Supreme Court Preview: Threatening Brown's Promise: Supreme Court Cases from Seattle and Louisville Could Undermine Local School Districts' Voluntary Efforts to Combat Segregation
by Anurima Bhargava, Assistant Counsel, NAACP Legal Defense & Educational Fund & Elise Boddie, Visiting Assistant Professor of Law, Fordham Law School
Parents Involved in Community Schools v. Seattle School District No. 1 05-908 ("Seattle")
Meredith v. Jefferson County Public Schools 05-915 ("Louisville").
This term, the Supreme Court will hear two cases that could limit the authority of public school districts to adopt race-conscious student assignment policies. 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.
Despite the unanimity of the Supreme Court in Brown, the decision itself was undermined by decades of fierce local resistance to court desegregation orders and by the federal government's failure to provide a mechanism for meaningfully enforcing Brown's dictates until the adoption of the Civil Rights Act of 1964. The apogee of the judicial commitment to court-ordered desegregation occurred in Green v. County School Board of New Kent County and Swann v. Charlotte-Mecklenburg Board of Education, which commanded local governments to take extensive corrective measures to eliminate the vestiges of state-sponsored segregation. Later Court decisions, in Milliken v. Bradley and Keyes v. School District No. 1, however, substantially limited the reach of mandatory integration by curbing the authority of federal courts to order remedies that in effect impinged upon the autonomy of local governments that had not "officially" engaged in school segregation. In a series of cases beginning in the 1990s, the Court retreated further from court-ordered desegregation by weakening the power of the courts to continue oversight of former de jure school systems that had made good faith efforts to eliminate the effects of segregation.
Yet what has animated these recent desegregation cases is a concern that the power of federal courts not be used to intrude upon the autonomy of communities to fashion policies that are consistent with local priorities and goals. In this regard, the Court has restrained federal courts from mandating integrative measures out of an expressed desire to defer to the traditional authority of local governments over education. Consistent with this goal, it has required plaintiffs in ongoing desegregation cases to justify continued federal oversight by demonstrating a tighter causal relationship between segregation in public schools and the challenged official action. Striking down the policies in Louisville and Seattle, therefore, would put students who seek quality, integrated public schools between the proverbial rock and a hard place -- by making it more difficult to make the evidentiary showing required to justify court-ordered desegregation, while disempowering school districts who want to pursue voluntary integration of their own accord.
Thus, what is significant about the voluntary desegregation policies at issue here is that they harmonize two important themes of Supreme Court desegregation jurisprudence - a recognition of the centrality of integration in the public schools to the long-term project of racial equality combined with deference to locally-elected school boards to pursue policies that fit their local needs. Considering the racial cleavages that continue to plague our country, it would pervert the purposes of the Equal Protection Clause to pronounce these voluntary policies unconstitutional and to hamstring local communities that seek to honor the legacy of Brown by adopting limited race-conscious measures that promote racial integration.
Written By:Lydia Edwards On October 17, 2006 3:41 PM Written By:Lawrence D.Pierce On October 25, 2006 10:23 AM
RE:Supreme Court Preview: Threatening Brown's Promise: Supreme Court Cases from Seattle and Louisville Could Undermine Local School Districts' Voluntary Efforts to Combat Segregation
The history of the United States in race relations is poor as evidence by the number of cases that the court systems are facing daily.
Cases such as Hopwood, Bakke, Grutter v. Bollinger and Gratz v. Bollinger have pointed toward one issue, and it's whether one race is "qualified" to attend school. The underlining problem of this issue is race and it will be an issue.
Our Constitution is design to give equal protection to all individuals, but not to use to their advantage to limit other from achieving their goals. If, education is the key to success, why is it having such a difficult time? If, our nation is "color-blind," why are we still having problems with race-relations?
Bakke is still good law, and we should recognize it's efforts in developing a diverse group in a educational setting, all based on the Brown ruling.
This post's argument in favor of using race is based on a very odd, revisionist understanding of what "integration" means.
It's inaccurate to speak of the challenges to the use of race in student assignment as challenging attempts to "integrate" the schools.
The Seattle Schools, whose use of race is pending before the Supreme Court, have never been segregated, so there is nothing to "integrate."
Indeed, the University of Washington's school of law, located in Seattle, had black students as far back as 1900, even though there were few black people in the northwest.
Seattle has a proud history of being a melting pot (notwithstanding its school district's recent wacky claims that "concepts such as a melting pot" are failures, or that "individualism" is a form of "cultural racism").
The idea that Seattle's schools are not "integrated" is based on the fallacy that each school in a school district must have the same racial balance as each other school in order to be integrated.
That wrongly equates racial balance with desegregation.
Neither the Congress nor the Supreme Court defines desegregation that way.
Indeed, both the Supreme Court and Congress have long made clear that using race to promote racial balance is disfavored and has nothing to do with desegregation.
The 1964 Civil Rights Act (in Title IV, Section 401(b)) declares that:
"'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
Similarly, the Supreme Court has stated that "racial balance is not to be achieved for its own sake" in Freeman v. Pitts (1992), and that "racial balancing" is "patently unconstitutional" in Grutter v. Bollinger (2003).
The plaintiffs in the Seattle case are seeking the same thing that the plaintiffs sought in the celebrated Brown v. Board of Education case: the right to attend their preferred school without being excluded on the basis of race.
The complaint of Linda Brown, the Topeka elementary-school student who gave the Brown decision its name, was that she was barred from attending her neighborhood school and forced to attend a distant school because of her race.
Ethel Louise Belton, whose case was consolidated with Brown's, was assigned to a school nine miles away from her home, rather than being allowed to attend a school a short walk from her home, because of her race.
Similarly, the 1971 Swann case, commonly cited in support of race-based busing, actually began when James Swann was not allowed to attend the school closest to his home because of his race.
Desegregation is about being able to attend your neighborhood school without regard to your color, not about being assigned or bussed to a particular school based on your skin color to achieve "racial balance."
As the Brown II decision put it, what Brown v. Board of Education held was that racial discrimination in public education is unconstitutional (not that racial discrimination is necessary to promote "diversity" or "racial balance").
Thus, striking down the use of race by these school systems would be perfectly consistent with Brown v. Board of Education.
I wonder where all the conservative state's rights people are now? Here is a perfect chance for them to brag about state rights actually helping integration. This makes you wonder if the state's rights mantra from the right is really race neutral.