Friday, July 6, 2007

What Will We Tell Our Children?

By: Amy Stuart Wells

Amid the lawyers, policymakers and pundits debating the implications of Thursday’s U.S. Supreme Court ruling striking down the Louisville and Seattle voluntary school integration plans, came the soulful plea of an African-American mother. Interviewed on National Public Radio, Mary Myers of Louisville explained how the ruling against her local officials’ efforts to racially balance their schools may well jeopardize her two children’s school assignments and educational opportunities.

Ms. Myer’s children, ages 13 and 16, had benefited from the defeated desegregation plan because it had allowed them to attend racially diverse public schools outside of their community. Had they and their peers attended neighborhood schools, Ms. Myers noted, they would not have been exposed to people of different racial and cultural backgrounds and they would not be prepared for the incredibly diverse and global society they will soon inherit. When asked about her response to the decision, this 49-year-old mother sounded fed up: “Leave these children alone. Let them go to school together…. They have to go into the workforce and work together.”

What made the plea of this one mother so poignant in the midst of many legal arguments about what school districts can and cannot do in light of this complicated decision is that it came from her heart, it echoed the sentiments of millions of Americans, and it put the children and their experiences at the center of this controversy. Ms. Myers, who attended mostly segregated schools, could see the benefits of school desegregation first hand, and she knew the potential costs of such a ruling. “This country is on a bad road with this; This is a bad decision,” she said.

The decision clearly states that school districts cannot take individual students’ racial classifications into account when assigning them to schools. School officials can use other, generally less effective, measures to integrate their schools, however, including locating new school sites between racially distinct neighborhoods, redrawing school attendance zones (not an easy thing to do politically), or racially targeting recruitment of students or faculty to schools of choice. What the ruling means for Ms. Myers children or any of the other students in the estimated 1,000 school districts that use race-conscious policies to integrate their schools will be decided in the coming months. Some of them will be grandfathered and allowed to remain in their racially diverse schools until they graduate, but it seems likely that our schools will become more racially segregated, which goes against what millions of parents like Ms. Myers want.

In fact, Ms. Myer’s sentiment echoes that of the vast majority of parents in this country; 66% of whites and 80% of black parents say that educating their children in a racially diverse setting is either somewhat or very important. Their sentiments are backed by reams of social science research -- documented in more than 50 amicus briefs filed in these cases -- demonstrating the innumerable benefits of racial integration in public schools for students of all races.

In particular, research my colleagues and I have conducted on the long-term effects of school desegregation on the adults speaks to Ms. Myer’s central point. Since 2000, we have studied more than 300 graduates of 12 racially diverse public high schools across the country, including six schools in Louisville and Seattle. We interviewed black, white, Latino and Asian adults who graduated from these schools in the early to mid-1980s.

Now middle aged with work experience and children of their own, these graduates were not shy about sharing their stories with us. There were hardships – some long bus rides, some racial tension, some re-segregation within diverse schools in both the classrooms and lunchrooms, and some misunderstandings that were not resolved by educators who were often trying to be “colorblind” while teaching students for whom race and inequality were very salient. But despite these hardships, all but two of the graduates we interviewed said that attending a racially diverse school was worth any headaches or inconveniences and that if they could do it over again, they definitely would. In fact, the majority of these graduates said that attending these diverse public schools was one of the most valuable experiences of their lives.

When asked why their school integration experiences were so valuable, these graduates said first and foremost that it made them far more comfortable around people who are different in terms of race or ethnicity – a skill they find infinitely helpful as adults. As a white woman who graduated from Garfield High School in Seattle and now works as a social worker explained, “I definitely think that being at Garfield, in a very racially diverse school, impacted my whole sort of worldview, and it’s something I look back at all the time, and I feel like it gave me lots of benefits that people I know who were in… racially less diverse schools don’t have.”

A white male graduate of Franklin High School in Seattle explained that in his job with a global corporation he manages workers in 60 different countries. He travels to these different countries and supervises and trains this workforce. Even though his high school, with its mix of Asians, blacks and whites, was not as diverse as the mix of people now works with, he said his schooling experience provided a “step down that path of being comfortable with people of a variety of races.”

