Current Events
US Supreme Court Strikes Down Voluntary Integration in Louisville and Seattle : Can a Law Change a Society?
Could this be a major blow to the historic Brown decision in 1954? The most recent ruling in a litany of 5-4 decisions by the United States Supreme Court struck down voluntary integration in public school districts in Seattle, Wash. and Louisville, Ky., which many believe is a direct assault against the Brown v. Board of Education ruling of 1954 that ended segregated public schools. The Court's most recent decision has sent shock waves through legal circles across the nation.
Can a Law Change a Society?
By JEFFREY ROSEN, NY TIMES
Washington, July 1, 2007
SINCE 1954, liberal and conservative justices have disagreed about the central meaning of Brown v. Board of Education. Was the purpose of Brown to achieve a colorblind society or an integrated one? Last week, in its 5-to-4 decision declaring that public schools in Louisville and Seattle can’t take explicit account of race to achieve integration, the Supreme Court came down firmly on the side of colorblindness. Despite some important qualifications by Justice Anthony Kennedy, at least four conservative justices made clear that they believe that nearly all racial classifications are unconstitutional.
The lawyers who won the Supreme Court case predicted that it would have as dramatic an effect on American society as the original Brown case did. “These are the most important decisions on the use of race since Brown v. Board of Education,” Sharon Browne, the principal lawyer for the conservative Pacific Legal Foundation, declared in a press release. “With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop.”
But some legal scholars on both sides of the political spectrum, and of the affirmative action debate, question this assessment. They doubt that this case will transform society as dramatically as Brown did. And some of them question whether even Brown was as singularly influential in transforming society as many have claimed during the last half-century.
The conventional wisdom about Brown holds that it was more responsible than anything else for the integration of schools. “Brown really did transform society by stopping de jure segregation, and without Brown, schools would look very different,” says David J. Armor, a conservative scholar at George Mason University.
But some liberal scholars have challenged that heroic assessment. In “From Jim Crow to Civil Rights,” Michael J. Klarman argues that it was a political commitment to integration in the 1960s, not the Brown decision in the 1950s, that led to meaningful integration.
“Brown didn’t transform society very much, and to the extent that it did it was indirect,” says Mr. Klarman, who is a law professor at the University of Virginia. “Brown brought out the worst in White Supremacy, and Northerners were appalled by the police dogs they saw on television, and that advanced the civil rights movement.” He argues that meaningful desegregation didn’t occur until the Johnson administration’s Justice Department became committed to enforcing the Civil Rights Act of 1964, and the Department of Health, Education and Welfare threatened to cut off financing to school districts that refused to integrate.
Professor Klarman said he believed that just as the court couldn’t bring about integration on its own in 1954, so it won’t be able to mandate colorblindness on its own today. “Just as Brown produced massive resistance in the South and therefore had little impact on desegregation for a decade, this decision is going to be similarly inconsequential,” he says. “This affects only the tiny percentage of school districts that use race to assign students, and even in those districts, like Louisville and Seattle, it won’t be consequential because there are so many opportunities for committed school boards to circumvent it.”
In his concurring opinion, Justice Kennedy invited school districts to explore “narrowly tailored” ways of pursuing their compelling interest in “avoiding racial isolation.” Some critics of government-sponsored affirmative action believe that this may allow school districts to pursue racial diversity by indirect means.
“School districts are going to continue to do indirectly what they tried to do directly,” says Peter H. Schuck of Yale Law School. “They will feel the same pressures to reduce racial isolation, and they will look for proxies for race.”
Some scholars who support affirmative action also agree that public schools will use proxies for race — like neighborhoods, socioeconomic status, or single-parent households to achieve their goals. “I think what you’ll see is schools avoiding talking in racial terms, and talking in more vague terms about a diversity of backgrounds,” says David A. Strauss of the University of Chicago. “There will be another layer of bureaucracy, but I wouldn’t expect a large-scale retreat from what public schools have tried.”
After Texas and California banned affirmative action in the 1990s, officials in both states guaranteed admission at the top public universities to a certain percentage of the class at every public high school, regardless of the school’s quality. Because of segregated housing patterns, this somewhat reduced the fall in the numbers of enrolled African-American and Hispanic students.
“If you judge by what happened in California, you’ll see some drop in minority enrollment but not as huge a change as some people expected,” says John Yoo, a former Bush Justice Department official who teaches law at the University of California at Berkeley. “School administrators and bureaucrats are so heavily invested in the idea of diversity that they will try an amazing array of policies to get around the ban of the use of race.”
Although it will be harder for public schools to resort to similar race-neutral alternatives, many legal scholars believe they will try. “It’s tougher in a public school setting, where generally applicants aren’t competing against each other on an individual basis, but that’s clearly what Justice Kennedy is inviting,” says Samuel Issacharoff, a law professor at New York University who supports affirmative action. To enforce its vision of colorblindness, Professor Klarman suggests, the Supreme Court would need to be backed by the president and Congress. But so far, that political commitment to colorblindness has not materialized.
