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COMMENT: THE SEATTLE AND LOUISVILLE SCHOOL CASES: THERE IS NO OTHER WAY
by J. Harvie Wilkinson III [ Full Text ] |
121 Harv. L. Rev. 158 (2007) |
| In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court addressed two student assignment plans that relied upon race to determine which public schools certain children could attend. The Seattle suit challenged high school assignments; the Louisville action, elementary and middle school placements. The Court characterized each plan as voluntary rather than remedial and held that each violated the Fourteenth Amendment’s Equal Protection Clause.
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| That judgment required Justice Kennedy’s crucial fifth vote, and his concurring opinion explicitly declined to rule out the achievement of diversity as a compelling educational interest or to eliminate the utilization of all race-conscious means. Nonetheless, Parents Involved goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be.
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| Five Justices contributed opinions in this case, and the debate was as impassioned as one would expect a debate on race, schools, and the country’s past and future course to be. In general, these high stakes elicited a high quality of judicial discourse. Yet this battle brought no peace or even truce, and indeed left only the impression that the Court’s own decisions on the use of race in education remain in tension and that the profound differences that persist within the Court and throughout the country on these questions will be argued just as heatedly another day.
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| I propose to examine the five opinions in three groups: first the Roberts court and plurality opinion and Thomas concurrence; next the Kennedy opinion concurring in part and concurring in the judgment; and then the Stevens and Breyer dissents. As a judge of an inferior court, I approach my task with the deepest respect for the Court and its members and in the hope that the candor necessary for worthwhile commentary is but a mark of appreciation for the conscientious manner in which that fine institution goes about its work.
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| I. THE ROBERTS AND THOMAS OPINIONS
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| The Chief Justice appropriately took the lead opinion for himself. The tradition of Chief Justices writing on race and education, while hardly uniform, goes back to Brown (Earl Warren) and Swann (Warren Burger). Yet this case, unlike Brown and Swann, was not unanimous. In fact, the 5–4 decision, with crucial portions of the lead opinion not supported by a majority, was about as far from unanimity as a court could be. And this case, unlike Brown and Swann, did not vindicate the efforts of the parties seeking to achieve a greater degree of racial integration in our public schools.
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| For these and other reasons, holding the Seattle and Louisville plans invalid portends a ferocious onslaught. It will be said that the very Court that led the fight for school desegregation turned history on its head; that the Court’s decision served to perpetuate resegregative trends in public education already underway; that the Court allowed the fact of housing segregation to foreclose educational opportunities as well; that the Court forsook not only its traditions but also its respect for precedent; that a Court majority ostensibly opposed to activism was all too ready to practice it; and, most seriously, that the Court abandoned African Americans in their long struggle to achieve true equality in these United States. Justice Stevens expressed his “firm conviction that no Member of the Court that [he] joined in 1975 would have agreed with [the] decision.” Justice Breyer predicted the decision would be one that “the Court and the Nation will come to regret.” The New York Times, warned that there “should be no mistaking just how radical this decision is.” And in the Washington Post, Eugene Robinson insisted that society’s quest for fairness and equality could proceed only “by working around those dour men in black robes on Capitol Hill. They have decided to stand in the schoolhouse door.”
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| The best of these arguments are not without poignancy and force. And the Supreme Court majority must have known for a certainty that all this and more was coming. It took some courage therefore for the Court plurality to express itself in such unequivocal terms. The Court could have seized upon some narrow defect in means and left it at that. It could have reserved judgment on the school’s stated goals, holding simply that the goals themselves were only loosely correlated with school district demographics and that racially neutral means, such as drawing attendance zones to achieve socioeconomic diversity, showed promise of achieving them. That approach would have attracted the fifth vote (Justice Kennedy joined the Chief Justice’s means-based scrutiny) and served the Chief Justice’s stated preference for narrow, incrementalist rulings.
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| The best of these arguments are not without poignancy and force. And the Supreme Court majority must have known for a certainty that all this and more was coming. It took some courage therefore for the Court plurality to express itself in such unequivocal terms. The Court could have seized upon some narrow defect in means and left it at that. It could have reserved judgment on the school’s stated goals, holding simply that the goals themselves were only loosely correlated with school district demographics and that racially neutral means, such as drawing attendance zones to achieve socioeconomic diversity, showed promise of achieving them. That approach would have attracted the fifth vote (Justice Kennedy joined the Chief Justice’s means-based scrutiny) and served the Chief Justice’s stated preference for narrow, incrementalist rulings.
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| But the Roberts opinion to its credit did much more. The concessions it made were only those recent precedent required it to make. It limited the nonremedial state interest of diversity to the expressive interests unique to higher education. It characterized the school boards’ interest, by contrast, as that of simple racial balancing which, were it accepted as compelling, “would justify the imposition of racial proportionality throughout American society.” The opinion courted a powerful dissent which it then took on in hard-nosed terms. It praised Brown v. Board of Education as unambiguously committed to the rejection of all forms of discrimination based on race. And finally: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
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| There are great risks in this sort of ringing clarity, particularly in an area so burdened by history, so fraught with contemporary controversy, and so open to strong opposing argument. But there are far greater risks in failing to defend a principle that is not easily sliced and diced or otherwise compromised. The clarity in the Chief Justice’s one concluding sentence ensures its endurance beyond the particulars of this debate. Dismissed by Justice Kennedy as insufficient, derided by Justice Breyer as a “slogan,” this sentence will make its way. [ More ] |
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