By Christopher Newfield, Professor, University of California, Santa Barbara
One of the truisms of our time is that conservatives rule American politics because they have won the battle of ideas. Although The Supreme Court's new rejection of the use of race in diversity programs in the Louisville and Seattle school districts (No. 05-908) seems like redundant confirmation, the real story of the case is Justice Breyer's astonishing 77-page dissent.
Breyer dismantles every moving part of the conservative case, one piece at a time. The case will not be remembered for its plurality opinion but for Breyer' dissent, which reassembles a democratic theory of racial integration.
In the Seattle decision, Chief Justice John Roberts bases the plurality opinion on the standard, three-part conservative argument. First, racial classification is always and intrinsically bad, not just when it is used to subordinate or stigmatize a group. Second, with very rare exceptions, racial classification can only be used to reverse an institution's own prior, state-sanctioned segregation: voluntary improvements are not allowed. Third, racial diversity is almost always a cover for numerical quotas that try to make institutions conform to the racial mixtures that prevail in society at large. Diversity's secret goal is what the Chief Justice calls "racial balancing," and it is unconstitutional.
As is equally standard in such contexts, racial consciousness is presented as a central threat to individual rights and personal choice. Finally, the icing on the conservative cake is that the color-blind scheme turns out to be, in this view, the only effective form of anti-racism: to cite Roberts' media tag-line, fully pre-tested by conservative think tanks: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The real causes and effects that shape American society are replaced by a series of scholastic equations, in which race blindness equals race legality equals race justice, and the package is held together by a tone of superior moral rectitude toward the race conscious authorities who impair the freedom to choose.
Breyer systematically rejects each of these claims. First, his lengthy examination of precedent shows that the Court has repeatedly endorsed racial classification when it includes rather than excludes. The whole point of applying "strict scrutiny" standards to racial classifications is precisely to "take relevant differences" between "fundamentally different situations . . . into account." The Roberts plurality, Breyer writes, is in fact breaking with Court precedent in order to make strict scrutiny "fatal in fact" to all racial classification across the board. The power of Breyer's opinion comes from his relentless evisceration of the taboo against race-consciousness based on the Court's own decisions. The conclusion is that the cornerstone of conservative race theory has no basis in the Court's own opinions on race.
Second, Breyer shows that court-sanctioned de jure discrimination ("segregation by state action") is not the only kind that can be addressed with race-conscious programs: de facto discrimination, like the educational effects of housing segregation, is also a legitimate target. The stakes here are whether schools, with public support, have the right to seek to increase racial mixing in communities where larger housing and income patterns make that mixing unlikely. Conservatives have said no, race-conscious remedies can be used only in cases of extreme previous racism, which is like saying that pesticide bans should apply only to former toxic waste sites and not to the landscape at large. Breyer's argument is a fundamental rejection of the conservative restriction.
Third, Breyer argues that the goal of diversity practices is to keep racial integration from moving full speed into reverse. The gains of the period between 1968 and 1980 have been almost entirely lost, as nicely articulated by Breyer's description of the empirical evidence of resegregation. Does the desire of white parents to send their children to whatever school they want always trump the goal of keeping residentially segregated racial groups in communication with each other? Breyer argues that the state has a compelling interest in the use of education to create the powers of understanding that underwrite a multi-racial democracy. He also argues that the districts have bent over backwards to protect individual choice, thus rejecting the Right's assertion that choice and racial diversity are contradictory.
The effect of Breyer's opinion is to hold conservative race theory to account. It has dominated the courts during the same period in which school segregation has increased, when administrators and teachers have had to jump through new legal hoops every year, when educational disparity - like the economic kind - has increased all over the country. Advocates of color-blindness has made all of this worse, attacking nearly all programs of racial inclusion as assaults on liberty, painting as dire threats the integrationist remedies that thirty years ago were considered the least society could do.
