News > Culture > SCOTUS Interruptus: Nevermind That Whole Brown v. Board Thing

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SUNDAY JULY 8 2007 4:00 PM

SCOTUS Interruptus: Nevermind That Whole Brown v. Board Thing

Submitted by Subrosa

Edited by erin_broadley

Tags: Supreme Court, School Integration, Justice Kennedy, Thurgood Marshall,

Welcome to the fourth installment of Subrosas SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts 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 years Supreme Court term, its only natural to look back at the entirety of it to try to glean some understanding of the Courts 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.

Fully a third of the courts decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the courts polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The courts last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The courts increasingly marginalized liberals Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

And of course, weve 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 Courts answer was, as youve 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, were not sure. (Come on, you werent looking for a simple answer here, were you?)

The one big reason why we dont 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 dont know which Justice that was you havent been paying attention.

Heres 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. Heres one mans take on it. (some internal citations omitted)

Here is what is clear from Justice Kennedys opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race.

Second, and relatedly, the Constitution does not require color-blindness.

Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. (individual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.); (these programs are unconstitutional because the schools could have achieved their stated ends through different means).

Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. Schools may take account of race in such decisions as site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These are race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race

While thats all well and good, its 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?

Justice Kennedys proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush. I am not aware of a non-magnet program in which school districts regularly consider individual criteria in assigning the thousands of students within their jurisdiction.

Lacking the resources that would be required to implement such a holistic approach honestly, it is most likely that school districts do one of two things. They may give up altogether on the effort to consider the race of individual students in placement. This is the probable result in most cases, and it produces as a practical matter the approach that the plurality today believes is required constitutionally (at least absent a compelling evidentiary showing). Alternatively, school administrators may engage in an under the table consideration of race, attempting to force the racial integration of schools without any express acknowledgment of the effort.

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, didnt Brown say that all racial classifications are automatically unconstitutional?

Well, no, in fact. It fucking didnt, despite Justices Roberts and Thomas assertions to the contrary.

In passionate dissents, justices John Paul Stevens and Stephen G. Breyer lament the conservatives' treatment of Brown. Stevens describes their reliance on Brown as "cruel irony." And Breyer describes their comparison of state-mandated racial segregation in the 1950s with contemporary voluntary desegregation plans as a "cruel distortion of history."

Stevens and Breyer are right. The offense they have taken at Roberts' and Thomas' treatment of Brown is entirely appropriate. The plurality and concurring opinions undermine and misinterpret decades of efforts to undo the long American history of racial segregation, discrimination, and inequality.

The question we need to ask is: How did the conservative justices manage to appropriate Brown so completely? How did they so easily convert Brown from an opinion championing racial equality into one that countenanceseven requirescontinuing racial inequality and segregation in the name of the Constitution? The answer is simple: through abstraction. They have abstracted a decades-long struggle for racial progress into a single formalistic harm: government classifications on the basis of race.

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.

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Comments

Gerry_D

Los Angeles, CA

May 2003

JUL 08, 2007 05:18 PM

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.

hellboy7

Austin, TX

July 2004

JUL 08, 2007 08:06 PM

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.

Rockoval

I'm lost

July 2006

JUL 08, 2007 08:08 PM

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.

Strelnikov

Holden, MA

March 2007

JUL 08, 2007 08:14 PM

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.

Necia

San Francisco, CA

August 2005

JUL 08, 2007 08:29 PM

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.

Necia

San Francisco, CA

August 2005

JUL 08, 2007 08:33 PM

Strelnikov said:
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.

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.

AceT

Portland, OR

April 2004

JUL 08, 2007 08:42 PM

jtemperance

Chicago, IL

January 2004

JUL 08, 2007 10:25 PM

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

scylis

USA

November 2004

JUL 08, 2007 11:03 PM

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.