Chief Justice John Roberts and his colleagues debate Brown v. Board of Education.
Limiting the ability of public school districts to use race in making school assignments, a five-Justice majority generated five opinions taking up 185 pages that mentioned the Brown case a total of 90 times. My piece on the case, originally published by The Weekly Standard, discusses the “colorblind Constitution,” Justice Harlan’s still persuasive interpretation of our supreme law of the land.
The Supreme Court, in its very last decision of the term, limited the ability of public school districts to use race in determining the schools that students may attend. The Court reviewed student assignment plans from Seattle and Louisville. The 5-to-4 decision in the consolidated case generated no fewer than five opinions totaling 185 pages.
To say the justices were sharply divided in Parents Involved in Community Schools v. Seattle School District No.1, et al. would be an understatement. Justice Stephen Breyer spoke for himself and justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg in a 77-page dissent disputing key points in the plurality opinion made up of those parts of Chief Justice John Roberts’s majority opinion that weren’t joined by Justice Anthony Kennedy. The dissent also took issue with the majority opinion, made up of those parts of Roberts’s opinion that were joined by Kennedy, as well as Justice Clarence Thomas’s concurrence. Roberts, Kennedy, and Thomas each responded, leaving no doubt about their differences with Breyer.
The big issue dividing the Court was the question of which justices were really being, as Roberts put it, “faithful to the heritage of Brown.” Brown, of course, is Brown v. Board of Education, the landmark 1954 case in which the Court struck down public school segregation. According to a count by the New York Times, the five opinions in Parents Involved in Community Schools referred to Brown no fewer than 90 times.
The Seattle pupil assignment plan allowed ninth graders to choose from among any of the district’s high schools. When too many chose the same school, tiebreakers were used. The second tiebreaker was race. The school district classified every student as either “white” or “nonwhite.” If a student’s race served, in the school district’s words, “to bring the school into balance”–racial balance being defined as the system’s overall white/nonwhite composition–then that student got in over someone whose race didn’t further this end.
In Louisville, the district classified elementary school students as “black” or “other” and used race to decide transfers. Here, too, the district sought to maintain a certain racial balance in each school, and if your race contributed to an “imbalance,” then you couldn’t enroll there.
Considering the Court’s equal protection precedents, it was hard to see how either use of race could have survived judicial review. The Court has made clear that government programs that classify individuals on the basis of race, and burden or benefit them accordingly, are subject to “strict scrutiny.” This means such programs must be “narrowly tailored” to achieve a “compelling” state interest. It doesn’t matter what the motive behind a program is. Whether the motive is “benign,” as supporters characterized the Seattle and Louisville programs, or “invidious”–as was the case in, for example, the original school desegregation cases–under the Fourteenth Amendment’s equal protection clause, every racial classification is subject to strict scrutiny.
In his majority opinion, Roberts pointed out that the case law recognizes two state interests as “compelling.” One is remedying the effects of past intentional discrimination. The other is, within the context of higher education, producing student body diversity encompassing not just race but also other factors. The Court affirmed the diversity interest in the 2003 Grutter case, which upheld race preferences in admissions.
The problem for both Seattle and Louisville was that neither school district could advance a remedial interest or a diversity interest consistent with Grutter. As Roberts wrote, race, as it is considered in the two plans, “is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor.” Also, as Roberts emphasized, both plans were directed “only to racial balance,” which was tied to each district’s racial demographics and which “this Court has repeatedly condemned as illegitimate.”
Of obvious concern to Roberts was the work of the courts of appeals in deciding the legality of race-based assignment plans in primary and secondary schools similar to those in Seattle and Louisville. Before Grutter, wrote Roberts, the courts struck down such plans.
But after Grutter, some appellate courts had “largely disregarded” the Court’s own limitations on its holding in Grutter–notably its definition of a broad-based diversity and its focus on the unique context of higher education–and extended the meaning of that case to uphold such plans. “The present cases are not governed by Grutter,” wrote Roberts, clearly intending to send a message to the lower courts.
Justice Kennedy, as is sometimes the case, was a puzzle. He agreed with Roberts in his analysis of how the lower courts wrongly extended Grutter. Yet in his separate opinion he also maintained that diversity, “depending on its meaning and definition,” could indeed be a compelling interest that a school board might pursue.
So there are potentially five votes–the Breyer foursome plus Kennedy–for some kind of diversity interest in the primary and secondary education context. And clearly Kennedy, notwithstanding his sharp critique of what he rightly called the “crude” use of race by the Seattle and Louisville districts, is open to using race as “one factor” among others in placing students in schools.
What all the justices noticed was the slight impact of the Seattle and Louisville plans. They produced only small changes in the racial makeup of the districts’ schools. The dissenters see the majority opinion as not slight at all, however. In their view, it is not only a death knell to other school district attempts to promote racial integration, but also a tacit overruling of Grutter and, even more ominously, a step toward a majority holding in behalf of the “colorblind Constitution,” which they believe would bring an end to hundreds of race-conscious federal and state laws.
“Our Constitution is colorblind, and neither knows nor tolerates classes among citizens” is what Justice John Paul Harlan famously declared in his solitary dissent in Plessy v. Ferguson, the 1896 case that sustained a Louisiana law mandating racial segregation aboard passenger trains. Decades later, when Brown was decided in 1954–and for at least a decade thereafter–the ruling was widely seen as a victory for Harlan’s notion of a “colorblind Constitution.” Said the New York Times approvingly in the wake of Brown: “The words [Justice Harlan] used in his lonely dissent” have effectively become “a part of the law of the land.” Compare that with the Gray Lady’s editorials now denouncing the majority holding in Parents Involved in Community Schools.
The opinions in Parents Involved in Community Schools suggest that the Court is soon going to be debating, more intensively than anyone might have expected, the meaning of Harlan’s famous dissent in Plessy, as well as the meaning of Brown, and of the “colorblind Constitution.” As always, the question of the Court’s composition will affect this debate and the decisions that come from the Court. Given that a vacancy occurs on average every two years, the next president likely will have the opportunity to influence the Court’s direction. That is why the debate among the justices in Parents Involved in Community Schools deserves to be taken to the campaign trail, and deserves to be discussed in terms of the kind of new justices who ought to be sitting–whether the next justice should be someone like Roberts or Thomas, say, or someone like Breyer. Kennedy, it is safe to assume, is not the sort of justice any candidate, of either party, is likely to suggest as a model.
