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The Supreme Court's Split Over Public School Integration: Who Really Betrayed Brown's Legacy?


Monday, Jul. 02, 2007

On the last day of the 2006-07 Supreme Court Term, the Justices announced what pundits are calling a blockbuster decision: In Parents Involved in Community Schools v. Seattle School District No. 1, a 5-4 majority ruled that school boards in Seattle and Louisville violated the Fourteenth Amendment's Equal Protection Clause when they voluntarily implemented programs to combat de facto racial segregation in their respective public schools. The majority reasoned that the school boards' use of student race as a factor in school assignments was not, in constitutional argot, "narrowly tailored" to advance a compelling objective.

In this column, I'll briefly explain the issues that split the Justices and the reasons the ruling's practical upshot is unclear. In addition, I'll provide a historical account of the heated rhetoric that characterized every opinion in this case: the majority's, two concurrences, and two dissents.

Why the Ruling's Practical Impact Is Unclear: The Views of Swing Justice Anthony Kennedy

The practical impact of the ruling is unclear for several reasons. Chief Justice John Roberts announced the judgment of the Court, but he did not speak for a full majority in all particulars. Moreover, Justice Anthony Kennedy, whose fifth vote was critical to the outcome, parted company from the other members of the conservative majority on a key issue.

In both Seattle and Louisville, the student assignment plans aimed at ensuring that the racial composition of every individual school did not grossly deviate from the racial composition of the district as a whole. Chief Justice Roberts--joined on this point by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito--decried this goal as impermissible "racial balancing." Justice Kennedy, by contrast, thought that the school districts were attempting to achieve the compelling objective of diversity.

However, though Justice Kennedy approved of the end, he, like the other conservative Justices, found that the means the school boards had chosen to achieve their objective were not narrowly tailored to serve that end. Among other things, all five of the Justices who voted to strike down the plans objected to the reductionism inherent in the binary classifications deployed: "white" or "nonwhite" in Seattle; "black" or "other" in Louisville.

Because Justice Kennedy thought that the school boards' ends were constitutionally compelling, he left open the possibility that he might vote to uphold the use of race in student assignments in some future case in which a school board structures its program differently. In such a case, Justice Kennedy would then join the four dissenters from the Parents Involved ruling--Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--to form a new majority to uphold some other use of race in a voluntary integration plan.

Exactly what a permissible plan would look like is not entirely clear from Justice Kennedy's concurring opinion. Accordingly, the principal short-term effect of the decision in Parents Involved may well be confusion and litigation. Predicting how that litigation ultimately ends is less a matter of discerning legal principles, than of reading Justice Kennedy's mind (or the mind of whoever happens to be the "swing" Justice in the event that the issue ultimately returns to the Supreme Court after a change in personnel). Because that enterprise is sheer speculation, I'll move on to discuss another important aspect of the decision.

Which Side Betrayed Brown's Legacy?

Justices on both sides of the ruling accused those on the other side of betraying the legacy of the Court's landmark 1954 Brown v. Board of Education ruling, which held de jure racial segregation in public schools unconstitutional.

Which side in this debate is right? Both, and neither. Brown rested on notions of both liberty and equality. In that case, they pointed the same way. But in Parents Involved--as in the closely related debate over affirmative action--these principles pull in opposite directions.

The Brown decision famously overruled the Supreme Court's separate-but-equal doctrine, announced in the 1896 case of Plessy v. Ferguson. Accordingly, and unsurprisingly, exponents of Brown have frequently turned to the lone dissent in Plessy, by Justice John Marshall Harlan (whose grandson, of the same name, later served with distinction on the Supreme Court as well). In that dissent, Justice Harlan boldly stated: "Our Constitution is color-blind."

Contemporary conservatives frequently invoke this language in support of the view that any governmental attention to race (or color) is virtually per se unconstitutional. For example, in Parents Involved, Justice Thomas noted that the late Justice Thurgood Marshall, who, as an attorney, argued Brown for the plaintiffs, considered Justice Harlan's dissent a virtual "Bible" during the pre-Brown era. Justice Thomas thus suggested the following syllogism: (1) Thurgood Marshall, the ultimate authority on the meaning of Brown, understood the repudiation of Plessy as the vindication of Harlan's Plessy dissent; (2) that dissent espoused a principle of color-blindness; and therefore (3) Brown enshrines a principle of color-blindness.

Yet what are we to make of the fact that as a Justice, Marshall rejected color-blindness? In affirmative action cases, Marshall thought that government use of race to benefit traditionally disadvantaged racial groups (especially African-Americans) should be judged by a somewhat more forgiving standard than the "strict scrutiny" the Court applied to racial classifications that disadvantaged traditionally subordinated groups. How can this view be reconciled with Justice Thomas's syllogism? It can't. Thus, Justice Thomas and the Parents Involved majority suggest that the later Marshall and contemporary liberals who purport to speak on his behalf have misrepresented, misunderstood, or misremembered what Brown was all about.