“It’s not enough for the court to announce this; to really make it stick, the president would have to cut off funding for school districts that circumvent the decision, just like the 1960s,” Professor Klarman says. “If you start threatening to throw school board members in jail, that might have an effect, but the strongest evidence that there’s not that kind of political support for colorblindness is that the military and Fortune 500 companies have said we need affirmative action to survive.”
More broadly, the effects of last week’s decision may be limited by the fact that American society is divided on just how colorblind or integrated society should be. When Brown was decided, 54 percent of the country supported the result. Today, the public appears similarly divided about the appropriate balance between colorblindness and diversity, and there are backlashes in both directions.
After a Texas court banned affirmative action in 1996, the Texas Legislature tried to preserve racial diversity in the state’s public universities with race-neutral alternatives, but after the Supreme Court upheld affirmative action at the University of Michigan law school in 2003, the voters of Michigan passed an initiative banning it.
“I think that there will be a King Canute quality to the decision,” Professor Strauss said, referring to the Anglo-Saxon king who ordered the sea’s waves to stop.
In the end, the Supreme Court throughout its history has rarely precipitated social transformation on its own; instead it has been most effective when it acts in conjunction with the president, Congress and ultimately a majority of the country.
“Brown pushed the country in a direction it was already going, and in the same sense, the large forces today are going to continue to operate regardless of what the Supreme Court just decided,” Professor Klarman said. “We’re headed toward an ambiguous place where we’re committed both to colorblindness and to diversity in public life. We might have a black president, but we’ll still have a society with very segregated neighborhoods and public schools. I don’t think the court decision will make much difference either way.”
Jeffrey Rosen, a law professor at George Washington University, is the author of “The Supreme Court: The Personalities and Rivalries That Defined America.”
Our view on race and schools: Setback for equal education Fri Jun 29, 12:21 AM ET
LINK
Students, parents and educators have good reason to be confused about mixed messages from Washington.
The federal No Child Left Behind law demands that schools reduce learning gaps between racial groups. On Thursday, however, the Supreme Court took away a key tool for achieving that goal.
The sharply divided court struck down voluntary school integration plans in Louisville, and Seattle that use race as a factor in making public school assignments. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts wrote for the 5-4 majority.
Roberts' words make for snappy rhetoric. But reality, 53 years after the historic Brown vs. Board of Education decision began to dismantle segregated school systems, is that children in many predominately minority schools continue to receive inferior educations.
If history is any guide, Thursday's ruling means Louisville and other cities will have more such schools. In 1999, for example, a judge ordered San Francisco schools to stop using race in school assignment. Since then, schools there have slowly resegregated.
About the only solace in Thursday's ruling is that the impact may well fall short of dire predictions by civil rights leaders who spent the day decrying the decision as a tragic step back from Brown vs. Board.
Very few school districts use elaborate race-based assignment systems of the kind struck down in Louisville. Moreover, in joining the majority, Justice Anthony Kennedy made it clear that he's not about to overturn all affirmative action programs in education and the workplace.
Race "may be taken into account" in certain circumstances, and Roberts' opinion "is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race," Kennedy wrote. It's OK, he said, for districts to site new schools, recruit students or draw boundaries with diversity in mind.
The biggest damage inflicted by this decision will be if districts give up trying to prepare students to live in a diverse society — or trying to educate students in heavily minority schools.
Although racially isolated schools typically struggle, some don't. A recent book, Karin Chenoweth's It's Being Done, documents several success stories. Atlanta's Capital View Elementary, for example, flourishes in one of that city's most beleaguered neighborhoods by setting high expectations, a demanding curriculum and intense professional development for teachers.
Many charter schools, which are independently run public schools, do the same. The KIPP (Knowledge is Power Program) charter school in northwest Baltimore manages to transform some of the city's lowest-performing students into academic stars, according to a study just released by a Johns Hopkins University researcher.
Thursday's ruling means some urban schools will become less integrated, and that increases the likelihood that they will fail. But it doesn't mean that they have to.
Chipping away at Brown
Supreme Court strikes down race as indicator for diversity
By Sean Yoes, AFRO Staff Writer
LINK
Could this be a major blow to the historic Brown decision in 1954?
The most recent ruling in a litany of 5-4 decisions by the United States Supreme Court struck down voluntary integration in public school districts in Seattle, Wash. and Louisville, Ky., which many believe is a direct assault against the Brown v. Board of Education ruling of 1954 that ended segregated public schools.
The Court's most recent decision has sent shock waves through legal circles across the nation.
"This is obviously an important decision that must be carefully evaluated," said Larry Gibson, professor of law at the University of Maryland. "I have to read the full opinion before I make an assessment," said Gibson who is perhaps the foremost expert on Thurgood Marshall, the man most responsible for the landmark Brown decision.
Chief Justice John Roberts wrote for the majority arguing that schools, "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts." Some believe Roberts' opinion is indicative of a philosophical strike against the role of diversity in American society as a whole.