Color-blindness has also allowed many white parents to dodge the question of whether they are willing to fix the multi-racial schools their children are assigned to rather than fighting endlessly to keep them from going there in the first place. Conservatives have used racial resentment to blind whites to the general benefit of high-quality public provisions for all students, including the benefit to themselves of Latinos and African Americans receiving equally good educations.
Breyer's opinion, though on the losing side, may eventually help refocus the outrage of whites, who have sought to use the courts for the benefit of their own children regardless of the effects on the children of others, refocus them on how the success of their society depends on the equal distribution of quality in education.
Friday, July 20, 2007
Guest Blogger: The Beginning of the End for Conservative Race Theory
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.”
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."
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.
Thursday, June 28, 2007
New York Times Editorial ("Resegregation Now") Blasts Roberts and Majority
"The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Today, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality."
"Since 1954, the Supreme Court has been the nation’s driving force for integration. Its orders required segregated buses and public buildings, parks and playgrounds to open up to all Americans. It wasn’t always easy: governors, senators and angry mobs talked of massive resistance. But the court never wavered, and in many of the most important cases it spoke unanimously."
'Today, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated."
Click here for the full editorial.
Also, click here for an informative Linda Greenhouse analysis in the NYT.
Louisville Courier Journal: "Thwarting Equity"
The Louisville Courier Journal's editorial eloquently expresses that community's disappointment in today's decision and its determination to continue the struggle for integration. The passages below are stirring:
"Faced with a choice between continuing or ending Jefferson County’s opportunity-enhancing, popularly supported and nationally acclaimed plan for keeping its once-segregated schools racially integrated and equitable, the Court chose, 5-to-4, to end it.
In doing so, the majority declared unconstitutional the very same race-conscious assignment practices that its civil-rights minded predecessors had deemed constitutionally necessary.
It declared impermissible the very same achievement of integration that those earlier jurists had so wisely required, with such profoundly gratifying results for our society.
As a result, the near total racial isolation and educational despair that pervade so many American cities today are considered constitutionally just; the racial diversity and educational opportunity that Jefferson County has voluntarily and proudly attained are rejected as constitutionally unjust.
A more bitter or unjustified blow is hard to conceive.
The only thing worse would be for people of good will here to stagger under that blow and give up.
What we have gained for our children and for our community’s social health is far too important to lose, and despite the callous, ideological lockstep of this decision, there remains a glimmer of hope.
School authorities may still “find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classification.”
That is precisely the challenge that the school board, its new superintendent and federal District Court Judge John G. Heyburn must accept and meet.
Other means must be found to preserve both the diversity and choice that families of both races value so highly. Simply returning to segregated neighborhood schools would sacrifice far too much of both.
As Justice Stephen Breyer wrote in the stirring minority dissent, “This is a decision the Court and the Nation will come to regret.”
The same shouldn’t be said of our response."
More "Grutter-ization" of Schools
Jack Balkin joins the growing crowd of voices who, in trying to make sense of Justice Kennedy's pivotal concurrence, have labeled it an extension of Grutter in elementary and secondary schools. He also notes that Kennedy is in some ways an unlikely proponent of Grutter:
"Grutter becomes the model, if not in the plurality opinion, then in Justice Kennedy's...And that is quite interesting, precisely because Kennedy himself did not join the majority opinion in Grutter. In one stroke he has signalled that he is more or less on board with Grutter. That is good news for people who were worried that all affirmative action policies were now in danger following Justice O'Connor's retirement. Kennedy may not uphold the next affirmative action policy that comes before the Court. But his position on affirmative action is not the same as the plurality's, much less that of Justice Thomas."
Original Plaintiff in Louisville Desegregation Case Decries Today's Ruling
Suzy Post, the mother of five children in Louisville public schools and the only living plaintiff from the original Louisville desegregation lawsuit published this piece in the Louisville Courier-Journal
Today's Supreme Court decision undermining Jefferson County’s student assignment plan, adopted after a federal court of appeals ruled in 1975 that our schools were racially segregated, is a massive step backwards for all of our parents and children who prize educational excellence.
