NEWS: SCOTUS Interruptus: Nevermind That Whole “Brown v. Board” Thing

CULTURE: SCOTUS Interruptus: Nevermind That Whole “Brown v. Board” Thing

Welcome to the fourth installment of SubrosaÂ’s SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the CourtÂ’s important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.

With the end of this yearÂ’s Supreme Court term, itÂ’s only natural to look back at the entirety of it to try to glean some understanding of the CourtÂ’s current incarnation. As we discussed last week, commentators are already looking at this Court as one of the most closely divided and sharply partisan Courts in history.

And of course, weÂ’ve already discussed how The Notorious J.A.K. rolls. I re-iterate this point not simply because it is truly astonishing, but because it becomes very important when analyzing what could become the most important decision of the term: Parents Involved in Community Schools v. Seattle School District 1.

In Parents Involved the primary issue presented was essentially this: Should a high school be allowed to undertake admissions programs designed to even out the racial balance of their school while using race as a determinative factor to do just that? The Court’s answer was, as you’ve all probably heard by now, essentially “no.” But what did that “no” mean and what can we learn from the nearly 200 pages of opinions, concurrences and dissents that accompanied it? How do schools go about achieving integration in the future? Can they even try if they want to? Does Parents Involved overrule Brown v. Board of Education?

The general consensus answer to all of those questions seems to be: Well, weÂ’re not sure. (Come on, you werenÂ’t looking for a simple answer here, were you?)

The one big reason why we don’t really know what legacy Parents Involved will leave us is that while it was decided 5-4, the “official” opinion of the court was only joined by four Justices (Roberts, Scalia, ScAlito and ScaThomas), not the five that they would need to earn a majority opinion. The dissent was joined by four justices (Breyer, Souter, Stevens and Ginsberg). Which left one Justice to write a concurring opinion. If you don’t know which Justice that was you haven’t been paying attention.

HereÂ’s the extreme shorthand of what happened:

-ROBERTS, SCALIA, ALITO, THOMAS: Race may never be used as the determinative factor in admissions in public schools.

-BREYER, SOUTER, STEVENS, GINSBERG: Race may be used as the determinative factor in admissions in public schools so long as it is there to correct past racial segregation or injustice.

-KENNEDY: Race may sometimes in certain, distinct cases be used as a factor in admissions in public schools, but just not in this case because it is the sole determinative factor.

So what are we left with? Many commentators are simply saying “do the math.” When you add up the votes for the ability of schools to use race in some cases you get 5 votes (the dissenters plus Captain Wins All The Time.) In essence, the “opinion” of the Court ends up being in the minority when it comes to the issue of whether race can ever be used to help balance schools. Welcome to the wacky world of Supreme Court Jurisprudence.

So, we toss out the majority opinion, right? Well, sorta. We have to look at what Kennedy agreed with the Roberts faction on first before we can glean any actual rules from the decision. HereÂ’s one manÂ’s take on it. (some internal citations omitted)

While that’s all well and good, it’s also extremely frustrating on many levels. While Kennedy, to his credit, did not go out of his way to “circumrule” entirely around applicable precedent (see: Grutter v. Bollinger; Freeman v. Pitts; and Brown v. Fucking Board of Fucking Education, among others) that should have led the Court to the inescapable conclusion that the programs at issue here were constitutional, he also left the primary question wide open. To wit: what the fuck are schools realistically supposed to do if they want to encourage racial diversity?

Herein lies the real tragedy of the Parents Involved. Lacking any true guidance as to what is and what is not ultimately permissible, cash-strapped school districts around the country are not going to take the risk of exposing themselves to future litigation on the hopes that their particular program *might* pass constitutional muster. In other words, racial integration in public schools could be, for all intents and purposes, finished.

Some have (disgustingly) hailed Parents Involved for doing just that. After all, didnÂ’t Brown say that all racial classifications are automatically unconstitutional?

Well, no, in fact. It fucking didnÂ’t, despite Justices Roberts and ThomasÂ’ assertions to the contrary.

That perversion of the spirit and holding of Brown has culminated in Parents Involved. It is a world where racial inequality does not exist, and even if it did, we would be powerless to address it. In one way, I am almost glad that Justice Thurgood Marshall is not alive to see how his arguments in Brown have been co-opted to institutionalize racial separation. The shock might kill him all over again.

what the frak??

i feel like we were in a transporter accident and we left our universe and slipped into the one. nothing surprises me anymore.

Ok ok ok. Big deep breath. Whew. WHAT THE FUCK!?!?! Did we just make one HUGE ass U turn and undo all thats been accomplished in the last 40 years?? Someone please tell me they didn't just make an open road for discrimination by sitting on their hands and saying, "Nope Brown meant you can't intergrate." http://www.lawmemo.com/sct/05/Parents/

Where the hell can I buy some pitchforks and torches? Cause they just let out the monster and gave him a free ticket to kill equality. (Yes, I know. The monster was not a villian but a tragic example of mans over reach, sanctity of soul v technological advances. Its the only metaphore I could come up with in discribing the monster that is racism.)