"This is no surprise with Roberts and Scalia —— we got a hint of that in the Michigan case where the court severely limited the use of race at the University level," said Baltimore defense attorney Dwight Petit, a long-time observer of the Supreme Court. "All of the majority wanted to do away with race period as a criteria to establish diversity," added Petit.
But, some advocates for integration and diversity cling to hope in the language of the opinions of some of the justices.
"There is a plurality of justices that confirm the importance of racial diversity," said Erica Frankenberg of the Civil Rights Project of Harvard University. Frankenberg points to Justice Anthony Kennedy, pegged as a swing vote in many of the Court's recent decisions who sided with the majority on the integration ruling. "It seemed like he (Kennedy) wasn't real comfortable with the majority," observed Frankenberg. Specifically, Kennedy wrote at the bottom of page two of his opinion, "Diversity is a compelling educational goal that a school district may pursue," he wrote. But, how they pursue that goal now becomes more difficult.
"Schools are going to have to go back to the drawing board and figure out how they can do that and remain within the letter of the law," Frankenberg said. "But, ultimately it's a decision that keeps chipping away at Brown." Many see the Court's "chipping away at Brown," as a vital component of a larger right-wing agenda.
"We knew that when Bush was elected and then re-elected that he would take over the Court...we're on a path to reverse the gains made under the Warren Court," said Petit. "So, it's a new day."
Louisville schools central to debate
LONG HISTORY OF DESEGREGATION TROUBLES, REMEDIES
LINK
1954: Landmark Brown v. Board of Education ruling banned racial segregation in public schools.
1956: Integration of Louisville public schools begins peacefully.
1964: Federal Civil Rights Act passed by Congress.
1966: Kentucky Civil Rights Act is passed but does not address educational inequities in the schools.
1975-76: Court-ordered school busing for desegregation sparks protest marches, riots, store closings and school absenteeism. The plan calls for 11,300 whites and 11,300 blacks to be cross-bused. Nine hundred Kentucky National Guard members sent to Jefferson County to restore order.
1980: Kentucky is one of six states recognized for making considerable progress in desegregating schools largely because of action in Jefferson County, according to a report by Gary Orfield, a professor of political science and education at the University of Chicago.
1991: The Supreme Court makes it easier for public school districts to end court-ordered busing, even if it results in some predominantly white or black schools. The high court authorizes federal judges to terminate their supervision of school systems if they find that a school board has eliminated "vestiges of past discrimination" and is unlikely to "return to its former ways."
1992: After 16 years of busing, Louisville schools adopt a new student assignment plan that encourages some voluntary busing and changes the racial composition guidelines for the district's 88 elementary schools. Racial guidelines and mandatory busing remain largely unchanged in the system's middle and high schools.
2000: A federal judge lifts a 25-year-old desegregation order for Louisville schools, saying the vestiges of the racially separate system are all but gone. U.S. District Judge John G. Heyburn II sided with a group of black parents who sued in hopes of getting their children into Central High School, which once was Louisville's only public high school for black students.
2003: Joshua McDonald, a white student in Louisville, is assigned to a kindergarten that is a 90-minute bus ride away, past a closer school that Jefferson County school officials said already had enough white students that year. He was denied a transfer to the closer school. His mother, Crystal Meredith, joined several other parents who were suing the district over the racial guidelines used in schools.
December 2006: The Supreme Court hears arguments on lawsuits by parents in Louisville and Seattle challenging policies that use race to help determine where children go to school. The school policies are designed to keep schools from segregating along the same lines as neighborhoods.
June 2007: U.S. Supreme Court rules that Jefferson County Public Schools' race-based school assignment plan is unconstitutional.
Sources: Herald-Leader Archives, Kentucky Educational Television's Timeline on Kentucky Civil Rights, The Kentucky Encyclopedia, The Associated Press. Compiled by News Researcher Linda Niemi
Brief of the NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae in Support of Respondents
Bush Administration Opposes US Integration Plans
David G. Savage - LATimes
LINK
The solicitor general urges the Supreme Court to scrap schools' voluntary programs that exclude some students because of their race.
Washington - The Bush administration has urged the Supreme Court to strike down voluntary school integration programs across the nation that exclude some students because of their race.
Administration lawyers filed briefs this week in pending cases from Seattle and Louisville, Ky., on the side of white parents who are challenging "racial balancing" programs as unconstitutional.
The parents say the integration guidelines amount to racial discrimination and violate the Constitution's guarantee of the equal protection of the laws. They lost in the lower courts, but the Supreme Court will hear their appeals in the fall.
In the briefs, U.S. Solicitor General Paul D. Clement urged the justices to rule that "the use of a racial classification to achieve a desired racial balance in public schools" is just as unconstitutional as old-fashioned racial segregation.
Louisville, which had a history of segregated schools, adopted integration guidelines in 2001 that said the black enrollment in each elementary school should be at least 15% but no more than 50%. In Meredith vs. Jefferson County, Crystal Meredith, a white parent, sued when her son was prohibited from attending the elementary school nearest to his home.