The 1975 lawsuit was brought by the Kentucky Civil Liberties Union and then merged with another brought by the Kentucky Commission on Human Rights. The reason the lawsuit was brought was that Louisville and Jefferson County public schools were racially identifiable. That is, you could look at a school’s student population and identify it as white or black by the racial preponderance in a specific school.
Experience has shown that segregating students in this manner insures inequity to the student population with the fewest resources. For example, white students in white schools disproportionately came from relatively financially secure families. However black students in black schools came disproportionately from families with fewer financial resources.
This inequity translated into unequal school resources. For example, when the lawsuit was filed, Central High School had broken or missing seats in its auditorium. Many of its windows were broken, and there was no vegetation surrounding the school. After U.S. District Court Judge James Gordon ruled that the board must design a student assignment plan that allowed schools to escape from the racially identifiable tag, white parents whose children would be bused to Central got busy, and voilà! Almost overnight the chairs had seats, the broken windows were replaced, and trees were planted on the school playground.
Maybe more important, students who had had no experience with kids of different races were going to the same classes together. The busing plan, which was implemented three years after the filing of the lawsuit, was one that the majority of this county’s population soon endorsed.
Yes, there was white flight, and some kids left public school altogether. But the vast majority stayed, and after a tense opening, and some minor problems related to the busing of students, the plan was accepted by our community. The present Supreme Court’s treatment of Brown v. Board of Education — in which the Supreme Court ruled in 1954 that “separate was not equal” when it came to the delivery of public education — is in a word, despicable.
This decision will undo years of good community relations among different races in our city, it will adulterate our educational goals once again, and it will be a tragic step back to a time when we lived segregated lives, with segregated schools and segregated relationships.
Make no mistake: Black, white, Latino and Asians interacting on a daily basis has a profound relationship to the vitality of our community and to positive community growth. Just as immigration has made this country vibrant, so has integrated education made it more possible. We will not be grateful for this decision or for the capriciousness of the lawsuit that produced this outcome. Tragic may be too dramatic an adjective to use in describing this giant step backward, but to my mind, it fits.
Campaign For Educational Equity at Teacher's College Condemns Court's Ruling
The Campaign for Educational Equity, based at Teachers College, Columbia University, has denounced today’s decisions by the U.S. Supreme Court in the school diversity cases, Meredith v. Jefferson County Board of Education (Louisville, KY.) and Parents Involved in Community Schools v. Seattle School District. While the Court’s decision to strike down two comprehensive voluntary integration plans was blunted by Justice Kennedy’s separate opinion that some use of race in assigning students to schools is permissible, school districts’ options for implementing comprehensive integration plans have been narrowed considerably, Campaign leaders said.
“While Kennedy’s decisions is significant in guarding against a legal precedent that race cannot be considered at all, school officials across the country will be more challenged in their effort to achieve racial integration in practice. This is a setback on the road to a more racially integrated and equal society, but not as bad as it could have been,” said Amy Stuart Wells, Deputy Director of The Campaign and Professor of Sociology and Education at Teachers College.
An amicus brief written by Dr. Wells, one of the nation's leading experts on desegregation, was part of the evidence the Court considered in the case.
“By holding that two well-conceived and comprehensive plans for undoing racial isolation in large urban school systems are unconstitutional, a majority of this court has tied the hands of hundreds of locally elected public education officials trying to balance and stabilize their schools,” Wells said. “Such a ruling is clearly out of touch with the values of our increasingly diverse society and the overwhelming evidence of social science research.”
Despite the legal precedent established by the Court in its landmark 1954 decision, Brown v. Board of Education, American schools have steadily re-segregated since the 1980s, as many standing Court orders to districts to integrate were lifted. Today’s decision limits integration efforts even further by making it more difficult for local school officials to devise and implement voluntary – as opposed to court-mandated -- efforts to racially balance their schools.