There is, however, a more generous understanding of the rejection of color-blindness by the later Marshall and contemporary liberals. They can point to the two sentences in Harlan's Plessy dissent that immediately precede the claim that our Constitution is color-blind. There Harlan wrote, "in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here."

What made racial segregation odious, liberals say, is that it was part of a caste system in which African-Americans were systematically subordinated on the basis of race. That is, after all, why we worry so much more about racial divisions than about other divisions in our society, such as height, eye color, or left- or right-handedness. These latter distinctions do not carry nearly the same moral freight as distinctions drawn on the basis of race because we have never had systematic subordination on the basis of height, eye color or handedness.

By the same token, liberals argue, where official racial distinctions do not reinforce the notion of a superior race and a subordinate race, there is less reason to worry about these distinctions. Accordingly, since the 1970s, liberals have generally thought that a range of voluntary efforts to integrate various institutions in American life should not be equated--either morally or legally--with de jure segregation of the Jim Crow era.

We can see the emphasis on different parts of Justice Harlan's Plessy dissent in the rhetoric as well as the results of Supreme Court cases. In Parents Involved, Chief Justice Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." By contrast, nearly thirty years earlier, the late Justice Harry Blackmun wrote in University of California Regents v. Bakke: "In order to get beyond racism, we must first take account of race."

A Debate Going Back to Slavery

The debate between conservatives who champion the color-blindness principle and liberals who champion the anti-caste principle has roots even deeper than Justice Harlan's Plessy dissent. These roots go back to the Fourteenth Amendment itself.

The Reconstruction Congress that proposed the Thirteenth, Fourteenth and Fifteenth Amendments aimed to dismantle both slavery and the de facto slavery of the Black Codes that quickly arose to take its place. But what is the opposite of slavery? Slavery denies to enslaved persons both the liberty and the equality enjoyed by free persons. Accordingly, anti-slavery has traditionally had both a libertarian and an egalitarian dimension.

The civil rights movement of the second half of the Twentieth Century--which was catalyzed in part by Brown--has tended to be egalitarian. For example, although Martin Luther King Jr. and other civil rights leaders were lionized for their views about racial classifications, their actual agenda had a strongly egalitarian component, including a significant redistributionist dimension.

By contrast, the Republican Party of the Reconstruction era and into the earlier Twentieth Century had a more strongly libertarian view of anti-slavery. Under the banner of "free men, free markets," this earlier civil rights movement saw slavery as the unjust denial of the individual's natural right to sell his labor in the market. The end of slavery was, for this generation, the real beginning of capitalism.

Although the path is not entirely straight, one can trace the differences in last week's Supreme Court decision to these competing views of the Fourteenth Amendment. Chief Justice Roberts and the conservatives see all racial classifications--even including those that aim to promote racial integration--as undue interference with the individual's liberty to be treated without any regard to his or her race. In turn, the liberals see efforts at racial integration as continuing the egalitarian and social mission of the Fourteenth Amendment. Justice Kennedy, feeling both the libertarian and egalitarian impulses, finds himself torn.

A Case About What the Constitution Permits, Not What it Requires

Given that the Fourteenth Amendment has both egalitarian and libertarian roots, can we say that the liberals are right to emphasize the former, and the conservatives wrong to emphasize the latter, or vice-versa? Perhaps we can.

The legal question in Parents Involved was not what the Equal Protection Clause requires but only what it permits. Even under the view of the dissenters, a school district in which de facto segregated schools result from de facto residential segregation and parental preferences for which the state does not bear direct responsibility, can choose to adopt a program aimed at integrating its schools, but has no constitutional obligation to do so. Thus, the dissenters would have left to local school boards the discretion to choose between the egalitarian and libertarian visions of the Fourteenth Amendment.

By contrast, in finding that the duly elected school boards in Seattle and Louisville violated the Constitution, the majority insisted on its own--libertarian--conception of the Fourteenth Amendment to the exclusion of the egalitarian alternative. In his opinion for the Court in Morse v. Frederick (the "Bong Hits 4 Jesus" case) just three days earlier, Chief Justice Roberts said that the difficult job facing local school officials warrants giving them considerable latitude even in the face of a First Amendment challenge. Yet in Parents Involved, he suggested that deference to school boards on questions of race-based student assignments would be inconsistent with the Court's insistence, since Brown, on the primacy of the Equal Protection guarantee.

That would be a valid distinction between Morse and Parents Involved if the meaning of the Equal Protection Clause were clear-cut. But that is hardly true. Supreme Court statements going back to the late 1960s indicated that race-based integration plans are a constitutionally permissible choice of school boards. In these circumstances, the burden on the majority was to show that its libertarian "color-blind" conception of the Equal Protection Clause was so superior to the egalitarian "anti-caste" conception, as to make the latter completely unavailable to elected officials. Given the high standards that ought to apply to Justices who preach judicial restraint, the Parents Involved majority failed to meet that burden.

Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at

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