ACSBlog: The Blog of the American Constitution Society

by Eva Jefferson Paterson, President, Equal Justice Society

O, let America be America again--
The land that never has been yet--
And yet must be.

Sometimes I just wish that the justices of the United States Supreme Court would read a little poetry before they make up their minds about things. These lines, written by Langston Hughes more than half a century ago, address very clearly the issue that confronts the Court in the two school desegregation cases it will hear next month.

The school district plans challenged in both the Seattle and Louisville cases consider the racial composition of a particular school as a factor in deciding student assignments within a district.¹ The school assignment plans utilize race as a factor to try and alleviate systemic barriers to full participation and integration by taking race into account as it structures social institutions.

While no doubt much attention will be given to the justifications for and particular contours of the assignment plans, there is another, more basic question that the Court should confront. This question, implicit in Hughes' poetic quest for the America that "never has been yet," is different than ones the Court has previously addressed.² This is because the Court has not coherently articulated a conception of race and racial injustice in a way that allows it to address these fundamental issues in the context of history and social reality.³ Instead, the court persists in treating all uses of race as if they were employing the same concept, as if we actually lived in a color-blind society today.⁴

The mandate for color-blindness that the Court has utilized is grounded in a concept of race that is far removed from the racial realities of society. It treats all conceptions of race as if they were merely false ascriptions of inherent characteristics rather than recognitions of real social phenomena. In his thundering dissent in Wards Cove, Justice Blackmun posed the pivotal question: does the Court believe that ". . . race discrimination--or more accurately, race discrimination against nonwhites--is a problem in our society, or even remember that it ever was?"⁵

In his dissent in the Seattle case, Ninth Circuit Court Judge Bea gives a belated, but very blunt answer to Justice Blackmun: with a stroke of the pen, he metaphorically erases the history of the transatlantic slave trade and chattel slavery⁶ and goes on to deny the existence of de facto segregation as even a concept⁷ despite a mountain of sociological data documenting the very real racial inequalities and divisions that persist in our society.⁸

Of course, this deletion of historical and social context is nothing new in the Court's race jurisprudence.⁹ But, the cumulative and very deleterious effect is the inability to recognize, and therefore to address directly, the harms that accrue because of the persistence of racial inequality. Instead, the Court sees the "harm" to be combated by the Equal Protection Clause as that of a person being treated as a member of a race, rather than solely as an individual.¹⁰ This normative discourse of color-blindness ends up masking entrenched systems of inequality; it hinders any government agency - from the Seattle and Louisville school boards to post-209 California - from any attempt to make conscious efforts to mitigate structural harm.

Yet there is a way that the Court can address this problem, not as the America "that yet must be," but in the land that we live in today. In the case of the school assignment plans, the districts utilize a race-conscious program, not because race is some immutable characteristic to which they ascribe certain inherent characteristics, but because "race" has real social effects. Both districts understand well that in a segregated community, students may not be able to study together in integrated schools unless race is considered in assigning students to schools under a plan that offers equal educational opportunity to all the district's children.

In her dissent in Gratz v. Bollinger - ironically the case that launched Ward Connerly's latest electoral crusade against equal opportunity in Michigan - Justice Ginsburg noted that the Constitution must be color conscious so that it can "prevent discrimination being perpetuated and to undo the effects of past discrimination."¹¹

In other words, color consciousness is not one that looks to race because it falsely captures some presumed inherent qualities, but rather, because it captures and directly addresses the lived social reality of communities in which African Americans and other people of color have less access to social resources than whites. By explicitly addressing the way in which race has been deployed in any particular action, the Court can accordingly apply more fitting levels of scrutiny necessary to determine if the action satisfies Equal Protection. The Seattle and Louisville cases offer the Court an opportunity to help create the America "that must be." Soon we shall see whether it embraces that opportunity, or continues to turn the clock backwards on racial justice.

1. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162 (2005) (en banc), cert. granted, 126 S.Ct. 2351 (2006) [hereinafter Seattle]; McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff'd per curiam, 416 F.3d 513 (6th Cir. 2005), cert. granted sub nom. Meredith v. Jefferson County Bd. of Educ.,126 S. Ct. 2351 (2006) [hereinafter "Louisville"].
2. Judge Kozinski's concurrence in Seattle argues against the shared analytical framework of the majority and dissent because "this case is fundamentally different from almost anything the Supreme Court has previously addressed." Seattle, 426 F.3d at 1193 (citing Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir. 2005) (Boudin, C.J., concurring), cert. denied. Professors Pamela Karlan and Goodwin Liu have pointed out that school desegregation plans and redistricting plans that take race into account are fundamentally different than affirmative action cases and should be treated accordingly. See Pamela S. Karlan and Daryl J. Levinson, Why Voting is Different, 84 CAL. L. REV. 1201 (1996); Goodwin Liu, Seattle and Louisville 95 Cal. L. Rev. (forthcoming February 2007).
3. See Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991)
4. Cf. Eric K. Yamamoto, Carly Minner, and Karen Winter, Contextual Strict Scrutiny, 49 HOW. L.J. 241 (2006). In this article, the authors demonstrate the ways in which the Court has employed a varied conception of race in which it may be willing to consider context in its strict scrutiny analysis.
5. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 662 (1989) (Blackmun, J., dissenting).
6. Seattle, 426 F.3d at 1199 (Bea. J. dissenting) There, Judge Bea, in what can only be a rebuke to Judge Kozinski's use of the "melting pot" metaphor to justify a race conscious assignment policy states:

"Up to now, the American 'melting pot' has been made up of people voluntarily coming to this country from different lands, putting aside their differences and embracing our common values. To date it has not meant people who are told whether they are white or non-white, and where to go to school based on their race."