The Supreme Court Decides Whether Race-Based Pupil-Assignment Systems Are Constitutional

By EDWARD LAZARUS

Thursday, Dec. 07, 2006

Read more about the cases discussed in this column, Parents Involved in Comty. Sch. v. Seattle Sch. Dist. and Meredith v. Jefferson County Bd. of Educ., including the questions presented, the merits briefs, the docket, and related information at FindLaw's Supreme Court Center. Ed.

This week, the Supreme Court dove back into the most vexed problem in our constitutional history - the problem of how to achieve racial equality and racial harmony, despite the inequalities and divisions that a racist history has bequeathed to us.

The occasion was the oral argument in two cases (one from Seattle, the other from Louisville) raising the issue of whether the Constitution permits local school officials to promote racial diversity in their classrooms by using a pupil's race as one factor in devising school assignments.

Based on the oral argument, a narrow majority of five justices seem to be poised to strike down both school assignment plans at issue. Although the Seattle and Louisville plans differ in their particulars, both allow parents to make an initial choice about which school their children will attend, after which the school district uses the student's race as one "tie-breaking" factor in smoothing out enrollment between oversubscribed and undersubscribed schools. The goal of both school districts is to keep the racial makeup of every school within the range of the racial makeup of the school district as a whole.

As I have written before, I think the Supreme Court would be wrong to strike these plans down; I'll briefly recap the reasons that convinced me of this position. In this column, written in the wake of the Supreme Court oral argument, I want to go on to consider another issue: Not just whether these programs will be allowed to stand, but also what rationale the Court majority will use to strike them down, if indeed it does so.

Why the Plans Should Be Upheld

To begin, let me briefly discuss my reasons for believing the plans are constitutional.

Of course, it is always of concern when the government classifies individuals on the basis of race. But the Seattle and Louisville plans advance society's compelling interest in fostering racial diversity, and they do so without spreading the poison of discrimination.

The Seattle and Louisville programs do not oppress minorities, like the Jim Crow laws of old. Nor do they impose a brand of inferiority by separating people on account of race (just the opposite, in fact; the idea is not to allow various schools within the district to become, in effect, racially segregated). Nor do they give members of one racial group a leg up over members of another group, as typical affirmative action programs do; pupil assignments may affect students of any race.

For all these reasons, I believe the Seattle and Louisville plans do not run afoul of constitutional prohibitions against pernicious racial discrimination, such as that which existed in segregated schools before Brown.

The Court May Not Only Rule Against the Districts, but Also Re-interpet Brown

Unfortunately, it seems that my position is probably not shared by a majority of the current Supreme Court. Indeed, based on the questions posed at argument - always a hazardous basis for prediction, but in this case, potentially a relatively reliable one -- it appears that the Court may be poised not only to strike down the programs, but also to fashion a profound and troubling re-interpretation of Brown v. Board of Education.

Brown is arguably the most important decision in the Court's history, and certainly its most important statement on the question of racial equality. Re-interpreting this landmark decision would be unwise and unfortunate, and would lead inevitably to the widening of a racial divide that, while less daunting than it once was, stubbornly persists.

As we all learned in Civics class, fifty-two years ago, in Brown v. Board of Education, the Supreme Court buried the noxious concept of "separate but equal," ended state-sponsored segregation of public schools, and struck a hard blow against the entire apartheid system of Jim Crow.

Brown was hugely controversial when it was decided. Southerners engaged in massive resistance, as courts started ordering the integration of lily-white schools. Conservative legal thinkers, including a young Supreme Court law clerk named William Rehnquist, found it outrageous that the Supreme Court would read the Constitution's requirement of "equal protection of the laws" as trumping the segregationist preference of elected officials in the South.

Interestingly, at the time even some liberal scholars expressed concerns about Brown's judicial activism - a phenomenon that liberals generally associated with the efforts of reactionary judges during the New Deal to strike down FDR's progressive economic initiatives. While these scholars applauded Brown's results from a policy perspective, they worried about the implications of the Court's taking such an aggressive stance.

Over time, Brown has moved from the realm of controversy to the realm of the untouchable. Nowadays, even the most conservative Supreme Court nominees must pledge allegiance to the wisdom of the decision. Indeed, Brown has become such a sacred cow that, in 1986, when President Reagan nominated then-Associate Justice Rehnquist to take over as Chief Justice, Rehnquist felt compelled to disavow his previous antipathy to Brown in order to secure his Senate confirmation.

