit Judge Alex Kozinski, concurring
in the decision upholding the Seattle plan. As Judge Kozinski correctly
observes, the effort to maintain racial balance in public schools
does not come with the poison that ordinarily infects the use of
race by government. There is nothing about these plans that is designed
to oppress racial minorities, as the pre-Brown apartheid
system did. Nor do the pupil placement systems give one racial or
ethnic group an edge over any other. Nor do the programs promote
segregation of the races, which can be an evil in itself.
We should blind ourselves to these nuances, Judge Kozinski wisely
counsels. Under the Lexington and Seattle plans, individual white
and minority students alike may be disappointed in their ultimate
school assignment. But in creating these disappointments, school
officials are placing no value on one race or another. They are
simply seeking to ensure that their schools bear some racial resemblance
to their communities as a whole, while recognizing the important
truth that we all benefit from developing an ability to interact
with those who come from different cultural and racial backgrounds
than our own.
Integration Properly Done Is More Important than Pure Color-Blindness
Those who advocate a kind of purely color-blind Constitution that
would prohibit the Lexington and Seattle programs often quote Martin
Luther King Jr.'s famous dream about a nation in which his children
would be "judged by the content of their character and not
by the color of their skin." Fair enough.
But that wonderful speech had another image in it. King also dreamed
of day when little black boys and girls would join hands with little
white boys and girls as brothers and sisters. This was a dream,
I would argue, that had its birth in Brown.
It is no secret that our public schools remain, as a practical matter,
largely segregated – notwithstanding Brown and all the progress
that has been made with respect to racial equality. It would be
a tragedy if the Supreme Court abandoned Dr. King's dream by prohibiting
elected officials from bringing kids of every color onto every schoolyard,
so that the hand-holding of the next generation may begin.
Edward Lazarus, a FindLaw columnist, writes about, practices,
and teaches law in Los Angeles. A former federal prosecutor, he
is the author of two books – most recently, Closed
Chambers: The Rise, Fall, and Future of the Modern Supreme Court. |