Unfortunately, fewer children will have the opportunities that these graduates had. We know from our history and from research on white flight and resegregation that the more limited measures that districts can now use to diversify their schools will likely accomplish less than Louisville and Seattle’s more pro-active choice-based assignment plans, which assured all students had choice and no school was too distinct from the demographics of the districts as a whole. Such plans help to integrate all schools across a district and thus create greater equality and stability. But they are now outlawed, and we need to think of what we will tell our children – Ms. Myer’s, mine, yours – when they ask, as my 8-year-old did on June 28th, what this decision means for them and their diverse public schools. Perhaps Justice Roberts has an answer for them. I am speechless.


Voluntary Desegregation Plan Challenged in Lynn

On Tuesday, lawyers challenging the voluntary desegregation plan in Lynn, Massachusetts filed papers asking the U.S. District Court to issue a new decision in light of the Supreme Court's ruling in Parents Involved in Community Schools. The First Circuit Court of Appeals upheld the Lynn plan two years ago, and the Supreme Court denied the plaintiff's petition for review, even after it had accepted the Seattle and Louisville cases. Both SCOTUSblog and the Boston Globe have detailed stories on the new challenge.


Monday, July 2, 2007

The Lawyers who Represented Black Schoolchildren in Brown React to the Chief' Justice's Interpretation of their Words

On page 40 of his opinion in the Seattle and Louisville school cases, Chief Justice Roberts quotes directly from the 1952 oral argument transcript in Brown v. Board of Education to support his notion that the Constitution is colorblind:

"As counsel who appeared before this Court for the plaintiffs in Brown put it: ‘We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause. . .to use race as a factor in affording educational opportunities among its citizens.’ There is no ambiguity in that statement."

Don’t tell that to the actual lawyers who represented the black schoolchildren in Brown. In response to the ruling, these lawyers have stated that the Chief Justice has, “misinterpreted the positions they had taken in the litigation [and] misunderstood the true meaning of Brown." The New York Times, in a June 29 article entitled, “The Same Worlds, but Differing Views,” gathered these responses from the Brown lawyers themselves:

-Robert L. Carter, the lawyer who Roberts quotes directly (and now a 90-year-old senior federal judge in Manhattan) explains how the Chief Justice distorted the purpose of and historical context behind his words:

"All that race was used for at that point in time [the 1950s] was to deny equal opportunity to black people. It’s to stand that argument on its head to use race the way they use is now."

-Columbia Professor Jack Greenberg, who worked on the Brown case for the plaintiffs, called Roberts’ interpretation “preposterous.” He explained that,

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people. They said you can’t consider race, but that’s how race was being used. . . Following Brown, there was massive resistance. This is essentially the rebirth of massive resistance in more acceptable form.”

-William T. Coleman Jr., a lawyer in Brown who now works as a lawyer in Washington, explained that,

“The majority opinion is 100 percent wrong. It’s dirty pool to say that the people Brown was supposed to protect are the people it’s now not going to protect.”


Two Approaches to Equal Educational Opportunity: Integration and School Funding

In a June 30 New York Times article, entitled, "Money, Not Race, Fuels New Push to Buoy Schools" the longstanding conversation about racial integration and school finance litigation as dual approaches to increasing educational equity continues.

Because "fiscal-equity litigation and integration need not be either-or propositions," the real question is why this 'debate' exists in the first place. Advocates of both integration and school finance are working to increase educational equity and, as the Supreme Court opinion highlights, there are powerful forces working to undermine this goal. While it is true that the legal "tools to address racial inequities" are dwindling, education lawyers from both camps must nevertheless work in tandem towards their shared goal. American schools are segregated and American schools are underfunded. They need all the help they can get.


Op-Ed Roundup

The op-ed pieces in this weekend's newspapers reveal the national debate surrounding the Supreme Court's decision.

Bruce Shapiro in The Nation: Supremely Bad Decisions
Senator Ted Kennedy in the Seattle Post-Intelligencer:
Still Seeking Equality
Kansas City Star: Supreme Court Turns Its Back on the promise of Brown
Wall Street Journal: Race and the Roberts Court
New York Post: Beyond Brown -- Race Blind Roads to Diversity
Boston Globe: Still Unequal
Benjamin Wittes in The New Republic: Multiple Choice--Anthony Kennedy Punts on the Question of School Diversity
Newsday: Regrettable Decision
Ellis Cose in Newsweek: A Sliver of Hope


News Roundup: School Reactions

School districts around the country are appropriately weighing the legal implications of the Supreme Court's ruling in the Seattle and Louisville cases on Thursday. While many districts appear confident that the rulings will have little effect, as the superintendant of Norwalk, Conneticut, stated, "The only thing I can say for sure is that I can't say anything for sure."