The Seattle school board adopted integration guidelines for its high schools, beginning with the 1998-99 school year. Officials said they hoped to preserve racial diversity in the schools and prevent segregation that mirrored the racially segregated housing patterns in the city.
In the case of Parents Involved in Community Schools vs. Seattle schools, a group of parents sued to challenge the guidelines after their children were denied enrollment in their first choice of a high school because of their race or ethnicity.
As many as 1,000 school districts nationwide - including the Los Angeles Unified School District - are integrating some of their schools by using race or ethnicity as a factor for enrollment, according to Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento. That organization filed suit in October against the Los Angeles district in state court, contending that it had violated Proposition 209, the 1996 statewide initiative that prohibits public programs from using racial preferences.
Next month, lawyers for the Louisville and Seattle school districts, as well as civil rights advocates will file briefs defending the integration guidelines. The justices are expected to hear oral arguments in December.
In the briefs filed this week, Clement urged the high court to resolve a lingering dispute over the meaning of the court's landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools are "inherently unequal."
For decades afterward, school districts across the nation adopted policies to bring about racial integration: Some set enrollment guidelines that prevented schools from becoming nearly all black or all white, while others have used magnet programs that consider a student's race. Many of those policies remain in effect.
Los Angeles Unified considers race as one of the factors for enrollment in its 162 magnet programs, which use specialized curricula to draw a racially and ethnically diverse student body from across the city. When the program was created almost three decades ago, nearly 40% of the district's students were white, about one-third Latino and one-quarter black.
Today, fewer than one in 10 Los Angeles Unified students is white, and 30% to 40% of magnet seats are reserved for white children.
Clement, the Bush administration's chief lawyer before the high court, said such programs should be struck down whenever they involve the use of a "racial classification" to decide who may enroll.
"The promise of this court's landmark Brown (decision) was to 'effectuate a transition to a racially non-discriminatory school system,' " he wrote. "The United States remains deeply committed to that objective. But once the effects of past de jure (legal) segregation have been remedied, the path forward does not involve new instances of de jure discrimination."
His argument is likely to get a favorable hearing from Chief Justice John G. Roberts Jr. and his conservative colleagues.
"It's a sordid business, this divvying us up by race," Roberts commented in June when the court ruled on a voting-rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law's focus on the race and ethnicity of the voters.
In the past, Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy have regularly voted to strike down contracting set-asides or affirmative-action programs that give preferences to minorities.
Three years ago, they dissented when the high court, in a 5-4 decision, upheld the affirmative-action policy at the University of Michigan law school. Justice Sandra Day O'Connor wrote the majority opinion.
The replacement of O'Connor, who retired last year, with Justice Samuel A. Alito Jr. could tip the court's balance on affirmation action as well as on voluntary school integration. During his days as a Reagan administration lawyer, Alito said he was especially proud of his work on cases that challenged "racial quotas."
The solicitor general defends federal agencies and federal laws when they come under challenge in the high court. He also may intervene in cases, even if no federal law is at issue, to express the views of the administration. In the school integration cases, the solicitor general could have intervened on the side of the school districts or on the parents' side.
Clement argued that the government, including public schools, may use "race-based measures" only to "eliminate the vestiges of past discrimination."
Since neither Seattle nor Louisville defend their policies as a remedy for past discrimination, they may not use "race-based assignments" simply to achieve integration, he said.
His brief sidesteps the issue of affirmative action in higher education. Referring to the University of Michigan case, he said the court had permitted "the limited consideration of race to attain a genuinely diverse student body, including a critical mass of minority students, at universities and graduate schools. That interest is not implicated here," he wrote.
The Same Words, but Differing Views
By ADAM LIPTAK, NY TIMES, June 29, 2007
The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.
All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, “faithful to the heritage of Brown.”
But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.
And as those reactions make clear, yesterday’s decision has reignited a societal debate about the role of race in education that will almost certainly prompt divisive lawsuits around the country. Indeed, the decision has invited a fundamental reassessment of Brown itself, perhaps the most important Supreme Court decision of the 20th century.
“There is a historic clash between two dramatically different visions not only of Brown,” said Laurence H. Tribe, a law professor at Harvard, “but also the meaning of the Constitution.”
The four conservatives on the court said Brown and the 14th Amendment’s equal protection clause required the government to be colorblind in making decisions about placing students in public schools in all circumstances. The four liberals said Brown meant to allow school districts to take account of race to achieve integration.
In the middle was Justice Anthony M. Kennedy, whose concurring opinion, at once idiosyncratic, enigmatic and decisive, was perhaps the least engaged with Brown, saying little more than that the case “should teach us that the problem before us defies” an “easy solution.” Justice Kennedy’s concurrence, which split the court 4-1-4 on a crucial point, sharply limited the role race could play in school assignments but did not forbid school districts from taking account of race entirely.
