ACSBlog: The Blog of the American Constitution Society

by Tomiko Brown-Nagin^*

The legal analysis in the Supreme Court’s recent decision rejecting race conscious school assignment policies is subject to debate.  One’s conclusion about whether the Equal Protection Clause permits such policies turns on which school of constitutional interpretation one embraces; and that conclusion likely relates to whether one is cognizant of and believes that government should attempt to ameliorate racial stratification and subordination.  But one of the plurality’s analytical moves—its turn to history—should not be open to debate.  

Chief Justice John G. Roberts Jr. invoked the arguments of the NAACP Legal Defense Fund in Brown v. Board of Education in support of the plurality’s decision striking down the Seattle and Louisville’s school plans.   The NAACP argued that racial classifications were categorically unconstitutional, Justice Roberts noted, and the Brown Court unanimously agreed.  Therefore, it was axiomatic, he claimed, that the Seattle and Louisville plans, which also use race, albeit it a much different context, were unconstitutional.

The plurality’s opportunistic historical analysis was strategically simplistic and incomplete. It overlooked the context in which the NAACP litigated Brown, as well as the essential goal of its litigation campaign. NAACP lawyers made their case in a highly constrained legal environment, one in which the U.S. Supreme Court had made crystal clear that it was constitutional to classify public school students by race, provided the schools were equal. The NAACP thus made the equivalent argument — that it was unconstitutional to classify students by race, even if the schools were equal — to advance the opposite position. That was a tactical decision designed to garner a clear statement of legal principle from the Court that the South could not deny or evade by claiming that its segregated schools were somehow in fact equal. 

But the overall objective of the NAACP’s legal strategy aimed toward the far-reaching goal of uprooting the centuries-old racial caste in the United States — of which school segregation constituted an important part. Before and after Brown, the NAACP litigated numerous education, voting, housing, employment, public transit, and other cases designed to achieve substantive racial equality in society, including in the schools. Yet, the Roberts plurality opinion insisted that the problem of racial discrimination can be reduced to the simple fact of whether the government classifies by race. This outlandish conclusion defies our long national experience and reflects ignorance of the NAACP’s campaign to displace Jim Crow or intellectual dishonesty.  

When school boards and their attorneys attempt to decipher what the Court’s decision means in practice, they should reason about race in a more nuanced matter.  Polls suggest that many citizens have internalized the ideals behind Brown and the Civil Rights Act of 1964, in which Congress made equal access to schools and other institutions national policy. But the pressing question is how to translate ideals into policies that are both effective and within the law.

If citizens and their elected representatives wish to pursue school diversity, they can still do so. Justice Anthony M. Kennedy’s concurring opinion suggested that race conscious policies may still be viable in some circumstances, although race cannot be the predominant factor in school assignment. 

But many of the tools that Justice Kennedy cited approvingly for diversifying schools — site selection, attendance zones, magnet schools — are not necessarily effective means of achieving significant diversity in large schools systems where neighborhoods are de facto segregated.  And it is unclear what other types of race-conscious plans would meet with Justice Kennedy’s approval.  Moreover, the rules governing which parts of Kennedy’s concurrence constitute the law of the land are unclear and contested.    

Despite the perils of relying on Justice Kennedy’s opinion, many civil rights organizations and leading liberal scholars are insisting that school boards can continue to pursue race conscious school assignment plans.  I, along with other historians of the civil rights era, filed an amicus curiae brief in support of the Seattle and Louisville plans, and continue to believe that they are morally and legally justified.  But, after the latest decision from the Court, it is risky and unwise to persist in the single-minded pursuit of race conscious policies.  A strategic change of course, or at least tactical flexibility, is appropriate. 

The plurality’s decision and its manipulation of the historical record could serve as a basis for mobilizing multiracial communities around policies that could help to promote Brown’s unfinished promise.  Citizens who are committed to equality and diversity in schools should insist that school boards, supported by state and federal officials, pursue policies consistent with those objectives. 

School boards should consider socioeconomic class — which is not subject to heightened judicial scrutiny — a factor in assignment, rather than race.  This legally safer (but not bullet proof) approach to pursuing diversity might also be less politically divisive, and therefore more attainable.  Moreover, socioeconomic integration may promote academic achievement among racial minorities, according to some scholars.  If so, class-based policies might address legitimate concerns among some African American commentators, not to mention Justice Clarence Thomas, that school desegregation has not resulted in sufficient academic benefits for black students—particularly low income students.  Typically, the needs of these students have not been a priority for proponents of school desegregation.   

Ultimately, school boards, in collaboration with the citizens whom they serve, remain laboratories for problem-solving about how race and class background can shape students’ educational experiences and life chances.  The plurality’s immodest opinion has not changed that.   

^*Tomiko Brown-Nagin is Professor of Law and History and F. Palmer Weber Research Professor in Civil Liberties and Human Rights at the University of Virginia School of Law.