“Although we strongly disagree with the interpretation of the Fourteenth Amendment adopted by Chief Justice Roberts and three other members of the Court, we are heartened by Justice Kennedy’s concurring decision which leaves the door open for pursuing alternative methods to avoid racial isolation in the public schools,” said Michael A. Rebell, Executive Director of The Campaign for Educational Equity. “Kennedy represented the key swing vote in this 5-4 decision, and that means that his interpretation of the Fourteenth Amendment will be the key precedent in this area.” Justice Kennedy agreed with the Chief Justice and three members of the Court that the particular voluntary desegregation plans in Louisville and Seattle were not “narrowly tailored” and thus, that they did not pass constitutional muster. However, Kennedy wrote clearly in his separate opinion that “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken...”
Enacted in 2001, the Jefferson County plan, which includes the city of Louisville, stipulates that all schools -- including magnet schools -- must have a minimum black enrollment of 15 percent and a maximum of 50 percent. The Seattle “Open Choice” plan is designed to make high schools mirror, as closely as possible, the city's overall racial composition of 60 percent minority and 40 percent white.
Wells’ brief -- filed through the NAACP Legal Defense and Educational Fund (LDF) and co-signed by Jay Heubert, also of Teachers College; Linda Darling-Hammond, of Stanford University; Jomills Braddock, of the University of Miami; Jeannie Oakes of UCLA, along with Rebell – documents the benefits of integrated schooling, both to graduates themselves and society as a whole. It also chronicles repeated previous rulings of by the Court that support precisely the kinds of integration efforts undertaken by the Seattle and Jefferson County districts. Federal appeals courts had previously affirmed the validity of the Jefferson County and Seattle plans.
Kennedy’s decision, while striking down the Louisville and Seattle plans, would allow districts to use other measures, such as strategic “site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; and recruiting students and faculty in a targeted fashion.”
Such measures, Wells notes, are helpful, but are less likely to have kind of comprehensive, systemic impact on racial integration that the Louisville and Seattle plans have had. “This will be the new challenge for school districts and our society,” she said. “To accomplish an important societal goal – racially integrated public schools – via far more limited means.”
Teachers College’s Campaign for Educational Equity was founded in 2005 to further the College’s commitment to assuring all children access to a more equal and meaningful education. The mission of the Campaign is to study the barriers to greater equality in education and to advocate for policies and practices that assure students from all racial/ethnic and social class backgrounds have equal educational opportunities. Through its research initiative and policy programs, the Campaign is helping to broaden understanding of such opportunities by examining, among other things, the role of community, segregation, and concentrated poverty in the lives of children and in their school experiences.
In November, the Campaign will host a major equity symposium, which will explore the implications of Justice Kennedy’s decision in depth and will consider the broad variety of avenues for helping school districts achieve and maintain racial diversity that are allowed under that ruling. Speakers and presenters will include Legal Defense Fund Director Ted Shaw, Harvard Law School’s Lani Guinier; and Hoover Institute scholar and frequent court critic Eric Hanushek.
The Symposium will also highlight the research and legal theories that contribute to understanding of Chief Justice Roberts’ decision which, according to Wells, ignores not only solid social science evidence, but also the beliefs of the vast majority of Americans who say that diversity in public education is important for the future of U.S. democracy and America’s standing in a global economy.
“The overwhelming body of evidence shows that integrated education provides benefits not only to minority students, but also majority students and the population at large,” Wells said.
Both Rebell and Wells vowed the The Campaign will work with educators and political leaders to continue to identify constitutionally appropriate methods for helping school districts achieve and maintain public school diversity, since there are strong benefits to the students and society for doing so…
“We stand committed to partnering with local leaders in Louisville, Seattle and other community around the country in pursuit of the crucial goal of diverse, inclusive quality education for all of our children,” said Rebell. “In addition we plan to work with the U.S. Congress to strengthen the No Child Left Behind Act and with state courts which are enforcing educational guarantees in state constitutions to continue to implement the vision of equal educational opportunity which was articulated by the U.S. Supreme Court in Brown.”