Charles J. Ogletree Jr., a law professor at Harvard and an authority on Brown and its aftermath, applauded that concurrence. “The hidden story in the decision today is that Justice Kennedy refused to follow the lead of the other four justices in eviscerating the legacy of Brown,” Professor Ogletree said.
Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.
“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”
But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.
“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to
By JEFFREY ROSEN, NY TIMES
Washington, July 1, 2007
SINCE 1954, liberal and conservative justices have disagreed about the central meaning of Brown v. Board of Education. Was the purpose of Brown to achieve a colorblind society or an integrated one? Last week, in its 5-to-4 decision declaring that public schools in Louisville and Seattle can’t take explicit account of race to achieve integration, the Supreme Court came down firmly on the side of colorblindness. Despite some important qualifications by Justice Anthony Kennedy, at least four conservative justices made clear that they believe that nearly all racial classifications are unconstitutional.
The lawyers who won the Supreme Court case predicted that it would have as dramatic an effect on American society as the original Brown case did. “These are the most important decisions on the use of race since Brown v. Board of Education,” Sharon Browne, the principal lawyer for the conservative Pacific Legal Foundation, declared in a press release. “With these decisions, an estimated 1,000 school districts around the country that are sending the wrong message about race to kids will have to stop.”
But some legal scholars on both sides of the political spectrum, and of the affirmative action debate, question this assessment. They doubt that this case will transform society as dramatically as Brown did. And some of them question whether even Brown was as singularly influential in transforming society as many have claimed during the last half-century.
The conventional wisdom about Brown holds that it was more responsible than anything else for the integration of schools. “Brown really did transform society by stopping de jure segregation, and without Brown, schools would look very different,” says David J. Armor, a conservative scholar at George Mason University.
But some liberal scholars have challenged that heroic assessment. In “From Jim Crow to Civil Rights,” Michael J. Klarman argues that it was a political commitment to integration in the 1960s, not the Brown decision in the 1950s, that led to meaningful integration.
“Brown didn’t transform society very much, and to the extent that it did it was indirect,” says Mr. Klarman, who is a law professor at the University of Virginia. “Brown brought out the worst in White Supremacy, and Northerners were appalled by the police dogs they saw on television, and that advanced the civil rights movement.” He argues that meaningful desegregation didn’t occur until the Johnson administration’s Justice Department became committed to enforcing the Civil Rights Act of 1964, and the Department of Health, Education and Welfare threatened to cut off financing to school districts that refused to integrate.
Professor Klarman said he believed that just as the court couldn’t bring about integration on its own in 1954, so it won’t be able to mandate colorblindness on its own today. “Just as Brown produced massive resistance in the South and therefore had little impact on desegregation for a decade, this decision is going to be similarly inconsequential,” he says. “This affects only the tiny percentage of school districts that use race to assign students, and even in those districts, like Louisville and Seattle, it won’t be consequential because there are so many opportunities for committed school boards to circumvent it.”
In his concurring opinion, Justice Kennedy invited school districts to explore “narrowly tailored” ways of pursuing their compelling interest in “avoiding racial isolation.” Some critics of government-sponsored affirmative action believe that this may allow school districts to pursue racial diversity by indirect means.
“School districts are going to continue to do indirectly what they tried to do directly,” says Peter H. Schuck of Yale Law School. “They will feel the same pressures to reduce racial isolation, and they will look for proxies for race.”
Some scholars who support affirmative action also agree that public schools will use proxies for race — like neighborhoods, socioeconomic status, or single-parent households to achieve their goals. “I think what you’ll see is schools avoiding talking in racial terms, and talking in more vague terms about a diversity of backgrounds,” says David A. Strauss of the University of Chicago. “There will be another layer of bureaucracy, but I wouldn’t expect a large-scale retreat from what public schools have tried.”
After Texas and California banned affirmative action in the 1990s, officials in both states guaranteed admission at the top public universities to a certain percentage of the class at every public high school, regardless of the school’s quality. Because of segregated housing patterns, this somewhat reduced the fall in the numbers of enrolled African-American and Hispanic students.
“If you judge by what happened in California, you’ll see some drop in minority enrollment but not as huge a change as some people expected,” says John Yoo, a former Bush Justice Department official who teaches law at the University of California at Berkeley. “School administrators and bureaucrats are so heavily invested in the idea of diversity that they will try an amazing array of policies to get around the ban of the use of race.”
Although it will be harder for public schools to resort to similar race-neutral alternatives, many legal scholars believe they will try. “It’s tougher in a public school setting, where generally applicants aren’t competing against each other on an individual basis, but that’s clearly what Justice Kennedy is inviting,” says Samuel Issacharoff, a law professor at New York University who supports affirmative action. To enforce its vision of colorblindness, Professor Klarman suggests, the Supreme Court would need to be backed by the president and Congress. But so far, that political commitment to colorblindness has not materialized.
“It’s not enough for the court to announce this; to really make it stick, the president would have to cut off funding for school districts that circumvent the decision, just like the 1960s,” Professor Klarman says. “If you start threatening to throw school board members in jail, that might have an effect, but the strongest evidence that there’s not that kind of political support for colorblindness is that the military and Fortune 500 companies have said we need affirmative action to survive.”