See more school district reactions after the jump.

Madison, WI
Columbus, GA
Little Rock, AK
Chicago, IL
Mobile, AL
Los Angeles, CA
New York, NY
Philadelphia, PA
Newport News, VA
Wichita, KS
Berkley, CA
Stamford, CT
Seattle, WA
Worcester, MA
San Francisco, CA
Knoxville, TN


Guest Blogger: The New Four Horsemen, Circumruling Precedent

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford University

The two big social issues that the Supreme Court confronted this Term were abortion, in Carhart v. Gonzales (Carhart II) and school integration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (which decided cases from both Seattle and Louisville). In both cases, it seems clear that the replacement of Justice O’Connor by Justice Alito made a decisive difference: Carhart II “circumruled” (the Court didn’t outright overrule) Stenberg v. Carhart, in which Justice O’Connor was the decisive fifth vote, on the question whether the government can ban a particular abortion procedure without providing an exception for cases where the pregnant woman? health is at stake, and to some extent Planned Parenthood v. Casey (in which Justice O’Connor was in the three-Justice bloc that determined the outcome), on the way in which the undue burden standard is to be used.

Parents Involved circumruled School Committee of Boston v. Board of Education and Swann v. Charlotte-Mecklenburg -- two venerable school desegregation precedents -- as well as Grutter v. Bollinger, the Michigan race-conscious admissions case, in which Justice O'Connor was again the crucial fifth vote. (One snarky aside: Parents Involved reads Grutter extremely narrowly, as a case about "diversity in higher education" -- one wonders, after the Chief Justice is done explaining an opinion he almost certainly would not have joined, and which the four remaining Justices who did join read in an entirely different way, why he didn't confine it further to "diversity at the University of Michigan Law School." According to the Chief Justice, "universities occupy a special niche in our constitutional tradition" due to the "expansive freedoms of speech and thought associated with the university environment." By contrast, in Morse v. Frederick, decided earlier this Term, the Court circumruled a series of cases recognizing that public school students also enjoy freedom of speech.)

Rather than rehash points that I imagine scores of other folks will be making, I want to focus on an additional similarity between Carhart II and Parents Involved before turning to a more specific doctrinal point: the utter gulf in language between the two sets of Justices. In Carhart II, the majority repeatedly refers to the women involved as "mothers," the fetus as the "unborn child," and the doctors as "abortionists." By contrast, the dissenters use quite different language. Similarly, in Parents Involved, the plurality repeatedly refers to the school boards' goal as "racial balancing" -- with Justice Thomas going so far at one point as calling it "forced racial mixing" (which sounds far more like the Jim Crow era segregationists than anything modern -- as if any student had a legally cognizable interest in attending a monoracial school). By contrast, Justice Kennedy and the dissenters use phrases like "working together," "integration," and "desegregation." As for differences between the two cases, why were the New Four Horsemen content in Carhart II to resolve ostensible uncertainty in the medical community over the health imperatives in favor of the government (in fact, the consensus cut entirely against the purported congressional ? findings?) and against the substantive due process rights of the women involved while in Parents Involved Justice Thomas goes precisely the opposite way, claiming that because social scientists ostensibly disagree on the educational benefits of integrated educations, the government has no compelling interest that can override a student's interest in race-blind school assignments? Could it have more to do with values that with doctrinal frameworks?

The pivotal vote in Parents Involved is, of course, Justice Kennedy's. And here, too, there's a similarity to Carhart II. In both cases, Justice Kennedy objects not so much to ends, but to means. His opinion for the Court in Carhart II does not challenge a woman's right to decide for herself whether to terminate a pregnancy, but he objects to her undergoing a procedure that disgusts him. He is confident -- without much empirical support -- that there are alternative procedures that would protect both the woman?s right to choose and the government's interest in preserving a particular moral tone. Similarly, in Parents Involved, Justice Kennedy's concurrence and concurrence in the judgment accepts -- indeed, celebrates and commits him to respecting -- the communities' desire to achieve racially integrated schools. He objects instead to the means they have chosen: race-conscious assignment of a relatively few students to attain, or maintain, integrated schools. Again he is confident -- without much empirical support -- that equally race-conscious, but less explicit, action could produce the same result.