School Integration and Grutter
While advocates and analysts on both sides of the Seattle and Louisville cases have been debating what they mean for the legacy of Brown, Tom Goldstein at SCOTUSblog examines how today's rulings follow in the steps of a more recent education case, Grutter v. Bollinger:
"One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement."
Goldstein goes on to discuss what the decision leaves open:
"Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question."
In a later post, Goldstein expands on his conclusions:
"So, progressives may be relatively sanguine about the decision. (And conservatives may be disappointed.) For liberals, it could have been – indeed, after argument, it was widely expected to be – much worse." On the other hand, he notes, "Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush."
Statement from the NAACP Legal Defense Fund on the Supreme Court's Rulings in Seattle and Louisville School Cases
Today's decision striking down voluntary school integration plans in Louisville, KY and Seattle, WA is a step backward from Brown v. Board of Education. LDF is deeply disappointed that five Justices of the Supreme Court today struck down the voluntary racial integration plans of the Seattle, Washington, and Louisville, Kentucky, school systems as unconstitutional because they were not "narrowly tailored" to take race into account to the minimum extent necessary.
We stand with local governments, school boards, and families committed to providing a high-quality, inclusive, integrated and diverse education for all students. Americans have long understood, and the courts, Congress and local governments have repeatedly recognized that to strive for anything less would do a grave disservice to our children and to the legacy of Brown v. Board of Education and that unanimous decision's mandate to end racially-segregated schools.
We believe that the four dissenting Justices, who joined in an opinion authored by Justice Stephen Breyer, explained the compelling necessity for the measures pursued by these school systems to avoid racially isolated schooling and unequal opportunities for children -- especially but not solely minority children -- that inevitably accompany those circumstances.
It is critically important to realize that today's decision does not categorically reject the use of race-conscious measures, or hold that it is unconstitutional for school districts to take steps, including steps that have a racial component, to create racially and ethnically diverse schools. While this split decision has both positive and negative implications for our nation and Constitution, we are very pleased that a majority of the Justices recognize educational diversity and overcoming our history of segregation to be compelling governmental interests -- among our country's highest priorities -- that can be pursued through careful race-conscious efforts.
Although Justice Kennedy concurred with the Chief Justice John Roberts's opinion in finding the specifics of the plans at issue to be unconstitutional, Kennedy refrained from joining them in their conclusion that the school districts did not have an interest in providing their children with an inclusive, integrated education. "My views do not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause [of the Fourteenth Amendment]," he wrote.
Instead Justice Kennedy stated unequivocally: "To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken..." Further, he wrote, "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."
To achieve such a goal, a majority of the Justices made clear that a range of other, affirmative measures remain available to communities committed to diversity in schools. Justice Kennedy delineated a number of these options, including, strategic site selection of new schools; drawing attendance zones with consideration of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance and other statistics by race.
Even Chief Justice Roberts's opinion reaffirmed the holding of Grutter that "[t]he importance of . . . individualized consideration" in the program was "paramount, and consideration of race was one factor in a highly individualized, holistic review."
In 1954, the Brown Court spoke in one voice of the importance of education in the battle against prejudice and inequity, as the foundation of "our most basic public responsibilities... of good citizenship." It also stated that education "is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."
Instead of speaking with one voice, today a deeply divided Court has narrowed the voluntary integration options for schools seeking to fulfill Brown's promise.
Today, the nation's public schools are more segregated than they were in 1970. It is of vital importance for communities to identify ways of fashioning solutions to this problem and to put these plans into action. These decisions have made their job much harder and, as a result, put America that much further away from providing the kind of educational experience necessary for America to not just compete but also thrive in the 21st century.
We call on communities and leaders around our country to pursue the tools that remain available to achieve the important goals of equal educational opportunity and inclusion that a majority of the Court endorsed today.