Reads to me like Roberts and the gang have found a way to justify the economic gentrification of school districts by segregating the have nots while satisfying the needs of white parents and childrens needs to request the specific schools they so choose to attend, instead of simply expanding the possible interpretation of Brown v. Board.

UUUGGGHHHH. And before you think I am making a knee jerk liberal reaction, I am a parent who is actively involved with his childrens school district, a very conservative school district. I moved into the current school district to provide my kids with the best possible education. When it came time to assign my kids to a school, I worked with the district instead of suing their asses. Why? Cause sometimes a little common sense and talking things out will go a long way. Meredith, thats the moms name btw, got here way here. But in the process, the ideals and accomplishment that is Brown v. The Board of Education has now been bastardized.

I think that cases like this really miss the underlining problem. The reason U.S. schools are still de-facto segregated is because our communities are still de-facto segregated. My city is really divided in to three parts, blacks in the north east, hispanics in the south east, and whites everywhere else. It is really sad that people are still afraid to reach out to other groups. If there were some way to encourage minorities to move to white majority school districts and vice versa the debate about school segregation would be rendered moot.

I would rather admission decisions be made on something more material than race, like poverty or the history of one's family's education. I wouldn't want to lose my spot in a school to someone simply because his skin has a little more melanin than does mine. However, I would gladly cede my spot to someone who doesn't have the means to seek alternative sources of education, or who is the first of his family to have a hope of higher education.

As an aside, something that has struck me as sad about the aftermath of this decision and all the questions on how to apply it is how many school administrators I've read about who have said, "Well, frankly, this might not make a huge difference practically speaking, because if we just shift our focus to socioeconomic status instead of race when allocating students, we'll get basically the same racial diversity that we would have had we focused directly on race anyway." So as long as enough of the students are poor, enough of the students will also not be white.

No racial inequality left in this country. Not at all.

More on topic: if, in any of the constitutional law coursework I've done, I'd tried to twist Brown to argue what Thomas and Scalia and Roberts and Alito argued here, my prof wouldn't have let me continue more than thirty seconds into such a bullshit interpretation. Precisely no one who was actually involved in Brown who's still around today agrees with a single thing those men have said about it in this opinion.

This case isn't dealing with higher education at all. It's dealing with student placement in public school with a goal of maintaining racially balanced public schools--a public high school, in this specific case, although the ruling applies as well to public primary schools. That's the reason people are talking about Brown v. Board of Education with relation to this case--because Brown is the decision that desegregated U.S. public primary and secondary schools. It has nothing to do with post-secondary education.

'Tis often best to read the article prior to commenting.

Hey! Why should "Brown" have a fucking voice in a free society anyhoo?

Thanks. This breakdown was kinda what i was looking for in past SCOTUS Interruptus segments. It clears up a few things and reasons for opinions. Now all that confuses me is: how could a 100% good verdict ever come from these cases in the first place, and why must our education system suck so horribly?

i mean, really, that's what it all boils down to as far as all of this is concerned: our school systems are a gigantic ball of suck thanks to all the bureaucracy it entails. from funding to the whole "No Child Left Behind" pros and (major) cons to segregation/anti-segregation woes. it just makes me want to take a hammer to my headbones. and i love my headbones.

ok, what country is credited with the best educational system? i think i might move there if i ever think of procreating.

This cartoon is so, so very telling. It's really quite staggering how much precedent has been overturned, ignored and "circumruled" this term. And flippantly so. It has made every single Scalia opinion where he cries and whines about stare decisis or bright line rules ring even hollower than they did before. And that takes a lot.

Moreover, it's not an affirmative action case at all. That's the thing that so many people are missing about this. This case is NOT NOT NOT about giving any one race preference when it comes to admissions at better schools. This case is about the absolute destruction of programs that ensure that people who are going to public school are exposed to different races, different cultures and different values than the ones of their own.

This case is about undoing the practical impact of Brown, not racial preferences.

Ya, that's all well and good, but the real question is this:

What GOD do I need to pray to to get SCALIA to FUCKING DIE?

How is it that every other fat turgid colostomy bag surprise in a black mu mu has diabetes and gout and a heart one episode of Walker Texas Ranger from exploding, and that fucker continues to live.

IS THERE NO GOD????

Hey Subrosa, thanks for making SG newswire a little more akin to NEWS. Good analysis and really clearly laid out.

Not that I necessarily recommend it, but I'd try Justice Kennedy. He seems to make the decisions about everything else around here.

I consider myself moderate, and I don't particulary disagree with the decision with the following ceveat:

The goal here ought to be to improve ALL schools rather than shipping minority students to suburban, mostly white schools. It just doesn't seem fair to me that the minority students would have to get up at 4:30 AM every day to go to school miles away from home to satisfy a quota. Why not ship in the white kids and improve minorty-heavy schools?

Why not take all that money being spent on bussing and spend it on computers or books or teacher pay raises? I understand what was trying to be accomplished by the bussing, but I think there is a time when enough is enough. I am not saying that "separate is equal" but I personally know people who have moved from one school district to another to avoid bussing. Is it fair that only the affluent have that option?