More broadly, the effects of last week’s decision may be limited by the fact that American society is divided on just how colorblind or integrated society should be. When Brown was decided, 54 percent of the country supported the result. Today, the public appears similarly divided about the appropriate balance between colorblindness and diversity, and there are backlashes in both directions.
After a Texas court banned affirmative action in 1996, the Texas Legislature tried to preserve racial diversity in the state’s public universities with race-neutral alternatives, but after the Supreme Court upheld affirmative action at the University of Michigan law school in 2003, the voters of Michigan passed an initiative banning it.
“I think that there will be a King Canute quality to the decision,” Professor Strauss said, referring to the Anglo-Saxon king who ordered the sea’s waves to stop.
In the end, the Supreme Court throughout its history has rarely precipitated social transformation on its own; instead it has been most effective when it acts in conjunction with the president, Congress and ultimately a majority of the country.
“Brown pushed the country in a direction it was already going, and in the same sense, the large forces today are going to continue to operate regardless of what the Supreme Court just decided,” Professor Klarman said. “We’re headed toward an ambiguous place where we’re committed both to colorblindness and to diversity in public life. We might have a black president, but we’ll still have a society with very segregated neighborhoods and public schools. I don’t think the court decision will make much difference either way.”
Jeffrey Rosen, a law professor at George Washington University, is the author of “The Supreme Court: The Personalities and Rivalries That Defined America.”
Our view on race and schools: Setback for equal education Fri Jun 29, 12:21 AM ET
LINK
Students, parents and educators have good reason to be confused about mixed messages from Washington.
The federal No Child Left Behind law demands that schools reduce learning gaps between racial groups. On Thursday, however, the Supreme Court took away a key tool for achieving that goal.
The sharply divided court struck down voluntary school integration plans in Louisville, and Seattle that use race as a factor in making public school assignments. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts wrote for the 5-4 majority.
Roberts' words make for snappy rhetoric. But reality, 53 years after the historic Brown vs. Board of Education decision began to dismantle segregated school systems, is that children in many predominately minority schools continue to receive inferior educations.
If history is any guide, Thursday's ruling means Louisville and other cities will have more such schools. In 1999, for example, a judge ordered San Francisco schools to stop using race in school assignment. Since then, schools there have slowly resegregated.
About the only solace in Thursday's ruling is that the impact may well fall short of dire predictions by civil rights leaders who spent the day decrying the decision as a tragic step back from Brown vs. Board.
Very few school districts use elaborate race-based assignment systems of the kind struck down in Louisville. Moreover, in joining the majority, Justice Anthony Kennedy made it clear that he's not about to overturn all affirmative action programs in education and the workplace.
Race "may be taken into account" in certain circumstances, and Roberts' opinion "is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race," Kennedy wrote. It's OK, he said, for districts to site new schools, recruit students or draw boundaries with diversity in mind.
The biggest damage inflicted by this decision will be if districts give up trying to prepare students to live in a diverse society — or trying to educate students in heavily minority schools.
Although racially isolated schools typically struggle, some don't. A recent book, Karin Chenoweth's It's Being Done, documents several success stories. Atlanta's Capital View Elementary, for example, flourishes in one of that city's most beleaguered neighborhoods by setting high expectations, a demanding curriculum and intense professional development for teachers.
Many charter schools, which are independently run public schools, do the same. The KIPP (Knowledge is Power Program) charter school in northwest Baltimore manages to transform some of the city's lowest-performing students into academic stars, according to a study just released by a Johns Hopkins University researcher.
Thursday's ruling means some urban schools will become less integrated, and that increases the likelihood that they will fail. But it doesn't mean that they have to.
Chipping away at Brown
Supreme Court strikes down race as indicator for diversity
By Sean Yoes, AFRO Staff Writer
LINK
Could this be a major blow to the historic Brown decision in 1954?
The most recent ruling in a litany of 5-4 decisions by the United States Supreme Court struck down voluntary integration in public school districts in Seattle, Wash. and Louisville, Ky., which many believe is a direct assault against the Brown v. Board of Education ruling of 1954 that ended segregated public schools.
The Court's most recent decision has sent shock waves through legal circles across the nation.
"This is obviously an important decision that must be carefully evaluated," said Larry Gibson, professor of law at the University of Maryland. "I have to read the full opinion before I make an assessment," said Gibson who is perhaps the foremost expert on Thurgood Marshall, the man most responsible for the landmark Brown decision.
Chief Justice John Roberts wrote for the majority arguing that schools, "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts." Some believe Roberts' opinion is indicative of a philosophical strike against the role of diversity in American society as a whole.
"This is no surprise with Roberts and Scalia —— we got a hint of that in the Michigan case where the court severely limited the use of race at the University level," said Baltimore defense attorney Dwight Petit, a long-time observer of the Supreme Court. "All of the majority wanted to do away with race period as a criteria to establish diversity," added Petit.
