ACSBlog: The Blog of the American Constitution Society

Last month, the Supreme Court heard its last round of oral arguments in the 2006-07 Term, although much of the Court’s docket remains unresolved.  This post will summarize some of the important cases which will be decided before the Court recesses on June 25th.

School Desegregation

Among the most closely followed of the Court’s pending cases are Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Public Schools, two cases which will decide whether or not school boards are allowed to voluntarily integrate schools on racial lines. ACSBlog guest bloggers Anurima Bhargava & Elise Boddie explain what is at stake in these cases:

At issue are voluntary school integration plans in Louisville and Seattle that apply primarily to students who elect to attend schools outside of their neighborhoods. These cases are not affirmative action cases: they involve student assignment to public schools - where every child is guaranteed a seat - rather than competitive admissions to select institutions. However, they could have a far-reaching impact on the power of school districts to pursue voluntary measures that preserve integration in elementary and secondary schools in order to avoid the harmful educational effects of racial isolation.

The battle to integrate the nation's public schools and to secure a quality education for all students has been at the epicenter of the struggle for racial equality. These cases are significant for the effect they could have on the ability of school districts to fulfill the promise of Brown v. Board of Education, particularly against the backdrop of entrenched residential segregation. Yet there is an ironic twist to these cases that bears discussion, namely the possibility that the Court might prohibit school districts from voluntarily pursuing race-conscious measures to promote integration. The Court could bar school districts from pursuing that which it has previously ordered de jure systems to do. Understood in the context of this country's long, tragic history of racial discrimination and the continuing, widespread persistence of segregation in public schools, a Court ruling to this effect would turn the command of the Equal Protection Clause on its head.

Should the Supreme Court vote to strip local school boards of their power to integrate public schools, recent research shows that this could take away an effective tool in breaking down the achievement gap between minority and white students.  According to a report by University of Wisconsin-Madison professor Douglas Harris, empirical data gathered from No Child Left Behind shows that desegregation remains the most effective way of closing this gap:

The evidence that desegregation improves student outcomes is arguably stronger than evidence on other major systemic reforms recently considered. In the 1990s, school systems tried to decentralize and de-bureaucratize urban schools where a high percentage of minorities attend school. This was followed by a wave of test-based accountability and school choice programs, such as charter schools and vouchers, aimed at the same groupsof students. While there is some evidence that these reforms have some small benefits for minority students, the effects appear much smaller and less consistent than those of desegregation.47 It is worth continuing some of these new policy experiments in order to learn more about their long-term effects, but there is little evidence to date that even the broad application of accountability and school choice would have the same effects as desegregation.

The recent history of the Court’s decision has made it much more difficult for lower courts and school districts to pursue desegregation, however. Lower courts cannot require school districts to desegregate across district boundaries and they are limited in the ways they can require desegregation within districts. There is only one main option left—controlled choice implemented by school districts without court intervention. The decision before the Court is to determine whether this last remaining option will be allowed to stand. In making their ruling, the Supreme Court justices should know that racial integration is as essential to providing equal educational opportunity today as it was when Justice Warren announced the Court’s landmark Brown position in 1954.

Gender, Race and the Wage Gap

In Ledbetter v. Goodyear Tire & Rubber, the Court considers to what extent employers may pay lower wages to women and minorities under federal anti-discrimination law.  At issue in this case is when the clock begins ticking on the statute of limitations for pay discrimination claims.  Lilly Ledbetter alleges that each time she was paid less than her male co-workers for doing the same job, her employer engaged in a new act of discrimination which can be challenged under federal law.  The employer says that, once the decision to underpay an employee has been made, the clock starts ticking, and no suits may be brought after the statute of limitations runs out—even if the employee continues to be underpaid in future paychecks.

Duke Law Professor Catherine Fisk argues that a judgment for the employer may prevent many victims of wage discrimination from holding their employers accountable:

A ruling for the employer in Ledbetter will make it difficult for many employees to challenge illegal pay discrimination. The 180-day time for filing claims under Title VII is relatively short, it is difficult for many employees to learn whether they are being paid less than their co-workers, and even those who suspect that they are may be reluctant to sue their employers while still employed at the firm. Moreover, because in many pay schemes, salaries are increased annually by a percentage over the past year's salary, a rule that prevents challenges to past discrimination in salary allows an employer to grant annual raises that are discriminatory in dollar amount so long as the percentage increase is nondiscriminatory. Thus, an employee whose starting salary is set discriminatorily low but who later receives the same five percent annual raise as other employees will forever receive smaller raises than co-workers.

Gender Equity and Sports

In 2001, the Supreme Court held that high school athletic associations, which make rules governing middle and high school athletics for public and private schools are required to comply with the Constitution (in that decision, the Court held that such associations are state actors because of “pervasive entwinement of state school officials in the structure of the association.”).  Six years later, the Supreme Court is reconsidering this issue in Tennessee Secondary School Athletic Association v. Brentwood Academy. 

Although Brentwood deals with a First Amendment issue concerning the free speech rights of a private school, women’s groups such as the National Women’s Law Center argue that this case could have a profound impact on young women’s access to school athletics:

Although the new appeal centers on Brentwood Academy’s First Amendment and due process rights, NWLC and other advocates for women are concerned with the question of whether the Court properly found that the athletic association should be treated as a state actor that is subject to constitutional requirements in general, including the First Amendment and the Equal Protection clause. 

“Unless the Association is required to adhere to constitutional standards, all students, and most especially young women, would have fewer legal remedies at their disposal to challenge discrimination,” said Marcia Greenberger, Co-President of the National Women’s Law Center.

The case began in 1997, when TSSAA sought to punish member school Brentwood Academy for breaching its recruitment rule.  Brentwood sued the association for violating its right to free speech and due process of law.  The case was taken to the Supreme Court in 2001 on the question of whether TSSAA was a “state actor” that had to provide these rights.  The Court decided that it was.

Now, along with challenging the court of appeal’s holding that it did violate Brentwood’s rights, TSSAA is asking the Court to reconsider its earlier decision, and hold that it is not in fact a “state actor.”

“The Court’s initial holding just a few years ago in the first Brentwood case rightly provides strong protection for all student athletes who may face discrimination, and it would be an ominous sign if it were overruled,” Greenberger said.