Its a complicated issue and I don't claim to know everything about it, but people should try to keep an open mind and hope that this decision promotes equality rather than enforce quotas.

Just recall opinions are like assholes, everyone has them and they all stink!

Uh, they did do, in fact, just that.

Not to say there isn't an issue of allocation of resources, however the "enough is enough" sentiment is woefully misplaced. Schools in most areas are de facto segregated just as they were 20-30-40 years ago. This decision is only going to further entrench that segregation.

The idea of "equality" is amorphous at best. This decision draws a clean line between de jure segregation and de facto segregation and says that while the former is (rightfully) impermissible, it is actually impermissible to do anything about the latter.

Dude. That's so deep. Do you have any other bumper stickers you'd like to recite? I can't wait.

From today's New York Times Editorials & Opinions page Adam Cohen wrote

I think this says it all about the honesty of the American conservative movement.

When you say it like this, it doesn't do a good job of promoting your argument. Since so many people choose where they live based on the quality of education in an area, is it really government's place to usurp that decision and move their children to schools that are farther away solely because that school needs more racial diversity?

This sort of forced diversity is treating symptoms of a deeper issue. Cosby knows the score.

I agree Heather_Dave, but it doesn't look like this is a popular opinion on this board. As much as I hate segregation, I hate the idea that the goverment has a right to make decisions based on race more.

mine either.
then again my constitutional law professor was erwin chemerinsky.

i say we look at all of this in the context of how much so many of the american youth have to suffer because of this. you can either have them bused miles away from home in hoopes of the end of segregation in schools or you can leave the status quo as is and watch as more and more young people get the shaft on so much because of what race they are or where they live.

i went to school in an urban district and felt like i got the shaft because i saw first hand how little anyone cared in those schools because of instead of people worrying about the education that people are getting, they are more worried about whether or not whether they have enough of each race to say that the are segregated and whether they can find a loop whole to pass on enough people who cant even read to meet the numbers they need. i say that for the most part for now, we need to stop looking so hard at the number of each race we have in each school and concentrate more on whether the youth growing up now are really gettting the education they need to be more then just half assed adults or the future members of american jails.

i think that from reading what i have on perents involved that it would make for a great way to end segregation if the right standards for it are implemented also. it shouldnt just be about race. i say they should also require that schools should also look at how dumb there students are getting because of how little is really being taught now a days and place students based also on how far behind they really are.

this issue is very complicated and thanks to the assholes who appointed the justices who are yes men who stay on the knees blowing the guys who want their own personnal agenda we can all enjoy the america that is only going to be worse then it ever was.

i personnally think that the justices that are appointed now that are making all these decissions that are wrecking this country should go ahead and take a bite out a speeding bullet and make way for justices who will be looking out for the wholistic bettering of this whole country. but hey, im only one person and what i say isnt always right.

1. Obviously. But you need a high school diploma to get into college, don't you? Notice I said "hope" of higher education, an education in public schools is certainly part of that hope.

'Tis often best to read the comment prior to responding.

2. That doesn't change my opinion. Those who are open to diversity will always be, and those who are not will only cause problems. I come from a suburban school, so the vast majority of us were white, but there were Muslims, Jews (me), African-Americans, Hispanics, Asians, Catholics, Protestants, Wiccans, homosexuals, anything you can imagine. It is certainly a public high school's job to educate students about diversity, but admitting "diverse" people over those who would normally go to that school is not the way to do it. How about having a well-funded foreign language department? Perhaps bringing in speakers on the subject, or just visitors from other states, regions or countries? Perhaps the school could actively participate in exchange programs and actively promote them. Brown v. Board of Education was about cultural exposure, certainly, but moreover, it was about opportunity, and picking and choosing students to force diversity is a structural denial of opportunity.

It is, however, a very difficult decision, because cultural diversity and opportunity are two very important things in this country.

This is not a case where people are being bussed across county lines or they move into an area where they were unaware there was bussing. This is a case where a democratically elected school board under mandate from the people who voted them in instituted a program in an attempt to lessen the impact of de facto segregation.

And the solution to that issue is... what? Even if you were to somehow equalize all other socio-economic factors, there is still an inherent benefit of having representatives of different races attend school together.

Uh... OK.

Actually, I did read your comment prior to responding. I still fail to see how most of your comment is relevant to the factual issues of the case or to the constitutional law questions at hand. Yes, you need a high school diploma or its equivalent to get into college. No one's being denied a high school diploma based on race. Therefore, I do not see how your point about higher education relates.

I also don't see how your suggestions affect the issue of maintaining racially integrated public schools. All of those things would be lovely to have in public schools, and ideally, if all public schools were funded as well as those in wealthy suburbs, maybe all public schools would have such things--but those things don't do anything about the issue of maintaining racial integration in our public schools. Your suggestions are fine ones, but I don't see how they really pertain to the facts of the cases at hand, or to the constitutional questions posed by these cases.