But, some advocates for integration and diversity cling to hope in the language of the opinions of some of the justices.
"There is a plurality of justices that confirm the importance of racial diversity," said Erica Frankenberg of the Civil Rights Project of Harvard University. Frankenberg points to Justice Anthony Kennedy, pegged as a swing vote in many of the Court's recent decisions who sided with the majority on the integration ruling. "It seemed like he (Kennedy) wasn't real comfortable with the majority," observed Frankenberg. Specifically, Kennedy wrote at the bottom of page two of his opinion, "Diversity is a compelling educational goal that a school district may pursue," he wrote. But, how they pursue that goal now becomes more difficult.
"Schools are going to have to go back to the drawing board and figure out how they can do that and remain within the letter of the law," Frankenberg said. "But, ultimately it's a decision that keeps chipping away at Brown." Many see the Court's "chipping away at Brown," as a vital component of a larger right-wing agenda.
"We knew that when Bush was elected and then re-elected that he would take over the Court...we're on a path to reverse the gains made under the Warren Court," said Petit. "So, it's a new day."
Louisville schools central to debate
LONG HISTORY OF DESEGREGATION TROUBLES, REMEDIES
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1954: Landmark Brown v. Board of Education ruling banned racial segregation in public schools.
1956: Integration of Louisville public schools begins peacefully.
1964: Federal Civil Rights Act passed by Congress.
1966: Kentucky Civil Rights Act is passed but does not address educational inequities in the schools.
1975-76: Court-ordered school busing for desegregation sparks protest marches, riots, store closings and school absenteeism. The plan calls for 11,300 whites and 11,300 blacks to be cross-bused. Nine hundred Kentucky National Guard members sent to Jefferson County to restore order.
1980: Kentucky is one of six states recognized for making considerable progress in desegregating schools largely because of action in Jefferson County, according to a report by Gary Orfield, a professor of political science and education at the University of Chicago.
1991: The Supreme Court makes it easier for public school districts to end court-ordered busing, even if it results in some predominantly white or black schools. The high court authorizes federal judges to terminate their supervision of school systems if they find that a school board has eliminated "vestiges of past discrimination" and is unlikely to "return to its former ways."
1992: After 16 years of busing, Louisville schools adopt a new student assignment plan that encourages some voluntary busing and changes the racial composition guidelines for the district's 88 elementary schools. Racial guidelines and mandatory busing remain largely unchanged in the system's middle and high schools.
2000: A federal judge lifts a 25-year-old desegregation order for Louisville schools, saying the vestiges of the racially separate system are all but gone. U.S. District Judge John G. Heyburn II sided with a group of black parents who sued in hopes of getting their children into Central High School, which once was Louisville's only public high school for black students.
2003: Joshua McDonald, a white student in Louisville, is assigned to a kindergarten that is a 90-minute bus ride away, past a closer school that Jefferson County school officials said already had enough white students that year. He was denied a transfer to the closer school. His mother, Crystal Meredith, joined several other parents who were suing the district over the racial guidelines used in schools.
December 2006: The Supreme Court hears arguments on lawsuits by parents in Louisville and Seattle challenging policies that use race to help determine where children go to school. The school policies are designed to keep schools from segregating along the same lines as neighborhoods.
June 2007: U.S. Supreme Court rules that Jefferson County Public Schools' race-based school assignment plan is unconstitutional.
Sources: Herald-Leader Archives, Kentucky Educational Television's Timeline on Kentucky Civil Rights, The Kentucky Encyclopedia, The Associated Press. Compiled by News Researcher Linda Niemi
Brief of the NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae in Support of Respondents
Bush Administration Opposes US Integration Plans
David G. Savage - LATimes
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The solicitor general urges the Supreme Court to scrap schools' voluntary programs that exclude some students because of their race.
Washington - The Bush administration has urged the Supreme Court to strike down voluntary school integration programs across the nation that exclude some students because of their race.
Administration lawyers filed briefs this week in pending cases from Seattle and Louisville, Ky., on the side of white parents who are challenging "racial balancing" programs as unconstitutional.
The parents say the integration guidelines amount to racial discrimination and violate the Constitution's guarantee of the equal protection of the laws. They lost in the lower courts, but the Supreme Court will hear their appeals in the fall.
In the briefs, U.S. Solicitor General Paul D. Clement urged the justices to rule that "the use of a racial classification to achieve a desired racial balance in public schools" is just as unconstitutional as old-fashioned racial segregation.
Louisville, which had a history of segregated schools, adopted integration guidelines in 2001 that said the black enrollment in each elementary school should be at least 15% but no more than 50%. In Meredith vs. Jefferson County, Crystal Meredith, a white parent, sued when her son was prohibited from attending the elementary school nearest to his home.
The Seattle school board adopted integration guidelines for its high schools, beginning with the 1998-99 school year. Officials said they hoped to preserve racial diversity in the schools and prevent segregation that mirrored the racially segregated housing patterns in the city.