Americans value the differences that have made our nation as technologically, culturally, and ideologically innovative as it is today. We will remain a country committed to diversity -- no court decision can change that.
Reactions to the Opinions
The Associated Press publishes reactions to today's opinions in the school segregation cases. Some examples include:
"This is a very lame excuse to tell a school system that they don't have to use race as an arbiter to help kids achieve and get a fair deal. In a world that still has the vestiges of racism, that's a ridiculous rational." - Warlene Gary, CEO of the National Parent Teacher Association.
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"Today's decision turns back the clock on equality in our schools... Today's decision is false to Brown's promise of equality, making it far more difficult for local school boards to voluntarily bring students of different races together in the classroom. Fortunately, the Court's ruling does not entirely close the door on progress, and school districts must find a way to ensure that it continues."" - Sen. Edward Kennedy, D-Mass.
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"I'm confident the Jefferson County Public Schools leadership team will develop new guidelines for student assignment that will continue this community's commitment to diversity and educational excellence." - Louisville Mayor Jerry Abramson.
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"The Supreme Court decision in the school desegregation cases is appalling. Ever since Brown v. Board of Education, it has been settled law that the Constitution requires racially mixed schools. Today's decision turns Brown upside down and ignores decades of constitutional history. If this isn't judicial activism, I don't know what is." -Senate Majority Leader Sen. Harry Reid (D-Nev.)
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"The premise is laid for the resegregation of America and the denial of opportunity. ... Inheritance and access will not be counterbalanced by equal protection." - the Rev. Jesse Jackson.
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"It so limits what the districts can do, this decision. ... You need some mechanism to more assertively balance school enrollment." - Amy Stuart Wells, professor of sociology and education at Columbia University.
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"A majority of the court still agrees that racial diversity is a boon to education, yet every time schools reach for that goal, the Supreme Court moves the goal posts." - Sen. Charles Schumer, D-N.Y.
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"Today's Supreme Court ruling has placed a serious obstacle in the way of achieving the vision of America first outlined in the landmark case of Brown v. Board of Education, where we see racially integrated education as the best way to reflect our great diversity, unite our nation, and make real our promise of equal opportunity for all." - Sen. Barack Obama, D-Ill.
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"These decisions take away the right of local communities to ensure that all students benefit from racially diverse classrooms. Recent evidence shows that integrated schools promote minority academic achievement, and can help close the achievement gap." - Sen. Hillary Rodham Clinton, D-N.Y.
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"I believed so much in what we are doing I just felt we had to win. The goal here is to make sure all kids have access to great schools." - Kathleen Brose, president of Parents Involved in Community Schools, who sued the Seattle school district after her daughter failed to get into a highly regarded high school.
Guest Blogger: Seattle Schools and Bakke
by Professor Jim Ryan, UVA Law School
A quick reaction to today’s decision in the Seattle and Louisville cases:
It is easy to conclude that today’s decision is a defeat for those interested in maintaining or increasing racial integration in public schools. After all, a majority of the Court struck down two plans – one from Seattle and the other from Louisville – that used race in an attempt to integrate schools. But this reaction misses the more important and surely more enduring principle contained in today’s opinion: school districts can use race-conscious measures to achieve integrated schools.
That principle is contained in Justice Kennedy’s opinion, which is the controlling opinion for the Court. Justice Kennedy accepts that achieving diversity and overcoming racial isolation in public schools are compelling interests. He concluded that the use of race by Seattle and Louisville was too crude, involving individual classifications that divided students into white and black, or white and other. He explicitly endorses, however, a host of other means by which race can be taken into account, including race-conscious drawing of attendance zones, race-conscious siting of schools, and recruiting students in a “targeted fashion.” He also endorses the consideration of race of students as one of a number of factors when determining student assignment.
