Will Brown Go Down?
Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.
The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.
Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.
Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.
But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.
The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.
I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:
Does Brown mean only that states cannot require blacks and whites to go to separate schools?
Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?
Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?
Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?
Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.
Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.
The facts of the cases before the court
The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.
The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.
Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.
Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.
The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.
Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."
In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.
As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.
Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.
But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.
Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.
But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?
This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.
We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.
Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.
But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.
It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.