In the case of Parents Involved in Community Schools vs. Seattle schools, a group of parents sued to challenge the guidelines after their children were denied enrollment in their first choice of a high school because of their race or ethnicity.
As many as 1,000 school districts nationwide - including the Los Angeles Unified School District - are integrating some of their schools by using race or ethnicity as a factor for enrollment, according to Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento. That organization filed suit in October against the Los Angeles district in state court, contending that it had violated Proposition 209, the 1996 statewide initiative that prohibits public programs from using racial preferences.
Next month, lawyers for the Louisville and Seattle school districts, as well as civil rights advocates will file briefs defending the integration guidelines. The justices are expected to hear oral arguments in December.
In the briefs filed this week, Clement urged the high court to resolve a lingering dispute over the meaning of the court's landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools are "inherently unequal."
For decades afterward, school districts across the nation adopted policies to bring about racial integration: Some set enrollment guidelines that prevented schools from becoming nearly all black or all white, while others have used magnet programs that consider a student's race. Many of those policies remain in effect.
Los Angeles Unified considers race as one of the factors for enrollment in its 162 magnet programs, which use specialized curricula to draw a racially and ethnically diverse student body from across the city. When the program was created almost three decades ago, nearly 40% of the district's students were white, about one-third Latino and one-quarter black.
Today, fewer than one in 10 Los Angeles Unified students is white, and 30% to 40% of magnet seats are reserved for white children.
Clement, the Bush administration's chief lawyer before the high court, said such programs should be struck down whenever they involve the use of a "racial classification" to decide who may enroll.
"The promise of this court's landmark Brown (decision) was to 'effectuate a transition to a racially non-discriminatory school system,' " he wrote. "The United States remains deeply committed to that objective. But once the effects of past de jure (legal) segregation have been remedied, the path forward does not involve new instances of de jure discrimination."
His argument is likely to get a favorable hearing from Chief Justice John G. Roberts Jr. and his conservative colleagues.
"It's a sordid business, this divvying us up by race," Roberts commented in June when the court ruled on a voting-rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law's focus on the race and ethnicity of the voters.
In the past, Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy have regularly voted to strike down contracting set-asides or affirmative-action programs that give preferences to minorities.
Three years ago, they dissented when the high court, in a 5-4 decision, upheld the affirmative-action policy at the University of Michigan law school. Justice Sandra Day O'Connor wrote the majority opinion.
The replacement of O'Connor, who retired last year, with Justice Samuel A. Alito Jr. could tip the court's balance on affirmation action as well as on voluntary school integration. During his days as a Reagan administration lawyer, Alito said he was especially proud of his work on cases that challenged "racial quotas."
The solicitor general defends federal agencies and federal laws when they come under challenge in the high court. He also may intervene in cases, even if no federal law is at issue, to express the views of the administration. In the school integration cases, the solicitor general could have intervened on the side of the school districts or on the parents' side.
Clement argued that the government, including public schools, may use "race-based measures" only to "eliminate the vestiges of past discrimination."
Since neither Seattle nor Louisville defend their policies as a remedy for past discrimination, they may not use "race-based assignments" simply to achieve integration, he said.
His brief sidesteps the issue of affirmative action in higher education. Referring to the University of Michigan case, he said the court had permitted "the limited consideration of race to attain a genuinely diverse student body, including a critical mass of minority students, at universities and graduate schools. That interest is not implicated here," he wrote.
The Same Words, but Differing Views
By ADAM LIPTAK, NY TIMES, June 29, 2007
The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.
All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, “faithful to the heritage of Brown.”
But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.
And as those reactions make clear, yesterday’s decision has reignited a societal debate about the role of race in education that will almost certainly prompt divisive lawsuits around the country. Indeed, the decision has invited a fundamental reassessment of Brown itself, perhaps the most important Supreme Court decision of the 20th century.
“There is a historic clash between two dramatically different visions not only of Brown,” said Laurence H. Tribe, a law professor at Harvard, “but also the meaning of the Constitution.”
The four conservatives on the court said Brown and the 14th Amendment’s equal protection clause required the government to be colorblind in making decisions about placing students in public schools in all circumstances. The four liberals said Brown meant to allow school districts to take account of race to achieve integration.
In the middle was Justice Anthony M. Kennedy, whose concurring opinion, at once idiosyncratic, enigmatic and decisive, was perhaps the least engaged with Brown, saying little more than that the case “should teach us that the problem before us defies” an “easy solution.” Justice Kennedy’s concurrence, which split the court 4-1-4 on a crucial point, sharply limited the role race could play in school assignments but did not forbid school districts from taking account of race entirely.
Charles J. Ogletree Jr., a law professor at Harvard and an authority on Brown and its aftermath, applauded that concurrence. “The hidden story in the decision today is that Justice Kennedy refused to follow the lead of the other four justices in eviscerating the legacy of Brown,” Professor Ogletree said.
Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.
“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”
But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.
“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to