If this sounds somewhat familiar, it should. In many ways, Kennedy’s opinion is like Justice Powell’s opinion in Bakke. Powell, like Kennedy, disagreed with all of his other colleagues, and wrote an opinion for himself that was nonetheless controlling. Powell rejected the notion that race-based affirmative action programs should trigger little scrutiny, and he rejected the notion that race-based affirmative action programs should never be allowed. Instead, he concluded that race could be taken into account when admitting students to universities, provided that students were considered on an individualized basis and race was one factor among many.
At the time Bakke was decided, it, too, was easy to interpret as a defeat. After all, the Court struck down the immediate plan at issue in that case, just like it struck down the plans at issue in the Seattle and Louisville cases. Over time, however, it became clear that Justice Powell’s opinion provided ample opportunities for universities to take race into account, in a careful and narrowly tailored way, when admitting students. Affirmative action admissions programs on college campuses not only survived, but flourished and still exist today.
In thinking about the Seattle Schools case, one would do well to keep Powell’s opinion in Bakke in mind. At the end of the day, the real story here is not that these plans were struck down, despite what tomorrow’s headlines might say. The real story is that the Court, through Justice Kennedy, approved the careful and considered use of race-conscious measures to achieve integrated schools. The Court, in other words, did not prohibit the use of race, but explained how it could be used. On a day when many who champion school integration will find reason to feel dismayed, I should think the example of Justice Powell’s opinion in Bakke should give them cause for cautious optimism. After all, Powell’s opinion ultimately mattered more than the specific plan struck down in Bakke. So, too, I would predict, will Justice Kennedy’s opinion matter more than the specific results in these cases.
Guest Blogger: Louisville Mother Responds
by Fran Ellers, mother of two children in Jefferson County Public Schools, ages 9 and 11
I’m so disappointed – for my two kids, for our school system, and for students and families across the U.S. My son has six or seven running buddies at his elementary school, only one of whom is from our same neighborhood. The rest are from throughout the county and include children of other races and socioeconomic backgrounds. If we return to a system of neighborhood schools, that learning experience will be lost.
My middle-school daughter’s reaction: “You mean we don’t have to have integrated schools anymore? That sucks!”
I’m sure our school board and new superintendent will look closely at alternatives to promote diversity in schools, but I’m not sure what would be legal or workable. Because Louisville neighborhoods are so segregated, I’m wondering if the school system could substitute zip codes for race to ensure that schools are integrated. Even if that’s legal, however, I’m not sure our community would accept it. It could be more easily attacked by both white and black parents as inconveniencing families based on where they live.
Guest Blogger: Roberts v. Kennedy in the School Integration Cases
by Samuel Bagenstos, Constitutional Law Professor, Washington University, Saint Louis
At the end of his opinion in the school integration cases today, speaking for himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts reduces the matter to a simple point: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Here, he echoes Professor William Van Alstyne’s retort to Justice Blackmun’s famous statement in Bakke that “[t]o get beyond racism, we must first take account of race.” In response to that statement, Professor Van Alstyne wrote that “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one's government—the differential treatment of other human beings by race.”
But there is a disconnect here. The Louisville and Seattle school districts did not claim that they needed to engage in race-conscious student assignment to keep themselves from discriminating on the basis of race. As Chief Justice Roberts explained, the Louisville school district had already been declared unitary by a federal court, and there had never been any finding or admission of discrimination by the Seattle school district. The school districts contended instead that (among other things) racially identifiable housing patterns—themselves significantly the result of private discrimination—led to racially identifiable schools. Does a school system help us get beyond racism if it is forced to rely on and entrench the results of private housing segregation in school assignments? Do schools that are de facto segregated, as a result of these patterns, help us “stop discrimination on the basis of race”?
Chief Justice Roberts gives us no reason to believe that a rule of formal governmental race-blindness, that entrenches and enforces the results of private racial discrimination, will “stop discrimination on the basis of race.” He gives us nothing more than the platitude that when the government takes race into account it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.” (Here he quotes from a 1993 opinion involving racial gerrymandering in redistricting.) Chief Justice Roberts is making an awfully doubtful empirical assertion here, without providing any empirical evidence. And the normative premise that school districts must take private discrimination as they find it, with their hands tied from responding to it, seems to me totally unjustifiable. Remember that here we are dealing with school districts that voluntarily chose to adopt integration plans—this isn’t a case involving court-ordered integration.