This leads to my doctrinal point. The core of Justice Kennedy's opinion is his distinction between school board actions that look at individual students and equally race-conscious, integration-pursuing actions that operate on a more wholesale level. The critical passage appears on pages 8-9 of the slip opinion:

"School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible."

Many folks, I imagine, will fasten on this passage as a roadmap for continued efforts to dismantle segregated schools and produce what Green so aptly called "just schools." Of course, we should do that. Justice Kennedy has rejected the enterprise of dismantling the ideal of integration or barring the government from pursuing equality through inclusion. Here, as with Justice Powell and Justice O'Connor before him, Justice Kennedy leaves open a variety of mechanisms for pursuing desegregation, and we need to assist the public, school boards, and lower courts to develop and reinforce these strategies.

I want to focus on something else: this passage illustrates why the entire enterprise of strict judicial scrutiny for racial classifications has turned out badly. As I've pointed out in earlier work, strict scrutiny was the consequence, not the cause, of the Warren Court's great antidiscrimination decisions. It wasn't until 1964, in McLaughlin v. Florida, that the Court applied what's come to be known as strict scrutiny and by then, the Court had essentially finished the job of eradicating explicit racial classifications. The reason for this is that the Court rejected the clearly discriminatory purposes behind the explicit racial classifications it confronted in the 1960's. Does anyone seriously think that Virginia's criminalization of interracial marriage would have survived rationality review had that been used in Loving? Indeed, the only case I can think of where strict scrutiny has made a difference in protecting the rights of African Americans is the recent prison segregation case, Johnson v. California, and there Justices Scalia and Thomas would not have applied strict scrutiny because their commitment to deference to prison officials (who somehow seem more worthy of such respect than democratically elected school boards) outweighed their commitment to a color-blind Constitution.

Strict scrutiny has been essentially beside the point for the kind of equal protection cases African Americans and other persons of color have brought since its adoption. These cases usually involve challenges to facially neutral laws -- for example, the use of admissions tests that screen out minority applicants or the staggering disparities in criminal sentencing. In such cases, to trigger strict scrutiny, under Feeney v. Personnel Administrator of Massachusetts, plaintiffs must first prove that the government "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." But the Supreme Court has repeatedly recognized that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate, -- let alone a compelling, 'governmental interest.' " Thus, proof of an invidious motive by itself strips a law of its presumptive legitimacy. Once the plaintiff has shown a discriminatory purpose, the burden shifts to the defendants to prove that the law would have been enacted even without that purpose. As a practical matter, though, proof of an invidious intent to injure blacks or Hispanics is the ballgame. Few courts, having found that sort of malevolence, are likely to uphold a law anyway.

On the other hand, strict scrutiny has proved invaluable in the assault on race-conscious affirmative action. That is perhaps what drives Justice Stevens in his dissent to reiterate his 'one equal protection clause' theory -- a theory that Justice Marshall, who must be spinning in his grave at the misappropriation and willful misreading of his arguments in Brown, also adopted. And it may also explain Justice Breyer's reshaping, in the principal dissent, of what strict scrutiny ought to mean in context.

Oh, everything has been turned upside down, when Justice Thomas can write that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," seeing popularly elected, community based schools boards as the 'elite' and casting himself and the other New Four Horseman as the true representatives of the people. But as the Chief Justice says "history will be heard." And it will not be kind to Parents Involved.


Presidential Candidates Release Statements in Response to Court's Decision

The following Presidential Candidates (Democrat and Republican) have released statements on last week's ruling:

Hillary Clinton
Chris Dodd
John Edwards
Barack Obama

Click here for a link to Tavis Smiley's audio from the Democratic presidential debate last Thursday. The debate opened with a question on race and the school cases.


The Congressional Black Caucus Denounces Supreme Court Opinion in School Race Cases

On June 28, 2007, Congresswoman Carolyn C. Kilpatrick (D-MI), Chairwoman of the Congressional Black Caucus (CBC), released the following statement on the Supreme Court ruling:

"Today, the Supreme Court rejected reason, rationality and respect for all Americans in its decision limiting access to education for all Americans. In rejecting school diversity plans that made race a factor - but not the sole or most important factor - in Louisville and Seattle, the Court tears at the very fabric of unity in our nation. We can, and we must, do better for our children and grandchildren.

