The National Pulse

Ever True to Brown?


But many of the consequences of Brown remain unresolved. Does it stand for the proposition that, where possible, black and white students should attend schools together? Or did the ruling strictly prohibit school officials from considering the race of their students when assigning them to classrooms?

During the 1960s and ’70s, the court struggled to decide under what circumstances school districts must desegregate. Now, it will consider whether they may do so on their own.

The Supreme Court this month takes up a pair of school cases in which the justices confront the legacy of a landmark in American law. Parents Involved in Community Schools v. Seattle School District #1, No. 05 0908, and Meredith v. Jefferson County Board of Education, No. 05 0915, will be argued separately before the court on Dec. 4.

Guidelines Widespread

The cases have drawn wide interest because more than 1,000 school districts use racial guidelines in at least some schools. Magnet schools are a popular option in many districts because they offer a specialized curriculum, such as a focus on math, science or the arts. Some of these schools also set enrollment ceilings based on race or ethnicity, rules that could be affected by the court’s decision.

The Seattle and Louisville, Ky., school boards sought to maintain racial integration in their schools in recent years, despite neighborhoods that tended to be divided along racial lines. They did so by putting a ceiling on the number of white or minority children who could attend certain schools.

However, those integration policies are being challenged by parents who say their children have been excluded from schools because of their race. Though they lost in the lower courts, the Supreme Court agreed to hear their appeals contending the boards’ policies are unconstitutional. And in the run-up to the oral arguments, both sides cited the Brown decision to bolster their case.

Veteran civil rights lawyers say it would be a bitter irony if the Supreme Court were to shut down voluntary integration efforts.

“What’s at issue is the promise made 52 years ago in Brown,” said Theodore M. Shaw, president of the NAACP Legal Defense Fund, in a briefing on the pending cases. “Mandatory desegregation is a thing of the past. All that is left of Brown is voluntary desegregation plans.”

Added Shaw: “We believe the promise of Brown is essential to the progress of African-Americans. We disagree with the ideology that equates any race consciousness with racial discrimination.”

The LDF was one of several civil rights organizations that filed friend of the court briefs arguing that a school board’s integration plan adopted in good faith should not be subjected to strict scrutiny by the courts.

But the parents’ lawyers argue that Brown struck down the notion of assigning students to schools based on race.

“In our view, absent past discrimination, it is impermissible to use race in making governmental decisions,” says Harry J.F. Korrell, a Seattle lawyer who is representing the parents.

There, students can choose from 10 high schools in the city. Not surprisingly, a few schools were seen as being the best, and they became oversubscribed. Faced with more applicants than space, school officials used students’ race as one of several factors in deciding whether they would be admitted to those schools. The goal was to maintain racial balance in each school as close as possible to the citywide enrollment of 40 percent white and 60 percent nonwhite.

Korrell says such “racial balancing” is unconstitutional on its face and violates the equal protection clause of the 14th Amendment. The policy is particularly strange in a city such as Seattle, he says, since it has extraordinary racial and ethnic diversity. The only results of the board’s policy are “trivial changes in pigmentation diversity at a few already diverse schools,” he wrote in his brief to the court.

Louisville, unlike Seattle, had a history of forced racial segregation, and until 2000 the schools operated under a court-ordered desegregation plan. Afterward, the school board adopted guidelines stipulating that each school should have between 15 percent and 50 percent black students. When Crystal Meredith’s son was denied enrollment in the elementary school nearest his home because he was white, she joined a lawsuit challenging the policy.

U.S. Solicitor General Paul Clement, representing the Bush administration, filed briefs in both cases urging the court to strike down the integration policies. “The promise of this court’s landmark decision [in Brown] and its progeny was ‘to effectuate a transition to a racially nondiscriminatory school system’ and thus ‘achieve a system of determining admission to the public schools on a nonracial basis,’ ” he wrote, citing Brown II, 349 U.S. 294, the court’s 1955 follow up ruling directing the implementation of desegregation plans.

“The United States remains deeply committed to that objective. But once the effects of past de jure segregation have been remedied, the path forward does not involve new instances of de jure discrimination,” Clement said. School officials may seek to “reduce minority isolation,” he added, but they must do so “through race-neutral means.”

College-Level Concerns

The cases also have attracted attention because of their potential impact on race based affirmative action policies in colleges and universities. Just three years ago, the court reaffirmed the controversial 1978 ruling Regents of University of California v. Bakke, 438 U.S. 265, and upheld a limited use of race as an admissions factor in higher education.

But that decision, Grutter v. Bollinger, 539 U.S. 244, came on a 5-4 vote and was written by now-retired Justice Sandra Day O’Connor. Her successor, Justice Samuel A. Alito Jr., had said during his days in the Reagan administration that he was particularly proud of his efforts opposing racial and ethnic “quotas.”

And as the solicitor general noted on several occasions in his brief, the dissenters in Grutter and Gratz v. Bollinger a second case also involving Michigan public schools included Justice Anthony M. Kennedy.

“Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing with it the potential to destroy confidence in the Constitution and the idea of equality,” Kennedy wrote. Neither the court nor the government should be involved in the “perpetuation” of race-based policies, he said.

For about two decades, O’Connor held the uncomfortable middle position on issues of race and affirmative action. She usually joined with the court’s conservative wing in saying that race-based policies were suspect and should be subject to strict scrutiny. But when given a chance to overturn such programs, O’Connor repeatedly balked. In the Michigan cases, she split the middle exactly. She joined a 5-4 Gratz ruling that struck down Michigan’s undergraduate admissions policy as unconstitutional because it relied on a point system that benefited minorities. But her opinion for the 5-4 Grutter majority upholding the University of Michigan law school’s admissions policy said it was constitutional because, at least in theory, each of the applicants was assessed as an individual rather than as a member of a racial or ethnic group.

By contrast, Kennedy has consistently opposed race-based policies in government contracting, employment and the drawing of electoral districts, as well as college admissions. In the Michigan law school case, Kennedy said the evidence showed that in practice, the admissions policy was “tantamount to a quota,” since minorities made up about 13 percent of the class every year.

Justices Antonin Scalia and Clarence Thomas have long made clear they will oppose race-based policies. If Alito and Chief Justice John G. Roberts Jr. were to join them, which seems likely, the school cases could see the emergence of a solid, five member majority that is committed to striking down the use of race by public agencies, regardless of the purpose.

In their defense, the school boards say they were acting in the spirit of the Brown decision and the many high court rulings that followed it by seeking to break down segregation in the public schools.

As the Seattle lawyers put it in their brief, the parents’ challenge to its integration guidelines “rests on the false assumption that a desire to integrate public schools is constitutionally indistinguishable from the intent to segregate them.”


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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