Justice Kennedy, by contrast, gets this key point: “To the extent that the plurality opinion suggests that the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.” Justice Kennedy’s concurrence in the judgment is far from perfect, but it is the first time that he has made clear in an opinion his understanding of the problem of private discrimination.
Chief Justice Roberts’s opinion will draw a lot of attention and criticism today—as well it should. The idea that school integration is at all the same as dividing students into different schools on the basis of race is offensive and blinkered. But Justice Kennedy’s opinion will be more important at the end of the day: It recognizes that school districts have a constitutionally permissible role in alleviating the effects of private discrimination—and that they may take account of race in doing so, so long as racial classifications of individual students are used only as a last resort. Given what might have happened in this case—and what Chief Justice Roberts wanted to have happen in this case—Justice Kennedy’s separate opinion leaves school districts a lot of space to do the right thing.
Where do we go from here?
In the immediate wake of this morning's decisions, school districts around the country are understandably concerned about their future ability to design, or continue to implement, plans to provide all of their students with an integrated education. An article in the Cincinnati Enquirer illustrates the worries of many communities: "Cincinnati Public Schools uses race as one of several factors in assigning students to its magnet schools, elementary schools that use specialized styles of education such as Montessori or Paidiea methods, or focus on particular subjects such as foreign languages." Given the reversal of the Seattle and Louisville plans today, what does the future hold for districts like Cincinnati?
It is important for these districts to realize that there is no need to be overly hasty in responding to these decisions, nor is there need to despair entirely. Certainly, the Court's dismantling programs that were the result of two communities' hard work and commitment to equal opportunity is a disappointment. But today's rulings were not a complete loss for those committed to fighting segregation and racial isolation in schools. A majority of the Court did recognize the importance of racial diversity in education, and found the pursuit of such diversity to be a compelling governmental interest. Although the particular combination of strategic elements in the Seattle and Louisville plans were found to be unconstitutional, five justices agreed that race can be used as a component of school integration efforts. Some options still available to schools were delineated by Justice Kennedy (in addition to several race-neutral strategies, which a majority of the court found to be unaffected by today's decision), and in the coming days and weeks, communities, local governments, and civil rights experts should take their time in working together to find effective, permissible plans to implement for their students.
Majority of Court Finds School Diversity a Compelling Interest
Along with Stevens, Breyer, Souter, and Ginsburg, Kennedy, in a separate opinion, finds that there is a compelling interest in diversity and integration in America's schools.
Despite his concurrence in the judgment of the plurality opinion that the particular school plans at issue did not have enough justification for their consideration of the race of individual students, Justice Kennedy wrote in favor of the ability, and, indeed, importance of school districts to pursue integrated schools. In his opinion, Kennedy stated that the racial diversity of particular schools could be considered in this pursuit:
"The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken...
In administering public schools, it is permissible to consider the schools' racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306. School authorities concerned that their student bodies' racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race." (emphasis added)
Supreme Court Issues Decision in School Race Cases-- Roundup
-Click HERE for a copy of the Supreme Court's decision in the school race cases, issued this morning. Please visit us throughout the day for responses to the opinion and analysis of what it means for the future of school integration in America.
-The Associated Press, in the NYT, offers a preliminary description of the ruling here.
-The NAACP Legal Defense Fund has a website devoted to school integration, with a resource center, links to legal documents, and more.-Below, you will find links to background information on these cases and school integration generally:
- Seattle - Louisville Briefing Paper
- Louisville Fact Sheet
- Seattle Fact Sheet
- Race-Neutral Alternatives Fact Sheet
- State of Segregation
- Social Science Findings on School Integration
- Voluntary K-12 School Integration Manual
-To send us a post, email scblogger@gmail.com