As a former teacher, a mother, and a grandmother, I understand the value of education. Access to education is one of our most sacred privileges. Education is the linchpin of achievement, success and stability in our country. If you were not born of privilege, education and hard work can earn you privilege. This heinous ruling not only topples more than half a century of progress achieved under the Brown v. the Topeka, Kansas Board of Education decision, it encourages separation and segregation in private industry and government as well as in education.

We applaud the remarks of Supreme Court Justice Breyer. Justice Breyer, in his dissenting opinion, said that "this is a decision that the Court and the Nation will come to regret." The Congressional Black Caucus will continue to fight for quality education for all children; will confront the crises posed to us by the Supreme Court ruling, and will continue the legacy established by NAACP attorney and Supreme Court Justice Thurgood Marshall to ensure that all American children attend and receive a quality education.

The Congressional Black Caucus, made up of 42 Members, representing more than 40 million Americans from 26 states, will continue the legacy and ensure fairness, justice and equality for all."


National Academy of Education Issues Report on Race-Conscious Policies for Assigning Students to Schools

The National Academy of Education issued a new report following the Supreme Court's decision. The report, entitled "Race-Conscious Policies for Assigning Students to Schools: Social Science Research and the Supreme Court Cases" summarizes and analyzes the existing body of research related to race-conscious student assignment policies, building upon the amicus curiae (friend of the court) briefs filed with the Supreme Court in support of both petitioners and respondents. The Academy found that 27 of the 64 amicus briefs filed in the two cases contained substantial discussions of social science research.

The National Academy of Education "advances the highest quality education research and its use in policy formulation and practice. Founded in 1965, the Academy consists of up to two hundred U.S. members and up to twenty-five foreign associates who are elected on the basis of outstanding scholarship or contributions to education. Since its establishment, the Academy has sponsored a variety of commissions and study panels that have published influential proceedings and reports." More information on the Academy can be found on its website at


Getting to Work to Achieve Equal Educational Opportunity

Lia Epperson, Assistant Professor at Santa Clara University School of Law, urges "schools, parents, community leaders and policy-makers" to "take your marching orders and get to work. Start by using the tools outlined by Justice Kennedy and make real the promise of Brown to achieve true equal educational opportunity." Her op-ed, entitled Equal Educational Opportunity - We're Not There Yet, was published today in the San Jose Mercury News.


Sunday, July 1, 2007

Forgetting the Segregated South

In this piece entitled "The High Court in Race Case Forgets History," Ann Woolner reflects on her own education as a white 1968 high school graduate in the segregated South, and suggests that Chief Justice Robert's invocation of Brown v. Board of Education to strike down efforts to integrate schools misses "the reality of what race meant and still means in this country." Indeed, Woolner concludes that "53 years after Brown, if any are still breathing, [the Southern segregationists] are getting a hearty last laugh at the new interpretation of that old decision they so hated."


Brown's Legacy Lives, But Barely

Charles Ogletree, professor at Harvard Law School and executive director of the Charles Hamilton Houston Institute for Race and Justice, published this op-ed in the Boston Globe on June 29, 2007. Professor Ogletree somberly remarks:

While this decision is neither as damaging nor as far-reaching as many feared it might be, there is no cause for celebration. This ruling removed a successful tool for combating the racial segregation that is a ubiquitous feature of the nation's public schools.
He ends with the following observation:

The unfortunate, but perhaps empowering, lesson of these rulings is that it will be up to the people, collectively, to determine what sort of schools we maintain and what moral lessons to teach there. Only time will tell whether the principles embraced in Brown continue to guide us in achieving racial integration, diversity, and equal opportunity in quality education.
For more information on the Charles Hamilton Houston Institute and its efforts to ensure equal opportunity in quality education, please visit the Institute's website at:


A Call To Vote

Bob Herbert, in his June 30 column entitled "When is Enough Enough," (click here), reflects briefly on the Supreme Court's decision, and the importance of voting to ensure that the Justices appointed to the Supreme Court do not continue to be "relentlessly hostile to the interests of black people":

For black people, especially, the current composition of the Supreme Court should be the ultimate lesson in the importance of voting in a presidential election. No branch of the government has been more crucial than the judiciary in securing the rights and improving the lives of blacks over the past five or six decades.