This unanimous acclaim for Brown, however, has come to mask deep disagreements over the meaning of Brown, and how it should be implemented.

The Fundamental Disagreements about What Brown Means

Liberals viewed Brown as a broad mandate to sweep away all vestiges of segregation, and affirmatively to create a system of integrated public schools, using a host of aggressive tools, including court-ordered busing. As a moral (if not legal) matter, liberals also saw Brown as strongly encouraging voluntary measures to foster integration, as part of a larger enterprise of creating a society that offered truly equal opportunities to blacks and other minorities after centuries of often brutal discrimination.

Conservatives took a much narrower view. They understood, and eventually accepted, Brown as declaring, much more narrowly, that the Constitution forbade government from operating racially-segregated public schools. But conservatives balked at reading Brown as demanding the forced integration of schools, especially if that meant using the controversial tool of busing. And, in keeping with these views, conservatives pushed to end judicial supervision of formerly- segregated school systems, long before liberals were convinced that the vestiges of the old racist order had been eradicated.

The Court Joins the Debate Over The Fundamental Meaning of Brown

With this week's arguments at the Court, this debate seems to have taken a new turn. Previously, conservatives had sought to limit Brown's impact, especially in terms of the remedies it authorized. But in the Seattle and Louisville arguments, several conservative justices, most notably Chief Justice John Roberts, appeared to be changing the central message of Brown altogether.

Under the classic reading of Brown, the case stands for the basic proposition that "'separate but equal' is inherently unequal," and, thus, the decision has been read as at least implicitly supporting, or even demanding, the ideal of integrated public schools.

Under the new conservative approach, however, Brown is not about integrating schools at all. Instead, the central message of Brown is that all racial classifications in making school assignments are necessarily bad -- regardless of the purpose being served. Under this revisionist reading of Brown, there is no legal or moral difference between a school assignment program that sometimes looks to a student's race in order to achieve a reasonable level of integration in every school, and a school assignment program that enforces segregation by race.

Why the Court's Reinterpretation of Brown Is Deeply Unpersuasive and Inaccurate

To read Brown in this way, however, is to tear it from all historical context, and to suspend our ability to engage in reasoned judgments about the obvious difference between inclusionary and exclusionary approaches to race.

When Brown was decided, the nation's white majority had been enforcing a legal regime of racial subjugation for over four centuries. A unanimous Supreme Court was taking a determined step towards breaking down that apartheid. Every one of the Justices who joined that unanimous opinion understood that undoing this history in the context of public schools would take years, if not decades, of race-conscious remedial schemes. In fact, they so feared this process that they declined to order a time-table for desegregation, opting instead for the open-ended temporal framework of "all deliberate speed."

It is simply perverse, then, to suggest that the Court in Brown was actually prohibiting school officials from taking account of race in trying to keep schools integrated once an initial level of desegregation was achieved.

It would have been unimaginable at the time for the school board of Louisville Kentucky actually to embrace classroom diversity. And it would have been equally unimaginable that the justices, confronted with such an implausible notion, would have said "no" had the segregationist school board suddenly experienced a complete change of heart. To the contrary, that Court doubtless would have been thrilled had the South, rather than trying to undermine Brown, offered ways to implement its ideal and honor its mandate. After all, they were unanimous in their belief that segregated schools were unconstitutional, and unsure only whether their decisions could or would be effectively enforced.

A Colorblind Reading of the Constitution Ignores Both Text and History

I can appreciate the ideals of those justices who would read the Constitution as requiring absolute colorblindness in all governmental actions. Racial classifications have led to terrible wrongs historically. Even well-intentioned affirmative action programs have created their share of victims. Worse, a few have actually been little more than economic power grabs engineered by minority-majority local governments.

But justifying a colorblind reading of the Constitution is no easy matter, especially, ironically, for conservative jurists. Here, resort to "original intent" - the conservative staple -- backfires. The historical evidence is very strong that the Framers of the Fourteenth Amendment's Equal Protection Clause were comfortable with racial preferences designed to benefit blacks.

Difficulty, however, is no excuse for misusing the Court's most important iconography. To twist Brown into a decision denying local officials the ability to nurture the ideal of white and black children going to school together, would be a slap in the face to the community that still remembers what Brown was really about.

Whatever the justices do with the pending cases, we should hope they don't strike that foul blow.

For another perspective on the race-based pupil-assignment cases, see Douglas Kmiec's recent column on the subject. - Ed.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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